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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> A -v- B (Family) [2015] JRC 262 (17 December 2015) URL: http://www.bailii.org/je/cases/UR/2015/2015_262.html Cite as: [2015] JRC 262 |
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Family - appeal against order made by the Family Registrar dated 22nd July, 2010.
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Before : |
T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Marett-Crosby and Nicolle |
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Between |
A (the father) |
Appellant |
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And |
B (the mother) |
Respondent |
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IN THE MATTER OF SCHEDULE 1 OF THE CHILDREN (JERSEY) LAW 2002
AND IN THE MATTER OF MATTHEW (THE CHILD)
Advocate M. C. Goulborn for the Appellant (Substantive Appeal).
Advocate V. Myerson for the Appellant (Jurisdictional Appeal).
Advocate R. E. Colley for the Respondent (Substantive Appeal).
Advocate J. F. Orchard for the Respondent (Jurisdictional Appeal).
judgment
the deputy bailiff:
1. This is an appeal by the appellant ("the father") against an order made by the Registrar on 22nd July, 2014, ("the Order") whereby she ordered the father to make certain payments to the respondent ("the mother") pursuant to paragraph 1, Schedule 1 of the Children (Jersey) Law 2002 ("the Law") for the benefit of the child.
2. The Registrar in essence ordered that:-
(i) From the 1st August, 2014, the father shall make periodical payments to the mother of £5,000 per month for the benefit of the child until the child shall attain the age of 18;
(ii) The periodical payments shall be made by standing order into a bank account designated by the mother;
(iii) The periodical payments shall be increased annually in line with the retail price index in Latvia (or such other cost of living index as appropriate);
(iv) No later than 27th August, 2014, the father shall pay to the mother:-
(a) the sum of £77,500 by way of arrears of maintenance;
(b) a lump sum of £13,000 to provide for the purchase of a new car and for the purchase of a computer for the child;
(c) a contribution of £70,000 towards the mother's legal fees;
(v) Upon production of receipts the father shall pay the mother's travel expenses and accommodation costs incurred in attending the final hearing.
3. In his original notice of appeal filed on 5th September, 2014, the father in effect appealed against all of the parts of the order. On 13th March, 2015, the father filed an amended notice of appeal in which he materially limited the scope of his appeal. He is now appealing to this Court against parts 1), 4(i), 4(ii) and 4(iii) of the order on the following substantive grounds:-
(i) The purported exercise of the Registrar's discretion to order periodical payments for the benefit of the child until he shall attain the age of 18 was wrong in that paragraph 3.1(a) of Schedule 1 of the Law provides that an order for periodical payments shall not in the first instance extend beyond the child's 17th birthday unless the Court thinks it right in the circumstances of the case to specify a later date, when there was no or no sufficient reasons to extend such an order ("Ground 1");
(ii) The Court has no jurisdiction under paragraph 11(1) of Schedule 1 of the Law to make an order for the payment of a lump sum to the mother in respect of a child resident outside Jersey and the Registrar was wrong in law in making such an order ("Ground 2");
(iii) The purported exercise of the Register's discretion in ordering by way of summary assessment a contribution of £70,000 towards the mother's legal fees was wrong in that no or no sufficient details of the mother's costs had been before the Registrar. Alternatively any order for costs in the mother's favour should have been taxed under the provisions of Rule 12 of the Royal Court Rules 2004, as amended ("Ground 3").
4. This appeal has taken a rather unusual procedural course. After the Court sat to consider these matters but before it formally handed down judgment (the draft having been circulated in accordance with standard practice) the father changed legal representative (his first legal representative having left private practice). The father's new legal adviser wrote to the Court raising arguments that, if correct, went to the heart of the jurisdiction to make the order. As a consequence the Court gave directions and sat to consider the new jurisdictional arguments.
5. Although those arguments came later in time than the arguments against the terms of the order, as they go to jurisdiction we will deal with them first.
6. During the arguments on jurisdiction ("the Jurisdictional Appeal") the father was represented by Advocate Myerson and the mother by Advocate Orchard. During the earlier argument against the substance of the order ("the Substantive Appeal") the father was represented by Advocate Goulborn and the mother by Advocate Colley.
7. It is not necessary to deal with the facts of this matter at great length. In brief, the father resides in Jersey and the mother and child, at the time of the order resided in Latvia. Since that time the mother, who is a Russian national and citizen of Latvia, together with the child have taken up residence in Mauritius and it is partly as a result of that move that the ambit of the appeal was curtailed. The father is applying to the Registrar for a reconsideration of the orders for periodical payments.
8. The father and mother are not married. Their relationship started either in 2000 or in 2005 (the dates are disputed but are irrelevant for the present purposes). In 2006 the father submitted a formal acknowledgement of paternity of the child in Latvia. It is accepted that he was not in fact the biological father of the child who was the child of the mother and another man. The father paid significant sums to the mother and to her mother to build a house in Latvia of some substance. Between September 2008 and July 2009 the mother and the child lived together with the father in Jersey. The mother and child then relocated to Latvia and in 2010 the relationship ended.
9. In January 2011 the mother commenced the proceedings which are the subject of the current appeal. Those proceedings were adjourned in June 2011 when the father made an application to the courts in Latvia challenging his voluntary acknowledgement of paternity of the child. That challenge was unsuccessful both at first instance and in subsequent appeals. We will deal with the proceedings before the Latvian Courts in somewhat greater length below.
10. Subsequently the application to the Registrar was revived and resulted in a hearing on 21st/22nd July, 2014, and the order.
11. The question that the Court needs to resolve in the Jurisdictional Appeal is whether or not, for the purposes of the Law, the father is the parent of the child. If he is the parent then the Court has jurisdiction, if he is not then the Court does not have jurisdiction.
12. Other arguments have been raised in connection with this part of the appeal, in particular res judicata and issue estoppel, but the starting point and, indeed, the finishing point on this aspect is whether the Court has jurisdiction. It does not seem to us that the other issues, whilst we may touch on them below, can answer the jurisdictional argument if as a matter of Jersey domestic law the Court has no jurisdiction to make the order. This view may be simply illustrated by posing the following rhetorical question: can the parties to proceedings give the Court a jurisdiction by agreement that it does not as a matter of law enjoy? It seems to us that the answer is inevitably that they cannot.
13. The departure point for considering this matter is how, under the Law, the issue of jurisdiction is stated. Under paragraph 1 of Schedule 1 of the Law it states as follows:-
14. It is clear from this that the jurisdiction of the Court in the sense of its power is limited to the making of an order against "either or both parents". The Court's power is discretionary.
15. The term "parent" is defined twice within the Law. Firstly, paragraph 13 of Schedule 1 of the Law defines it in the following terms:-
16. Secondly, in Article 1 of the Law, the interpretation provisions, "parent" is defined as to:-
17. There are three things that we take from the provisions set out above. Firstly, in both of those provisions the term "parent" is expressed as including the categories that follow. It seems clear from this, therefore, that the provisions are not intended to be comprehensive and are inclusive of the categories of things mentioned but not exclusive. In other words the category of "parent" has been left open. Secondly, the definition of "parent" is not restricted to the "biological father" of a child and can include persons who are not the biological father. Lastly, the definition does not exclude expressly a person who is or has become a parent under the law of a jurisdiction outside Jersey.
18. It is clear, as the father has submitted, that he is not the biological father of the child. He and the mother never married and accordingly he is neither the child's step-father nor adoptive father.
19. The issue, therefore, is the status of the decisions of the Latvian courts and whether, for the purposes of the Law, they confer the status of parent on the father.
20. It is necessary to explore in more detail the nature of the proceedings before the Latvian courts. We understand the steps that have been taken before the courts of Latvia, and the decisions of the Latvian courts, to be as follows:-
(i) On the 11th December, 2006, the father and the mother jointly submitted an application for recognition of paternity of the child to the Riga City District Registry. That document was signed by the father and contains the following statement:-
"I fully acknowledge that [the child] is my son, and I am ready and willing to undertake the responsibility for him as well as all the duties of the parent arising from the law, and therefore I believe the current record on [the child's] father is to be made void, and me, [the father] should be filed as the father with the birth certificate of [the child]."
The Latvian court granted that application on the 13th December, 2006.
(ii) On the 28th April, 2011, the father issued proceedings seeking to set aside the Latvian paternity declaration in Latvia. As part of his claim he asserted that he had been deceived as to the paternity of the child.
(iii) The father's application to set aside the paternity direction was rejected by the Zengate District Court, Riga on the 21st March, 2012. The Court found that the father was unable to establish that he had been deluded into the erroneous belief that he was the child's biological father even though there was no dispute between the parties to those proceedings that the child was not in fact the biological child of the father. Further, where paternity had been voluntarily acknowledged a challenge could only be brought within two years of that acknowledgment and the father was consequently out of time.
(iv) The father appealed the decision of the Riga City Regional Court and that appeal was dismissed on the 7th November, 2012. The father then appealed to the Latvian Supreme Court but that appeal was summarily dismissed on the 22nd March, 2013. Accordingly it appears that the father has exhausted his ability in Latvia to challenge his voluntary acknowledgement of the paternity of the child and the assumption by him under Latvian law of the obligations of a parent.
(v) In the course of the current proceedings before the Family Registrar the parties were directed to seek a joint opinion from a Latvian lawyer relating to the obligations of the father under Latvian law. A legal opinion was provided by Advocate Sanita Rubene on the 27th September, 2013. In her opinion she makes it clear that as a matter of Latvian law the father is bound to take a direct and immediate part in the welfare of the child and that he is under an obligation to make child support payments. It is not as far as we are aware disputed by the parties that such is the father's obligation as a matter of Latvian law.
(vi) We are further informed that the father has taken steps before the courts of Latvia in reliance on his status as the child's father in that he has sought contact, residence and an order seeking the return of the child to Latvia from Mauritius even though he, the father, did not live in Latvia.
21. It is fair to say, therefore, that at no stage have the courts of Latvia determined on evidence that the father is the biological father of the child. That is hardly surprising as the Latvian courts were first engaged on the basis that the father accepted that he should be registered as the father of the child. Accordingly that court, having found that he was not deceived in that respect by the mother, was constrained to proceed on the basis that the father was not able to look behind the consent order granting him the status of parent. What the Latvian court has, however determined, is that the father has the legal status of parent under Latvian Law and it is clear that in making the application that he did the father consented to take on parental responsibility under Latvian law for the child.
22. What, then, is the status of the Latvian judgments as a matter of Jersey law?
23. During the course of the argument before us the mother argued that the father is estopped from denying that he is the father of the child for the purposes of the Law. Although undoubtedly the father has voluntarily acknowledged his status as parent of the child and indeed, as set out above, taken steps before the Court of Latvia in reliance of that status in our view that, without more, does not afford the Court jurisdiction to make the order if, as a matter of Jersey domestic law, it would not otherwise be able to do so. If, by his behaviour, such an estoppel could be created then the father would in our view be estopped from denying that he was a parent for the purposes of the Law at this point, but such an estoppel does not apply.
24. The mother also argued that the father was estopped by reason of "res judicata". Although, for the reason mentioned above, we do not think that estoppel is directly relevant to the question of jurisdiction under the Law it is, in considering the status of the Latvian court's decision, helpful to look at whether or not such an estoppel could have factually been established. In doing so, we are guided as to the weight and nature of the decision.
25. It is clear that the principle of estoppel by res judicata is capable of applying to decisions of foreign courts. In Dicey Morris and Collins, (chapter 14-030-040) the learned authors state:-
26. The same principles set out in Dicey and Morris apply in Jersey. In the case of Minories Finance Limited v Arya Holdings Limited [1994] JLR 149 the Court of Appeal at page 317 said as follows:-
27. It seems to us that there is little doubt, in considering the principles applicable to issue estoppel or res judicata, that the courts of Latvia are courts of competent jurisdiction (and indeed the father accepted that they were competent on matters relating to the child and his status as parent by his voluntary engagement with them on such matters) and, as set out above, the judgments of the Latvian court are final and conclusive. The parties for the Latvian proceedings are identical and the question that really falls to be considered is whether the Latvian decisions be said to be decisions on the merits.
28. It is clear that the Latvian courts were not seeking to determine the paternity of the child (which is a matter of biological reality and may be quite distinct from the issue as to who has legal responsibility for the child's wellbeing) but rather who should assume the responsibilities of parent of the child. It is equally clear from the definition of parent set out in the Law that the Law is concerned with questions of responsibility for the child in question and not exclusively the question of biological paternity. The Law is concerned with who has the status of parent of the child (as opposed to biological paternity) for the purposes of the legal obligations of a parent towards a child. That is also the issue which to our mind was determined by the courts of Latvia.
29. It is quite clear that as a matter of Latvian law and the determinations of the Latvian court the father holds the status of parent with all of the obligations of maintenance or otherwise that that denotes. He volunteered for that status and, so the Court found, was not misled. He is not the child's biological father but he is, as a matter of Latvian law, to which jurisdiction he voluntarily submitted, the child's parent.
30. In our judgment, under the Law, a parent can include a person whose status as such has been determined by a court to which he voluntarily submitted. On this analysis we cannot see why this Court should not accept and adopt that finding of the Latvian court for the purposes of the Law. The issue that was ultimately resolved by the courts in Latvia is whether, having voluntarily assumed the status of parent and the obligations that flow from that as a matter of Latvian law, the father was able to resile from that position. The finding of the court in Latvia was that he could not do so. Similarly we do not think that he can so resile for the purposes of the appeal before us. In our view the issue of who has responsibility as a matter of law to contribute to the wellbeing of the child has been determined by a court definitively. There is nothing to suggest that the process of that determination is unsatisfactory and accordingly in the present circumstances we adopt it.
31. We emphasise, in considering this aspect of the argument, that in our view the Latvian court determined the question of the status of parent and the obligations of a parent and this Court is called upon to determine the same thing, namely whether or not the father is the parent and has the obligations of a parent. The issue is to our mind the same, and has for these purposes been definitively determined in Latvia. The Latvian court was not determining biological paternity and this Court is not called upon to make that determination either.
32. The father referred us to the case of T v B [2010] 2 FLR 1966. The Court was in that case considering whether or not the mother's former lesbian partner who for some seven years had acted as a social and psychological parent to the child (who the mother had had within the lesbian relationship by artificial insemination) was a parent for the purposes of the Children Act 1989. That legislation is in very similar terms to the Law and the court there held that a parent against whom an order for financial provision for a child could properly be made under that statute was confined to those who had the legal status of parent and that parent meant "biological parent or other persons who were parents by operation of law...". The court in that case determined that the mother's lesbian partner, whilst a social and psychological parent, was not a parent in the legal meaning of the word. At paragraph 57 of his judgment, Moylan J said:-
33. The father relies upon this judgment to say that he should not be taken as the parent of the child because he does not fall within the express terms of the Law. We do not find the case of T v B persuasive. Whilst there is a definition of parent within Schedule 1 of the UK statute it is not in precisely the same terms as under the Law and there is no general definition of parent in the UK statute that one finds in the Law. Furthermore the case of T v B related to the question of whether or not it is possible to impute the status of parent as a result of the conduct of a person towards a child where they would not otherwise fall within the statutory definition. The present case, however, is concerned with the effect of the judgments of the Latvian court in determining the status of parent.
34. A significant amount of argument was deployed before us which went, so it seemed to us, to the behaviour of the father. Allegations were made to the effect that he was untrustworthy, that he was inconsistent and dishonest in his submissions to various courts, and that he had fought a long defence against paying any money for the upkeep of the child. We do not need to make any findings on these matters.
35. In our view, for the reasons set out above the father is indeed a parent for the purposes of the Law and we reject the jurisdictional appeal.
36. We now turn to deal with the order and the grounds of appeal set out in paragraph 3 above.
37. Article 15 of the Law provides that the Court may make orders for financial relief with regard to any child in accordance with Schedule 1. Paragraph 1 of Schedule 1 as far as is relevant has been set out above.
38. Paragraph 3 of Schedule 1 provides that:-
39. Paragraph 5 of Schedule 1 provides that:-
40. And finally, paragraph 11 of Schedule 1 provides, in relation to financial provision for a child resident outside Jersey:-
41. The test on appeal in matters such as this was laid down in Downes v Marshall [2010] JLR 265 where Bailhache, Commissioner said, at paragraph 12:-
42. Whilst the observations of Bailhache, Commissioner refer specifically to decisions by the Registrar under the Matrimonial Causes (Jersey) Law 1949, the court held in B v A [2010] JLR 262 at paragraph 16 that the test for appeals for decisions made under the Law was the same.
43. In Ground 1 the father argues that under paragraph 3(1)(a) of Schedule 1 an order for periodical payments should not in the first instance extend beyond the child's 17th birthday unless the Court thinks it right in the circumstances of the case to specify a later date. There was so the father argues no evidence or basis or alternatively no sufficient evidence or basis to extend the order for periodical payments, as the Registrar did, until the child's 18th birthday.
44. In the Registrar's written reasons (unpublished)for her decision, which are comprehensive and run to some 26 pages, she refers to the child's learning needs and the necessity for extra tuition. At paragraph 20 she notes:-
45. She also refers to the other challenges that the child faces at school and the aspirations of the mother for the child. In the section relating to periodical payments, at paragraph 55(iv) of her reasons (unpublished), the Registrar states:-
46. The mother gave evidence before the Registrar. During the course of her examination in chief by Advocate Colley she confirmed that the child was behind in school and gave evidence to the effect that he would need to remain at school until the age of 19. Although the mother was cross-examined by Advocate Goulborn for the father at some length, she was not challenged on this point. The father did not give evidence.
47. We were referred by the mother to the case of I v J [2013] JRC 156, in which at paragraph 84 Clyde-Smith, Commissioner said this:-
48. The distinction between "the circumstances of the case" which might cause the Court to specify a date later than the child's 17th birthday and the "special circumstances" required in paragraph 3(2)(b) of Schedule 1 points, as was clear in the case of I v J, to the view that the "circumstances of the case" is a reference to the circumstances of the case as a whole.
49. It is apparent from the reasons given by the Registrar that she took into account the circumstances of the case and specifically highlighted the elements as set out above as supporting her view that an order should extend to the child's 18th birthday.
50. Applying the principles in Downes v Marshall and allowing the appropriate weight to the Registrar's exercise of discretion there appears to us to be a sufficient basis for the Registrar to conclude that the circumstances of the case justified extending the order for periodical payments until the child's 18th birthday.
51. Accordingly, we reject Ground 1.
52. Ground 2 is advanced with respect to two payments ordered by the Registrar. The first is the payment of £77,500 expressed in the order as "arrears of maintenance" ("the arrears of maintenance payment") and the second is a lump sum of £13,000 to provide for the purchase of a new car and for the purchase of a computer for the child ("the car and computer payment").
53. Both of these payments are challenged. It is convenient, in dealing with the submissions that we received on this ground, to look at the two payments separately although the same submissions to a great extent were made about both of the payments.
54. The father argues that the order for the payment of arrears of maintenance is the order for the payment of a lump sum. The powers of the Court to order financial relief are restricted in the case of financial provisions for a child resident outside Jersey as, under paragraph 11 of Schedule 1 the power of the Court is expressly stated as a power to make one or both of the orders mentioned under paragraph 1(1)(a)(i) or (ii) of Schedule 1, namely an order for periodical payments and/or securing such periodical payments. There is no provision, so the father argues, for the payment of a lump sum and accordingly the Registrar had no power, in the case of this child, to make the order in the terms that she did.
55. In support of this argument we were referred to the English case of B v R [2009] EWHC 2026 (Fam) in which the English court considered the equivalent English statutory provision. In that case the relationship between the parents had broken down and the mother and child had gone to live in France. When the child was five the mother had obtained a French order for child maintenance. There was dispute about the extent to which the father had made any payments under the French order. When the child was about 15 years of age the mother issued an application under Schedule 1 of the Children's Act 1989 seeking "a lump sum and periodical payments order". At the hearing, in the absence of the father who did not attend, the judge ordered him to pay a lump sum of £42,219 (which was the equivalent to the total arrears under the French order) and thereafter ordered periodical payments until the child ceased full time education. That order was challenged. The court found, with regard to the powers of the district judge under Schedule 1 of the Children's Act 1989, that there was no power to make a lump sum order and the order for the payment of £42,219 was set aside.
56. We do not find the case of B v R to be helpful in considering this Court's power in this matter. In B v R the Court was considering an order for a lump sum payment which reflected the arrears of payments due under a foreign maintenance order. It was not, as we are in this case, concerned with the power of the Court to order the payment of a sum which reflects a backdating of its own order for periodical payments to the date of the application.
57. If the father's argument is correct on this point, and the Court had no power to order the payment of arrears of its own order for periodical payments, then this would in our view lead to an unsatisfactory result. If the mother could, as in effect is argued on behalf of the father, receive periodical payments only from the date on which the order for those payments was made then it would serve the purposes of a father, if he wished to do so, to delay by all means at his disposal the date on which the Registrar made the order. The longer he delayed, the less he would ultimately need to pay.
58. Are we then required to interpret paragraph 11 of Schedule 1 in that way? We do not think so. Paragraph 11(2) makes it clear that references in the Law to the powers of the Court under paragraph 1(1) or to an order made under that sub-paragraph shall include a reference to the powers which the Court has to make an order by virtue of sub-paragraph (1) of this paragraph. In other words, paragraph 11 itself directs us to look to the provisions relating to periodical payments throughout the Law and Schedule 1 to determine the extent of the powers of the Court under paragraph 11(1).
59. Under paragraph 3 of Schedule 1 the term that can be specified in an order for periodical payments made under paragraph 1(1)(a)(i) or (ii) in favour of a child may begin with the date of the making of the application for the order in question or any later date. It is quite clear, therefore, that any order for periodical payment, including in our view an order made under paragraph 11(1) of the Schedule can in effect be backdated to the date of the application.
60. In paragraph 56 of her reasons (unpublished) the Registrar said as follows:-
61. The application had been made in January 2011 although the Registrar referred to the payment as being a "lump sum" in reality it was an order for the payment of arrears of maintenance to the date of the application. The reference by the Registrar to Article 5(1) of Schedule 1, which is a provision relating to lump sums, is perhaps not entirely apposite but it is clear, in our view, that the Registrar had the power to order arrears of maintenance dating from the date of the application and that is what in substance she did.
62. Accordingly we reject Ground 2 insofar as it relates to the order for the payment of £77,500.
63. In making her submissions in connection with Ground 2, Advocate Colley, for the mother, advanced arguments about the inherent jurisdiction of the Court to make such orders. Although she advanced that argument in connection with both of the payments challenged under Ground 2 we will deal with it in connection with the second payment that falls to be considered.
64. The Registrar, with regard to the car and computer payment, in her reasons (unpublished), at paragraph 57, said this:-
65. It does not seem to us that this order can be characterised in the same way as an order for the arrears of periodical payments. It is a payment in respect of a capital expenditure, albeit relatively modest, and not ongoing periodical payments. It is simply an order for the payment of a lump sum.
66. As such there is no power under paragraph Article 11 of Schedule 1 to make such an order.
67. Advocate Colley for the mother advanced the argument that the Court has an inherent jurisdiction to make an order in the terms the Registrar did. She argues that the Court had such a jurisdiction, and retains it, because it has not been expressly removed by paragraph 11 of Schedule 1 which should be simply seen, so she argues, as silent on the point of lump sum payments.
68. Whilst we were referred to a number of cases and a learned article on the inherent jurisdiction of the Court we do not need to examine these at any length. It is sufficient for these purposes to repeat the words of Lord Dyson in Al Rawi and others (Respondents) v The Security Service and others (Appellants) [2011] UKSC 34 in which he said:-
69. In our view the position with regard to the powers of the Court under Schedule 1 of the Law is clear. The difference between the powers of the Court under paragraph 1 of Schedule 1 and under paragraph 11 of Schedule 1 would be rendered meaningless if the Court in reaching for an inherent jurisdiction, could simply supplement what is deliberately omitted from paragraph 11 of Schedule 1 with orders that have no statutory basis. If the Court did have an inherent jurisdiction at any point to order the payment of a lump sum for a child outside of the jurisdiction, then in our view that inherent jurisdiction, in the light of Schedule 1 of the Law, has been removed.
70. Accordingly the Registrar had no power to make that part of the order in the terms that she did and Ground 2 of this appeal is allowed to the extent of the order for a lump sum payment in the sum of £13,000.
71. Ground 3 is a challenge to the order of the Registrar that the father pay a contribution of £70,000 towards the mothers legal costs. The information before the Registrar as to the amount of the Mother's legal costs was contained in a schedule in the following terms:-
"BILLED AND PAID £3,249.52
BILLED AND OUTSTANDING £54,691.50
WORK IN PROGRESS £13,486.00
ESTIMATED COSTS OF FINAL HEARING £10,000 (3 days)
TOTAL OUTSTANDING LEGAL COSTS £78,177.50"
72. In the closing submissions before the Registrar Advocate Colley for the Mother addressed the Registrar on the broad ambit of discretion that the Registrar has in connection with an order for costs. As part of her submission she said, at page 32 (second day of the transcript):-
"And then the next case, tab 83 Marett -v- Marett is only relevant, I would submit because it does allow a court within family proceedings to make an award of indemnity costs and that is dealt with on page 24 paragraph 3-8-6 where it says at the very bottom of the page "the indemnity costs order was justified and will not be set aside, nor if it were required would leave to appeal be granted. An indemnity costs order could be made if it were justified by some special or unusual feature e.g. culpability, abuse of process, such as to seem underhand or unreasonable behaviour, abuse of court procedures or the submission of the luminous and unnecessary evidence"."
73. Advocate Colley did not expressly seek an order for indemnity costs nor, indeed, did she seek an order, in express terms, for costs to be summarily assessed.
74. Advocate Goulborn, for the father, did not address the question of costs at length other than to submit that were the Court to be contemplating any order for costs, those costs should be taxed in the usual way. He said:-
"This is a complex and unusual matter, but the fact that it is complex and unusual cannot be laid at the feet of [the Father]. The costs involved are not suitable for summary assessment, particularly when they are at the level claimed in the schedule provided by my learned friend."
75. At paragraph 58 of her reasons the Registrar explains her order for costs. She advances four reasons for the order that she had made in the following terms:-
"(i) Advocate Colley submitted that had she known that the father was a man of substance at the beginning of the proceedings, the disclosure process would have been far less complex and far less costly. She submitted that had a simple statement with regard to his financial situation been made in his C4 then she would not have been obliged to continue with the drawn out process of disclosure which ensued and which is summarised in the chronology at paragraph 14 above. As she said, once the statement that the father could afford to pay any reasonable order had been made in April 2014, she did not seek any further disclosure. I accept Advocate Goulborn's submission that at the time the C4 was filed the father was disputing the paternity declaration but that did not prevent him from making the situation with regard to the father's financial position clear at that early stage.
(ii) As set out in paragraph 55(vi) above, the father's open position was unrealistic and I would go as far as to say, derisory. There is no doubt in my mind that the proceedings went to a final hearing because of the father's attitude towards the mother and his total disregard for Arthur's well-being.
(iii) I believe that the father had delayed these proceedings for as long as he possibly could by instituting the proceedings in Latvia. He could have paid a reasonable amount of maintenance for Arthur while these proceedings were taking place, but he did not. The fact that he ceased paying any maintenance at all again shows, in my view, his complete disregard for Arthur's welfare. As late as the 3rd March 2014 the father made an application for an adjournment of the proceedings which was refused. On the 18th June 2014 he made an application (heard on the 23rd June 2014) for an "unless order" on the grounds that the mother had failed to comply with an order to provide up to date financial information. It became clear at the hearing that the father himself had not complied with an order requiring that he should provide continuing disclosure. Even at the end of the first day of the final hearing, I had to make an order that he should provide up to date credit card statements the following morning because it was said on his behalf at the hearing when asked to produce the statements, that he might not be able to produce them as his personal assistant was away. The father also applied at the same time for leave to adduce expert evidence on the cost of living in Latvia and for the final hearing dates to be vacated. In my view, these were attempts to prevent the final hearing from proceeding thereby causing further delay.
(iv) I accept the submission of Advocate Colley that the father refused to negotiate a settlement of the mother's claim. Advocate Goulborn on more than one occasion throughout these proceedings stated on behalf of the father that no offer could be made because the father had no clear idea of what the mother's expenses were. I find that submission unacceptable. Even if the financial situation was not completely clear, this did not justify the father's refusal to pay little or no maintenance for such a lengthy period of time.
I therefore decided that a contribution of £70,000 towards the mother's costs was fair and reasonable. As stated above, the hearing had to take place because of the father's stance and I felt that it was therefore reasonable that he be ordered to pay the mother's travel expenses."
76. Although the Registrar did not refer to indemnity costs in our view in ordering the payment of the Mother's costs by the father which the Registrar summarily assessed in the sum of £70,000, the Registrar was proceeding on the basis that the Father should pay costs on an indemnity basis.
77. In the case of the Jersey Financial Services Commission v AP Black Jersey Limited, Black and AP Black Limited [2007] JLR 1, the Court considered an application by the Jersey Financial Services Commission for costs in a quantified sum, namely £60,000. Page, Commissioner, at paragraph 17 of his judgment, said this:-
78. In Mubarik v A Mubarak, Craven Trust Company Limited, S Mubarak, N Mubarak and Renouf [2009] JLR Note 5 the Court of Appeal in considering an application for a summary award of costs against the appellant on an indemnity basis or, alternatively, that the majority of the costs should be paid on the standard basis with a waste of cost order in respect of some elements held:-
79. It is clear, therefore, that the Court is able to make both an order for indemnity costs and to assess those costs on a summary basis but with the important caveat that the information before it is sufficiently detailed and supported by documentation to permit the Court to make an informed and confident judgment.
80. In the present case, in terms of the amount of the mother's costs, the Registrar had no information other than the schedule to which we have referred. She had, of course, a very detailed understanding of the case as a whole and of the conduct of the hearing before her. In our view, however, whether or not she intended to order costs on an indemnity basis, there was insufficient information available to the Registrar for her to be able to make "an informed and confident judgment" in assessing the appropriate level of costs summarily.
81. Accordingly we allow the appeal on this element and the order for the payment of the mother's costs by the father in the sum of £70,000 is set aside and the Court remits the question of those costs to the Registrar for reconsideration.
