England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand Holborn London WC2A 2LL
		2 November 2020

MR JUSTICE COHEN:

1. I have before me a series of applications arising out of what Mr Allen QC, who appears with Ms Trace on behalf of the lady who I will call the petitioner, describes as longstanding litigation between the parties. That must be a substantial economy of words as these parties have been engaged in furious litigation for what is now some 17 ½ years, namely since their 19 year old children were toddlers, that litigation taking place both in England and in Nigeria.
2. The name Moses Taiga is known to every family lawyer. There have been proceedings going on, as I say, throughout the last 17 years, principally managed by Charles J and more recently by me. The costs that these parties must have expended is quite enormous. I have been provided with a chronology prepared on behalf of the petitioner, and that is attached as an annex to be read into this judgment.
3. This round of proceedings arises in this way. The respondent father, now represented by Mr Wise, was successful in arguing in Nigeria, and on the back of that in England, that these parties had never had a valid marriage, because, and I hope I summarise accurately, by the time of what the Nigerian court of first instance found was a customary marriage, the respondent was still married to his first wife. The petitioner's appeal against the order in Nigeria is still outstanding.
4. As a result, that conclusion having been adopted by Charles J, the respondent seeks to recoup a little under £1 million which he says he wrongfully was ordered to pay to the petitioner by way of orders of spousal periodical payments and related orders for costs, those orders being made at the time that the Court of England and Wales had yet to come to the conclusion that these parties were not married, and he seeks additional sums by way of general damages in respect of freezing injunctions and disclosure orders that were made against him. The claim is therefore very substantial in size.
5. The judgment which the respondent relies upon to establish his claim was one made in 2013. It is said on behalf of the petitioner that these proceedings that he now brings are res judicata and/or subject to the rule in Henderson v Henderson and that, therefore, I should strike them out. The response comes back, "Well, these proceedings have now been converted" (I think "converted" is a fair word) "into proceedings for malicious prosecution. That was not a cause of action that could have been brought in civil proceedings until the Supreme Court so ruled in 2016, and thus, he says, the action is validly constituted and that will give rise to a very interesting and no doubt difficult decision to be determined as to when the cause of action for malicious prosecution arose. That is something that I am going to have to consider in about six weeks' time when the petitioner's application to strike out this claim is listed to be heard.
6. On 15 October 2013, Charles J at the conclusion of that round of the proceedings in broad terms ordered the petitioner to pay 80 per cent of the respondent's costs on a standard basis, to be assessed if not agreed. No assessment was sought. It might be thought surprising that some seven years later this issue has suddenly burst into life and it has come about in this way. On or about 17 September 2020 the respondent served a notice of commencement of assessment of bill of costs claiming an entitlement to a sum coincidentally also approaching £1 million, namely £842,568 plus fees.
7. On 30 September the petitioner applied to strike out or stay the detailed assessment until determination of the hearing, listed for today, and to strike out the malicious prosecution action, listed for 11 December. That was put before me in writing by the office of the Family Division to ask how they should deal with it and whether I would deal with the assessment application on 2 November when I was due to hear the security and Hadkinson applications. I confirmed that the application would be considered today, 2 November, unless submissions were made to the contrary on behalf of the respondent.
8. Knowing full well that this was what was going to happen, the respondent instead of making submissions that it should not happen, simply entered a default costs certificate. Mr Allen says that this showed a lack of candour on behalf of the respondent and I certainly for my part do not look with any enthusiasm at the step that was taken by him.
9. Mr Wise says, well, that may be, but the petitioner had her own remedy, because what she should have done in the circumstances was follow the procedure, namely by setting out points of dispute which, according to the Practice Direction, should be provided within 21 days. The PD says that the time for service of points of dispute may be extended or shortened either by agreement or by court rules and an application may be made to the appropriate court office and that, says Mr Wise, is the step that should have been taken.
10. I agree that this is what the rules provide and certainly with the benefit of hindsight this is the course that should have been taken, but it is not surprising that the petitioner thought herself protected by the steps that she had taken and the assurance of the court that the matter would be dealt with today.
11. PD 47.11.1 provides that a court officer may set aside a default costs certificate at the request of the receiving party and at one stage it seemed to me that Mr Wise was submitting that I do not have the jurisdiction to set aside a default costs certificate as the Practice Direction goes on to say that a costs judge or a district judge will make any other (my emphasis on "other") order or give any directions under this rule. I do not agree that I do not have the jurisdiction.
12. It seems to me that in the circumstances that I have described and bearing in mind the very large sum that it involved and that, as I am told, there will be issues not just as to the quantum of the costs, but also as to whether there are issues of conduct which could properly be raised under CPR 44.11, it would be quite wrong for me to simply, as it were, lumber the petitioner with the requirement to pay the sum sought without an opportunity to argue her case.
13. I propose to set aside the default costs certificate and instead provide for the petitioner to serve points of dispute as the rules provide. That seems to me properly to hold the ring and do justice between the parties and the respondent cannot much complain about the delay that will cause, bearing in mind that it has taken him seven years to apply for costs to be assessed in the first place. I will extend the time for providing the points of dispute to six weeks from today. I shall further direct that no further steps are to be taken towards the assessment of costs until further order.
14. I have considered whether or not pursuant to PD 47.11.3 I should require the petitioner to pay costs on account, but the reality is, as the defendant knows, that will simply deprive her of the opportunity to make any form of submissions whatsoever, because it has not been suggested to me, either in the Children Act proceedings, which I dealt with at length in 2018, or today that she has the means to make any payment on account. So that is the order that I propose to make in respect of that.
15. The other two issues before me are those of security for costs and a Hadkinson order. I intend to deal with the Hadkinson order first. The jurisdiction to make Hadkinson orders is very well established. I will come back to the criteria in a moment, but the factual basis of this part of the application could not be clearer. The case came before Master Cook on 27 March 2020 when the Master ordered that the substantive application be referred to the Family Court and be listed before a High Court Judge and he ordered, the application having been resisted by the respondent, that he should pay costs summarily assessed in the sum of £8,771.40. That payment was to be made by 28 April 2020.
16. It was also provided by subsequent agreement between the parties that the respondent shall by 4 p.m. on 8 May serve upon the petitioner an amended particulars of claim. It was agreed between the parties that this was subject to a condition that he would by 4 p.m. on 25 September 2020 pay the sum of £6,000 as a contribution towards the petitioner's costs and would comply with the order for costs made by Master Cook on 14 April. Thus it was that he agreed to pay by 25 September 2020 the sum of £14,771.40. I initialled the consent order but had no greater input to it than that.
17. I have to say, I found it a deeply unattractive submission made on his behalf that, "Well, he has not paid that, but she owes him much more money than that and you should set the one off against the other". Apart from the point properly made by Mr Allen that at the moment if I set aside the certificate there is no fixed sum that is owed by her to him, the fact is that the agreement permitting the respondent to file the amended particulars of claim was specifically made subject to the agreement to pay the sums that I have mentioned and to suggest that he should be able to escape from an agreement that he voluntarily entered into is not one that finds any sympathy with me.
18. The way that it was put by the respondent in his statement was rather different and certainly superficially more attractive, namely he said that by reason of the pandemic, his age and his general financial circumstances he simply had not been able to pay the money. There are, however, grave problems that he faces with that. He gave no details of his means. Throughout the proceedings in the Children Act it was his case that he was a very wealthy man, worth more than £40 million, sometimes put as £45 million, and he need not descend to any specificity, because he was running what is colloquially known as the millionaire's defence. Further, his own solicitor filed a statement in March 2020 in reply to the application for security for costs saying that the respondent was a wealthy man and would have no difficulty in meeting the order for the much greater sum that was sought by way of security for costs. I am not prepared to accept or deal with him on any other basis.
19. Notwithstanding the impecuniosity that is claimed on behalf of the respondent, he has paid some £24,000 to his lawyers in respect of today's application plus no doubt significant costs in respect of his pleadings and amended pleadings and the hearing before Master Cook.
20. The criteria that I have to apply are those set out in the cases of Assoun v Assoun (No 1) [2017] 2 FLR 1137 and by Ryder J, as he then was, in Mubarak v Mubarak [2004] 2 FLR 932. I bear in mind that the court should be very slow to hamper a right of access to the court. I ask myself the following questions.: First, I ask if the respondent is still in contempt? Plainly, the answer is yes, he is. Secondly, is there an impediment to the cause of justice? In my view, there is. These proceedings are difficult and complicated. The petitioner has no means and every penny that she gets from the respondent is extremely important and she needs the money to have legal representation. Without it she would be on her own.
21. Thirdly, is there another effective means of securing compliance with a court order? In his solicitor's statement it is said that there are assets in this country, but no explanation is given and the only asset that I am aware of is the property which is the subject of the order made by me in the Children Act proceedings which is the children's home. He provides no information of any assets in this country which would permit enforcement to be taken against.
22. I have to consider whether to exercise my discretion to impose conditions, asking myself if the contempt is wilful -- the answer to that is yes -- and are there any other conditions that can be put in place?
23. In my judgment, none at all. The sum involved is to him minimal. Therefore, for this claim to continue he will have to pay the sum of £14,771.40 no later than 21 days from today, namely 23 November. I regard this course as proper and proportionate. If he does not do so the claim will not proceed.
24. The next issue is that of security for costs. In some ways this is the more difficult of the issues before me, because it is powerfully said on behalf of the respondent: Why should he pay security for costs when he has costs orders, albeit as a result of my decision not yet assessed or payable, in his favour which vastly exceed the amount of security for costs which is being sought, namely £150,000 as it was in the summons that was issued? And, says Mr Wise, even if the petitioner ultimately wins this case, there will still be a substantial balance due from her to him rather than the other way round.
25. I think it is important to go back to the principles set out in CPR 25 and I remind myself of the provision of r25.13:

"Conditions to be satisfied

(1) The court may make an order for security for costs under rule 25.12 if –

(a) it is satisfied, having regard to all the circumstances of the case, that it is just to make such an order, and

(b)

(i) one or more of the conditions in paragraph (2) applies".

26. Mr Allen rightly points out to me that two of the conditions are satisfied. At (2)(a) the claimant is resident out of the jurisdiction, namely in Nigeria, and is not resident in a Brussels Contracting State, a State bound by the Lugano Convention, a State bound by the 2005 Hague Convention or a Regulation State, as defined in Section 1(3) of the Civil Jurisdiction and Judgments Act 1982 and (e) that claimant has failed to give his address in the claim form, or gave an incorrect address in that form, namely the address that he gave was that of his solicitor rather than his address.
27. There are, as I say, many difficult points to be taken into account. On the one hand there is the substantial sum which the respondent/claimant will in due course be entitled to claim from the petitioner/defendant once an assessment has been concluded, but, on the other hand, there is the deplorable history of his conduct within the Children Act proceedings. Every single issue has been contested and there have been very substantial enforcement difficulties which have involved the necessity of setting up security funds or guarantees which have been dipped into from time to time and have had to be reinstated.
28. The history set out in the chronology speaks for itself and I have absolutely no doubt that if security for costs is not provided the reality is that the petitioner/defendant will have no chance of recovering her costs if successful. There is nothing in this country that she knows of other than the property in which the children live and an attempt to enforce in Nigeria would be hugely difficult and take a very, very long time, even to ever reach a court hearing. If I need any evidence of that, five years after the Nigerian Court of Appeal decision, there are still ongoing proceedings which appear nowhere near towards reaching a hearing in the Supreme Court for which permission has been given.
29. So not only would she be unlikely to succeed in obtaining her costs, but she would also have no means of funding any form of her representation. She has no assets in this country and the providers of legal services funds, as is normally the case for recipients of awards under Schedule 1 of the Children Act, are not prepared to touch the case because the only asset is not in the name of the borrower. Her solicitors are only prepared to continue acting if they know that if their client is successful there is a fund in court to which they can turn.
30. I am satisfied that the conditions for the making of a security for costs order are met and that it would be just for such an order to be made and I remind myself that if the respondent/claimant is successful in his application, then the funds that I am going to order him to pay will be safely lodged with the court and will be repaid to him upon him having achieved that successful outcome.
31. I think that it is right to take this in stages. What I intend to do is to order the respondent to pay, again within 21 days, the sum of £90,000 and within two months thereafter the further sum of £60,000. I have arrived at these figures this way. The application sought the sum of £150,000 and I have been shown a spreadsheet which shows that the sum anticipated to be spent is now put at £210,000. I think Mr Wise is right to say at this stage that I should not allow more than was in the application.
32. In response to a question that I asked, I have been told by the petitioner's solicitor that she anticipates that the costs incurred by the end of the next hearing in December before me will stand at £105,000. In fact I have no doubt it will be rather more than that as a result of the order that I have made in respect of the provision of the points of dispute for the costs assessment. I have further been told that the £105,000 is inclusive of the sum of nearly £15,000 that I have ordered to be the subject of the Hadkinson application and, therefore, to avoid double counting I reduce the first tranche to £90,000. I have decided it would not be right for me to require the further sum to be payable until it is known what the outcome is of the application to be heard in December. For the avoidance of doubt, if the application made to strike out is successful I recognise I will need to revisit the further provision that I have made for the payment of the additional £60,000 and the order must be drafted in a way that reflects that.
33. So those are the orders that I make today.
L A T E R
34. I have already expressed my view in argument that the Hadkinson argument was one that plainly should have attracted what would have been called an indemnity costs order and that I would have made an order on the standard basis in respect of the other two aspects of the case. In general terms, I think the costs are proportionate and reasonable, but, nevertheless, that is not the end of the matter. This is not meant to be an exercise in providing a figure without any form of consideration of what the issues were, how successful in this case the petitioner has been and the extent of that success.
35. What I have decided to do is to make an order for costs summarily assessed in the sum of £28,000. That is 85 per cent or thereabouts of the sum that is claimed. It is not significantly above the sum which the respondent/claimant has expended and insofar as it is higher, it is entirely justified by the fact that there is always in these cases, and certainly has been in this case, significantly greater work that has had to be done on behalf of the petitioner which will not have fallen on the respondent. It is entirely reasonable to have instructed Mr Allen and Ms Trace. Mr Allen has been in this case for a very long time and Ms Trace throughout the duration of this round of it. So the figure of £90,000 will accordingly be adjusted downward by £28,000, being the figure I summarily assessed.
L A T E R
36. The answer is, you will be unsurprised to hear, that I refuse permission to appeal and I refuse to grant a stay. You will have to ask the Court of Appeal for one.




ANNEX




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