Vance Lewis Petitioner v Joyce Lewis Respondent
| Jurisdiction | British Virgin Islands |
| Judge | HARIPRASHAD-CHARLES J |
| Judgment Date | 30 November 2010 |
| Neutral Citation | VG 2010 HC 21 |
| Judgment citation (vLex) | [2010] ECSC J1130-8 |
| Court | High Court (British Virgin Islands) |
| Docket Number | Claim No. BVIHMT2008/0062 |
| Date | 30 November 2010 |
THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(CIVIL)
Claim No. BVIHMT2008/0062
Mrs. Susan Demers of Price Demers & Co. for the Petitioner
Mr. William Hare of Forbes Hare for the Respondent
Matrimonial proceedings - Divorce - Ancillary Relief - Failure of wife to comply with two orders of court relating to disclosure and payment - Contempt of court - Application by husband for enforcement of orders - Summons for committal - Right of wife to be heard - Committal order remedy of last resort -Order defective -not personally served on contemnor - not endorsed with penal notice
The petitioner and the respondent were husband and wife. Unhappy differences have arisen between the parties. The husband subsequently petitioned for divorce. On 21 April 2010, a decree nisi was pronounced in his favour. The marriage was subsequently dissolved by decree absolute pronounced on 25 June 2010. Shortly after, the husband filed an application for ancillary relief. He sought among other things, (i) a property adjustment order in relation to the matrimonial home, (registered jointly in the name of both parties) requiring either that the wife purchases his interest in the matrimonial home and ownership transferred to her sole name or requiring that the matrimonial home be sold and the proceeds split between them and (ii) he be given access to the matrimonial home to collect his personal belongings.
On 21 June 2010, the wife filed a Notice of Cross-Application wherein she sought an order for maintenance, a property adjustment order in her favour in respect of the former matrimonial home on such terms as may be reasonable and that both parties give full disclosure of their assets.
On 19 July 2010, the court made a Disclosure Order and on 29 July 2010, it made a further order requiring the wife to resume payment of one-half of the monthly mortgage payment to the bank.
The disclosure order was served on 11 August 2010. The Payment Order, made in the absence of Counsel who had conduct of the matter, and the wife, was not served on the wife's Counsel until 11 November 2010. This was due to an administrative error.
On 19 October 2010, the husband filed a Summons for Committal. He sought an order that the wife be committed to prison for failing, neglecting and refusing to disclose all income, assets and resources that she currently has or had during the marriage and. failing, neglecting, or refusing to resume making one-half of the monthly mortgage payment.
The wife challenged both orders. She alleged that she could not comply with the Disclosure Order because her Counsel was unavailable and another Counsel from the same law firm who held papers was unfamiliar with the matter. With respect to the Payment Order, she alleged that it was defective in that (1) it was not personally served on her and (2) it was not endorsed with a Penal Notice.
At the Committal hearing, the husband asserted that the wife should not be heard as she is in contempt of court, and in order for her to be heard, she must first purge her contempt.
HELD:
(1) It is a general rule that no party shall be allowed to take part in active proceedings if in contempt. However, that rule is not universally applied. There have been recognized so-called "exceptions", for example a contemnor might be heard on an application to purge the contempt; or for the purpose of setting aside the order, breach of which had put him in contempt. The question to be asked is whether the interests of justice are best served by hearing or refusing to hear the respondent, always bearing in mind the paramount importance which the court must attach to the prompt and unquestioning observance of its order: Hadkinson v Hadkinson [1952] P 265. In light of the nature of these proceedings, the interests of justice would not best be served by debarring the wife from participating until she has completely purged her contempt. The court will permit her to defend herself in the hearing of the Summons for Committal.
(2) It is plain that the wife has not fully complied with the Disclosure Order. This failure is not excused by the fact that she was not represented by her Counsel, but instead, was represented by another counsel "holding papers" for her Counsel. It is an elementary principle of law that a lawyer holding papers stands in the shoes of the other lawyer and may be called upon by the court to proceed with the matter. Therefore, the Counsel "holding papers" must have adequate knowledge of the matter. On the facts, the wife is in contempt of the Disclosure Order.
(3) Attachment and committal are very technical matters, and as orders for committal or attachment affect the liberty of the subject, such rules as exist in relation to them must be strictly obeyed. However, disobedient the party against whom the order is directed may be, unless the process of committal and attachment has been carried out strictly in accordance with the rules he is entitled to his freedom: Gordon v Gordon [1946] P 99.
(4) The Matrimonial Proceedings Rules 1997 which govern applications for committal in matrimonial proceedings are silent on service and endorsement accordingly the law, practice and procedure administered for the time being in the High Court of Justice of England is to be applied: Section 11 Eastern Caribbean Supreme Court (Virgin Islands) Order, Cap 80. Both the English Rules of practice and the case law support the requirement for an order which is sought to be enforced by way of committal to be endorsed with a Penal Notice as to the consequences of disobedience: Iberian Trust Limited v Founders Trust and Investment Company Limited [1932] 2 KB 87. The endorsement must form part of the document but need not necessarily appear on its back: Cammell Laird Shipbuilders v Trotter [1985] CA Transcript 361. Where an order requiring an act to be done does not bear the endorsement, process will not be issued to enforce it: Hampden v Wallis (1884) 26 Ch D 746. Normally, no order will be issued for committal of a person unless he has been personally served with the order, disobedience to which is said to constitute the contempt.
(5) The Payment Order was not endorsed with a Penal Notice. It was made in the absence of the wife and it was not personally served on her. Accordingly, this Summons for Committal is premature.
On 19 October 2010, Vance Lewis ("Mr. Lewis") issued a Summons against his estranged wife, Joyce Lewis ("Mrs. Lewis") seeking an order that she be committed to prison for "failing, neglecting and refusing to comply" with two orders of the court dated 19 July and 29 July 2010 respectively.
On 1 December 2000, Mr. Lewis married Mrs. Lewis at Jacksonville, Florida, United States of America. Unhappy differences have arisen between the parties. As a result, on 10 December 2008, Mr. Lewis filed a Petition for Divorce on the ground that the marriage has broken down irretrievably due to the unreasonable behaviour of Mrs. Lewis. An Answer to the Petition was filed on 29 January 2009. To put it briefly, on 16 February 2010, Mr. Lewis filed an Amended Petition alleging that the marriage has broken down irretrievably in that the parties have lived separate and apart for a continuous period of at least two years immediately preceding the presentation of the Petition and Mrs. Lewis consents to the grant of the decree. A decree nisi was pronounced on 21 April 2010. The parties now live separate and apart; their marriage having been dissolved by decree absolute pronounced on 25 June 2010.
On 30 April 2010, Mr. Lewis filed a Notice of Intention to proceed with Application for Ancillary Relief. It was supported by an affidavit of even date ("first affidavit"). Mr. Lewis sought: (1) a property adjustment order in relation to the matrimonial home, (registered jointly in the name of both parties) requiring either that Mrs. Lewis purchase his interest in the matrimonial home and ownership transferred to her sole name, or, requiring that the matrimonial home be sold and the proceeds split between them; (2) that he be given access to the matrimonial home to collect his personal belongings; and (3) that he be granted such other and further relief that this court thinks just and proper.
The Application for Ancillary Relief was scheduled to be heard on 31 May 2010. On that day, learned Counsel for Mr. Lewis, Mrs. Demers and learned Counsel for Mrs. Lewis, Mr. Hare were present. The court ordered that: (1) Mrs. Lewis shall file and serve an affidavit in response to the Application for Ancillary Relief and a Cross-Application, if any, on or before 21 June 2010; (2) Mr. Lewis shall file and serve any affidavit in response on or before 9 July 2010 and (3) the matter shall be listed for hearing on a date to be fixed by the Registrar. The order did not reflect whether the respective parties were present although the notes of the clerk stated that Mr. Lewis was present.
Ensuing from the directions of the learned judge on 31 May 2010, Mrs. Lewis filed an affidavit on 21 June 2010 with exhibits. The following day, she filed a Notice of Cross-Application. In her Cross-Application, Mrs. Lewis sought an order that (1) Mr. Lewis makes financial provision for her in the form of periodical payments and/or a lump sum in such sum as may be reasonable; (2) there be a property adjustment order in her favour in respect of the former matrimonial home on such terms as may be reasonable; and (3) such further or alternative relief as may appear to the court to be appropriate. In her affidavit, Mrs. Lewis made a number of allegations about Mr. Lewis' conduct leading to the break-up of the marriage. She also asked the court for an order that both parties give full disclosure of their assets. On 9 July 2010, Mr. Lewis filed his second...
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