BSA v NVT

The Appellant father is BSA and the Respondent mother is NVT. They have two minor children: K and A. The children live with their mother in the former family home and the father lives in Switzerland. In 2018 the mother commenced proceedings under Schedule 1 to the Children Act 1989. The parties agreed a consent order concluding those proceedings on 11 December 2018, the order being approved by DDJ O’Leary; this appears to have been made after an FDR. Both parties were represented, and the mother had leading counsel. In summary, the order recorded the parties’ agreement that the father would make a housing fund of £2.75 million available for the purchase of a new home for the mother and the children. It also makes provision for periodical payments and some other capital sums and a costs award. Upon the father taking specialist tax advice, a further order dated 13 February 2019 was agreed specifying the mechanics of implementation.

Thereafter, the father failed to provide the housing fund and so on 23 July 2019 the mother applied for enforcement of the December order and a week later the father began section 8 Children Act 1989 proceedings. There was a hearing with short notice on 5 August 2019. The Schedule 1 enforcement proceedings and the section 8 proceedings were consolidated. The children were joined with the benefit of a guardian who was served with the application notices in both sets of proceedings.

On 6 September 2019 the mother made an application for assistance with her legal costs of both the section 8 and Schedule 1 proceedings together with an application for a variation of the periodical payments order contained in the orders dated December 2018 and January 2019. The court gave directions on 17 September 2019 for each party to file statements and to make up-to-date financial disclosure. The mother did so but the father failed to provide any financial disclosure. The mother issued an application for a

On 8 October 2019 HHJ Oliver made the following orders:

The father appealed against the judge’s order by an Appellants Notice issued on 29 October. Knowles J granted a stay of the judge’s order on 30 October 2019 pending the determination of the application for permission to appeal.

The grounds of appeal are as follows: Appeal against enforcement and committal

On 5 March 2020 Knowles J refused permission to appeal. The stay on the order was lifted. The deemed date of service was 9 March 2020, the Court having sent the notice on 6 March 2020. According to the chronology the father applied to renew his application for permission to appeal at an oral hearing on 16 March 2020. On 30 March 2020 Knowles J directed that the application for oral renewal be listed before her on the first open date after the Easter vacation. The hearing was given a time estimate of one hour for submissions with one hour for reading and one hour for judgement. She directed that an Essential Reading list be provided. No such list appears in the bundle provided to me or in the skeleton argument and so I have had to identify myself what appeared to be necessary to determine the application. The respondent was not required to attend. The stay on the order of HH J Oliver was reimposed.

For reasons which I am not clear about the hearing did not take place after Easter as directed but was listed after the Whitsun vacation on 3 July 2020.

On 9 June 2020 the father issued an application within the appeal. That application sought:

On 19 June 2020 Knowles J refused the application in respect of the mother’s solicitors and adjourned the application in relation to additional evidence and to

Again, for reasons which I am unclear about, the hearing listed for 3 July did not take place and was I believe relisted during the vacation. Due to an unavoidable clash of commitments Knowles J was then unable to hear it and listed the matter in the vacation in September. The father’s counsel was unavailable for that date and so the matter was again adjourned and relisted before me by order dated 5 August 2020. The time estimate given for the hearing was one day to include reading and preparation of judgment and the date specified was 6 October. A list of essential reading was to be provided. It was not.

On 1 October 2020 the father issued a further application seeking an order that the respondent disclose:

I heard the applications today. Ms Julyan represented the father. Mr Day represented the mother. I am grateful to them for their written and oral submissions.

The father’s detailed submissions are set out in the skeleton argument dated 20 December 2019. Further submissions are included in the application to admit new evidence and to amend the Grounds of Appeal. A witness statement accompanies the application for disclosure of information about how the mother funded the litigation. Ms Julyan supplemented and expanded upon various aspects of the written documents during her oral submissions. Her principal focus during the time allotted to her submissions was on the application to admit further evidence/Disclosure and to amend the Grounds of appeal rather than on the substantive application for permission to appeal itself. For reasons which were not explained to me the father’s team had not complied with the direction given by Knowles J in her order of 30 March 2020 (which reflect FPR PD 30A4.14) to file a statement setting out the reasons why permission

The mother’s response to the original grounds of appeal and skeleton argument are contained within her skeleton argument filed on her behalf on 6 February 2020. The case in relation to the application to adduce further evidence and to amend the Grounds of Appeal dated 1 June 2020 is contained within her written submissions dated 18 June 2020. Mr Day who appeared on behalf of the mother had also filed a written document which dealt with today’s hearing and in particular the application issued on 1 October. Unfortunately, this was logged as a submission on costs and I had not read it before the hearing commenced. This was doubly unfortunate in that it was the only document which contained an essential reading list. Happily, the documents identified in it were ones which I identified under my own steam and so had read them in any event.

FPR 30.12(3) provides that an appeal may be allowed where the decision was wrong or unjust for serious procedural irregularity. The test for granting permission [FPR 30.3(7)] is:

It is clear from appellate courts of the highest level, that an appellate court should be wary of interfering with first instance judgments in relation to interlocutory or casemanagement issues and should not be tempted to substitute our own decisions merely because the appellate court might have reached a different view.

The court may conclude a decision is wrong or procedurally unjust where:

The court must give a decision and explain the reasons for it so that the parties and the appeal judge may properly understand the basis of the decision. The trial court does not have to deal with every point raised and does not need to set out the law in detail provided it is evident from the decision that all relevant factors have been considered.

In Re F (Children) [2016] EWCA Civ 546 Munby P summarised an approach to appeals:

FPR 30.12 (2) provides that unless it orders otherwise, the appeal court will not receive either oral evidence or evidence which was not before the lower court. This is subject to the overriding objective and the factors identified in Ladd-v- Marshall [1954] 1 WLR 1489, which the Court of Appeal have confirmed (see Gillingham-v- Gillingham [2001] EWCA Civ 906) remain relevant. Thus, the discretion to admit fresh evidence would be exercisable if:

I have considered all the documents provided and been assisted by skeleton arguments and submissions on behalf of the father and the mother.

The Appellant seeks to put in evidence of the Respondent’s alleged non-disclosure and drug use. Although the application issued on 1 October 2020 is framed as an application for disclosure of information, in her submissions Ms Julian emphasised that it was in effect an extension of the application to admit further evidence in that it sought to uncover how the mother had funded the Children Act proceedings over the course of late 2019 and 2020 notwithstanding that the order for payment of a costs allowance had been stayed for the majority of that period. The effect of granting either application she submitted would require this hearing be adjourned in order to revise the Grounds of Appeal and to file a supplemental skeleton argument. She said that amended draft grounds had not been provided to the court because the father’s team were under the impression that the court had refused to accept such. I was unable to find any order and usually draft amended grounds would accompany the application. However during submissions Ms Julyan and I clarified that the nature of the draft grounds would be to the effect that the evidence demonstrated that the mother had misled the court as to her true financial position and that had the court been aware of the information now before the court it would not have been satisfied that the test for making a costs allowance order was met.

The essential points which emerged from the original June application to adduce fresh evidence and 1 October disclosure application seem to me to be these:

Ms Julyan submitted that the evidence had not been available to the court, that it was material to the determination of the costs allowance application and the appeal and that the order would not have been made had the court been aware of it. The Skeleton cites Sharland v Sharland [2015] UKSC 60 and notes that the court has the power to set aside its own order on the basis of non-disclosure. Ms Julyan submitted that in these circumstances the court could also deal with the matter as an appeal or indeed could exercise its own jurisdiction to set aside the order on the basis of nondisclosure.

The mother’s response to these points were that:

Evidence as to the mother’s alcohol and/or drug misuse would not have been relevant to the determination of the application for a costs allowance. The court was aware that the mother’s use of drugs was a live issue. I also note that Mr Day raised a number of procedural points, particularly in relation to the recent application. Given my view on the merits I have not considered it a proportionate use of time to determine them.

I do not think it is necessary for the purposes of this judgement to descend into the debate on whether the alleged non-disclosure should be dealt with better as a set aside application or as an appeal. An application to set aside the order has not been made and if it were made the appropriate target of such an application would be HHJ Oliver not me. As the applications have been made to me within the parameters of the appeal it falls to me to determine them within that jurisdiction.

It seems to me that the bottom line in relation to both the application to adduce fresh evidence of 1 June 2020 and the application to adduce further evidence/provide disclosure of 1 October is the second and third limb of the Ladd-v-Marshall test; is the evidence such that if given it would probably have an important influence on the result of the case, though it need not be decisive; is it credible?

I therefore refuse the father’s applications to admit fresh evidence or for disclosure of the means by which the mother’s lawyers were funded through the Children Act proceedings.

That refusal also determines the application for permission to amend the Grounds of Appeal. Without the admission of the evidence that application has no basis and so I refuse that application.

Turning to the Grounds of Appeal, the father asserts that the directions given with respect to enforcement and committal were wrong in law. First, the matters said to have been breached by the father were recitals to the December 2018 consent order and thus not terms ordered by the court itself. They merely established contractual terms which might be enforceable in civil proceedings. Second, those matters went beyond the allowable orders the court might make in Schedule 1 proceedings. To allow enforcement of such terms would be going beyond that permitted by statute. Ms Julyan supplemented the Skeleton Argument. She submitted that the February 2019 order provided a mechanism by which a property would be purchased for the mother and children and provided on a long lease. This was not an order that the court could have made: she relied on paragraph 86 of DN-v-UD and the terms of the Act itself. She also referred me to an extract of a practitioner work on financial remedies which she said supported the contention that recitals and orders were different and that it was contemplated that some parts of orders would be enforceable only by a contract action. I was not provided with an extract of this work.

Thorpe J in H v H (Financial Provision) [1993] 2 FLR 35 took no issue with the proposition that a recital can be enforced as if it had been an order of the court. Atkinson and another v Castan and another (1991) The Times, April 17 is cited in support. Woolf LJ said:

“It is clear from that document first of all that the compromise was set out in full in the recitals; secondly, that it was intended that the compromise so set out should be included as part of the record of the decision of the court; thirdly, that the purpose of this being done was to ensure that the compromise would have the added status which results from a compromise being part of or incorporated into a decision of the court; fourthly, that the obvious purpose of this added status was to put the plaintiffs in a position where they would have the advantages, which would not otherwise be available, of going back to the court in the existing action to have the compromise enforced if the court was prepared to make the necessary orders to achieve this result; and fifthly and finally, that in these circumstances it was implicit, although not express, that there should be liberty to apply for the purposes of enforcing the action. When the matter came before the court, the court had a discretion as to whether or not in the circumstances to make the further orders. On the material which was before the judge in this case there was ample reason why he should regard it as sensible and desirable that the plaintiffs should not be required to bring a fresh action. He then made the orders to which I have already referred.”

It would be surprising if the detailed and comprehensive agreement that the parties reached securing the future material needs of the children and crystallised on the face of an order in the formality with which it was expressed was not intended to be legally enforceable. For the father to suggest that this is not an enforceable order but merely an enforceable contract is surprising given that it is in the agreement part of the order of December 2018 that the full and final satisfaction clauses are found. It seems improbable that the mother would not have wished to have the full arsenal of enforcement powers open to her should the need arise and should voluntarily accept enforcement by contract action only in order to assist the father in terms of his tax liabilities.

In addition the interpretation that it was intended that the agreement should become part of an order is the only interpretation that makes sense of the matter being adjourned to allow the father to seek specialist tax advice; the parties distilling the mechanics of implementation in a ‘consent order’; and that same order providing liberty to apply for implementation.

The Appellant agreed to settle £2.75m for the purpose of providing the children with housing. In the order of December 2018, it was done on terms that appeared consistent with a settlement of some form. The adjournment to consider the mechanism and the reference to seeking tax advice suggest that both parties had in mind the alternatives of settlement or long lease.

The particular difficulty with the father’s submissions is that the Penal notice was attached to the December 2018 order not the February 2019 order which refers to the long lease. The order of December 2018 was a standard family court consent order. Rule 33 of the FPR 2010 contains provisions relating to applications for the family court to enforce an order made in family proceedings. Orders made pursuant to Schedule 1 fall within the ambit of that Rule. The agreement contained in the December 2018 order provided for the father to purchase a property for the benefit of the mother and the children and section 1(2)(d) of Schedule 1 gives the power to

Had the penal notice been attached to the specific paragraphs of the order of February 2019 which set out the long lease mechanism the father might have persuaded me that permission should be granted to explore that issue in more depth. However, that is not the order which is appealed against. The order of December 2018 is perfectly capable of being interpreted as a settlement and indeed the court would strive to interpret it in a way which was consistent with the statutory scheme in any event. Thus, I am entirely satisfied that the December 2018 order could properly have a penal notice attached to it.

I therefore refuse permission to appeal in respect of these grounds of appeal.

The father also appeals against the making of a costs allowance order. I have read the father’s submissions that the court did not have the jurisdiction to make a legal services payment order but that was not the order made by the court which was a costs allowance order which the court has the clear jurisdiction to make in these proceedings. It is clear from the transcript that the judge applied the correct test [see paragraph 2 of the transcript of judgment given on 8 October 2019]. I note the order was made in circumstances where the father had failed to provide any financial disclosure and where the mother’s disclosure established straitened circumstances. I dismiss these grounds of appeal.

Ground 3 is not pursued in the father’s Skeleton Argument. In any event there was self-evidently the risk of inequality of arms. The father is very wealthy whereas the mother still owed large sums to her representatives (both Vardags and Russells) from the previous proceedings, which were meant to be paid by the mother.

Ground 4 asserts that the judge was wrong in making a costs allowance without the mother having given full and frank disclosure regarding her financial position. The father does not particularise in what way the mother’s disclosure is said to be lacking. It is of note that it was the father who was singled out for his lack of compliance with directions and omission of full and frank disclosure. The jurisprudence in relation to costs allowances sets out the approach that the court is required to take. It is not a requirement that an applicant makes full and frank financial disclosure. The court needs to be satisfied that the applicant requires costs allowance in order to provide equality of arms and that involves demonstrating that she is unable to obtain legal representation without a costs funding order. That requires some evidence of the individual’s current income and capital position and their inability to fund legal representation at the required level from their own resources, an inability to borrow the money or to secure funding from legal aid or other resources.

The father also submitted that the costs allowance order should not have been made until the mother had attempted to raise funds by way of a litigation loan. Though he accepted she had approached two lenders, he asserted this was a sham as those lenders had been previously approached by her in 2018. It is of note that some of the rejection letters exhibited to the mother’s witness statement explain the high improbability of obtaining funding for children proceedings from a litigation funder. That was a matter of fact for the judge who declared himself satisfied that the mother had looked at various lenders and who had taken account of her indebtedness in costs to her present and former legal advisers. I refuse permission to appeal in respect of this ground of appeal.

The final substantive ground sought to suggest that the judge was wrong to make a costs allowance order when the father had already offered to advance the mother the funds to cover her legal expenditure. The £50,000 to be advanced to the mother formed part of the order of December 2018 and the terms of paragraph 5(vii) are outwith the mother’s ongoing need for monies to pursue her applications. It would have been wholly inappropriate for her to pledge any money received from the father for the benefit of the children to meet legal fees which were not the intended purpose of the monies. There was, in those circumstances, no need for the judge to deal with this submission in his judgment.

The father from paragraph 13 to 18 of his skeleton argument raises a number of procedural points in relation to the committal proceedings/judgment summons. These are not pleaded in his Grounds of Appeal and I therefore do not propose to address them.

For the reasons set out above I therefore dismiss the application to admit further evidence in the appeal. I consider the application to be totally without merit. I dismiss the application to amend the Grounds of appeal. I dismiss the application for disclosure of the means by which the mother funded legal representation. I do not consider that the father has demonstrated a realistic prospect of success in relation to any of his grounds of appeal nor is there any other compelling reason to grant permission and I therefore affirm the decision of Mrs Justice Knowles to refuse permission to appeal. The stay on the order will be discharged.

The mother seeks an order that the father pays her costs of and occasioned by the appeal and the associated applications. The costs schedule quantifies those costs at a

Mr Day accepts that the starting point in relation to costs on an oral application for permission to appeal is that if the court does not request submissions from or attendance by the respondent costs will not normally be allowed to a respondent who volunteers submissions or attendance [FPR PD30A 4.22]. However he says in this case the court did in effect request submissions from the mother (the order is framed if so advised) and when the matter was listed for an oral hearing she was not required to attend. The order also said that she was not required to attend as the court had her written submissions under costs estimate. It noted that the father should be aware that, if unsuccessful, he may be required to pay her costs in connection with this appeal. Mr Day notes that CPR PD 52B para 8.1 supplements FPR PD 30 A. Whilst it notes that costs will not be awarded to the respondent where they attend an application for permission to appeal that is subject to the proviso where the court has ordered or requested attendance by the respondent or where the court has ordered that the application for permission to appeal be listed at the same time as the determination of other applications or where the court considers it just in all the circumstances to award costs to the respondent. Mr Day notes that there has been significant non-compliance by the father with the procedural requirements (for instance failing to provide the statement required setting out what points would be taken at the oral permission hearing) and that the late filing of the application of the 1 October 2020 with the associated application to adjourn this hearing meant that the mother’s team had to attend.

Ms Julyan submitted that the court ought to apply the usual rule for costs on oral permission hearing. She characterised the other applications as ancillary and only requiring a response by the mother in the substantive appeal had they been allowed. In relation to the amount of costs she referred to an earlier costs schedule which she thought had been served last week. I note that a costs schedule appears to have been served in June and it may be that which she was referring to. She said that costs schedule was substantially lower than this and that the increasing costs in the course of a week was inexplicable. She also noted that the costs schedule claimed for various items which appeared excessive including seven hours attendance at court for today’s hearing.

I am satisfied that this is an appropriate case to make a costs order. The court in effect requested submissions from the mother in the paper application which were plainly of significant assistance to Knowles J in determining that, as they have been to me. Whilst the mother’s attendance at this hearing was not requested the listing of the two other applications in particular that of 1 October 2020 made her attendance in effect unavoidable. As the father submitted the effect of granting that application would have been to further adjourn the hearing of the appeal which has now almost reached the first anniversary of the making of the order under appeal. It was therefore entirely appropriate and indeed inevitable that the mother’s team would attend in order to oppose that course of action. I’m satisfied that they were right to do so. I’m therefore satisfied that the situation falls within that contemplated by both the FPR and the CPR and that it is just in all the circumstances to award costs to the mother. The disparity in the parties’ financial positions adds further force to my conclusion that this is the just result. The costs schedule covers the period from February through till today, incorporating the written submissions on the original application for permission, the written submissions on the June application and the preparation for and attendance at today’s hearing. I note that Counsel’s fee for attendance today is £1,250. I do not have a costs schedule from the father against which to benchmark the mother’s costs but they do not appear to me to be excessive given the amount of paperwork which has had to be considered in relation to these applications. Ms Julyan is right to point out that seven hours attendance by the solicitor for today’s hearing has not proven necessary, the oral submissions only lasting some two hours. Subject to that the other amounts claimed seem to me to be reasonable and so I will summarily assessed the solicitors costs at a total of £15,500 together with counsel’s fees of £5,750 plus VAT making a total in my calculation of £25,500. That will be payable within 14 days of today.

That is my judgement.