EDG v RR (Rev 1)

In financial family proceedings, the court must actively promote proportionate and consensual resolution. Where the sums in dispute are modest compared with the costs incurred, the court may emphasise the loss of proportionality and strongly encourage compromise. A costs decision following proposed discontinuance cannot fairly be made without determining the underlying jurisdictional issue where that issue is substantially contested. The appropriate course is to give directions for a substantive hearing and reserve costs.

The parties, both French nationals, had one child. The mother and child lived in Paris and the father lived in London. A French maintenance order required the father to pay approximately £10,000 annually. The father applied in England and Wales for a downward variation, while the mother applied for the variation proceedings to be struck out for want of jurisdiction, asserting that the father’s application should instead be pursued in France.

The parties also disputed arrears and costs. At a directions hearing listed for 30 minutes, settlement efforts failed. The central issues were the court’s jurisdiction to vary the French order and the costs consequences of any withdrawal or discontinuance.

1. The court gave directions for a further, potentially final, hearing with two days allowed. The jurisdictional issue could not be resolved within the directions hearing.

2. The judge considered that the litigation had become wholly disproportionate to the financial issues. The current maintenance dispute concerned approximately £4,000 annually, while the mother had incurred costs of about £30,000. Financial family litigation should maintain a direct and sensible relationship between the sums in issue and the costs incurred.

3. Under rule 1.4 of the Family Procedure Rules 2010, the court should encourage negotiation, agreement and compromise. The judge repeatedly urged the parties to settle, while recognising the competing arguments that settlement might involve capitulation to attritional conduct or might unfairly prejudice a father whose income had substantially fallen.

4. The father indicated that he might withdraw the English variation application and proceed in France. The judge could not determine the mother’s claim for costs thrown away without first deciding who was right on jurisdiction. The costs issue therefore required determination at the substantive hearing.

5. The costs of the day were ordered to be costs in the substantive applications. Directions were also given for disclosure and discovery.