Case No: B4/2011/1822 
Neutral Citation Number: [2012] EWCA Civ 372
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE WOOD)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday 23rd February 2012

Before:

LORD JUSTICE THORPE
LORD JUSTICE MOSES
and
LORD JUSTICE HUGHES
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Between:

	Arshad	
Appellant	
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Anwar	

Respondent	

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Mr A Khan (instructed by Russell Jones and Walker ) appeared on behalf of the Appellant.

Mr Simon Buckhaven  (instructed by Haider Kennedy Solicitors) appeared on behalf of the Respondent.
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Judgment
Lord Justice Hughes:

1.	This is an appeal by the husband against an order made by Wood J that he, the husband, pay the wife her costs of her abortive application for financial relief under Part 3 of the Matrimonial and Family Proceedings Act 1984.  The judge assessed the costs summarily in the sum of £9,793.67.  On the face of it the order at least raises some questions, as Ward LJ observed when granting permission to appeal.  That is firstly because it was made on an occasion when the wife was applying to withdraw the application which was before the court under the 1984 Act and secondly because it was made at a hearing when the husband was not there.  On further inspection those are not quite the only difficulties presented by the short history.  However, in substance, the wife says that if there had been a hearing on the merits these are costs which she ought to have recovered.  She says she ought to have recovered them, or at least those relating to the preparatory work in relation to the application because, although in the end it was withdrawn, it was an application which had been made necessary by the husband's conduct in the divorce litigation.  In very brief terms her case is that the husband had contended throughout that he had effectively divorced her by means of a talaq which had subsequently been certified in Pakistan and that if that was right she needed to make an application under the 1984 Act.  She says that it was only when she successfully established that the talaq was not recognised in the United Kingdom so that she could proceed with an ordinary English petition for divorce, with its associated application for ancillary relief, that she was able to abandon the 1984 Act proceedings.

2.	So far as material, the history is this.  The parties were married on 15 December 2007 in Lahore.  She was from a Pakistani family settled in Canada and he was from a Pakistani family settled in this country.  They were in their twenties.  Within about a month they set up home together in this country, that is where they were both habitually resident at all material times.

3.	They separated on 13 July 2009 after about 18 months.  The wife, who by then was eight months pregnant, went back to Canada.  There is a dispute about the circumstances in which that came about and they are not material for present purposes, but there was a son born on 9 August 2009 and despite, apparently, a period when the husband raised a question as to paternity everybody now agrees that he is a son of the family.

4.	On 10 May 2010 the husband pronounced a talaq.  It is now apparent that that happened somewhere in the United Kingdom.  There is no suggestion that the wife was given any notice of it.  Subsequently the husband initiated proceedings in Pakistan to have his talaq registered there.  When he made that application it gave his permanent address as an address in Lahore and that was the document which the wife eventually saw.  To anticipate, if the talaq had been done in Pakistan it may very well have been entitled to recognition here.  Since it was done in the United Kingdom it was not, but the wife did not know where it had been done until very much later.

5.	The next thing that happened was that on 5 August 2010 the wife launched an orthodox divorce petition here in the United Kingdom and a few days later made a conventional application for ancillary relief including maintenance pending suit.  The husband's reaction to that, acting in person, was to write to the Principal Registry to say that the divorce proceedings were misconceived because there had already been a talaq divorce which had brought the marriage to an end.  He wrote to the wife's solicitors taking the same point and he said that in those circumstances he declined to disclose his financial circumstances because any application in this country for ancillary relief was misconceived. He subsequently filed an Acknowledgement of Service taking the same point.

6.	On 21 October 2010 District Judge Roberts in the Principal Registry made an order staying the wife's English divorce petition.  It is not clear whether that was done as a result of any positive application by the husband or in response to his letter asserting the talaq.  If he had made an application, it certainly ought not to have been made on terms that it was considered ex parte, but in any event and by whichever route it occurred, the stay was the result of the husband's publicly made assertion that there had been a valid talaq.  

7.	In consequence the wife had to make an application to lift the stay.  She did that on 15 December 2010.  In the meantime there were proceedings in Pakistan.  On 31 December 2010 the Pakistani authorities, who had previously refused to register the talaq, issued a certificate doing so.  There ensued after that further challenge by the wife in Pakistan by way of an action in the Lahore High Court.

8.	On 15 March 2011 the parties received notice that the wife's application to lift the stay would be heard on 6 April, about three weeks thence.  Three days later, on 18 March, the wife issued her 1984 Act summons correctly initially in the form of an application for leave to proceed as required by the 1984 Act. Next, on 6 April 2011, Senior District Judge Waller heard the wife's application to lift the stay.  The talaq was demonstrated to have been pronounced in England.  Accordingly it could not be recognised.  Therefore the stay was lifted.  Judge Waller made an order that the husband should pay the costs of the application to lift the stay, to be assessed if not agreed. We are told that they have subsequently been assessed at a little over £8,000.  The husband was given time to consider an appeal but, no doubt wisely, decided not to make any.  

9.	Then and lastly came the hearing before Wood J which is under appeal before us today.  That took place on 25 May 2011.  It was in form an application by the wife to withdraw her 1984 Act application.  But that was not the substance of the proceedings.  The purpose of the proceedings was that the wife wanted her costs of the 1984 Act application and, for that reason, rather than writing a letter withdrawing the application which had been made on 18 March she attended by counsel.  The husband did not attend.  He had very recently instructed solicitors, but it transpired that either at his option or theirs they were not acting in relation to this particular part of the litigation.  He himself wrote a letter, which was before the judge, seeking an adjournment.  The judge refused the application to adjourn.  He permitted the wife to withdraw her 1984 Act application and he summarily assessed her costs of those proceedings in the sum sought, which was, as I have said, £9,793.67.  

10.	The sole point taken in the notice of appeal is that any order for costs was misconceived.  Says Mr Khan on the husband's behalf, the wife's stance both in Pakistan and in England was that the talaq was not entitled to recognition.  It is only if the talaq is entitled to recognition that a 1984 Act application is appropriate.  Says Mr Khan: she cannot blow hot and cold.

11.	As I indicated, however, there are other questions which arise in relation to this short hearing before a judge, plainly conducted in the context of an extremely congested list.  The principal one is this.  This was not, as I have said, in substance an application to withdraw the 1984 Act application.  That would not have involved a hearing at all.  The real application was for costs. That meant that it had to be made on notice.  The relevant rule is Part 18 of the Family Procedural Rules 2010 and Mr Buckhaven, on behalf of the wife, rightly concedes that the rule requires seven days' notice.  On no view had the husband had seven days notice. A letter of 20 May had been written to him and sent both by post and email and that letter had advised him of the date of the hearing and advised him that he ought to be there.  It had been written on Friday 20 May in relation to a hearing which was taking place the following Wednesday the 25th.  The wife says it was sent by email.  That begs the question whether or when it was received.  The husband's case has been that he did not receive the letter until 23 May, which was the Monday.  The wife has in the past disputed that, and it may be that there is some doubt about it, but on no view did he have seven days' notice.  The position was complicated by a letter written the day before the hearing by the wife's solicitors to the husband's solicitors.  It was written no doubt because the wife's solicitors had by then discovered that there were solicitors recently instructed for the husband.  That letter, whilst it does refer to the fact that there was to be an application for costs has as its principal tenor the proposition (twice repeated) that the hearing would be an ex parte hearing at which the husband's part would be subject to permission given by the judge.  That description of the potential application was, I am afraid, flawed by rather fundamental misunderstanding of the true nature of what was going to happen.

12.	It is right to say that the husband probably did know that the application for costs was coming.  There is no reason to doubt the wife's assertion through counsel that that had been made clear at the hearing in front of District Judge Waller on 6 April.  Mr Buckhaven tells us that he had said then that the application for costs would follow, and that that was why he did not withdraw the 1984 application there and then before District Judge Waller.  

13.	That said, none of that is the same as notice to which the husband was entitled under the rules.  I accept that the judge could have been asked to abridge time for the service of notice but that would have involved at the very least some inquiry as to what the husband had been told and when and what realistic opportunity he had had to consider the costs application, not only as to principle but also as to amount.  It seems to me that on this ground alone the order that was made below cannot stand.  If we were now to remit the issue to the High Court judge that would be both disproportionate and wasteful of scarce resources not only in the court but also in the parties.  We ought to deal with it, as it seems to me, ourselves. 

14.	On the question of principle whether the work done preparing a precautionary Part 3 application is recoverable or not, for my part I do not agree with Mr Khan's submission that it cannot be.  In my view it is completely clear that at least the preparation of such a precautionary or alternative Part 3 application was forced upon the wife not by her stance in the litigation but by the husband's stance in the litigation which was that there was a valid talaq divorce and that no English petition could ever be advanced. That is particularly so since the wife did not know where the talaq which the husband asserted had been pronounced, had taken place.  She had asked but had received no answer. I do not agree that it was unreasonable to undertake the preparatory work for a Part 3 application before the hearing before District Judge Waller on 6 April. The preparation for it would have to have been reasonably substantial.  It would necessarily as it seems to me have involved at least some consideration of alternative remedies available to the wife if there was a valid talaq.  She was without maintenance, and had been for two years, with a baby son.  

15.	What was not reasonable as it seems to me was the decision not only to do the preparation but to launch an application to the court on the 18 March 2011.  By then notice had been received that the hearing of the stay question was due only three weeks later. At that point the wife should reasonably have waited. It no doubt follows from that that the court fee payable on launching the application is not recoverable and it may be that there was other work which was done at about that time, which similarly should have waited. Those questions can only be answered by an assessment.

16.	There is a second aspect to the case which needs an assessment.  That is the possibility of duplication.  District Judge Waller gave the wife her costs, inevitably in the view of the stance of the husband, and they had recently been assessed at about £8,000.  For my part I accept that before Wood J Mr Buckhaven had anticipated the question of possible duplication and sought to show that the £9,700 odd for which he asked involved no duplication at all. It is, however, clearly the case that there must have been a close correlation between the work which was geared to removal of the stay and the work which was geared to the preparation of the Part 3 application.  Both must necessarily involve consideration of the legal position both transnationally and in Pakistan.  

17.	It is also clear that, as it turned out in the manner in which the proceedings below proceeded, the judge never had the opportunity to give the kind of close attention to the possibility of duplication which an assessment could give. Whether there is in fact any duplication it is impossible for us to say.  We just do not know.

18.	For all those reasons, for my part I would firstly allow the appeal and secondly substitute an order that the wife's costs of the Part 3 proceedings are to be assessed if not agreed.  That assessment I would suggest should be carried out if possible by the same judge who assessed the costs payable under District Judge Waller's order.  In any event the assessment should be carried out on the basis, first, that the wife is entitled in principle to the costs of advice relating to and preparation for the Part 3 application but query those of launching it on the day which was done and secondly on the basis that a careful eye needs to be kept on whether there is or is not any duplication between the two orders for costs.

19.	To that extent I would allow the appeal.

Lord Justice Thorpe: 

20.	I agree

Lord Justice Moses: 

21.	I also agree.

Order: Appeal allowed in part