EDG v RR (Rev 1)

Week after week, if not day after day, judges like myself see litigants spending completely disproportionate amounts of money on purely financial litigation. The tragedy is that any given couple or family tend only to experience such waste and folly on a single occasion, and if they learn the lesson at all, they learn it too late.

This case seems to me to be yet another example of parties who have allowed their litigation to become completely out of control and to lack any proportionality to the underlying sums in issue.

This case was listed before me today for 30 minutes for directions. The parties and their lawyers first came into court at 10.35 a.m. this morning. At my urging, they have spent considerable periods of time out of court during the course of the day endeavouring to settle the case, whilst indeed I have been engaged also on another case. No settlement has been reached and I am now saying these few words at 4.20 p.m. after the mother, indeed, has now already left to return to Paris where she lives.

The upshot is that I am only able today to give some, essentially, very standard directions; and to list this case for a fuller, if not final, hearing on a date to be fixed when 2 days are available. But I do wish by these short words to record the situation that appears to exist in this case and to redouble for the last time today my intense efforts to promote negotiations and agreement, including, very importantly, compromise.

I do not have all the facts of the case at my fingertips for what was listed today as a half hour directions hearing, with a much more substantial case to follow.

Essentially, these parties are both French. From their relationship they have one child, who is now aged 3. Currently the mother and child live in Paris. The father lives in London, where he works. As a matter of fact, the father does not have any current contact or real relationship with the child.

In proceedings in France, the father was ordered to pay maintenance for the child at the equivalent rate in Euros of about £10,000 per annum. Unfortunately he allowed arrears to accumulate. The mother brought enforcement proceedings against him here in England, in which, in May 2014, Sir Paul Coleridge quantified the arrears as £12,000 and required the father to pay them by instalments.

There is currently some dispute as to whether any arrears are still outstanding. Ms. Deborah Bangay, Queen’s Counsel, and Mrs. Rebecca Bailey-Harris, who are both very generously acting free of charge for the father, strongly say that now there are indeed no outstanding arrears and that there may even have been some small element of overpayment.

As I understand it, Mr William Healing, the solicitor-advocate on behalf of the mother, contends that there is interest due on those arrears and that, taking account of interest, the father still owes something of the order of £3,000 to £4,000. I mention that so far as I am aware, there is no statutory provision for interest upon maintenance here in England and Wales; but, of course, as the underlying order is a French order, interest may be due under the terms of the French order, or the general law of France.

The father says that he has suffered a very considerable drop in his income in recent years and can no longer afford to pay maintenance at the rate of £10,000 per annum. He does indeed have to pay maintenance also for another child aged 10 from a previous relationship, and the essential thrust of his case is that he simply does not have enough net income to go round. Accordingly, the father has issued an application to the courts of England and Wales for a variation downwards of this underlying French maintenance order.

Relatively recently, last month, the solicitor on behalf of the mother, who demonstrates considerable expertise in the interlocking web of English, French and European law, has issued an application that seeks that the father’s application to vary the maintenance downwards be stayed for lack of jurisdiction in the courts of England and Wales. He has made clear today that the use of the expression “stayed” in his formal application is an error, and I will indeed give him permission (effective only from the date of service) to serve an amended application that seeks that the father’s variation application be struck out and not merely stayed.

So issue seems to be joined between great experts in European law on both sides in this case, on the issue of whether or not a maintenance order made in another Member State of the EU can be varied here in circumstances in which the mother has already sought the assistance of the English court to enforce the order.

This all appears to turn upon what is meant by “an appearance”. As I understand it, the argument on behalf of the father is that as a result of an agreement by the mother earlier this year to the father pursuing remedies here, she has now, for the purposes of the relevant European law, entered an appearance, thereby vesting this court with jurisdiction. Mr Healing, on behalf of the mother, does not accept that.

For the purposes even of this directions hearing today, Mr Healing produced the most erudite note, or skeleton argument, extending to about 10 pages and 42 paragraphs, which is countered by a no less erudite skeleton argument by Ms. Bangay and Mrs. Bailey-Harris, extending also to about 10 pages and 42 paragraphs.

The skeleton argument of Ms. Bangay and Mrs. Bailey-Harris, in particular, makes, as one would expect, copious and erudite reference to a number of European instruments; to a number of well known textbooks; to a European report known as the Jenard Report; to English legislation; and to a range of authorities spanning not only family, but also commercial law.

These are arguments that are patently not susceptible of resolution in 30 minutes, or anything like it. Accordingly, there is, essentially, only one listing direction that I can make today, as I do, which is that all remaining applications between these parties are to be listed for final hearing on a date to be fixed on the first open date, with 2 days allowed. I will also make various directions as to disclosure and discovery, to which it is not necessary to make fuller reference in this judgment.

I wish, however, to return to the course of today.

The underlying maintenance order in this case is for about £10,000 a year. At the outset today, Ms. Bangay made clear that the father, in any event, offered to pay at the rate of £5,000 a year, a figure increased during the course of the day to an open offer of £6,000 a year. So, as an annual figure, the underlying dispute here between these parties was as to £5,000 and is now as to £4,000.

As I have mentioned, there may be some dispute as to whether there are still any arrears depending on whether or not interest attaches. But even if there are arrears, they are, as I understand it, only of the order of £3,000 to £4,000.

In addition, the father is already under an obligation to pay costs of £12,000 under the order of Sir Paul Coleridge in the enforcement proceedings. That, however, is, in a sense, a discrete matter. The legal obligation to pay those costs undoubtedly exists, and will persist, independently of the present proceedings.

Until today, the father has represented himself before the court. As I say, he is now most expertly represented by two exceptionally experienced barristers in this field, who have generously agreed to act free of charge. So, as it happens, the father has not incurred any costs himself.

On the mother’s side, however, I have been told that since she commenced enforcement proceedings in England and Wales, she has incurred costs of the order of £30,000 inclusive of VAT. Of that £30,000, the father is, of course, required to pay her £12,000 under the order of Sir Paul Coleridge, of which he is currently in breach.

This is the point at which any person approaching this case with the least detachment, sense of reality or costs proportionality, would ask how it is that these parties are still litigating against each other with such bitter intensity.

The bald fact is that the dispute between them in relation to current levels of maintenance is now £4,000 a year, and to get to this point and to achieve enforcement of arrears, the mother has already herself spent £30,000.

As I have observed several times today, when parties are disputing issues like custody or residence or contact with children, there are, of course, very high issues at stake which cannot readily be measured in terms of pounds or Euros. But when parties are litigating about maintenance or other financial matters, there is always a direct and immediate correlation between the amounts in issue and the costs being incurred.

To my mind, there is a total loss of costs proportionality in this case; and the idea of this mother coming over from Paris, as she has today and will have to again, and being locked in litigation with this father about these objectively small sums, is almost mind-boggling.

Of course, her solicitor, Mr Healing, appropriately and very strongly makes the point that if she is to just cave in, then that may involve a mother being worn down by a war of attrition by a bullying father. Against that, Ms. Bangay very strongly says that this is not the scenario of a bullying father. Rather, it is the scenario of somebody who has suffered a very considerable drop in his income and is now struggling very hard to make ends meet.

Be all that as it may, this case cries out for settlement. In discharge of the duties of the court under rule 1.4 of the Family Procedure Rules 2010, I have repeatedly today encouraged, urged, cajoled and ultimately hectored these parties to try to resolve these differences. Despite that, and despite having a considerable amount of time in which to do so, they have been unable to do so.

By the end of today, the position is that the father has made an open offer to pay maintenance at the rate of £6,000 per annum, and to pay £5,000 in settlement of the outstanding costs debt. That is not acceptable to the mother, who has said that she wishes to continue to receive £10,000 per annum under the existing order, and £25,000 in settlement of all outstanding costs, including the £12,000 already owing under the order of Sir Paul Coleridge.

In that impasse there was a point this afternoon when Ms. Bangay said that, as a matter of pragmatism, the father would now withdraw his application to the courts of England and Wales to vary the maintenance order, and instead pursue an application to vary before the court in France that made the underlying order.

That, however, was immediately countered by Mr Healing saying that in that event, he seeks an order for all the costs of the mother thrown away, which is resisted by Ms. Bangay. Although CPR rule 38.6 does not apply to family proceedings, that particular rule indicates that when a party discontinues an application, ordinarily he should pay the costs incurred up to the date of discontinuance.

It seems to me impossible for me to adjudicate today upon whether or not the father should have to pay all or part of the costs of the mother of and incidental to this round of the proceedings, without my first engaging in the question of who is right and who is wrong as to whether or not the court has jurisdiction.

I simply do not know the answer to that question, which will require a considerable amount of court time to investigate and rule upon.

So, I cannot do any sort of rough justice today with regard to the costs. The result is that these cross applications will have to be listed, as I have said, for a further or final hearing with 2 days allowed.

As I draw this judgment to a close, the current position of Ms. Bangay, as I understand it, is that she is no longer at this moment withdrawing her application, and needs to have more time to ponder and decide what to do.

So, for these reasons, the end result of today, which was listed for 30 minutes but has occupied the entire day for the parties and much of the day for me, is that I give directions for listing a further, and hopefully final, hearing of this matter.

I give various directions with regard to discovery and disclosure, and I order that the costs of today be the costs in the substantive applications of the father for a variation of the French order, and of the mother that the variation application must be stayed for want of jurisdiction.

Having repeatedly highlighted throughout today, and again in this judgment, the total lack of proportionality of these present applications and proceedings, I can only end this judgment by once again urging and encouraging these parties in the strongest possible terms to cease this bitter and costs disproportionate conflict, and to resolve their differences by negotiation and agreement, including compromise. They need to remember that once upon a time their relationship was such that they conceived this child. He is at the centre of the conflict. Whatever their differences, he clearly needs to be provided for in a way that is fair and just to both parties, but also meets or contributes to his needs.