K v K
| Jurisdiction | England & Wales |
| Judgment Date | 29 July 2016 |
| Neutral Citation | [2016] EWHC 2002 (Fam) |
| Date | 2016 |
| Court | Family Division |
Costs – Unreasonable conduct – Pursuing application in face of clear and repeated specialist advice – Summary assessment – Stringent proportionality test applicable to family proceedings – Excessive costs reduced by over 90 per cent.
Jurisdiction – Registration and enforcement of foreign order – 1996 Hague Convention – Russian order made before Convention came into force between England and Wales and Russian Federation – art 53(2).
The parents, both Russian nationals, were engaged in protracted litigation concerning their teenage daughter. On 18 April 2013 the Russian court made an order, based on an ‘amicable agreement’ between the parents, providing that the child would live with the father and have contact with the mother. However, the litigation between the parents continued, both in Russia and in England, with the mother asserting that the father continually breached the 2013 order.
On 16 March 2016 the mother applied to the English court for recognition and enforcement of the Russian order, relying on the 1996 Hague Convention, which had come into force between the UK and the Russian Federation on 1 June 2013 (more than one month after the Russian order had been made). The district judge, sitting in the English High Court, registered the Russian order. On 15 April 2016, the father’s solicitors wrote to the solicitors then acting for the mother, explaining in detail why the English court did not in fact have jurisdiction to register the Russian order, having regard to the terms of art 53(2) of the 1996 Hague Convention, which provided that:
‘The Convention shall apply to the recognition and enforcement of measures taken after its entry into force as between the State where the measures were taken and the requested State.'
The father’s point essentially was that on 18 April 2013, the date on which the Russian order was made, the 1996 Hague Convention was not yet in force between England and Wales and the Russian Federation.
It emerged that on February 2016 the mother had been advised by the English solicitors then acting for her that she should apply to the English court to register and enforce the Russian order. However, after receiving
the letter from the father’s solicitors, in April 2016 the mother consulted specialist junior counsel and was advised both that an order made by the Russian court in April 2013 was not capable of registration and enforcement in England and Wales and that she was at risk of costs if she persisted with her application. Thereafter the mother’s English lawyers consistently advised the mother in the strongest terms that any attempt to enforce the 2013 order would be thrown out by the English court and that she risked a costs order being made against her. The mother was advised to apply to the Russian court instead.
However, the mother’s Russian lawyers told her that the April 2013 order could in fact be registered and enforced in England, because the relevant date for the purposes of art 53(2) of the 1996 Hague Convention was the date of the parties’ separation, not the date of the order. In response the mother’s English lawyers confirmed their earlier advice, explaining why they did not agree with the Russian lawyers. The father’s solicitors set a deadline, explaining that if they did not hear from the mother by 4 pm on 29 April they would apply to have the English registration order set aside, and would seek their costs. Relying on the Russian advice, the mother persisted. Counsel, including leading counsel, again advised the mother that she had no prospect of success in attempting to enforce the Russian order. The father duly made his own applications. In June, at the urging of her own solicitors, the mother gave instructions to withdraw her proceedings, but still refused to compromise on the issue of costs. The parties had spent collectively well over £60,000 on this issue; the husband had spent £38,813 on his costs.
Held – (1) The father had succeeded in his appeal and it had been plain from the outset that he would do so; his first ground of appeal had been unanswerable having regard to the terms of art 53(2) of the 1996 Hague Convention. The English court did not have jurisdiction to recognize the order made by the Russian court, because on the date on which the Russian order had been made the 1996 Hague Convention had not yet been in force between England and Wales and the Russian Federation. The legal advice given to the mother by her then family solicitors, leading to the commencement of these proceedings, had been wrong (see [1], [3], [37], below).
(2) The court was satisfied that the conduct of the mother in pursuing her application after she had received clear and repeated specialist advice to withdraw it, and in refusing to compromise the father’s appeal until 13 June 2016, had been unreasonable in costs terms. Although erroneous advice from the mother’s then solicitor had led the mother to issue her application, subsequent information and advice had made it clear to the mother that the application had no prospect of success. While the mother had received conflicting advice from her Russian lawyers, the mother had been litigating in the English jurisdiction and had ignored extremely clear advice from highly
specialist English lawyers that her application was a hopeless one (see [38], [39], below).
(3) The costs allowable were costs proportionately and reasonably incurred and proportionate and reasonable in amount. The concept of proportionality concerned not the amount of costs which it was in the party’s best interests to incur but the lowest amount which he or she could reasonably have been expected to spend in order to have his or her case conducted and presented proficiently having regard to all the relevant circumstances; applying Khazakstan Kagazy PLC v Zhunus [2015] EWHC 404 (Comm). This stringent test of proportionality applied with equal force in family proceedings and the court would meet robustly any claim for costs that it considered to be excessive. In this case the amount claimed by the father, namely £38,813, bore no proportionate relationship to the single point in issue. It was difficult to imagine a more straightforward legal point than this one and remarkable that such a significant sum had been spent on a single question, the answer to which had been indisputable from the outset (see [41]–[43], [47], [48], below).
(4) In summarily assessing costs the judge’s task was to focus on the heads of costs and to form his or her best judgment of the proportion it was reasonable to require the paying party to pay; applying Machinery Developments Ltd v St Merryn Meat Ltd[2005] EWCA Civ 29. After reducing the solicitor’s hourly charging rates; reducing the number of hours claimed for attendance on the client, on opponents and at the hearing, for work done on documents, and for travel and waiting; refusing to allow unparticularised costs of attendance on others; and reducing counsels’ fees, the court summarily assessed the father’s costs in the sum of £3,737.50 rather than £38,813 (see [44], [45], below).
Cases referred to
E C-L v DM (child abduction: costs)[2005] EWHC 588 (Fam), [2005] 4 Costs LR 576, [2005] 2 FLR 772.
English v Emery Reimbold & Strick Ltd[2002] EWCA Civ 605, [2002] 3 All ER 385, [2002] 1 WLR 2409, [2002] CPLR 520, [2003] IRLR 710, [2002] UKHRR 957.
Khazakstan Kagazy PLC v Zhunus [2015] EWHC 404 (Comm).
Machinery Developments Ltd v St Merryn Meat Ltd[2005] EWCA Civ 29.
T (costs: care proceedings: serious allegation not proved), Re[2012] UKSC 36, [2012] 3 FCR 137, [2012] 4 All ER 1137, [2012] 1 WLR 2281, [2013] 1 FLR 133.
Appeal
The father appealed against an order of 16 March 2016 made by a district judge that a court order made in the Dzerzhinsky District Court of St Petersburg on 18 April 2013 providing that the child, D, would live with the father and have contact with her mother should be registered pursuant to the Hague Convention 1996. The appeal was on the grounds that at the date
the district judge made his order on 16 March 2016 the English court did not have jurisdiction to recognise the order made by the Russian court on 18 April 2013 because the 1996 Hague Convention was not in force between England and Wales and the Russian Federation on 18 April 2013. The father applied for the 16 March 2016 order to be set aside, for the mother’s application to enforce the 18 April 2013 order to be dismissed, and for costs. The mother applied to withdraw her application for enforcement. The facts are set out in the judgment.
Jacqueline Renton (instructed byDirect Access) for the applicant, the mother.
Edward Devereux (instructed byHughes Fowler Carruthers) for the respondent, the father.
29 July 2016. The following judgments were delivered.
MACDONALD J.
Introduction
[1] In this case the answer to the question in dispute between the parties that has given rise to this appeal hearing can be articulated in one sentence as follows:
‘At the date...
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