S B v M B
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hayden |
| Judgment Date | 10 November 2014 |
| Neutral Citation | [2014] EWHC 3721 (Fam) |
| Docket Number | Case No: FD13P02415/FD14P00322 |
| Court | Family Division |
| Date | 10 November 2014 |
[2014] EWHC 3721 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Hayden
Case No: FD13P02415/FD14P00322
Mr Charles Hale QC & Mr Michael Gration (instructed by Clintons Solicitors) for the Applicant
Mr Henry Setright QC (instructed by Levison Meltzer Piggott) for the Respondent
Hearing dates: 15 th & 16th September 2014
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
See also Judgment: [2014] EWHC 3719 (Fam)
On the 12 th March 2014 I delivered an ex tempore judgment in this case. I am reminded by counsel that the court sat until 7 pm on Friday evening at the conclusion of a three day hearing in order that the subject child did not have to endure further delay before her future was resolved. Ultimately there had been only one substantive issue in the case, namely where the child ('M') was habitually resident. The father then represented by Mr Teertha Gupta QC contended M's habitual residence was in Israel, the mother represented then and during the course of this application by Mr Charles Hale QC and Mr Michael Gration contended that the child was habitually resident here in the UK. For the reasons set out in my judgment I found in favour of the mother. Mr Hale indicated at the conclusion of the judgment that he intended to make an application to recover the costs of the hearing from the father, but recognised, that the application would have to be adjourned to a subsequent date if for no other reason that the lateness of the hour.
I was not surprised, in a case that I had already described as having been 'litigated to saturation point' that my findings were met by an immediate application, on behalf of the father, for permission to appeal. I observe, in passing, that there has been a parallel 'jurisdictional' issue pursued by the father in the Israeli courts. It has been pursued there with what I have come to recognise as the father's hallmark vigour. Following a resounding rejection of his application at first instance, a judgment that was highly critical of him personally, the points were pursued on to the Court of Appeal in Israel and eventually to the Supreme Court there. That litigation has been entirely futile, on my reading of the respective judgments. What is perhaps most reassuring however is the conformity both of principle and approach in the two country's respective Hague Convention jurisprudence.
I refused Mr Gupta's application for permission to appeal and, predictably, it was pursued by the lodging of a written application before the Court of Appeal. At this point, I suspect in the light of my trenchant observations concerning the litigation conduct of the case, both parties dispensed with the services of their respective solicitors. Mr Gupta was a casualty of the new regime and Mr Henry Setright QC now appears on the father's behalf. Ultimately, the appeal was discontinued and the costs application is now restored before me.
Both party's legal teams agree on the framework of the law relating to the determination of costs in applications of this kind. The following common ground has been identified:
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. here 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(Supra)
'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 Proceeedings: 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. 1CPR 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...
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