29 July 2016
Costs order made against an applicant mother notwithstanding erroneous legal advice.
Facts
- The mother successfully applied to register and enforce a Russian child arrangements order in England.
- The father appealed on the basis that the English court lacked jurisdiction to enforce the order pursuant to Article 53(2) of the 1996 Hague Convention. He sought an order for costs against the mother.
- The mother was advised to withdraw the application by her English lawyers; her Russian lawyers had advised her to pursue the application.
- The mother sought permission to withdraw her application and indicated that she agreed to the order being set aside with no order as to costs.
Held
- Appeal allowed; by reference to the terms of Art 53(2) of the 1996 Hague Convention, the English court did not have the jurisdiction to make the order for registration and enforcement since the Russian order (18 April 2013) pre-dated the entering into force of the Convention between the England and Russia (1 June 2013).
- The Convention applies only 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 date of the parties’ separation is irrelevant.
- Order for costs made against the mother. The mother’s conduct was unreasonable in pursuing the application, notwithstanding erroneous legal advice, since she was subsequently advised to withdraw her application by highly-specialist junior and leading counsel.
- Costs were summarily assessed at £3,737.50, as against the figure claimed by the father of £38,813. The costs allowable are costs proportionately and reasonably incurred, and proportionate and reasonable in amount.