K v K  EWHC 2002 (fam) (29 July 2016)
This Judgment was given by Mr Justice MacDonald in relation to the determination of an Appeal by the father against the Order of District Judge Robinson dated 16/03/16 and also in relation to the question of costs.
The background to the proceedings was that the mother had applied to the English Court for recognition and enforcement of an Order. This Order had been made in the Dzerzhinsky District Court of St Petersburg on 18/04/13. The Order was in relation to the child of the family, who would live with the father and have Contact with the mother. The mother claimed that the father was continually breaching the aforementioned Order. On 16/03/16 District Judge Robinson made an Order that the Order of 18/04/13 made in the Russian Court shall be registered pursuant to the Hague Convention 1996.
On 15/04/16 correspondence was received from the father’s Solicitor detailing why the English Court could not recognise or enforce the Order of 18/04/13, as the 1996 Hague Convention was not in force between England and Wales and the Russian Federation on 18/04/13. Disclosure was also received that the mother had been advised by specialist Junior Counsel that it was correct that the Order was not capable of registration and that the mother was at risk of costs. The mother, however, had received incorrect advice from her Russian lawyers that the Order could be enforced as ‘the relevant date for the purposes of Art 53(2) of the 1996 Hague Convention was not the date the order was made but the date of the parties’ separation.’
Further correspondence was received from the father’s Solicitors stating they would be issuing an Application for the Order of 16/03/16 to be set aside, for the Application to enforce to be dismissed and that they would seek to recover costs, if they did not hear further. The mother’s Solicitor again advised the mother about the enforceability of the Order and the risk of costs.
The father’s Appeal was issued on 18/05/16 and the matter was listed for determination on 25/07/16. Further advice was received from Leading Counsel advising the mother to withdraw her Application. The mother subsequently agreed that she would agree to withdraw her Application to enforce and would agree to the registration being set aside without an Order as to costs. Correspondence then ensued between the parties in relation to costs.
In his Judgment Mr Justice MacDonald stated that it was plain that District Judge Robinson did not have jurisdiction to make the Order of 16/03/16. The rest of the Judgment focused on the substantive issue of the case which was the issue of costs. Mr Justice MacDonald considered the relevant CPR and also case law including (E C-L v DM (Child Abduction: Costs)  2 FLR 772) and (Re T (Costs: Care Proceedings: Serious Allegations Not Proved)  1 FLR 133 at ). Consideration was given to the Statement of Costs of the father which totalled £38,813.00 and included time for both a Grade A Fee Earner and Counsel attending the hearings, with Counsel’s fees for the two hearings totalling £8,500.00 and fees for advice and attending a Conference totalling £4,550.00.
In his conclusion Mr Justice MacDonald stated in respect of the father’s Appeal of the Order made on 16/03/16, that District Judge Robinson did not have jurisdiction to make this Order as the 1996 Hague Convention only came into force between the United Kingdom and the Russian Federation on 01/06/13, which was after the Russian Court made the Order of 18/04/13. In respect of costs Mr Justice MacDonald stated that the test of proportionality did apply in family proceedings and that the costs in the case were disproportionate to the single issue in dispute. Mr Justice MacDonald continued that it was right that the mother be Ordered to pay the costs of the father; however the father’s costs, as shown in the Statement of Costs, were excessive. The father’s Appeal was allowed, the Order of District Judge Robinson of 16/03/16 was set aside and permission was given to the mother to withdraw her Application for enforcement. A Costs Order was made against the mother, summarily assessed in the amount of £3,737.50 to be paid within 28 days.
The full judgment can be read here.