MB v KB
| Jurisdiction | England & Wales |
| Judge | David Rees,Mr David Rees |
| Judgment Date | 21 December 2023 |
| Neutral Citation | [2023] EWHC 3299 (Fam) |
| Year | 2023 |
| Court | Family Division |
| Docket Number | No: FD23P00396 |
[2023] EWHC 3299 (Fam)
Mr David Rees KC
(Sitting as a Deputy Judge of the High Court)
No: FD23P00396
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
IN THE MATTER OF AB (A GIRL) AND BB (A BOY)
AND IN THE MATTER OF THE SENIOR COURTS ACT 1981
Royal Courts of Justice
Strand, London, WC2A 2LL
Mani Singh Basi (instructed by Mackrell Solicitors) for the Applicant
Jane Hayford (instructed by Duncan Lewis Solicitors) for the First Respondent
Cliona Papazian (instructed by Freemans Solicitors) for the Second and Third Respondents
Hearing dates: 27 and 28 November 2023
I direct no official shorthand note shall be taken of this Judgment and that copies of this Judgment as handed down may be treated as authentic
David Rees KC, Deputy High Court Judge
Mr David Rees KC:
INTRODUCTION
These proceedings sought the summary return of two children AB and BB to Qatar. The application was brought by the children's father MB following the removal of the two children to England by their mother KB in July 2023. By my judgment dated 13 December 2023 ( MB v KB (Return under Inherent Jurisdiction: Qatar) [2023] EWHC 3177 (Fam)), I dismissed the father's application. The facts are set out in that judgment and I do not repeat them here.
There are various costs points in dispute. The parties have agreed that I should resolve them on the basis of written submissions. I had understood that the parties had agreed to confine their submissions to a single page of A4. Mr Basi for the father has done precisely that. However, Ms Hayford's submission for the mother extend to four pages and the father's solicitors have sent an e-mail by way of reply to Ms Hayford's submissions. I have read all of these documents and the mother's witness statement of 24 November 2023 which also addressed the issue of costs and have taken them all into account.
The issues that I am being asked to consider are as follows:
(1) The costs of the application generally. Ms Hayford seeks an order that the father pays these costs, to be subject to summary assessment on the standard basis. Mr Basi seeks that there be no order for costs;
(2) The costs of the expert report of Mashael Alsulaiti Law Firm on Qatar law. The mother seeks an order that the father should bear these costs. The father seeks an order that the parents bear these costs in equal shares.
(3) The costs of the translation of documents from the Qatari proceedings. The mother seeks an order that the father should bear these costs. The father seeks an order that the parents bear these costs in equal shares.
(4) The costs of an unsuccessful application by the father for a disclosure order against the Home Office. The mother says that the father should pay her costs of this, to be summarily assessed on the indemnity basis. The father says that there should be no order for costs in relation to this application.
The sums in dispute are as follows:
Costs generally
| Issue | Costs in Dispute |
| Costs of the case | Mother's costs of £19,033.33 (incl VAT) |
| Expert | 50% of £2816.38 (ie £1,408.19) |
| Translation costs | 50% of £327 (ie £163.50) |
| Home Office disclosure application | Mother's costs of £1,500 (incl VAT) |
The mother has referred me to the fact that under CPR r.44.2 the award of costs is within the discretion of the court. CPR r.44.2(2), which provides that the general rule is that the unsuccessful party will be ordered to pay the costs of successful party, is disapplied in proceedings (such as this case) which are governed by the Family Procedure Rules 2010 (see FPR r.28.2(1)). Notwithstanding this, Ms Hayford's submissions on behalf of the mother appear to proceed on the basis that CPR r.44.2(2) applies in this case. It does not; although the court retains a general and wide discretion as to the award of costs (see D v E (Costs) [2023] EWHC 3171 (Fam) per Theis J at [12]).
Some assistance on the principles to be applied in relation to the costs of abduction proceedings can be found in the decision of Hayden J in SB v MB (Costs in Hague Convention proceedings) [2014] EWHC 3721 (Fam). The judge in that case identified the following propositions at [4]:
“i) The High Court has jurisdiction to award costs in first instance cases brought pursuant to the 1980 Hague Convention. It is trite that it has such powers in applications made pursuant to the inherent jurisdiction though, for the reasons set out in my substantive judgment, that is of merely academic relevance here;
ii) Though there are few reported cases of cost orders having been made against applicants in this Hague Convention jurisdiction, the basis of the power to award costs was analysed and confirmed by Ryder J (as he then was) in EC-L v DM (Child Abduction: costs) [2005] EWHC 588 (Fam), [2005] 2 FLR 772. There Section 11 of the Access to Justice Act 1999 was in focus and the Family Proceedings Rules 1991 that then applied. However, the principles identified in the case continue to hold, by parity of analysis, with the framework of the Family Proceedings Rules 2010; iii) In each case where a costs application is made there should be an inquiry into the merits EC-L v DM
‘it should be the expectation in child abduction cases that the usual order will be no order as to costs, but where a parties conduct has been unreasonable or there is a disparity of means then the Court can consider whether to exercise its jurisdiction in accordance with normal civil principles’;
iv) It is misconceived to talk of a ‘presumption’ of ‘no order’ for costs at first instance in either Hague Convention cases or children cases more generally. In Re J (Children) [2009] EWCA Civ 1350 Wilson LJ, as he then was, referred to the ‘general proposition’ of no order as to costs applied to a ‘paradigm’ situation. In Re T (Costs: Care Proceedings: Serious Allegation Not Proved) [2012] UKSC 36 ‘reprehensible behaviour’ or ‘an unreasonable stance’ were identified as markers for an adverse costs order;
v) FPR 2010, r 28. 1 CPR 1998 r 44.3 do not circumscribe the Judge's discretion on costs and invite the Court to consider ‘all the circumstances’. It should of course have regard to the matters set out at CPR rule 44.2 (4) and (5):
(4) 'in deciding what order (if any) to make about costs, the Court will have regard to all the circumstances, including –
a) the conduct of all the parties;
b) whether the party has succeeded on part of its case, even if that party has not been wholly successful;
c) any admissible settlement by a party which is drawn to the Court's attention, and which is not an offer to which costs consequences under para. 36 apply.
The conduct of the parties include–
d) conduct before, as well as during, the proceedings and, in particular, the extent to which the parties followed the practice direction – pre action protocol or any relevant pre action protocol;
e) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
f) the manner in which a party has pursued or defended its case or a particular allegation or issue;
g) whether a claimant has succeeded in a claim, in whole or in part, exaggerated its claim.
vi) It is generally undesirable to award costs where the consequence of such order is likely to exacerbate hostile feelings between parents to the ultimate detriment to the child.”
In my judgment the principles identified by Hayden J above are as applicable in cases where a summary return is sought...
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