D v R

CourtRoyal Court
JudgeDeputy Bailiff
Judgment Date28 November 2001
Neutral Citation[2001] JRC 235A
Date28 November 2001

[2001] JRC 235A


(Family Division)


M.C. St. J. Birt, Deputy Bailiff, Sitting alone


Advocate Mrs. M.E. Whittaker for the Petitioner

Advocate M. St. O'Connell for the Respondent


Wilson J: Conduct of the Big Money Case [1994] Family Law: p. 504.

In the matter of an application by the Respondent for disclosure, which application was settled by a consent Order.

Application by the Respondent for the costs of and incidental to the application for disclosure.

Deputy Bailiff



The wife has applied for an order that certain information concerning a trust known as the A Trust should be disclosed and that the Trustees of that Trust should be convened in order to give disclosure. That summons has today proceeded by consent and the Court has therefore made the necessary orders. However, I have been asked by the wife to order the husband to pay the costs incurred in connection with this summons.


The background is that the wife has, for a considerable period, been asking for information about this Trust. It appears that it is a trust of which the parents of the husband are the settlors, or it may be just the father. Initially the beneficiaries were the husband, the wife, their children and the brother or sister of the husband. However, in January, 1988, both the husband and the wife were removed as beneficiaries, although it would appear that they were not made excluded persons, so that it would in theory be possible for either of them to be put back as beneficiaries.


During the correspondence the husband has sought to distance himself from the Trust and has asserted repeatedly that it is not really relevant. This was asserted finally, and most clearly, in a letter from his Advocate dated 9 th November in which she said:

“It is clear that this trust is irrelevant. D is neither a settlor, trustee or beneficiary.”


It now transpires that although the husband may not technically be the settlor, he provided the funds to his father who in turn contributed them to the Trust. It is clear on any view that this is a Trust which was of sufficient possible relevance to the resolution of the matrimonial affairs between these parties that it ought to have been fully disclosed. The husband now accepts that and Advocate Whittaker on his behalf today accepted that it was relevant and should be disclosed. Of course the information which leads to that conclusion was at all times known to the husband.


In the ordinary course I would have had no hesitation in saying that the wife had acted perfectly reasonably in maintaining this summons, that the husband should have agreed to it and that therefore the husband should pay the costs because of the fact that the matter has had to be brought to Court.


Mrs. Whittaker raises two points to support her argument that I should either make no order as to costs, or order costs in the cause, or reserve the costs of this matter to the trial judge. First, she points to the fact that there was a hearing before the Commissioner in June and that, although in her case statement prepared for that hearing she alluded to the Trust and as to whether it remained a live issue, Mr. O'Connell, appearing for the wife, said nothing at that time, although he did, of course, write within a matter of days seeking further information about the Trust. Nevertheless, she says that if he had raised it at the hearing, the Commissioner could have...

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