Read the full judgment text of FCMC 001178/1984 on BabelCite. This Family Court judgment before Deputy District Judge van der Eb.
Divorce jurisdiction – Guardian ad litem – Crown Solicitor – Mental disability – Matrimonial Causes Rule 105 – Court power – Appointment – Miscarriage of justice – Petitioner Chow Hui Shui Yee presented petition for dissolution of marriage with Respondent Chow Sung Ming alleging irretrievable breakdown evidenced by desertion and behaviour – Respondent was in-patient of Castle Peak Hospital and incapable of giving instructions – No children of the family, no property, no ancillary relief claimed – Application for directions as to whether Guardian ad Litem should be appointed under Matrimonial Causes Rule 105(5) – Crown Solicitor did not consent to act – Court considered whether it had power to direct Crown Solicitor to act without consent and whether to exercise such power – Held Official Solicitor (Crown Solicitor) is officer of Court with residual jurisdiction to request intervention to prevent denial or miscarriage of justice and is in duty bound to obey Court's request – Court exercised power to prevent risk of injustice to Petitioner and Respondent – Crown Solicitor appointed guardian ad litem of Respondent pursuant to M.C.R. 105(5) – Authorities cited Morrissey v. Morrissey (1965) I WLR 1330 and Re Harbin v. Masterman (1896) 1 Ch 351 – Latey on Divorce and Rayden also referred to – Deputy District Judge van der Eb delivered judgment on 29 April 1985 – The Court noted that Matrimonial Causes Rule 105(5) does not mention consent in sub-section – The Court found there was a risk on the one hand of a denial of justice to the Petitioner and on the other of a miscarriage of justice against the Respondent who is incapable of protecting his own interests – The power must be exercised sparingly and only to prevent a risk of injustice – Mr. Clough of Legal Aid Department appeared for Petitioner – Mr. Strawbridge and Mr. Hui representing the Crown Solicitor appeared – The Court emphasized that the Official Solicitor's fundamental object in consenting to act remains the same, to prevent possible injustice to a party who might otherwise be deprived of a legal remedy.
Legal issues: Power to direct Crown Solicitor without consent · Exercise of power to appoint
Outcome: Crown Solicitor appointed guardian ad litem for Respondent