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20 September 2016

17: The pitfalls of proportionality

‘The stringent test of proportionality in relation to costs incurred applies with equal force in family proceedings’

So said Mr Justice MacDonald in the case involving Mr and Mrs K.

According to the judgment K v K is an unfortunate and salutary lesson all round. At its heart was a dispute between Mr and Mrs K over the upbringing of their teenage daughter. Matters were complicated because of the international nature of the dispute. Mr and Mrs K were both Russian nationals who had engaged in protracted litigation concerning their daughter. Litigation took place in the Dzerzhinski District Court of St Petersburg which resulted in the parties entering into an “Amicable Agreement” dated 17 April 2013. That provided that the daughter would live with the father and have contact with her mother. The agreement was embodied in a court order made by the Dzerzhinski District Court of St Petersburg on 18 April 2013.

The mother contended that the father had continually breached the order dated 18 April 2013 and sought to have it enforced in England. It seems she was advised by Russian lawyers that this was possible and her English solicitors at the time also advised that she should apply to the English court to register and enforce the order. Initially the mother appeared to be successful and District Judge Robinson directed that the order should be registered pursuant to the Hague Convention 1996.

Very shortly afterwards, the father’s solicitors wrote to the mother’s solicitors explaining in detail why the English court did not have jurisdiction to make the order it did having regard to the terms of Article 53(2) of the Hague Convention. Although specialist junior counsel (and then leading counsel) strongly advised the mother that the father was correct, she refused to agree to the setting aside of the order and this led to the father mounting an appeal.

The problem that the mother faced was that the 1996 Hague Convention was entered into force in the UK on 1 November 2012 and in the Russian Federation on 1 June 2013. In the circumstances, the Convention only entered into force between the two countries on 1 June 2013, i.e. after the Dzerzhinski District Court of St Petersburg had made its order of 18 April 2013.

Accordingly, and perhaps as expected, the father’s appeal was successful and the order of District Judge Robinson was set aside. As Mr Justice MacDonald said:-

‘It is plain that District Judge Robinson did not have jurisdiction to make the order that he did on 16 March 2016….’

The judge proceeded to consider the extent to which the father should be entitled to recover his costs from the mother. The judge took a hatchet to the father’s solicitors’ Costs Schedule. In total, the costs were reduced down to £3,737.50, i.e. 10% of the sum claimed. The principal reason for the deductions was that the judge considered the charges were disproportionate to the complexity of the dispute which he described as “straightforward” even though it involved “a specialist area of law”.

The judge thought that the appeal could be boiled down to a single question which could be articulated in six words, namely “the English court had no jurisdiction”. The father’s argument was “unassailable”.
The judge thought it was remarkable that such a significant sum of money had been spent by these two parents arguing over a single question, the answer to which was indisputable from the outset. He thought it was right that the mother should be subject to an order for costs, but in his view that did not mean that it was right for the mother to bear the frankly excessive costs enumerated in the Statement of Costs filed by the father’s solicitors.

It is perhaps difficult not to have some sympathy for the father’s position. The harsh reality is that litigation of this type can be expensive with costs often running to tens of thousands of pounds. Nonetheless, as the judge made clear, in circumstances where court rules make provision for the payment of costs proportionately and reasonably incurred, where a costs order is merited the court will meet robustly any claim for costs that it considers to be excessive.

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