SUSAN ELIZABETH HORTON v. GERARD FRANCIS HORTON

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

DIVORCE JURISDICTION

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DECISION

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1. On 4th May 1984 Power J. made an order by consent in these proceedings. It was a lengthy order running to some 14 pages. It included provision for the decree nisi to be made absolute, it expressed satisfaction as to the arrangements for the younger children of the family and made various financial provisions. Each party also gave several undertakings which are embodied in the order.

2. The object of the order was to resolve all outstanding differences between the parties and to implement a clean break between them. A clean break which the courts have often stressed as being so desirable and which legislation is now intended to achieve.

3. Amongst his other undertakings the Respondent gave one in the following terms:

"(g)  within 28 days from the date hereof to undergo a medical examination to enable the Petitioner, at her own expense, to insure his life provided that the Respondent shall not be liable in any event howsoever for any non-disclosure, partial disclosure or mistaken statement or otherwise during or in connection with such medical examination."

4. On the 11th May the Petitioner's solicitors sent to the Respondent's solicitors a proposal form from a reputable insurance company. The Respondent was unwilling to sign the form as it stood. After some negotiation it was agreed that certain amendments to the form should be made. The Respondent then completed and signed the form and underwent a medical examination. However, in the form, the Respondent disclosed a previous medical history but did not disclose details of the doctors who had previously treated him. He would not give this information. As a result, the insurance company declined to accept life cover.

5. The Petitioner took the view, probably correctly, that there was little point in pursuing the matter further as no insurance company would be likely to accept the risk without first having been able to obtain information from the Respondent's previous doctors. So the Petitioner took out a summons on 31st May which, in essence, seeks an order that the Respondent gives information, relating to his past medical history, of the nature which is usually required by an insurance company. Various affidavits were filed on behalf of bath parties. The summons eventually came on for hearing before me on 26th November. I say eventually came on for hearing because the brief history which I have recited is but the tip of a very considerable iceberg. Whilst what has taken place before the summons came on for hearing is obviously of the greatest importance to the parties, it need not, I think, concern me in the ruling which I am required to give.

6. When the summons came on for hearing, the Petitioner made two applications. The first application was for an adjournment. I granted that adjournment and I think nothing more need be said about it.

7. The second application was for leave to cross examine the Respondent and his solicitor upon affidavits filed by them. It is upon this application which I now have to rule.

8. The first point which I have to consider is whether I have jurisdiction to make the order sought. There appears to be some difference of opinion as to whether the jurisdiction lies under the Matrimonial Causes Rules or under the Rules of the Supreme Court. Although Mr. Mills-Owens on behalf of the Respondent has suggested otherwise, I am satisfied that Rule 77(5) of the Matrimonial Causes Rules is relevant. The Petitioner's summons is simply asking the court to implement terms agreed between the parties.

9. I rely on De Lasla v. De Lasala (1980) A.C. 546. At p.560 Lord Diplock said:

"Financial arrangements that are agreed upon between the parties for the purpose of receiving the approval and being made the subject of a consent order by the court, once they have been made the subject of the court order no longer depend upon the agreement of the parties as the source from which their legal effect is derived. Their legal effect is derived from the court order; and the method of enforcing such of their provisions as continue to be executory is not by action but by summons under the court order pursuant to the liberty to apply."

10. I agree with Mr. Rodway that the present summons is properly brought under the liberty to apply provision in the consent order. It relates to an essential part of the financial arrangements. In my judgment, it must fall within the definition of ancillary relief in the Matrimonial Causes Rules. As I have said, Rule 77 confers jurisdiction.

11. Having established jurisdiction, the next point to consider is how the court should exercise its discretion. This point was recently and carefully canvassed by the Court of Appeal in Y v. Y (Civil Appeal 99/84). In that case Fuad J.A. said:

"As regard affidavits in general, there will be cases where the interests of justice dictate that a deponent should be subject to cross-examination. For example, where the motives of directors in exercising their powers is in issue, as in Smith and Fawcett [1942] 1. Ch. 304. In other cases, in my judgment, the true rule must be that the court has an unfettered discretion to permit cross-examination on an affidavit but the applicant is not entitled to this right as of course. He has to establish that in all the circumstances of the case there is a good and sufficient reason for the application. He will not find this difficult where the evidence on the affidavits will result in what I might call a final order. He will find it more difficult in interlocutory matters, perhaps, for ,as the judge below had in mind, great delay and expense might be entailed. It seems to me that what is essential for the applicant to show is that the proposed cross-examination might be productive of a useful result at the stage that the application is made. If no reason can be suggested for supposing that the cross-examination will then be helpful, the application will be refused in the discretion of the court, indeed, in certain circumstances it might be regarded as oppressive and, as such, an abuse of the process of the court."

12. How then should I exercise my discretion? It is necessary, I think, to look at the issue involved. The issue, in my judgment, is a simple one namely, the true construction of the Respondent's under-taking. Should it be construed narrowly as the Respondent would have it, so that his obligation is to undergo a medical examination and no more? Or should implied terms be read into the undertaking, as the Petitioner contends, which oblige the Respondent not only to undergo a medical examination but also to furnish full and complete information relating to his medical history as required by the insurance company or its doctor?

13. Mr. Mills-Owens asks how is cross-examination relevant to enable the court to construe the undertaking, it being accepted that the medical examination agreed in the undertaking was for the purpose of enabling the Petitioner to insure the Respondent's life and that such insurance was sought. Mr. Mills-Owens concedes the principles upon which evidence is admissible to enable a court to construe an agreement. That evidence, however, is limited to explaining the circumstances in which the agreement was made. Evidence may not be admitted to show the intention of the parties or their actions subsequent to the making of the agreement.

14. The two affidavits in connection with which cross-examination is sought were made by the Respondent and his solicitor. Principally, these affidavits deal with events which took place subsequent to the making of the order on 5th May. Mr. Rodway has taken me through these affidavits in some detail and pointed to a number of areas where he says either the Respondent should furnish an explanation or there is a dispute as to what occurred. From this it is clear to me that what is intended is a wide ranging cross-examination, particularly of the Respondent, on matters which, in my judgment, are irrelevant to the construction of the Respondent's undertaking. As I have already said, the intention of the Respondent and his subsequent actions are irrelevant. Equally irrelevant are the subsequent discussions between the parties' solicitors in relation to the insurance proposal form.

15. The Respondent's undertaking constitutes part of a large and comprehensive order. In my view, no further evidence is really necessary to enable the court to view the undertaking from the same position as the parties when the order was made. If evidence is necessary in order fully to complete the factual background, it is contained in the various affidavits but is not in dispute.

16. In the passage which I have cited from Y v. Y it is made clear that an applicant will not find it difficult to obtain leave to cross examine where the evidence on the affidavits will result in a final order. This is undoubtedly the situation in the present case. However, as I have already indicated, cross-examination will be upon matters which are irrelevant to the issue namely, the construction of the undertaking. In addition to that, such cross-examination, notwithstanding firm and proper control by the court, can only lead to an unnecessary waste of time and expense.

17. Leave to cross examine the Respondent and his solicitor upon their respective affidavits is therefore refused.

18. There are two other matters which I should perhaps mention in deference to the arguments put forward by counsel. First, I was cited a number of authorities upon the construction of undertakings. In addition, Mr. Rodway urged that I should not lose sight of the possible consequences if the undertaking is construed as the Respondent seeks. To my mind, however, those are matters which the court can only properly consider when it comes to the construction of the undertaking itself.

19. Secondly, relying upon Comet Products U.K. Ltd. v. Hawkex Plastics Ltd. & anr. (1971) 2 Q.B. 67, Mr. Mills-Owens contends that the Respondent may not, in any event, be a compellable witness. That case involved contempt proceedings. The Court of Appeal took the view that because a person against whom such proceedings are lodged might suffer such a penalty as might be imposed in criminal proceedings, it would not be right, as a matter of discretion, for the court to allow a person accused of contempt to be cross examined upon an affidavit. Such cross-examination might be of such a nature that the person would be shown to be in contempt by reason of the evidence given by him.

20. As Mr. Rodway rightly emphasised, the Comet case concerned contempt proceedings. In the present case, the Petitioner is not seeking to have the Respondent committed but rather given directions by the court as to the manner in which he should implement his undertaking. Mr. Rodway says rightly, I think, that in matrimonial proceedings resort to committal is usually a last and desperate step when all else has failed.

21. I accept what Mr. Rodway says. However, as I suggested to Mr. Rodway in the course of his argument, it is possible that in an appropriate case, the court of its own motion might initiate contempt proceedings. I do not say that this is such a case. Nonetheless, it does seem to me that if the undertaking is eventually construed as the Petitioner seeks, the Respondent as a barrister of the Hong Kong and English Bars and as leading counsel in Australia has little to be proud of in his conduct.

22. I content myself with saying that there might be substance in Mr. Mills-Owens' point.