[1944] EACA 15

## DIVORCE JURISDICTION

#### Before THACKER, J.

### JOSEPH GUSTAVE ARONSON, Petitioner

# NETTA ADELAIDE ARONSON, Respondent

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### C. P. L. DAVIES, Co-respondent

### Cause No. 7 of 1944

Divorce Jurisdiction—Dismissal of petition upon Petitioner's application—No evidence to substantiate charges—Costs—Solicitor and client—Party and party-Discretion of Court-Matrimonial Causes Ordinance, 1939, Rule 66 -Rules of Supreme Court (Taxation of costs), Rule 35.

The petitioner in a divorce suit applied for his petition to be dismissed on the ground that he had been unsuccessful in obtaining sufficient evidence to support the charges he had made against the co-respondent, and that the evidence which he was in a position to produce was totally insufficient to substantiate the charges.

The respondent and co-respondent through their advocates submitted that in these circumstances the petitioner should be ordered to pay their costs on a solicitor and client basis, and not upon a party and party basis.

Held (9-6-44).—(1) By Rule 66 of the Matrimonial Causes Ordinance, 1939, and Rule 35 of<br>the Rules of the Supreme Court, the Court sitting in Divorce Jurisdiction has express<br>power conferred upon it to award costs as betwee respect differs from the English Law and Practice.

(2) Having regard to the admission made by the petitioner, the Court's discretion ought to be exercised in favour of the respondent and co-respondent by ordering the petitioner to pay their costs as between solicitor and client.

The petition was dismissed with costs to respondent and co-respondent on a solicitor and client basis.

Annual Practice 1942 page 1400, Hailsham's Laws of England Vol. 26 para. 190 on p. 101, and Benest's Law of Costs 1910 Ed. p. 163 referred to.

Harrison for Petitioner.

Brian Figgis for Respondent.

Barret for Co-respondent.

JUDGMENT.—The petitioner applies for this petition to be dismissed on the grounds that the evidence which he is in a position to produce is totally insufficient to substantiate the charges set out in the petition.

With regard to costs Mr. Brian Figgis and Mr. Barret for the respondent and co-respondent respectively ask that costs as between solicitor and client should be awarded to their respective clients, basing their application on the admission set out in the affidavit of the petitioner that he is unable to substantiate the charges made.

No direct authority on the question whether this Court has power to make such an order has been cited by any of the advocates but I have found the following authorities. They are as follows:

(1) Annual Practice, 1942, page 1400. Costs as between solicitor and client-The Court of Chancery formerly had, and the High Court now has, in matters of equitable jurisdiction, a general discretion to award costs as between solicitor and client.

ν.

- (2) Hailsham's Laws of England, Vol. 26, para. 190 on page 101. In general the costs are taxed as between party and party. In matters of equitable jurisdiction, and in cases where there is express statutory provision to that effect, and, in cases where there is an obligation to indemnify or contribute, costs to be taxed as between solicitor and client may be awarded; but in general there is no power to award such costs. - (3) The Law of Costs, by Benest, 1910 Ed. page 163: The Court can award costs as between solicitor and client by virtue of its own inherent power or in exercise of power conferred on it by statute or rules of court. The High Court of Justice has in matters of equitable jurisdiction a general and discretionary power to award costs as between solicitor and client to a successful party. . . It is by no means certain that the Court has power to make such an order in matters of common law jurisdiction... In an action for tort it had previously been held that the plaintiff, who had recovered damages, was not entitled to solicitor and client costs. - (4) Rule 66 of the Matrimonial Causes Ordinance No. 33 of 1939 is as follows: "In matrimonial causes and matters to which these rules relate costs allowed to advocates and the taxation of such costs shall, subject to the provisions of these rules, be in accordance with the provisions of Part XIII of the Rules of the Supreme Court, so far as the same are applicable thereto." - (5) Rule 35 (Section III Taxation of Costs—Contentious Proceedings) of the Rules of H. M. Supreme Court of Kenya, p. 75 of Laws of Kenya, Vol. I is as follows: "The costs of any matter or application shall be taxed and paid as the Court may direct either as between party and party or as between advocate and client, etc., etc."

It would therefore seem that this Court sitting in Divorce Jurisdiction has express power conferred upon it by Rule 35 supra to award costs as between solicitor and client, and therein it appears to differ from the English practice which does not give that power to a court sitting in Divorce Jurisdiction, but seems generally to confine the power to courts sitting in equitable jurisdiction and in one or more other matters. Having regard to the admissions made in the petitioner's affidavit. I think the submission made by the respondent and co-respondent is not unreasonable and I therefore order that the petition be dismissed with costs to the respondent and co-respondent as between solicitor and client, but not the costs of to-day seeing that neither advocate has produced any authority and this Court has been left to discover them for itself.