I don’t like to criticise other lawyers for their errors. After all, we all make mistakes. But this one truly baffles me. It baffles me because it involves a very simple point of law. Again, it is quite possible to make mistakes in connection with simple points, but in such cases the error is usually quickly spotted, if not by the perpetrator then by someone else dealing with the case, and rectified. Here, the error was made by two different lawyers in two different countries and also by a judge, taking months and, as we will see, a huge amount of costs to rectify.
The point of law involved in the case K v K was this: could a Russian court order made on the 18th of April 2013 and providing that a child would live with her father and have contact with her mother be recognised by the English court, so that it could be enforced in this country? The answer to the question lies in the Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, more simply known as the 1996 Hague Convention (not to be confused with the 1980 Hague Convention on Child Abduction). As its long title suggests, the Convention provides for the recognition and enforcement of orders relating to parental responsibility, in all contracting states.
It is those words ‘contracting states’ that are vital. Article 53(2) of the Convention provides a little more detail. It states:
“The Convention shall apply 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.”
In other words, the Convention only applies to orders made after the Convention entered into force between the state where the order was made and the state being asked to recognise the order. The Convention only enters into force between those two countries when it has entered into force in both countries. The 1996 Convention entered into force in this country on the 1st of November 2012 and in the Russian Federation on the 1st of June 2013. Accordingly, the 1st of June 2013 was the date when the Convention entered into force between the two countries.
The answer to the question is therefore quite clear: the Russian order was made before the Convention entered into force between the two countries, and thus the English court did not have jurisdiction to recognise the order.
Now, in the case the mother was erroneously advised by her English lawyer that she could apply to the English court to register and enforce the Russian order. She therefore made that application, on the 16th of March 2016. On the same day a District Judge in the English High Court made an order stating that the Russian order should be registered in this country. The father’s solicitors wrote to the mother’s solicitors explaining that the District Judge did not have jurisdiction to make that order, but the mother’s solicitors did not reply. They did, however, instruct counsel, who clearly advised the mother that the Russian order was not capable of registration and enforcement in this jurisdiction, and that if she pursued her application then she was at risk of costs.
Thereafter, the mother’s solicitors consistently repeated the correct advice of their counsel, and urged the mother to withdraw her application. The mother, reluctant to withdraw because she had also received erroneous advice from her Russian lawyers that the relevant date was not the date of the order, but the date the parties separated, did not finally agree to withdraw until the 9th of June.
The mother did not, however, agree to compromise the issue of costs, which fell to Mr Justice MacDonald to decide. The figures involved are quite staggering, considering the simplicity of the issue involved. The father’s costs came to £38,813 and the mother’s costs were £22,800. Thus, as Mr Justice MacDonald stated, the parties had “spent well over £60,000 arguing about a question the answer to which could not have been any more legally straightforward from the outset.”
Now, I’m not going to go into the detail of the arguments put forward concerning the issue of costs. Suffice to say that, unsurprisingly, Mr Justice MacDonald was satisfied that a costs order should be made in favour of the father. However, he found that the amount claimed by the father, £38.813, bore no proportionate relationship to the single point in issue. He said it was “difficult to imagine a more straightforward legal point than the one that arose in this case” and went on:
“The submission that it required in total £38,813 of costs to inform the mother’s then solicitors in correspondence of this single, irrefutable point, to draft a Notice of Appeal setting out this single, irrefutable point once the mother had declined to abandon her application and to attend court to argue this single, irrefutable point on appeal is one that, I am afraid, is not realistic and does not reflect the straightforward and indisputable nature of the sole legal point in this matter.”
Accordingly, he slashed the father’s costs down to the sum of £3,737.50, which he ordered the mother to pay. He also (of course) allowed the father’s appeal against the District Judge’s order. He concluded with a warning about excessive costs claims:
“In this case it is right, for the reasons I have given, that the mother should be the subject of an order for costs. That does not mean, however, that it is right for the mother to bear the frankly excessive costs enumerated in the Statement of Costs filed by the solicitors instructed by the father. In circumstances where the 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, as in this case, excessive.”
The full report of K v K can be read here.