Re: St. Catherine, Leconfield (York Consistory Court; Coningsby Ch. 14 May 1990)
In faculty proceedings involving the renovation of an organ, the Archdeacon was joined as party opponent at the invitation of the Chancellor. In the event a faculty was granted after an oral hearing at which relevant evidence was adduced on both sides. On the issue of costs the Chancellor held:
- Consistory Courts have frequently had to consider what orders to make in respect of Court and Registry fees and expenses in cases where a hearing was necessary. A common direction was that the fees and expenses should be split between the parties.
- The normal rule was that the petitioner had to pay the fees and expenses, because of the initial obligation laid upon him by the Faculty Jurisdiction Measure 1964.
- An unsuccesful party opponent who had behaved unreasonably in opposing the proceedings might be ordered to pay the fees and expenses in place of the petitioner. This was probably in the nature of an indemnity for the petitioner's orginal obligation.
- If the unsuccessful party opponent had put forward a reasonable case, and had acted reasonably during the proceedings, he was unlikely to have to pay the whole of the costs and expenses, and the petitioner would be left to pay a proportion since he was under the initial obligation referred to in (2) above. The petitioner was the party seeking the faculty and if the purpose of the hearing had been to put him to proof and/or to enable the Chancellor to examine his proposals with the benefit of considered argument and expert evidence, it was reasonable that the petitioner should be left with some part of his original obligation to pay.
With those considerations in mind the Chancellor made a provisional order for fees and expenses to the effect that the petitioners should pay one-third and the Board of Finance of the Diocese (on behalf of the Archdeacon) two thirds. The provisional order was affirmed after the written representations of the parties had been considered.
(1991) 2 Ecc LJ 129