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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> M v M [2013] EWHC 3372 (Fam) (01 November 2013) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2013/3372.html Cite as: [2013] EWHC 3372 (Fam) |
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MRS. JUSTICE ELEANOR KING DBE
This judgment is being handed down in private on Friday 1st November 2013 It consists of 11 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported in an anonymised form only.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
FAMILY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
M |
Applicant |
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- and - |
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M |
1st Respondent |
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-and- |
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YURI BARKOV |
2nd Respondent |
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-and- |
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SNOWDEN PROPERTIES LIMITED |
3rd Respondent |
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-and- |
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PANKRATROV TRUST LIMITED |
4th Respondent |
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-and- |
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HIGHLANDS INVEST LIMITED |
5th Respondent |
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-and- |
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CARTER COURT LIMITED |
6th Respondent |
____________________
(All Respondents did not attend and were not represented).
Hearing dates: 29th October 2013
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Crown Copyright ©
MRS. JUSTICE ELEANOR KING DBE
"the husband was a shadow director, and at all times the directing mind and will of each of the companies"
(a) Period 1 - covering the period from 13 January 2010 until 11 December 2012. For this period W is seeking £1,041,063 from the husband calculated from the date the wife instructed her solicitors until the day before Messrs Withers came on record as representing the Companies: FPR Part 28 applies to this period.
(b) Period 2 - covering the period from 12 December 2012 (the date on which Withers LLP came on the record to represent the Companies) to date. For this period W is claiming £473,535 from the Husband and the Companies on a joint and several liability basis: CPR 1998 Rule 44.2 applies to this period.
Period 1: Costs against the Husband alone
"it considers it appropriate to do so because of the conduct of a party in relation to the proceedings (whether before or during them)" (Part 28.3(6)).
(a) any failure by a party to comply with these rules, any order of the court or any practice direction which the court considers relevant;
(b) ...
(c) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;
(d) the manner in which a party has pursued or responded to the application of a particular allegation or issue;
(e) any other aspect of a party's conduct in relation to proceedings which the court considers relevant.
"The Form E is a travesty. It is largely blank; it makes no mention of any Russian property. It states that the husband has no income and concludes by saying that the total value of his assets is -£473,924.60."
i) H's "repeated contempt of court" (para 12) "he is in contempt many times over" (para 195).
ii) H's "wilful lack of disclosure and engagement" (para 204).
iii) H did not have "any respect for the authority of the court" (para 13).
iv) H's persistent lies (paras: 36 (stating that Yuri lived in a flat, when he never had done), 42 (Quinta Castle was to be a hotel when it was clear it was H's home), 69 (the Russian commercial properties had been let), 100 (nonsensical evidence about a 'loan' from Rekabe Ltd).
v) H's failure "at every step of the way to provide any honest disclosure or to engage in the proceedings" whilst simultaneously indulging in "satellite litigation which has achieved nothing other than to be costly and distressing to the wife" (para 54).
vi) H forged W's signature to deprive her of her rightful ownership of Snowden Properties Properties and Garage J (para 246).
Period 2 : Costs against the Husband and the Companies on a joint and several basis.
"not only were the answers produced risible, mainly saying 'to follow', but not a single document was produced. A second attempt to provide information about the business was made on 28 January 2013. This version purported to have instructions from Mr Boris Glukhov who denied any knowledge about anything and still failed to produce any documents, even the accounts promised in November 2011".
"It is wholly misleading for Mrs Price to have given the clear impression in her statement that a bespoke tax mitigation scheme was being designed for the husband, nothing in my judgment could have been further from the truth".
i) Paragraphs 3-6 of the final order (agreed by the Companies' Counsel) ordered the Companies to execute the relevant TR1 forms transferring their properties to W. The TR1 forms were to be held in escrow until any appeal was determined. Contrary to the order, the Companies did not sign the TR1 forms and an application had to be made to the court on 16th August 2013 by W's representatives.
ii) Similarly the court had to grant an injunction to the wife to protect the fabric of the English properties when builders went into one of the properties and ripped out the kitchen in the days after a hearing was held when the court gave an indication of its decision (with reasons to follow) that the properties held by the Companies were to be transferred to the wife.
"the fact that one party had been unsuccessful, and must, therefore, usually be regarded as responsible for the generation of costs, would often be the decisive factor in the exercise of the judge's discretion as to costs".
a) the conduct of the parties
b) whether a party has succeeded on part of its case, even if that party has not been wholly successful and
c) any admissible offer to settle. The conduct of the parties includes whether is was reasonable to raise, purse or contest a particular allegation or issue.
Costs should the general rule be applied?
"where the amount of costs is to be assessed on the indemnity basis, the court will resolve any doubt which it may have as to whether the costs were reasonably incurred or were reasonable in amount in favour of the receiving party"
"The question will always be: is there something in the conduct of the action or the circumstances of the case which takes the case out of the norm in a way which justifies an order for indemnity costs?"
"In summary, the position appears to be that, where there are circumstances of a party behaving in litigation in a way which can be properly catYuriized as disgraceful, or deserving or moral condemnation, in such cases an order of indemnity costs may be appropriate".
i) The failure of the Husband and the Companies' to make full and frank disclosure and engage in the proceedings (para 204);
ii) Their lack of respect for the authority of the court (para 13);
iii) The Husband and Companies' breach of court orders to attend the PTR, and to File and Serve Replies to the W's pleadings in a timely manner;
iv) The Companies' late involvement in the case despite having been joined as parties on 31 August 2012;
v) The Husband and the Companies' failure to file statements or to call witnesses in support of their case other than professional witnesses, some of who were criticised by the court.
vi) The Companies running their case in the face of "blindingly obvious" evidence supporting W's case (para 248).
vii) The finding that the Husband had forged the Wife's signature on 2 separate occasions.
i) Arguing that that the court had no power to order maintenance pending suit in Part III cases, only thereafter to pay off the arrears of over £300,000 with a metaphorical shrug.
ii) Issuing TOLATA proceedings in respect of the former matrimonial home in a county court when there was no issue between the parties in relation to that property at that time.
iii) Issuing proceedings in Russia based on a forged document and later issuing further proceedings in Russia for the transfer of properties from the Wife to him in relation to which properties he had said unequivocally in statements to this court that he had given to his wife as a gift.
i) The Husband alone to pay the Wife's costs in the sum of £1,041,063 on or before the 4 pm on 15 November 2013
ii) The Husband and the Fourth, Fifth and Sixth Respondents shall be jointly and severally liable to pay the Wife's costs to cover the period between 12 December 2012 to date in the sum of £473,535 such sum to be paid on or before 4 pm on 15 November 2013.