username

password

Harcourt ChambersHind Court1 Garden CourtCoram ChambersGarden Courtimage of 4 Paper Buildings logoDNA Legalsite by Zehuti

Home > Judgments > 2016 archive

K v K (Appeal: Excessive Costs) [2016] EWHC 2002 (Fam)

Award of costs against a mother who obtained registration of a Russian judgment and order in England, both of which were incapable of registration since they predated the entering into force of the 1996 Convention between the United Kingdom and the Russian Federation on 1 June 2013. One month after the mother obtained registration in England, the father notified the mother of his intention to appeal the orders for lack of jurisdiction. The mother sought advice (some of which was legally sound and some unsound) and eventually sought to withdraw her application, accepting that the English court had not had jurisdiction to undertake the registration, but not before the father had incurred £38,813 in legal costs. Mother ordered to pay £3,737.50 towards the father’s costs.

The parties, both Russian nationals, had been engaged in protracted private law proceedings concerning their 15 year old daughter. Within the course of those proceedings the Dzerzhinksy District Court in St Petersburg made an order by consent dated 18 April 2013 ("the Dzerzhinksy District Court order") that the child would live with the father and have contact with the mother.

In time, the mother alleged that the father had breached the Dzerzhinksy District Court order. She sought advice from English solicitors who advised her, wrongly, to apply to the English court for registration and enforcement of the Dzerzhinksy District Court order. She waived privilege in respect of certain correspondence between her and her former solicitors to support her case that this was the advice she had received.

The mother made an application for registration and enforcement of the Dzerzhinksy District Court order on 16 March 2016. District Judge Robinson, sitting as a District Judge of the High Court acceded to her application and on 16 March 2016 registered the judgment and the order of 18 April 2013 under the Hague Convention 1996.

On 15 April 2016 the father's solicitors notified the mother's solicitors that he intended to challenge the jurisdiction of the court to register the judgment and the order of 18 April 2013 in light of Art 53(2) of the Hague Convention 1996.

Specifically, the 1996 Hague Convention was entered into force in the United Kingdom on 1 November 2012.  The 1996 Convention was entered into force in the Russian Federation on 1 June 2013.  In such circumstances, the 1996 Convention was only entered into force between the United Kingdom and the Russian Federation on 1 June 2013, i.e. after the Dzerzhinsky District Court of St Petersburg made the order of 18 April 2013.

Within this context, Art 53(2) of the 1996 Hague Convention provides as follows:

"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."

Accordingly, by reference to the terms of Art 53(2) of the 1996 Hague Convention District Judge Robinson did not have jurisdiction to make the order on 16 March 2016.

From the mother's solicitors' files in respect of which she had waived privilege MacDonald J discerned that on 22 April 2016 the mother had sought advice from specialist counsel as to the father's jurisdiction challenge, and was advised 'in the strongest terms' that the father's objection was meritorious. She was specifically advised that the English courts would 'throw out' any attempt by her (the mother) to enforce the Dzerzhinksy District Court order in England in light of Art 53(2) of the Hague Convention 1996. She was also warned that, were she to proceed in England with enforcement without having first obtained an order in Russia that was capable of registration, she would be at risk of an order for costs.

The mother subsequently received advice from her Russian lawyers that the Dzerzhinksy District Court order was capable of enforcement in England, notwithstanding the date of the order, because the relevant date for jurisdiction purposes was the date of the parties' separation. This was of course incorrect.

During the last week of April and in early May 2016 the mother's English legal team considered the appropriate course of action. The Russian advice supported proceeding with enforcement in England, in contrast to the mother's English counsel, who categorically advised that such a route would be on an 'unsound legal basis' and likely to lead to a costs order against the mother. The mother sought further advice from leading counsel, who re-stated the advice of junior counsel emphatically. Leading counsel advised the mother that the legal position was "unambiguous."

On 18 May 2016 the father issued an Appellant's Notice attaching four grounds of appeal against the order District Judge Robinson dated 16 March 2016. He had notified the mother of his intention to do so on 5 May 2016. The father's overarching submission was that District Judge Robinson did not have jurisdiction to make the order by reason of the provisions of Art 53(2) of the 1996 Hague Convention.

The mother's solicitors attempted to persuade the mother to accept that the court had no jurisdiction to make the orders of 16 March 2016, in light of counsel's advice. They urged her to give instructions to withdraw her application. On 9 June 2016 she provided them with such instructions, and on 13 June 2016 the mother's solicitors sought permission to withdraw her application on the basis of no order being made as to costs. Further correspondence between the parties was exchanged in relation to costs, and on 13 July 2016 the father sought a hearing to be listed on the issue of costs.

MacDonald J did not hesitate to allow the father's appeal, for the reasons set out above. He unequivocally accepted that District Judge Robinson did not have jurisdiction to make the orders of 16 March 2016 and he gave the mother permission to withdraw her application for enforcement of the Dzerzhinksy District Court order in England.

The father sought an order for the mother to make a contribution towards his costs. MacDonald J considered the rules under FPR 2010 r.28.1 and CPR r.44.2(2). The relevant law is set out at §30 of his Judgment below. He took into account the poor advice the mother had had from her Russian lawyers about the availability of enforcement in England, but also the correct legal advice she had had from junior and leading counsel in England. He concluded that an order for costs should be made. The allowable costs were those that were 'proportionately and reasonably incurred,' and accordingly, an assessment was made that the appropriate award was £3,737.50.

Summary by Charlotte Hartley, barrister,1 King's Bench Walk
_______________________________________


Neutral Citation Number: [2016] EWHC 2002 (Fam)
Case No: FD16P00129

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/07/2016

Before:

MR JUSTICE MACDONALD

- - - - - - - - - - - - - - - - - - - - -

Between:

K
 Applicant
- and - 
K Respondent
- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Miss Jacqueline Renton (instructed by Direct Access) for the Applicant
Mr Edward Devereux
(instructed by Hughes Fowler Carruthers) for the Respondent

Hearing dates: 27 July 2016
- - - - - - - - - - - - - - - - - - - - -

Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

THE HONOURABLE MR JUSTICE MACDONALD

This judgment was delivered in private. The Judge has given permission for this anonymised version of the judgment (and any of the facts and matters contained in it) to be published on condition always that the names and the addresses of the parties and the children must not be published.  For the avoidance of doubt, the strict prohibition on publishing the names and addresses of the parties and the children will continue to apply where that information has been obtained by using the contents of this judgment to discover information already in the public domain. All persons, including representatives of the media, must ensure that these conditions are strictly complied with.  Failure to do so will be a contempt of court.

Mr Justice MacDonald:
INTRODUCTION

1. In this case the answer to the question in dispute between the parties that has given rise to this appeal hearing can be articulated in one sentence as follows:

"At the date the District Judge made his order on 16 March 2016 the English court did not have jurisdiction to recognise the order made by the Russian court on 18 April 2013 because the 1996 Hague Convention was not in force between England and Wales and the Russian Federation on 18 April 2013."

2. On behalf of the father, it is said that this one sentence point in opposition to an application for recognition and enforcement issued by the mother on 16 March 2016 has, all told, cost £38,813 to make.  The costs incurred by the mother in relation to her application amount, to date, to some £22,800.  In the circumstances, the parties have, collectively, spent well over £60,000 arguing about a question the answer to which could not have been any more legally straightforward from the outset.

3. The extent of the costs expended in this case is brought into even sharper focus by the fact that the legal advice given to the mother by her then family law solicitors that lead to the commencement of these proceedings was wrong.

4. This matter is listed before me pursuant to the order of Moylan J of 20 July 2016 for determination of the father's appeal against the order of the District Judge of 16 March 2016 and, thereafter, for determination of the question of costs.

BACKGROUND
5. The parents, who are both Russian nationals, are engaged in protracted litigation concerning their daughter, D, now aged 15 years and 11 months old.  The parents were married in December 1999 and were divorced by a Russian decree of divorce in June 2014.

6. Litigation proceeded in the Dzerzhinsky District Court of St Petersburg in respect of D.  Within those proceedings the parents entered into an 'Amicable Agreement' dated 17 April 2013.  That agreement provided that D would live with her father and have contact with her mother.  The agreement was embodied in a court order made by in the Dzerzhinsky District Court of St Petersburg on 18 April 2013.

7. Litigation has continued between the parents since that date, both in Russia and in England.   The English proceedings came to an end in August 2015.  The mother contends that the father has continually breached the order of the Dzerzhinsky District Court of St Petersburg on 18 April 2013.

8. The mother has waived privilege in respect of certain correspondence between herself and her former solicitors in this matter for the purposes of this appeal hearing.  That correspondence shows that she was advised, erroneously, on 12 February 2016 by her former solicitors that she should apply to the English court to register and enforce the order of the Dzerzhinsky District Court of St Petersburg dated 18 April 2013.

9. By an application issued on 16 March 2016 the mother applied to the English court for "recognition and enforcement" of the order of the Dzerzhinsky District Court of St Petersburg dated 18 April 2013.  On 16 March 2016 District Judge Robinson, sitting as a District Judge of the High Court, made an order in the following terms:

"1. The order made under case number 2-572/13 on 18 April 2013 in the Dzerzhinsky District Court of St Petersburg shall be registered pursuant to the Hague Convention 1996.

2. The judgment of the 8th April 2013 in the Dzerzhinsky District Court of St Petersburg has been registered under the Hague Convention 1996 and under Number CRR 2016/10"

10. On 15 April 2016 the father's solicitors wrote to the solicitors then acting on behalf of the mother setting out in detail why the English court did not have jurisdiction to make an order registering for enforcement the order of the Dzerzhinsky District Court of St Petersburg dated 18 April 2013 having regard to the terms of Art 53(2) of the 1996 Hague Convention.  No response was received.

11. The documents disclosed by the mother indicate that on 22 April 2016 she was advised by specialist junior counsel that the order of the Dzerzhinsky District Court of St Petersburg dated 18 April 2013 was not capable of registration and enforcement in this jurisdiction and that she was at risk of costs.   The mother has disclosed an attendance note of that conference.  It is plain from that note that junior counsel advised the mother in the strongest terms that "any attempt to enforce the 2013 order would be thrown out by the English court as a result of Art 53(2)".  Within this context, the mother was advised by her lawyers that she should make a further application in the Russian court for an order which could be registered.  She was again warned as to costs.

12. On 25 April the mother received advice from her Russian lawyers that she could enforce the order of the St Petersburg court in England because, her Russian lawyers advised, 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.  This was not correct.

13. On 26 April 2016 the mother's solicitors wrote to her to re-emphasise the advice given by junior counsel on 22 April 2016.  That letter addressed the advice received by the mother from the Russian lawyers on 25 April 2016 regarding the relevant date for the purposes of Art 53(2) of the 1996 Hague Convention and reiterated in clear terms junior counsel's advice.  Namely, that the relevant date was the date the Convention came into force as between the United Kingdom and the Russian Federation and that, accordingly, "the order of April 2013 is not capable of being registered or indeed enforced" and that "Any application to the English court (outside of the '96 Convention) is doomed to fail".  Whilst the mother's then solicitor stated that they were willing to run an argument based on the Russian advice, the solicitor reiterated that there would be "a very real risk" of a costs order, the risk being "relatively high…if we pursued enforcement of the April 2013 order on an unsound legal basis".

14. The father's solicitors wrote again to the mother's then solicitors on 26 April 2016 stating that if they did not hear from the mother's solicitors by 4pm on 29 April they would issue an application for the order of 16 March 2016 to be set aside and for the application to enforce to be dismissed and would seek to recover the costs of such an application. 

15. On 27 April 2016 the mother's solicitors wrote to the mother again and enclosed a further copy of the letter from the father's solicitors dated 15 April 2016 setting out in clear terms the basis on which the father contended the mother's application was completely without merit.  The mother's solicitors informed her that they "could bluster as much as possible" but again warned the mother in clear terms regarding the merits of her application.  By contrast, the mother received further communication from her Russian lawyers on 29 April 2016 which reiterated their erroneous advice concerning the relevant date for the purposes of Art 53(2) of the Convention.

16. On 29 April 2016 the mother's then solicitors informed the father's solicitors that the mother had taken advice from her Russian lawyers as to the status of the order as a matter of Russian law and that she intended to proceed with her application.

17. In consequence, on 5 May 2016 the father's solicitors notified the mother's then solicitors that the father would be issuing an application for the order of 16 March 2016 to be set aside and for the application to enforce to be dismissed and would seek to recover the costs of such an application.  Further correspondence passed between the respective solicitors on 11 May 2016 and 23 May 2016. 

18. On 13 May 2016 solicitors acting on behalf of D informed the solicitors then instructed by the mother that D did not wish to participate in further mediation with her mother.  

19. On 13 May 2016 the mother had a further conference with junior counsel.  Junior counsel again gave clear and frank advice to the mother, describing the application to register the order of April 2013 as "a waste of time", that it was "an argument which we cannot win" and reiterating that there "was no prospect of success".  Junior counsel clearly explained to the mother why the advice of her Russian lawyers was incorrect having regard to the terms of Art 53(2) of the Convention.  It is clear that the mother was extremely reluctant to accept this advice and requested a consultation with leading counsel.  This took place on 18 May 2016.   Leading counsel re-iterated that the order could not be registered by the English court and that the position was "unambiguous".

20. On 18 May 2016 the father issued an Appellant's Notice attaching four grounds of appeal against the order of 16 March 2016. On 7 June 2016 HHJ Tolson QC gave directions on the appeal and listed it for determination on 25 July 2016. 

21. Following the conference with leading counsel on 18 May 2016 the then solicitor for the mother wrote to her on 3 June, 8 June and 9 June 2016 urging the mother to give instructions to withdraw her application.  The mother finally gave instructions to withdraw the proceedings on 9 June 2016. 

22. On 13 June 2016 the mother's then solicitors indicated that she would be seeking permission to withdraw her application to enforce and would agree to the order for registration being set aside without an order as to costs.   Further correspondence between the solicitors for the father and the mother's then solicitors followed from 13 June 2016 onwards on the question of costs.   It is clear from further documents disclosed by the mother that she continued to believe that the Russian order of 18 April 2013 could be registered in the English court.  She refused to compromise the remaining issue of costs.

THE APPEAL

23. It is plain that District Judge Robinson did not have jurisdiction to make the order that he did on 16 March 2016 by reason of the provisions of Art 53(2) of the 1996 Hague Convention.

24. The 1996 Hague Convention entered into force in the United Kingdom on 1 November 2012.  The 1996 Convention entered into force in the Russian Federation on 1 June 2013.  In the circumstances, the 1996 Convention only entered into force between the United Kingdom and the Russian Federation on 1 June 2013 and after the Dzerzhinsky District Court of St Petersburg made the order of 18 April 2013.

25. Within this context, Art 53(2) of the 1996 Hague Convention provides as follows:

"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."

26. Accordingly, by reference to the terms of Art 53(2) of the 1996 Hague Convention it is plain that District Judge Robinson did not have jurisdiction to make the order that he did on 16 March 2016.

27. On 13 July 2016 the father applied to vacate the appeal hearing on 25 July 2016 and for a hearing to determine whether the mother should pay the costs incurred by the father as the result of her application, or a proportion of those costs.  On 20 July 2016 Moylan J listed the appeal before me for determination at this hearing, with the determination of the father's application for costs to follow. 

28. I am entirely satisfied that the appeal should be allowed for the reasons I have already set out.  In the circumstances, the father's appeal must be allowed and the order of District Judge Robinson set aside.  The mother also seeks to withdraw her application for enforcement of the Dzerzhinsky District Court of St Petersburg on 18 April 2013.  I will make orders accordingly.

COSTS

29. In the foregoing circumstances, and as I have alluded to already, the substantive issue between the parties today is one of costs.

The Law
30. The law governing the position in respect of costs is well established.  The following principles are relevant for the purposes of this hearing:

i) The court may, pursuant to FPR 2010 r 28.1, make such order as to costs in family proceedings as it thinks just.  Applications for recognition and enforcement under the 1996 Hague Convention fall within the ambit of FPR 2010 r 28.1.

ii) In exercising its wide discretion as to costs the court must, pursuant to FPR 2010 r 1.2(a) further the overriding objective to deal with case justly having regard to the welfare issues involved;

iii) The general rule in CPR r 44.2(2) that the unsuccessful party will be ordered to pay the costs of the successful party does not apply in family proceedings;

iv) In deciding whether to make an order in respect of costs, pursuant to CPR 44.2(4) the court must have regard to all the circumstances, including the conduct of the parties, whether a party has succeeded on part of his case even if he has not been wholly successful and any admissible offer to settle made by a party which is not an offer to which costs consequences under CPR Part 36 apply.  The court is also entitled to have regard to a disparity of means between the parties (E C-L v DM (Child Abduction: Costs) [2005] 2 FLR 772).  Each case will turn on its own facts.

v) Pursuant to CPR 44.2 and so far as is relevant in this case, the conduct of the parties relevant to the issue of costs includes conduct before as well as during the proceedings, whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue and the manner in which a party has pursued or defended his case or a particular allegation or issue.

vi) The general practice of not awarding costs against a party in family proceedings in the absence of reprehensible behaviour or an unreasonable stance is one that accords with the ends of justice (Re T (Costs: Care Proceedings: Serious Allegation Not Proved) [2013] 1 FLR 133 at [44]).

vii) Where the court is to assess the amount of costs (whether by summary or detailed assessment), pursuant to CPR r 44.3(1) the court will not allow costs which have been unreasonably incurred or are unreasonable in amount.  Pursuant to CPR r 44.3(2), when assessing costs on the standard basis the court will only allow costs which are proportionate to the matters in issue and costs which are disproportionate in amount may be disallowed or reduced even if they were reasonably or necessarily incurred.  CPR r 44.3(5) provides, in so far as is relevant to this case, that costs incurred will be proportionate if they bear a reasonable relationship to the complexity of the litigation, any additional work generated by the conduct of the paying party and any wider factors involved in the proceedings, such as reputation or public importance (see also FPR 2010 PD28A para 4.4).

viii) In deciding the amount of costs, CPR r 44.4 also requires the court to take into account whether the costs were proportionately and reasonably incurred.  The court will also have regard to, inter alia, the parties conduct before, as well as during, the proceedings, the efforts made before and during the proceedings to try and resolve the dispute, the importance of the matter to all the parties, the particular complexity of the matter or the difficulty or novelty of the questions raised, the skill, effort, specialised knowledge and responsibility involved, the time spent on the case and the place where and the circumstances in which the work was done.

ix) On the question of proportionality, the touchstone of reasonable and proportionate costs is not the amount of costs which it was in the party's best interests to incur but the lowest amount which he or she could reasonably have been expected to spend in order to have his or her case conducted and presented proficiently having regard to all the relevant circumstances.  Expenditure above and beyond that level is for a party's own account and not recoverable from the other party (Khazakstan Kagazy PLC v Zhunus [2015] EWHC 404 (Comm)).

x) When making an order for costs the judge should clearly state his or her reasons (English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605).

The Submissions
31. On behalf of the father, Mr Edward Devereux submits that the mother acted unreasonably in bringing these proceedings and acted unreasonably in continuing them.  Mr Devereux seeks to make good his submission by relying on three primary arguments. 

32. First, pursuant to Art 53(2) of the 1996 Hague Convention, there was never jurisdiction in the courts of England and Wales to recognise and enforce the order made in the Dzerzhinsky District Court of St Petersburg on 18 April 2013 in circumstances where the 1996 Convention only entered into force between the United Kingdom and the Russian Federation on 1 June 2013.  Second, the mother had been repeatedly advised by highly specialist junior and leading counsel that her application had no prospects of success and the solicitors for the father had set out in the clearest possible terms in correspondence that the courts of England and Wales had no jurisdiction to make the orders that the mother sought.  Third, the fact that the mother sought to enforce the order in the context of D's age and level of maturity and her stated view that she did not wish to spend extensive time with her mother further emphasises her unreasonableness in pursuing her application. 

33. In response, on behalf of the mother Miss Jacqueline Renton submits that the mother did not act unreasonably by issuing the proceedings and then continuing the proceedings until she decided to withdraw the same.  Miss Renton bases her submission on the fact that, in the context of being desperate to have contact with D, the mother was advised, as a lay individual, that she could issue the proceedings.  Ms Renton further prays in aid the fact that the mother received advice from her Russian lawyer advising her she could enforce the order in England.  Within this context, Ms Renton seeks to style the mother as a lay person receiving conflicting legal advice in a highly technical area of law who, in the circumstances, cannot be said to have acted unreasonably in choosing to follow one set of advice over another, particularly in circumstances where she was desperate to enforce the order. 

34. Miss Renton seeks to argue that the "defining moment" for the mother was 13 May 2016 when she was informed that D did not wish to see her or to mediate, this causing her ultimately to accept on 9 June 2016 that she should withdraw her application.  In the circumstances, Ms Renton says that if, which is not conceded, the mother acted unreasonably, it was only for the period between 13 May and 9 June 2016.  

35. Miss Renton further argues that it would be unjust to make a costs order against the mother in all the circumstances of the case.  In this regard, Ms Renton relies the contended for breach of the Russian order by the father resulting in the mother not having a meaningful relationship with D for some 3 years.  Within this context, Miss Renton contends that the fact that the mother issued the wrong type of enforcement application against the father on legal advice should not result in a costs order against her.  Further, Miss Renton further contends that a cost order against the mother would not be just in circumstances where there is a disparity of means between the mother and the father.  Overall, Miss Renton submits that the award of costs against the mother in circumstances where she contends that the father remains in breach of the Russian order would, against the overall history of the case, be "wholly unjust and unfair".

36. If the court is minded to make an order for costs, Miss Renton submits that there should be a detailed assessment but that, in any event, the full costs sought by the father should not be awarded having regard to the advice given to the mother by her English lawyers, the advice given to her by her Russian lawyers and the respective financial positions of the parties.

Discussion

37. Having regard to all the circumstances I am satisfied that a costs order should be made in favour of the father in this case.  The father has, as it was plain from the very outset that he would, succeeded in his appeal.  The father's first ground of appeal was, I am satisfied, unanswerable having regard to the terms of Art 53(2) of the 1996 Convention as applied to the particular circumstances of this case.

38. Within this context, I am further satisfied having regard to the matters I have recounted in this judgment that the conduct of the mother in pursuing her application after she had received clear and repeated specialist advice to withdraw the same and in refusing to compromise the father's appeal until 13 June 2016 was unreasonable for the purposes of determining the issue of costs. 

39. I accept that on 12 February 2016 the mother received erroneous advice from her then solicitor that led her to give instructions to issue her application.  However, from 15 April 2016 the mother was placed on notice by correspondence from the father that her application plainly had no merit having regard to the clear legal position.  Further, from 22 April 2016 the mother had the repeated benefit from highly specialist and experienced junior counsel that her application had no prospect of success.  Whilst I accept that the mother had had conflicting advice from her Russian lawyers, she was litigating in this jurisdiction and had twice had extremely clear advice from specialist junior counsel that her application could not succeed.   This advice was ignored by the mother, leading to the father issuing his Notice of Appeal.  Thereafter the mother received further advice as to the hopelessness of her application from highly specialist and experienced leading counsel.  Still it took the mother nearly a month to concede.  Thereafter the mother refused to compromise on the issue of costs notwithstanding the position I have outlined.  Within this context, I am satisfied that the mother acted unreasonably in the conduct of her application and I am satisfied that, in circumstances where the father has been successful in his appeal, the justice of the case requires that this be reflected in an order for costs.

40. I am not persuaded that I should take into account any contended for disparity of means between the mother and the father when considering the issue of costs.  There is no cogent evidence before the court in support of either parents' argument on this issue.  Further, whilst the mother prays in aid a disparity between her financial position and that of the father, it is clear from the documents disclosed by the mother that, as at 20 June 2016, she had informed her then solicitors immediately prior to the consultation with leading counsel on 18 May 2016 that she "had plenty of funds to deal with the expense".  I am likewise not persuaded that the mother can escape a costs order on the basis that, on occasion, she received erroneous legal advice.  Finally, I am not satisfied that the wider merits of the parties respective cases regarding D's welfare fall to be considered.  There remains a fierce dispute between the parties in respect of the welfare issues, which dispute has yet to be determined.  In the circumstances, it would not be appropriate to the wider merits of the welfare issues between the parties when considering the issue of costs on this appeal.

41. As to the amount of costs, notwithstanding the submission of Miss Renton I am satisfied that this is an appropriate case in which to summarily assess costs.   In doing so, I am also satisfied that the amount claimed by the father, namely £38,813, bears no proportionate relationship to the single point in issue.  Whilst I accept that this case involves a specialist area of the law, that reasonable efforts were required on the part of those representing the father in an attempt to resolve the issue in question and that those attempts were rebuffed and that it was necessary to institute an appeal, the costs claimed by the father do not bear a reasonable relationship to the level of complexity of the subject litigation and the amount of work reasonably required to conduct and present the father's case proficiently having regard to all the relevant circumstances. 

42. It is difficult to imagine a more straightforward legal point than the one that arose in this case.  That point was that the English court did not have jurisdiction to make the order it did on 16 March 2016 because at the time the order that was the subject of the application to register it was made in Russia the 1996 Hague Convention was not in force between that jurisdiction and this.  The point was as unassailable as it was straightforward.  It could, in fact, be articulated in six words, namely "the English court had no jurisdiction".  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.

43. The costs allowable are costs proportionately and reasonably incurred and proportionate and reasonable in amount.  As set out above, the concept of proportionality concerns not the amount of costs which it was in the party's best interests to incur but the lowest amount which he or she could reasonably have been expected to spend in order to have his or her case conducted and presented proficiently having regard to all the relevant circumstances (Khazakstan Kagazy PLC v Zhunus [2015] EWHC 404 (Comm)).  

44. In summarily assessing costs the judge's task is to focus on the heads of costs he or she is being asked to assess and to form his or her best judgment of the proportion it is reasonable to require the paying party to pay (Machinery Developments Ltd v St Merryn Meat Ltd [2005] EWCA Civ 29).  Having regard to the contents of the Schedule of Costs filed and served on behalf of the father, I am satisfied as follows in respect of costs in favour of the father:

i) I am not satisfied that the hourly rate for the Grade C fee earner of £270 per hour is reasonable.  I am prepared to allow an hourly rate of £200 per hour. I am not satisfied that the hourly rate for the Grade A fee earner of £550 is proportionate and reasonable.  I am prepared to allow an hourly rate of £325.  Finally, I am not satisfied that the hourly rate for the Grade D fee earner of £150 is proportionate and reasonable.  I am prepared to allow an hourly rate of £125. 

ii) I am not satisfied, given the simple and singular nature of the point in issue, that it was proportionate and reasonable to expend 3 hours in attendance on the client.  I am prepared to allow 1 hour for the Grade A fee earner, amounting to £325 as against a claimed figure of £1,118.

iii) With respect to attendance on opponents I am likewise not satisfied, given the simple and singular nature of the point in issue, that it was proportionate to expend 13.3 hours on letters and emails out and telephone calls.   It was plainly necessary for certain letters to be sent setting out the father's case before an appeal was issued, chasing the mother for a response and notifying the mother that the appeal had been issued and corresponding in respect of the impending appeal hearing.  Whilst the first of these would have taken some time, the remainder would have taken very little.   I am prepared to allow 1 hour for the Grade A fee earner and 0.5 hours for the Grade C fee earner, amounting to £425 as against a claimed sum of £3,997.

iv) The attendance on others is not further particularised in any way in the Schedule of Costs and I am not prepared to allow those costs, claimed in the sum of £2,341.

v) I am not prepared to allow the sum claimed for work done on documents.  There is no schedule attached to the Statement of Costs enumerating in any way the work claimed in this regard.  Further, and in any event, given the simple and singular nature of the point in issue, where the letters required to be written to the other side are dealt with elsewhere and where counsel drafted Notice of Appeal and documents for the hearing, there was in my judgment no requirement to spend significant periods of time working on documentation.  I am prepared to allow 1 hour for the Grade A fee earner, amounting to £325 as against a claimed figure of £9,352.

vi) In terms of the attendance at the hearing, in circumstances where the father's case was entirely straightforward in nature, comprising one unassailable legal submission, and in circumstances where the father was not attending the hearings, I am satisfied that it was not appropriate for counsel to be attended by a Grade A fee earner.  In the circumstances, I take the view that it was reasonable and proportionate for counsel to be attended by a Grade D fee earner.  I am prepared to allow 4.4 hours attendance amounting to £550 as against the claimed sum of £2,680 (Mr Devereux having already made certain concessions in respect of the figure for attendance).

vii) In circumstances where the father's solicitors occupy premises in the immediate vicinity of the court, the figure for travel and waiting is disproportionate.  I am prepared to allow 0.5 hours travel and waiting time for the Grade D fee earner, amounting to £62.50 as against a claimed figure of £4,850.

viii) With respect to the evident expertise, skill and industry of junior counsel instructed on behalf of the father, the cost of advice/conference/ documents of £4,550 is disproportionate in circumstances where, again, the father's case was entirely straightforward in nature, comprising one unassailable legal submission.  Within this context I am prepared to allow £800. 

ix) Counsel's fee of £8,500 for the two hearings is disproportionate in circumstances where the issue in dispute is, for the reasons set out above, so narrow.  Again with respect to the evident expertise, skill and industry of junior counsel, I am prepared to allow a total of £1250 for attendance at the hearings. 

45. In the circumstances I summarily assess the costs award in this case in the sum of £3,737.50 as against the initial claimed figure of £38,813.

46. With regard to the last two heads of costs dealt with in Paragraph 44 above, the court makes clear that no criticism is levelled at the competence with which junior counsel for the father has presented the father's successful appeal to the court, his oral and written submissions having been, as always, of a very high calibre.

CONCLUSION

47. The stringent test of proportionality in relation to costs incurred applies with equal force in family proceedings.  It is remarkable that such a significant sum of money has been spent by these two parents arguing over a single question the answer to which was indisputable from the outset. The costs incurred in this case were disproportionate to the single issue at hand.  I again observe that the single question in the case was entirely straightforward in nature and answered by one unassailable legal submission. 

48. 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.

49. I allow the father's appeal and set aside the order of District Judge Robinson of 16 March 2016.  I give the mother permission to withdraw her application for enforcement.  I make a costs order against the mother and summarily assess costs at £3,737.50 to be paid within 28 days.

50. That is my judgment.