Susan Elizabeth Horton v. Gerard Francis Horton

HCMC000019D/1983

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

ACTION NO. 19 OF 1983

_______

BETWEEN

__________

Coram: Deputy Judge Barnett

Date of Judgment: 23rd April 1985

____________

Ruling on Costs

____________

1. On 4th May 1984, Power J. made an Order by consent which contained, inter alia, an undertaking by the Respondent which went thus:

2. The object of the undertaking was to provide the Petitioner with a measure of security for the 3rd and 4th of 4 payments comprising a lump sum. As the Petitioner saw it, the undertaking required the Respondent to be examined physically; to provide all information sought by the proposed insurers and their doctor including the names and addresses of any doctors who were or had been treating him; and to authorise those doctors to disclose to the insurers or their doctor any information which might be sought.

3. The Respondent refused to disclose the names and addresses of his doctors, and to authorise them to disclose information. The insurers declined life cover. Accordingly the Petitioner took out a summons on 31st May 1984 asking the court to give the Respondent directions as to how he should comply with his undertaking. In effect, construction of the undertaking was in issue.

4. The summons finally came on before me on 26th November when, in the course of a 2 day hearing, I adjourned the summons at the request of the Petitioner, because the Respondent had filed 2 late affidavits, with costs reserved; and dismissed with costs the Petitioner's application to cross-examine the Respondent.

5. The summons was restored before me on 15th April 1985. On the 3rd morning, Mr. Mills-Owens turned to the question of confidentiality. I observed that I thought it correct to say that, apart from the proposed insurers and their doctor, no one including the Petitioner would be entitled to information disclosed by the Respondent's doctors for the purpose of life cover unless expressly authorised by the Respondent. Mr. Rodway, for the Petitioner, accepted that statement. As a result, a number of directions were then agreed. I made a consent order the following afternoon, leaving the matter of costs for argument.

6. Mr. Rodway seeks the costs of the whole application because the Respondent:

7. The fact remains, however, that the Respondent was concerned about the confidentiality of information which might be given by his doctors to the proposed insurers or their doctor. He was, as we have now seen, entitled to that confidentiality. His stand was first made abundantly clear in a telephone call between his solicitor, Mr. Charles and Mr. Goulston the Petitioner's solicitor (see Ex. RDG1) on 15th May 1984. Further phone calls and correspondence followed as a result of which it was agreed that the consent to the disclosure of medical information would be deleted from the proposal form.

8. In parenthesis, the dispute as to whether or not this agreement was provisional was.quite clearly no more than a misunderstanding, albeit an unhappy one, of the type that commonly occurs in telephone conversations.

9. Because of what the Respondent did disclose in the proposal form, the proposed insurers made it clear that details of the Respondent's doctors would be necessary and that any further action, including the medical examination would be pointless. Nonetheless the Respondent attended the medical examination and, details of doctors apart, appears to have cooperated fully.

10. On the evidence, I am satisfied that the insurers declined to consider the proposal because the Respondent would not give details of his doctors and authorise them to disclose information to the insurers. Mr. Rodway suggests there may have been additional reasons. But that is speculation. It would not have been difficult to have led evidence from the insurers.

11. On 29th June 1984 the Respondent's solicitors wrote to the Petitioner's solicitors with an offer that the Respondent would provide the required information if the Petitioner and her 2 daughters would covenant by deed not to obtain, use or try to obtain or use any information disclosed to the insurers by the Respondent's doctors. The summons should be withdrawn with no order as to costs. The offer was open to 3rd July.

12. The offer was rejected by letter of 6th July because the Petitioner and her solicitors could not see why the Petitioner should bind herself not to impart the information to other parties, although it would be done responsibly. The Petitioner had in mind that the daughters might need to sue for maintenance and, if the Respondent pleaded inability to pay on health grounds, the information might assist in establishing the true state of the Respondent's health. The Petitioner also thought she should have her costs.

13. The offer was repeated by telex dated 20th August, although the then time limit of 10 a.m. the following day was rather unrealistic, not least because it was the middle of vacation.

14. Whatever views the Petitioner may have held about the Respondent's health, she was not entitled to information which the Respondent might authorise to be disclosed by his doctors for the sole purpose of life cover envisaged by the Order and the undertaking. She was not prepared to concede this in the letter of 6th July. The Respondent did not know it would be conceded until the 3rd day of the hearing.

15. In my view the Petitioner has, since 6th July, continued these proceedings unnecessarily. It is true that the offer of 29th June contained a time limit that, in the context of these proceedings, might be considered short. It is also true that the deed was to be drawn by the Respondent's solicitors and that there was no offer of costs. However, had the Petitioner responded positively, I have no doubt that an acceptable arrangement could have been worked out. The 2nd offer in August suggests the time limit was not immutable. The detailed directions to which the Respondent has now agreed suggest that he was not totally inflexible.

16. I accept it may not have been possible to resolve the question of costs. At that stage, however, costs would not have been substantial and certainly insignificant compared with the costs incurred by now. The matter could have been left to the court to resolve, as it has been now.

17. The Respondent's conduct has undoubtedly caused the Petitioner's advisers considerable anguish. However, the allegations of negligence, conflict of interest and professional misconduct are matters which will have to be resolved elsewhere. They would not have prevented considered legal advice being given to the Petitioner. They are not relevant, in my view, to the question of costs.

18. In the circumstances, the Petitioner will have the costs of this application up to and including 29th June 1984. Thereafter, costs to the Respondent.

19. I will certify for 2 counsel. As this was not argued, I will be happy to hear counsel on it or on any other point that needs clarification.

Representation: