Moira Yvonne Gordon v Douglas Hamilton Gordon ((1963 - 1964) Z and NRLR 61) [1964] ZMHCNR 12 (11 March 1964)

MOIRA YVONNE GORDON v DOUGLAS HAMILTON GORDON (1963 - 1964) Z and NRLR 61 1963 - 1964 Z and NRLR p61 [Before the Honourable Mr. Jus�ce BLAGDEN on the 11th March, 1964.] Flynote Divorce - costs of wife pe��oner - effect of death of husband prior to delivery of judgment on the pe��on. Headnote The wife had pe��oned for divorce, and the husband had defended the pe��on. Judgment was reserved, and before it could be delivered the husband was killed in an accident. The wife applied for an order for payment of her costs notwithstanding the general abatement of the suit. Held: (a) The death of the husband had caused the general abatement of the suit. (b) The court had no jurisdic�on to make any new order as to costs, but had jurisdic�on to deal with funds deposited in court in pursuance of an exis�ng order. Ordered that the wife's costs incurred up to the �me of the husband's death be taxed and that they be paid to her out of the sum of £100 lodged in court. Cases cited: (1) Brocas v Brocas (1861) 2 Sw. & Tr. 383; 164 ER 1044. (2) Kemp v Mackrell (1754) 3 Atk. 812; 26 ER 1264. (3) Troup v Troup (1868) 37 LJ Ch. 390. (4) Kelly v Kelly & Brown [1960] 3 All ER 232. (5) Turner v L & S W Railway Co. (1874) LR 17 Eq. 561. (6) Stanhope v Stanhope (1886) 11 PD 103. (7) In re Keystone Knitting Mills Trademark [1929] 1 Ch. 92. (8) Heanan v Heanan (1963) 107 SJ 702; [1963] 9 CL 258. (9) Brown v Feeney [1906] 1 KB 563. (10) Maconochie v Maconochie [1916] P. 326. (11) Coleman v Coleman & Simpson [1920] P. 71. (12) Beaumont v Beaumont [1933] P. 39. (13) Ferris v Ferris (unreported). (14) Sugden v Sugden [1957] 1 All ER 300. (15) Hyde v Hyde [1948] 1 All ER 362. (16) Mosey v Mosey & Barker [1955] 2 All ER 391. C J I Cunningham for the pe��oner D H Kemp for the respondent (and laterly as amicus curiae) Judgment Blagden JA: In this mater the wife pe��oner is asking for an order for the costs of divorce proceedings in rather unusual circumstances. The hearing of her pe��on, which was defended by the respondent 1963 - 1964 Z and NRLR p62 BLAGDEN JA husband, was concluded on 8th November, 1963, and judgment was reserved. Eleven days later, and before judgment was delivered, the husband was killed in an accident. The husband had been represented by Mr. Kemp. His death terminated Mr. Kemp's instruc�ons, and as probate of the husband's will is s�ll awaited, Mr. Kemp had no instruc�ons to appear on behalf of the executors either. At the invita�on of the court, however, and with the consent of Mr. Cunningham for the wife, Mr. Kemp argued the case against the grant of the order sought. I am indebted to him for his assistance in this regard and likewise to Mr. Cunningham for his ready assent to the taking of this course. I am sa�sfied that the effect of the husband's death in this case was to abate the suit altogether - see 12 Halsbury (3rd edi�on), page 380, paragraph 833, and Brocas v Brocas (1861) 2 Sw. & Tr. 383; 164 ER 1044. But, it is argued on behalf of the wife that such abatement does not necessarily affect ancillary proceedings, or, at any rate, not all ancillary proceedings, and that an order can be made rela�ng to the costs of the suit. The old rule was that costs "moriuntur cum persona" - see Kemp v Mackrell (1754) 3 Atk. 812; 26 ER 1264, where Lord Chancellor Hardwicke said: "Upon the general rule as laid down, there can be no reviver; otherwise if the costs had been taxed. I always held this to be a hard rule, and a very nice dis�nc�on, the right to costs, is the same before taxa�on as a�er, only the quantum has not been ascertained." See also Troup v Troup (1868) 37 LJ Ch. 390. But legisla�on subsequent to these decisions has somewhat altered the posi�on and as an example of how it now works I would refer to the recent case of Kelly v Kelly and Brown [1960] 3 All ER 232, a case which was cited by Mr. Cunningham in his argument for the wife. In that case a husband who had obtained a decree nisi with costs against a co - respondent died a�er decree nisi but before decree absolute. It was held on the applica�on of his executors that the order for costs which the husband had obtained with his decree nisi should proceed to taxa�on because - (i) there was jurisdic�on so to order under sec�on 19 of the Atorneys and Solicitors Act, 1870, notwithstanding abatement of the matrimonial suit; (ii) an order for costs which has not proceeded to taxa�on was a cause of ac�on within sec�on 1 (1) of the Law Reform (Miscellaneous Provisions) Act of 1934 and therefore survived for the benefit of the husband's estate. Both these statutes are applicable in Northern Rhodesia - the first by reason of sec�on 2 (c) of the English Law (Extent of Applica�on) Ordinance, 1963; and the second because it was made applicable by its inclusion in the schedule to the Imperial Acts Extension Ordinance, Cap. 27 of the Laws. 1963 - 1964 Z and NRLR p63 BLAGDEN JA But " Kelly " is clearly dis�nguishable from the present case by the decisive circumstance that in " Kelly " the husband had already obtained his decree nisi, and an order for costs, before his death. All that remained to be done in regard to costs was to ascertain quantum by the usual process of taxa�on. That is not the situa�on here. Here, there has been no adjudica�on on the pe��on, and as regards costs, the only order which has been made, was that by the learned deputy registrar on 16th October, 1963, whereby the husband was ordered to give security for the wife's costs by payment into court of the sum of £100. That order was complied with and that fund is now in court. But the costs the wife is seeking go beyond the fund. To secure the order for costs which the wife wants, Mr. Cunningham invokes the provisions of R. S. C., Order 41, rule 3, which authorises the ante - da�ng of judgments. I would refer also to Order 52, rule 13, which deals with the da�ng of orders and to Order 52, rule 15, which concerns the entry of judgments or orders nunc pro tunc. Turner v L. & S. W. Railway Co. (1874) L. R 17 Eq., 561, a case decided a few years before the formula�on of the Rules of the Supreme Court as such, is an instance of a judgment being entered as of the day on which the argument terminated, the plain�ff having died a�er hearing but before delivery of judgment. But there is a feature in the present case which, in my view, takes it outside the scope of Order 41, rule 3, and Order 52, rules 13, 15, and dis�nguishes it from " Turner " and the cases cited therein; and that is that being a divorce suit, the death of one or other of the espoused par�es thereto causes the suit to abate then and there altogether. The death of an espoused party has this effect because it dissolves the marriage and thereby removes the founda�on of the suit. It is for this reason that R. S. C. (Revision) 1962, Order 15, rule 7 (formerly 1883 R. S. C. Order 17, rule 1), which relates to the non- abatement of ac�ons upon the death of a party thereto if the cause of ac�on survives, does not apply to divorce proceedings. In a divorce suit the cause of ac�on cannot survive - see for example Stanhope v Stanhope (1886) 11 P. D. 103, where a husband pe��oner died a�er he had obtained a decree nisi but before it was made absolute. Coton, LJ, in that case pointed out at pages 105, 106 that the decree nisi did not dissolve the marriage, and observed: "It would be a singular thing if a�er the marriage had been dissolved by death there were power to declare it at an end on another ground." In the present case, the husband's death having dissolved the marriage, I have no jurisdic�on to make an adjudica�on on the pe��on, and it has been expressly held that the court's power to ante - date a judgment cannot be used to confer upon it a jurisdic�on which it would not otherwise possess - see In re Keystone Knitting Mills Trade Mark [1929] 1 Ch. 92. See also Heanan v Heanan (1963) 107, S. J. 702, [1963] 9 C. L. 258, in which a decree nisi pronounced on a wife's pe��on in an undefended suit in ignorance of the husband's death before the pronouncement was held to be a nullity. 1963 - 1964 Z and NRLR p64 BLAGDEN JA What then is the effect on costs in divorce proceedings which have been abated by the death of the husband?. There are a number of authori�es on the point. I would refer to four: Brown v Feeney [1906] 1 KB 563; Maconochie v Maconochie [1916] P. 326, Coleman v Coleman & Simpson [1920] P. 71: and Beaumont v Beaumont [1933] P. 39. On the authority of these cases, the court has no jurisdic�on to make any new order as to costs, but does have jurisdic�on to deal with funds deposited in court in pursuance of an exis�ng order in respect of costs. These cases were decided before the passing of the Law Reform (Miscellaneous Provisions) Act, 1934, which, as I have already related, is of applica�on here in Northern Rhodesia, and which, by sec�on 1 (1) provides that a cause of ac�on subsis�ng against, or vested in a person at his death shall survive against, or for the benefit of his estate. But it would seem that the introduc�on of this provision has not changed the posi�on as regards costs in a divorce suit. Latey on Divorce (14th edi�on) cites at page 1064 an unreported case - Ferris v Ferris, June 13, 1939 - in which Hodson, J (as he then was), dismissed an applica�on for costs made by a wife pe��oner under sec�on 1 of the Act, where she had obtained a decree nisi and an order for costs against the husband who had died therea�er but before the decree was made absolute. In that case, there was a sum of £25 in court which was paid out to the wife's solicitors by consent. The impact of sec�on 1 (1) of the Law Reform (Miscellaneous Provisions) Act, 1934, on maters of this sort is, I think, made clear in the judgment of Denning, LJ, in Sugden v Sugden [1957] 1 All ER 300 at page 302, C to G where he said this: "The subsec�on only applies to ' causes of ac�on ' which subsist against the deceased at the �me of his death. The legislature had par�cularly in mind causes of ac�on in tort which used to fall with the death of either party under the old common law maxim actio personalis moritur cum persona.' Causes of ac�on ' in the subsec�on means, I think, rights which can be enforced, or liabili�es which can be redressed, by legal proceedings in the Queen's courts. These now survive against the estate of the deceased person. ' Causes of ac�on ' are not, however, confined to rights enforceable by ac�on, strictly so called - that is, by ac�on at law or in equity. They extend also to rights enforceable by proceedings in the divorce court, provided that they really are rights and not mere hopes or con�ngencies. They include, for instance, a sum payable for costs under an order of the divorce court, or a right to a secured provision under an order already made against a man before his death: see Hyde v Hyde [1948] 1 All ER 362 and Mosey v Mosey and Barker [1955] 2 All ER 391. It must be no�ced, however, that the subsec�on only applies to causes of ac�on ' subsis�ng against ' the deceased on his death. This means that the right or liability must have accrued due at the �me of his death. There is no difficulty in an ordinary ac�on in determining when the right or liability accrued due; but there is more difficulty in proceedings in the divorce court. In that court 1963 - 1964 Z and NRLR p65 BLAGDEN JA there is no right to maintenance, or to costs, or to a secured provision, or the like, un�l the court makes an order direc�ng it. There is therefore no cause of ac�on for such maters un�l an order is made. In order that the cause of ac�on should subsist at the death, the right under the order must itself have accrued at the �me of death." In the result, the order which I make in this case is that the wife's costs incurred up to the �me of the husband's death be taxed, and that they be paid to her out of the sum of £100 lodged in court. In the unlikely event of that sum being adequate to cover them, any balance le� over should be paid to the husband's personal representa�ve. With regard to all proceedings in this case subsequent to the husband's death, the wife must pay her own costs.