Monday, December 10, 2012

B v A: Complying with the principles and procedures governing the making of a without notice application

Mr Justice Charles
A salutary tale for any lawyer dealing with such applications.

B v A [2012] EWHC 3127 (Fam) involved a father in the United States seeking an order in this country for the return of his child, when the child was actually in Pakistan. The evidence that the child was in this country was extremely thin. The mother had been living with the child in Pakistan since 2009, but in October 2011 the father received information that the mother had been seen in a restaurant in Coventry. Accordingly, he issued proceedings here. Various orders were made, but the mother could not be located and was not therefore served. In December 2011 the court made an open-ended location order.

As a consequence of that order, the mother's passport was taken from her when she visited this country in June 2012, without the child. The mother raised the issue of jurisdiction. Accepting that neither the mother nor the child were in England in 2011, the father indicated that he would be prepared to withdraw the proceedings, on the basis that there be no order as to costs. The mother did not agree - she wanted her costs.

Hearing the case, Mr Justice Charles found that there had been a number of "serious and inexcusable failures" by the father and his legal advisers to comply with the principles and procedures relating to the making and granting of without notice relief. For example, the evidence for the asserted belief that the mother and child were in England was not sufficiently detailed and there was no argument on jurisdiction. This had the overall consequence that:
"...the court was not presented with as candid or fair account of the position from time to time, or of the strengths and weaknesses of the father's case, as was reasonably and proportionately practicable in accordance with the principles and practices relating to making without notice applications."
Mr Justice Charles concluded that the application for costs against the father should be refused. However, there was also an application for a wasted costs order against his solicitors. There were several arguments in favour of such an order, but the crucial one so far as Mr Justice Charles was concerned was the failures to comply with the principles and procedures governing the making of a without notice application. As stated above, he had already found that the father's solicitors had been guilty of such failures, and the fact that such failures accorded "with an endemic and seriously flawed approach of practitioners and judges in the Family Division to the making and granting of without notice applications" did not excuse them.

Accordingly, a wasted costs order was made against the father's solicitors, in the sum of £18,000.

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