[1970] 2 All ER 654

The petitioner was ordered to pay the respondent alimony pending suit and to pay the sum of £1,000 into court as security for the costs of the respondent who was legally assisted. A decree of nullity of marriage on the ground that the respondent was a biological male from birth was later granted to the petitioner^a. The respondent filed a notice of appeal which had the effect of suspending the decree absolute and thus keeping on foot the order for alimony, which the petitioner sought to have discharged. The petitioner further sought leave to amend the prayer to the petition to ask for an order for costs against the respondent, since at the time the petition was settled a prayer for costs had not been justified. There were also cross-applications before the court relating to the sum of £1,000 which had been paid into court by the petitioner as security for the respondent's costs. The respondent had earned £4,500 in less than four months since the hearing of the nullity proceedings.

Held - (i) The court had the power to award alimony to the respondent pending suit, because until the trial had been concluded the question whether the respondent was a male was still in issue and undetermined, and it would therefore have been no basis for refusing the order to say that the respondent could never in any circumstances have been a 'wife', but it was not fair and reasonable that the petitioner should have to continue to pay alimony to the respondent after the decree nisi; accordingly, the order would be discharged from the date of the decree (see p 656 f and g, post).
   (ii) The petitioner would not be given leave to amend the prayer to the petition since, although the way in which the case for the respondent was conducted greatly increased both the length and costs of the suit, the respondent had done no more than take such advantages as the rules of court permitted, which was not a good ground for penalising the respondent in costs (see p 657 d and f, post).654
   (iii) The discretion of the court^b to order a husband to pay the costs of the wife or to give security for them remained after the commencement of the Legal Aid and Advice Act 1949, s 1(7)(b)^c, which required the court to continue to apply the principles on which the discretion was 'normally' exercised; but since an extremely high percentage of wives were latterly legally assisted persons (for whose solicitors' costs no security was in fact required), the court should exercise its discretion in such a way as to do substantial justice between the parties in the conditions prevailing in the individual case, and ask itself whether it was just in all the circumstances that a husband should be ordered to pay the whole or part of the wife's costs; accordingly, the petitioner ought not to be asked to pay anything more than his own costs, because since the respondent was legally aided and since the petitioner had had to bear a considerably greater burden of costs than was necessary, it would have been a real hardship on the petitioner to require him to pay a substantial sum in addition to his own costs (see p 659 j to p 660 a and f and p 661 b, post).

   Dictum of Lord Denning MR in Norris v Norris [1969] 3 All ER at 134 applied.
   Per Ormrod J. Where a petitioning husband is resident outside the jurisdiction, there should be included in any order for security of costs a statement whether it is made under the Matrimonial Causes Rules 1968^d, or under RSC Ord 23 (see p 657 g and h, post).

Notes
For the power of the court to order alimony pending suit in nullity proceedings and to discharge its order, see 12 Halsbury's Laws (3rd Edn) 346, para 733, and 352, para 749, and for cases on the subject, see 27 Digest (Repl) 491, 4293-4297, and 495, 4359-4361.
   For the discretion of the court to order costs against a wife, see 12 Halsbury's Laws (3rd Edn) 399, para 886, and for cases on the subject, see 27 Digest (Repl) 559, 560, 5106-5116.
   For the effect of legal aid on security for wife's costs, see 12 Halsbury's Laws (3rd Edn) 359, para 768, and 30 ibid 502, para 932.
   For the Legal Aid and Advice Act 1949, s 1, see 18 Halsbury's Statutes (2nd Edn) 533.

Interlocutory applications
By a judgment of Ormrod J given on 2 February 1970 and reported p 33, ante, the petitioner, Arthur Cameron Corbett, was granted a decree of nullity declaring655 that the marriage celebrated on 10 September 1963 between the petitioner and the respondent, April Corbett, was void ab initio. These were two applications by the petitioner first to discharge the order made against him on 22 May 1969 for the payment of certain alimony to the respondent, and secondly to amend the prayer to the petition to include costs against the respondent. Cross-applications by the petitioner and respondent relating to certain moneys paid into court by the petitioner as security for the respondent's costs were also before the court. The facts are set out in the judgment.

14 May 1970. The following judgment was delivered.

ORMROD J read the following judgment. There are three separate matters before me, two of them relating to questions of costs which at the conclusion of my judgment^e I adjourned for argument, and an application by the petitioner to discharge the order for alimony pending suit as from the date of the decree nisi, which has been adjourned by the registrar to me.

   The questions relating to costs are, first, an application by the petitioner to amend the prayer to the petition by adding a prayer for costs against the respondent and, secondly, cross-applications relating to the sum of £1,000 which has been paid into court by the petitioner as security for the respondent's costs under an order dated 9 July 1969 and made by Mr Registrar Caird. It will be convenient to deal with the first two matters which can be disposed of quite shortly. The question of the security for costs is more difficult.
   So far as alimony pending suit is concerned, the position is that on 22 May 1969 an order was made at the rate of £6 per week. The order would normally continue in force until decree absolute, but the respondent has given notice of appeal which has the effect of suspending the decree absolute, and keeping alive the order for alimony unless some other order is made. Counsel for the petitioner has submitted that on the true view of the law there is no power to award alimony to the respondent in this case. While conceding that a 'wife' in a suit for nullity on the ground of bigamy, non-age, or because the parties were within the prohibited degrees, could be awarded alimony pending suit, he argued that the respondent, being a male, was in a different case and could never in any circumstances be a 'wife'. While I fully appreciate the force of that submission, the difficulties which would follow, if it were to be accepted as correct, are considerable. Until the trial had been concluded this fact would be in issue and, therefore, undetermined at the time when interloctory orders of various kinds had to be made so that there would be no basis on which to make or refuse to make them. I cannot, therefore, accept this submission.
   On the merits, however, the position is quite different. From the time of the so-called marriage, there was no dependency of the respondent on the petitioner at all. He never maintained her (I use the feminine gender because it is the gender which the respondent has assumed), and she never took any steps to claim maintenance, until the long-delayed and abortive proceedings under s 22 of the Matrimonial Causes Act 1965. In the witness box she expressly disclaimed any financial claims on the petitioner. In these circumstances, I doubt whether I would have made any order at all. Since the hearing the respondent has earned £5,000, less £500 for commission, from the Sunday Mirror newspaper for giving interviews and photographs so that she is not now in need of money. Counsel for the respondent has said that she did not receive this money which was paid to a company called Freshrise Ltd, with which she has a service agreement under which she is to be paid £60 a month, rising by stages to £200 a month. Fortunately, sitting in this Division, 656I need not pay an over-elaborate attention to the legal niceties of this situation and can approach the matter in a common sense way. I take the simple view that most people do not part with £4,500 in cash without receiving what they regard as £4,500 worth of assets, if they can help it. It is true that the petitioner has substantial means and can afford to make payments at the rate of £6, but the question is whether it is fair and reasonable that he should continue to do so after decree nisi. I do not think that it is. I shall, therefore discharge the order as from date of the decree nisi.
   I now turn to counsel for the petitioner's application for leave to amend the prayer to the petition to include a prayer for costs. The basis of his submission was that at the stage when the petition was settled by counsel it was clearly not a case in which a prayer for costs could be justified. It was always admitted by the petitioner that he brought this so-called 'marriage' on himself. But, counsel for the petitioner said, the way in which the case for the respondent was conducted greatly increased both the length and costs of the suit which his client has had to bear. He made several points by way of example, of which two will suffice. First, the respondent's advisers resolutely declined to permit the petitioner's experts to examine the case notes at the Walton Hospital referring to the respondent, until they were produced at the hearing on a subpoena duces tecum; and, secondly, the respondent gave equivocal answers about the date when she first began to take oestrogen. There are other complaints also. Counsel for the respondent, in reply, submitted that the respondent did no more than take such advantages as the rules of procedure permitted and that this was not good grounds for penalising her in costs. I again have much sympathy with the submission of counsel for the petitioner and take the view that the expense and length of the trial could have been considerably reduced in various ways by reasonable co-operation between the legal advisers. On the other hand, I do not intend any criticism of anyone. The case was extremely difficult for counsel and solicitors. Counsel had to get up and deploy a large body of difficult and specialised medical knowledge and both succeeded in doing so to a remarkable degree. Nonetheless, a great deal of the expert witnesses' efforts and time could have been saved by exchanging proofs and other documentary material before the hearing. However, I accept the contention of counsel for the respondent on this aspect, but on this aspect only, and consequently do not think that I should give the petitioner leave to amend, to ask for an order for costs against the respondent.
   The question of security for costs raises quite different and far-reaching considerations. There is one preliminary point which I should mention. There was some discussion during the hearing about the basis on which the order for security was made, and some difference of recollections whether it was intended to be an order in the traditional form in this Division, ie security for the whole or part of the respondent's costs under the Matrimonial Causes Rules 1968^f r 37, or whether it was intended to be an order under RSC Ord 23, the petitioner being resident out of the jurisdiction. The order itself is silent on the point and it may be that steps should be taken to prevent this difficulty arising in future by including in the order a statement of the basis on which it is made. If the order was made under RSC Ord 23, it will stand or fall on the order which is ultimately made on party and party costs. I shall assume, however, that it was made under r 37 and deal with the matter on this basis.

   The power to order a husband to give security for his wife's costs derives from the ecclesiastical courts which as a matter of practice required the husband to provide, in any event, for his wife's costs unless she had separate estate (Shelford's Marriage and Divorce^g). The reason for it was that the wife's property was vested in the husband, except insofar as it had been settled to her separate use, and he was liable for her necessaries. The passing of the Married Women's Property Act 1882, removed the first of these reasons but the husband is still in law liable for necessaries. Before657 the passing of the Legal Aid and Advice Act 1949 this power, to provide for the wife's costs in matrimonial cases, was an extremely important instrument without which justice could not have been done in many cases because the wife could not have obtained legal advice and representation, unless her solicitors were prepared to rely on the doctrine of necessaries. It is therefore, not surprising that this court has always jealously protected the position of the wife's solicitor and has regarded the order for security as an order made, not so much for the benefit of the wife, but for the protection of her solicitor. Hence the practice developed under which the wife's solicitor was not to be deprived of this security unless his conduct of the suit was open to criticism. 'Wife's costs up to security' became the conventional order in all cases where the wife was unsuccessful. In more recent years the practice underwent a subtle change. Whereas formerly the court provided for the whole of the wife's party and party costs at the end of the suit, latterly it became the rule that the solicitor to the unsuccessful wife got no more than the amount of security. He ultimately acquired something like a vested interest in this sum and, if no order for security was made, he got no costs.

   The Legal Aid and Advice Act 1949 entirely altered the situation. The wife's solicitor can now elect whether to conduct the case under a legal aid certificate, in which case he looks for his costs to the legal aid fund, or to undertake it on a paying basis relying on the order for security for costs. But the alternatives are not exclusive because the practice has grown up, as in this case, of combining the two, in which case the sum in court as security for costs enures to the benefit of the legal aid fund, and not to the protection of the wife's solicitor. This matter was very carefully considered by Scarman J in Carter v Carter, a case which was wholly exceptional on its facts. It was a case of cross-suits by the husband and wife in which the wife was legally assisted and the husband was ordered to give security for her costs in the sum of £2,000. A reconciliation took place before the hearing and the wife declined to ask for an order for her costs. After hearing argument by counsel for the Law Society as amicus curiae, the learned judge held that the court, on its own motion, could order the husband to pay the wife's costs up to security. In the course of his judgment he said ([1964] 2 All ER at 973, [1966] P at 11):

After referring to Wigley v Wigley he continued ([1964] 2 All ER at 973, 974, [1966] P at 12):

   I am bound to confess that, for my part, I do not find it easy to share, without qualification, the learned judge's view of the justice of the situation. It appears to me that under contemporary social conditions it is anomalous, to say the least, that a husband who has succeeded against a wife in matrimonial proceedings should be called on to bear her costs, in whole or in part, when she is able to obtain the best658 legal assistance at small or no cost to herself with a legal aid certificate. It may be otherwise if her solicitors elect not to apply for a legal aid certificate. In fairness, however, to the learned judge it is right to point out that in the next sentence he said ([1964] 2 All ER at 974, [1966] P at 12):

It may be that his earlier observations were made with a deserting husband in mind. His conclusion is based on the terms of s 1(7)(b) of the 1949 Act and on Wigley v Wigley.
   There is another case in the Court of Appeal, Williams v Williams, in which reference is made to the effect of this subsection on applications for security for costs. In judgments which are very briefly reported, the court held that the fact that the wife was an assisted person did not relieve the husband from the liability to give security for the wife's costs of his appeal which was ultimately fixed in the sum of £10. On the other hand, in a more recent case, Norris v Norris, the Court of Appeal refused a similar application for security, and indicated an entirely different approach to the subject. Lord Denning MR said ([1969] 3 All ER at 134, [1969] 1 WLR at 1265):

The court was referred to Williams v Williams but not to Wigley v Wigley or Carter v Carter and no specific reference was made in the judgment to s 1(7)(b) of the 1949 Act.
   The institution of the legal aid scheme has, as a matter of fact, radically altered the position of the wife's solicitor but the question is whether the true effect of s 1(7)(b) is to preserve the old practice as to security, and adapt it to a new purpose, ie of diminishing the liability of the legal aid fund in cases where assisted wives are unsuccessful, by preserving the husband's liability for necessaries. Section 1(7)(b) provides:

The construction of this provision raises a number of difficulties. If it is interpreted literally, the effect of it would be to freeze the practice of the court and the principles on which its discretion is exercised as they were in 1949, and make it impossible for the court to adapt its practice to changing conditions. It would not, however, be accurate to refer to a wife having a 'right' to security for her costs or to a husband having a 'liability' for her costs. The court has always had a discretion to order the husband to pay her costs or to give security for them, and no doubt that discretion659 remains. The question therefore, is, whether this subsection obliges the court to exercise its discretion in a particular way.
   The court is required to apply the principles on which the discretion is 'normally' exercised. But the norm has now changed because an extremely high percentage of wives who are parties to proceedings in this Division are legally assisted persons. Since the decision in Norris v Norris, there has been some conflict in the authorities as to how the court should approach this problem. In Wigley v Wigley ([1950] 2 All ER at 1220, [1951] P at 159) Singleton LJ said:

   Birkett LJ, after referring to s 1(7)(b), said ([1950] 2 All ER at 1222, [1951] P at 166):

This case was heard immediately after the 1949 Act came into force and it was, in fact, a transitional case because the wife had originally been suing as a poor person under the old poor persons' rules. The court, however, refused to extend the wife's time for appealing from an order dismissing the wife's application for security. The observations which I have cited are, therefore, strictly obiter. Williams v Williams is to the same effect but, as I have already pointed out, no reasoned judgments appear to have been given and the report contains no reference to the argument. These cases, and the judgment of Scarman J are inconsistent with Norris v Norris. In my judgment, however, the reasoning in Norris's case is to be preferred. I do not think that the court ought to construe the provision in such a way as to freeze its practice, or the way in which its discretion is exercised, in the pre-1949 mould, but should, as indicated in Norris v Norris, exercise it in such a way as to do substantial justice between the parties in the conditions prevailing in the individual case, and ask itself whether it is just in all the circumstances that the husband should be ordered to pay the whole or part of the wife's costs. That case and Gooday v Gooday show that this court is not to be fettered by a practice, which was once sound and necessary in the interests of justice in the then prevailing social conditions, but is now obsolescent if not obsolete. In other words, the necessity for ordering security, which was the protection of the wife's solicitor, having gone, there is no longer any need to order it and no longer any justification for preserving the rule that, once security has been given, the wife's solicitors have something approaching an indefeasible interest in it, subject only to their proper conduct of the proceedings.
   I, therefore, propose to approach the question of the respondent's costs in this case by asking myself whether, in all the circumstances of the case, the petitioner should be called on to bear a proportion of them. I have already referred to counsel for the petitioner's comments on the background of the case and to the length and expense of the hearing. These criticisms, which I do not regard as material in this660 case to the question whether the respondent should pay the petitioner's costs, become highly relevant when, as the unsuccessful party, she is asking for some provision for her costs from the petitioner. In such a case the party asking for such an order should take every possible step to reduce the overall costs to the minimum by simplifying the trial and not complicating it by taking advantage of procedural rules. I think that the petitioner has had to bear a considerably greater burden of costs in this case than was necessary and that it would be a real hardship on him if he were ordered to pay, in addition, a substantial sum towards the respondent's costs. It is true that he brought the difficulties on himself in the first place, and in different circumstances there might have been a case for ordering him to make a contribution to the respondent's costs but, for the reasons which I have given, I do not think that in the event he ought to be asked to pay anything more than his own costs.
   The relative financial positions of the parties do not affect this view of the case. Had their financial positions been relevant, I could not have overlooked the fact that the respondent had received a windfall of £4,500 which could have been available to meet her own costs had she had to do so, and had she chosen to receive this money in the ordinary way.
   I have not dealt in detail on this part of the case with the submission of counsel for the petitioner that, in principle, the respondent could never have been a 'wife' within r 37 of the Matrimonial Causes Rules 1968 because I have already referred to it in dealing with the alimony point.
   I gave leave to the petitioner to appeal out of time from the order, under which he was required to provide £1,000 security for costs, in order that the whole question should be open in the argument before me and to avoid any possible procedural difficulties, but it is unnecessary to make a specific order in this respect. In my judgment the proper order is: 'No order for party and party costs. The sum in court by way of security to be paid out to the petitioner's solicitors. Respondent's costs to be taxed for the purpose of the Legal Aid and Advice Act 1949.'

Solicitors: Crossman, Block & Keith (for the petitioner); Fallons (for the respondent).