Re N and A (1996 Hague Convention: Costs)
[2023] EWCA Civ 887
Alexander Valeryavich Timokhin v Anna Annatolyevna Timokhina
17 January 2023
[2023] EWHC 58 (Fam)
High Court
A dad in the UK wanted money from his ex-wife in Russia to support their kids. A UK judge paused the UK case until the Russian case is finished, because both cases deal with the same money, making it more efficient to wait for the Russian result. The judge's decision was upheld.
Key Facts
- •Parents of two children (aged 18 and 11) are involved in complex cross-jurisdictional litigation.
- •Father (appellant) resides in London with children; mother (respondent) resides in Russia.
- •Father initiated Sch 1 Children Act 1989 proceedings in England seeking financial provision for children from mother.
- •Recorder Nice stayed the English proceedings pending conclusion of Russian litigation, including appeals.
- •Father appeals the stay and associated costs order.
- •Parties have a complex history of litigation in both Russia and England concerning children's custody and financial matters, including a post-nuptial agreement (Russian PNA).
- •Father's Sch 1 application sought backdated and ongoing child support, and transfer of a London property.
Legal Principles
Court's power to stay proceedings is an ancient common law remedy, preserved by statute (Senior Courts Act 1981, s 49(3)) and FPR 2010 r 4.1(3)(g).
Metropolitan Bank Ltd v Pooley (1885), Senior Courts Act 1981, FPR 2010
In forum conveniens cases, the court considers whether another jurisdiction is more appropriate. The burden is on the applicant seeking the stay to demonstrate this.
Reichhold Norway ASA v Goldman Sachs International [2000]
The court must consider the overriding objective (FPR r 1.1) in exercising its case management powers, including the power to stay proceedings.
FPR 2010 r 1.1, AY v AS [2020], Akhmedova v Akhmedov [2020]
Permission to appeal requires a real prospect of success or other compelling reason (FPR 2010 r30.3(7)).
FPR 2010 r30.3(7), Re R (A Child) [2019], Re W (permission to appeal) [2007]
Appellate courts are hesitant to overturn discretionary decisions unless there's an error of law, insufficient material, decision outside ambit of discretion, failure to consider relevant factors, or procedural irregularity.
Piglowska v Piglowski [1999]
Outcomes
Appeal dismissed; permission to appeal refused.
The Recorder's decision to stay the English proceedings was a proper exercise of case management powers, considering the overriding objective and the significant overlap with the ongoing Russian litigation. A fair and efficient resolution of the financial issues would be better served by awaiting the outcome of the Russian proceedings.
Costs order against appellant upheld.
The Recorder had discretion to award costs. The appellant could have avoided the costs by proposing a stay of the English proceedings. The costs award was not excessive and is upheld.