M v T

MR JUSTICE CHARLES: This matter comes before me pursuant to a direction I gave on the last occasion that the case came before the court (which was on 3rd March). The matter has come before me for a further review with a time estimate of half a day. As I said in my judgment on that last occasion history has always demonstrated that time estimates in this case have been too short. We have done it again, the hearing has lasted more than half a day.

There have been a number of issues arising in respect of the order I made on 3^rd March, which has not been finalised. The terms of the order were, as I understand it, agreed between counsel acting for the parties. Points were then raised by the solicitor acting for the father and there is a letter I have seen dated 31st March indicating that amongst others a jurisdictional point would be raised before me today. During the course of the hearing I have indicated that it seems to me that it would have been more appropriate if that jurisdictional point had been brought immediately and directly to my attention. However, there was certainly, as it appears, implied consent by both sides that the matter should be dealt with today with other points.

One of the other points raised related to paragraph 3(a) of the draft concerning the amount to be paid per month to cover the cost of a classroom assistant. So far as that was concerned, on the last occasion the figure to be put in for it was left to those who were finalising the order in this way: either the cost would be averaged over a year or there would be gaps, recognising that the classroom assistant would not been working during each day of the year. I have seen correspondence in which the solicitor acting for the father was provided with information that the figure appearing in the order is the averaged figure. I was told by leading counsel acting for the father that his instructing solicitor had not seen that letter. The figure referred to in that letter is £1,607.40 per month and is referred to in later correspondence, but it is certainly possible that that amount is something that came to the knowledge of the father's solicitor through the draft order rather than through correspondence.

This is not the first time in the history of this case that points have been raised as to receipt of information by the solicitor acting for the father. I profess that I am troubled as to the attitude taken and have expressed my disquiet during the course of the hearing. My disquiet flows in large measure from the provision in my order for the payment of a capital sum of £250,000 to be there by 10th May, ie yesterday, which was fixed deliberately by reference to the date fixed for this hearing. Again, very sadly, not for the first time in the way of which this case has been presented an application is made to me today without any evidence being put in in support of it for an extension of time for the father to pay. I do not propose to repeat things I said during the course of the hearing. If people wish to know my views as to the quality of the presentation of that application, they can look at the relevant extract from the transcript which took place shortly after lunchtime today. What I do repeat is an expression of my frustration and annoyance at yet another failure to present evidence in support of an application of this type by this father. I will return to whether or not an extension should be given or not in a moment or two.

There have been a number of points of detail raised in respect of the draft agreed by counsel instructed before me on the previous occasion, which have, I am happy to say, resulted in agreement being reached between the parties now as to the terms of the order and various minor amendments to it. As a check I have gone through these matters immediately before delivering this judgment with counsel and have directed that the order in its amended form is to be agreed by leading counsel. If leading counsel are not able to agree the precise terms of the order they have my permission to each send me their respective positions in writing and I will myself resolve the terms of the order. I invite them to do that as quickly as is practically possible.

That leaves a number of, I think it is three, issues outstanding today. The first and shortest issue is whether or not the provision as to the payment in respect of a classroom assistant should be altered to give a later start date. I refuse that application. To my mind the factual basis of it is not a solid one, it coming from an interpretation of a report by Miss Savage. Further, and in any event more importantly, given the track record of this father as to making payments, it is clear that the mother and her advisers had to proceed with caution to see that money was actually on stream before putting in place the classroom assistant. One payment has been made and, equally importantly, an accounting exercise can simply be carried out at the end of the day to ensure that monies paid with the purpose of meeting the cost of that classroom assistant have been so applied, and if they have not then monies could be repaid. The provision in the order will provide that those monies are to be paid to the solicitors acting for the mother. One of the agreed provisions in the order is that receipted invoices would be provided.

I was invited, in fact I think by both sides, to direct that the payment should be made directly to the relevant preparatory school. I have refused that. I confess I recoil from the prospect of involving that preparatory school in debate and dispute as to whether payments have been made in this case.

The next issue I should deal with is the issue, to my mind properly raised as I understand it as soon as it was brought to their attention by leading counsel now instructed on behalf of the father, that on the previous occasions that this matter has been before me I was not referred to the decision of Bennett J in W v J (Child Variation of Financial Provision) [2004] 2 FLR 300. Mr Howard, who today appears for the father, has checked the position relating to the transcript of the whole hearing to check that W v J was not referred to and I have no recollection of it having been referred. It was common ground it was not.

The transcript of the hearing when I initially decided that the interim payment should include an element for cost shows that I dealt with this in paragraph 47 of my judgment. It is apparent from that paragraph that I did consider the jurisdictional point and whether or not the statutory language of Schedule 1 permitted me to include within an interim payment a provision in respect of costs. It is also apparent from it that at that stage I was referred to a decision of the Court of Appeal reported in The Times Law Report, that is re S, which has now been reported at [2005] 2 FLR 94. As appears from paragraph 47 of the transcript that I have just referred to, it was in fact, as I recall it in my view, correctly accepted that the provisions of Schedule 1 enable the court to make an order for the benefit of the children which is directed to costs incurred for their benefit.

At the heart of Bennett J's decision in W v J is his acceptance of the argument advanced in that case by counsel (as set out in paragraph 46 of his judgment) and the submission as he accepted was this:

A similar approach was taken to the word "benefit" within the schedule by Bracewell J in re S. That appears from paragraph 12 of the judgment of Thorpe LJ in that case citing from Bracewell J where he says:

In re S Thorpe LJ refers to the decision of Bennett J in W v J. I was told by Mr Howard who was in W v J that there was an application to appeal W v J which was made by the client in person but which was refused paper. I know not whether that was refused by Thorpe LJ or somebody else.

In his judgment in re S, paragraphs 19 and 20, Thorpe LJ returns to W v J, having referred to it slightly earlier, and refers to paragraphs 46 and 47 of the judgment of Bennett J. The passage from paragraph 47 he refers to relates to money spent on the mother's lawyers who advanced her case as to what she perceived to be in T's best interests. Thorpe LJ in paragraph 20 goes on to say:

I am not alone in having a little difficulty in seeing that Bennett J was not going further than that in paragraph 46 and was not, in that paragraph finding that the court had no jurisdiction on the true construction of Schedule 1, to make the order that was being sought. I therefore propose to consider the matter on the basis that, contrary to what is said in paragraph 20 of re S, paragraph 46 of Bennett J's judgment should be construed as a conclusion that on its true construction of Schedule 1 does not give the court jurisdiction to make an interim payment in respect of costs to an applicant parent.

If that decision had been brought to my attention when I was making my decision it is naturally something I would have considered and given close attention to. It is common ground that I am not bound by that decision. Equally, however, it is common ground that a first instance judge even if he has doubts as to the correctness of the views of one of his brethren would be inclined to adopt and follow it leaving it to the Court of Appeal to deal with the matter.

Here the position is slightly different because as I have indicated I reached my conclusion on the construction of Schedule 1, and the width of the jurisdiction it gives, essentially on round one so far as the interim payment was concerned and without knowledge of Bennett J's decision.

I also at this stage clearly have to have regard to re S in which the Court of Appeal was looking at a different aspect of the application and construction of the statute in the context of the payment of travel costs. The Court of Appeal confirm, as I would respectfully suggest is apparent, that the use of the word benefit within that schedule should be given a wide meaning. The word benefit is an ordinary English word and therefore just as in the cases of A v A and G v G the approach to construction is to apply and construe the range of meaning of the ordinary English word in its context. The word “benefit” can also be described as a chameleon word and therefore one that takes colour from its context.

What is the context in Schedule 1? Schedule 1 provides that an applicant, usually a parent, can bring an application for the benefit of the child. You stand back and ask how the applicant holds money ordered under Schedule 1. The answer is that those monies, to adopt an analogy, would be held for a purpose and possibly on a purpose trust. It seems to me that an overview of Schedule 1 shows that the applicant is applying in a representative capacity. I do not use that expression in a technical sense, but the applicant is applying to obtain an order for the benefit of the child or children and therefore somebody else. I confess therefore that I simply do not agree with the conclusion reached by Bennett J, if that is its true effect, that, as a matter of construction of Schedule 1, legal costs are excluded as a matter of jurisdiction because they are for the benefit of the applicant personally and not for the benefit of the child. I would respectfully agree with the proposition that in the exercise of the discretion if, as I believe to be the case there be such a discretion, care needs to be taken to see that the monies are not being spent to satisfy the applicant's taste for litigation. But that is a matter relating to exercise of discretion rather than jurisdiction. To my mind if you stand back and ask yourself, given my conclusion that the applicant is in a representative or quasi representative capacity: would a payment in respect of the costs to be incurred by the applicant in bringing the case effectively on behalf of the children be a payment for the benefit of the children, the answer to my mind is yes. Having that jurisdiction does not mean that it will always be exercised.

I accept, as was submitted on behalf of Mr Howard, that there are considerable similarities between this case and W v J, but as I have said I respectfully disagree with the jurisdictional conclusion, if there be one, in W v J.

I also accept that re P demonstrates that there is a grey area between personal benefit being paid for the applicant and for the child in cases of this type. I also agree that there is a distinction between the payment of monies in respect of legal costs and the payment of monies in respect of travel costs. However, none of those distinctions seem to me to go to the heart of the issue as to what is the extent of the discretion conferred by Schedule 1. Rather, it seems to me that they go to the application of the relevant discretion.

I also accept that there is a distinction between maintenance pending suit in that that is something relating to costs incurred by a spouse. However, it does seem to me that by analogy the approach taken by myself in G v G and in A v A, and without reliance on the provisions of Article 6 and Article 8, does provide some support for the conclusion that it is for the benefit of the relevant children that the applicant should be enabled to litigate with an appropriate equality of arms.

Another point put forward by Mr Howard was that in another re S, as yet unreported, the possibility of the child being separately represented in cases of this type was raised. My riposte was whether he was therefore asking me to join the children so that his client should make contributions towards their costs? Unsurprisingly, that was not his position, but it does seem to me to demonstrate that the proper construction of Schedule 1 is that it includes the ability of the court to order by way of interim payment a payment towards costs. To my mind it certainly can be for the benefit of children in cases under Schedule 1 to ensure that they are properly represented and have an appropriate equality of arms with the respondent to those proceedings. Therefore, if Bennett J was deciding that the court did not have such a jurisdiction in W v J, for the reasons I have given I respectfully do not agree, and I do not propose to follow that decision. I find that I do have such jurisdiction.

The analysis I have just given reflects the discretion that I indicated, in my earlier judgment, that I had and the point that in exercising that discretion there is a need to take real care to ensure that the payor is not being put in an unduly difficult or oppressed position. As I have mentioned on earlier occasions, where there is a prospect that the applicant will receive nothing there can be a greater risk of that happening. Here on my analysis as the interim payment in respect of costs is one that is categorised as being for the benefit of the children, it seems to me, as I have indicated in my earlier judgment, that the payments can be taken into account in the substantive order made and this reduces the potential for unfairness to the respondent father.

A point I have not considered expressly before but which is I think inherent in my earlier judgments is the point raised and identified in the Court of Appeal as to whether these proceedings, or the level in costs in them, are to satisfy the taste of this applicant for litigation. I have made comments relating to her stance in my long judgment in the divorce proceedings. To my mind the order that I made on the last occasion which looked at the issues that could or might arise within the context of the Schedule 1 proceedings and in the specific issue proceedings and the Children Act proceedings is one where the quantum of costs being sought, given the attitude of this father to litigation, was not a quantum that could be asserted to be one that was there to quench the thirst of the applicant for litigation. There are real differences between this applicant and this respondent on fundamental points of principle. I acknowledge that therefore it can be said that this applicant is advancing her position on those points for herself and on her case in the best interests of the children. However, to my mind the fair way to bring that into account is that overpayments in respect of the children's costs can be brought into account at the end of the day in deciding what sums should be applied for their benefit under Schedule 1 rather than by way of crimping the ability of this applicant, and thus the children, to be properly and fully represented before the court on all the many points in issue.

My findings in my long judgment in the divorce proceedings indicate quite clearly that in my judgment this father can be unscrupulous, he can lie and he can seek to exert undue pressure by reference to a lack of equality of arms. Sadly, certain aspects of the way in which he has presented his case related to the children do not give one confidence that he will not repeat that process within these proceedings. In my judgment, as a matter of discretion, it is clearly for the benefit of these children in these proceedings that their case should be put before the court fully and properly by counsel and that warrants the interim payment including a figure in respect of costs.

On behalf of the father, my order not having been drawn up, leading counsel attempted to revisit the quantification of the amounts. I refuse to change the amounts. Going back to my judgment, in particular paragraph 48 of the transcript thereof I pared down the figure to a figure of £135,000 and indicated that it seemed to me that that was too low given the history of this matter.

As was apparent, I found it extremely infuriating to listen to submissions being made on behalf of the father that given his concessions this was now likely to be a fairly simple case and the contingencies or similar contingencies to those referred to in paragraph 48 were unlikely to arise and the court could proceed with confidence that he would approach this litigation constructively. To my mind if history tells us anything it indicates that it is most unlikely that that will be the case. If it does prove happily to be the case, then I am confident that the solicitors who have acted for the wife in this case will retain any balance of the sums paid in respect of costs and that it will be available for re-payment to the father. I therefore refuse to revisit the quantifications.

A doubt was raised as to whether the £250,000 capital sum referred to in my order was related to the payment in respect of legal costs as well as to the periodical payments. The transcript that is before me shows I referred only to periodical payments. My recollection and my analysis of what I think I would have thought, is that I would have been including the legal costs element within that simply as a matter of general approach and mathematics. That is one of the amendments there has been agreed to the order.

Infuriatingly the father made an application for extension without any evidence. Over lunchtime particulars were sought as to that application by leading counsel from his solicitor and it came as no surprise to those of us who have dealt with this before that the explanation was that he was having difficulties in obtaining money from his trustees. There have been previous findings of this court and of the Court of Appeal to the effect, although it is still disputed by this father, that when he writes to the trustees he could in truth, although they are independent persons, address the letters 'Dear Me'. There are clear indications that he has complete control over the assets in those funds, albeit, as I acknowledge, there are independent trustees. For example, going back to the earlier proceedings there was no apparent difficulty in him being able to purchase an extremely expensive property in London for his own personal use.

The court is, however, faced with this problem. The order that I made on the last occasion has not been drawn up. The time period has now passed by a day. The father is seeking 14 days to make the payment. I confess with some reluctance I am prepared to give a 14 day extension from 10th May with an indication that it is a final extension.

The next issue was what if any sanction should be put in place. In my last judgment I recorded that if it was not paid, I think it is in paragraph 62, I said:

Should I take that course now? I am invited to do so by the applicant. In that context I have been told today that the proceedings in Nigeria are going ahead, that the father has effectively completed his pleadings. There is a review hearing on 7th June by which date it is expected that the mother will have completed her pleadings and the father has indicated he would be seeking an expedited hearing. In those circumstances, some indication being before me that progress is being made in Nigeria, I do not propose to impose that condition in respect of non-payment, namely the lifting of that stay. However, what I do propose to do is to impose the condition that if those sums are not paid by that date, then the father will be debarred from putting in any further evidence in the Schedule 1 proceedings and from defending those proceedings without permission of the court. That is always an unattractive course for a court to take in a matter dealing with children. I have not imposed it in respect of his applications for contact and any further dispute as to interim payments. I impose it in respect of the full hearing money claims under Schedule 1. Very unfortunately history in this case demonstrates that unless the court imposes sanctions this father simply does not take a constructive stance to litigation. I think I have therefore covered the points in issue.