A High Court judge has urged parties not to expect to be given sympathy in future if they continue to flout procedural rules and file evidence late.
The Honourable Mr Justice Cobb made clear his displeasure at what he called an ‘egregious failure’ to comply with their requirements by the respondent and his lawyers in NT v LT (Return to Russia).
In the event, the judge did grant the respondent father leave to adduce a second expert report on Russian law, filed a day before the hearing was due to begin, in response to a report from the single joint expert appointed to the case.
The judge said the father and his lawyers placed the court and opposing side in a very difficult position by failing to advance their case to adduce expert evidence in a timely or appropriate way.
Their approach, he said, ‘subverted’ the family procedure rules and principles which underlie them, and their case was presented in a ‘thoroughly disorganised way’. While the judge said he was tempted to reject the application simply because it was presented in such an irregular manner, it was clear his obligation remained to fund a ‘just’ outcome for the child at the centre of the case. But he warned the practitioners should remember that the court expects expert evidence to be filed as soon as practicable, and that ‘very rarely will the indulgence’ extended in this case be repeated.
With the hearing starting on 10 June, on the day before the father issued an application seeking to adduce a second expert report on the central issue from a Russian lawyer, named as Galina Pavlova. This application was opposed on behalf of the mother.
The father’s counsel said he and his instructing solicitor had instructed Pavlova to review the single joint expert’s report and express a view about its accuracy and reliability. Pavlova expressed a markedly different view to that expressed by the single joint expert.
The father argued that he had not agreed the identity of the single joint expert and that there was an obligation on the court to conduct proceedings ‘justly’ and ‘fairly’.
The judge advised the parties he would ‘reluctantly’ allow the father to adduce Pavlova’s evidence because there was still time to obtain the views of the single joint expert, and the issue discussed in Pavlova’s review was central to the case.
The case itself was two applications by the mother to pursue the return of her eight-year-old son, who she contends was wrongfully removed from Russia by his father. The father opposed the applications and sought their dismissal, as well as making his own applications for private law orders against her.
Having allowed her evidence to be admitted, the judge in any case ruled that the child return to Russia under the terms of the 1980 Hague Convention, and once there the court in that country can decide his long-term future.