IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE – FAMILY DIVISION
(MR JUSTICE JOHNSON)
London WC2A 2LL
B e f o r e :
LORD JUSTICE LATHAM
MR JUSTICE LAWRENCE COLLINS
| JOCHEN RALPH WERMUTH
|- and -
|TATIANA YURIEVNA WERMUTH
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LEWIS MARKS QC and TIM AMOS (instructed by International Family Law Chambers of London WC2R 1AP) appeared for the respondent.
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
"Dear Yana, I have filed for divorce. For you to receive the papers, could you please let me have your address such that the documents could be delivered to you personally? Thanks. Jochen."
"(a) Both parties have agreed that it is their intention that the hearing in the German divorce proceedings fixed for 27 August 2002 should proceed;
(b) no steps should be taken in the English divorce proceedings, including ancillary relief, save under Article 12 of the Brussels II [Regulation] pending the hearing in England referred to at paragraph 1 below."
Paragraph 1 of the order provided that the husband's strike-out application be heard by a judge of the Division on the first open date after 15 November. The other provisions of the order regulated the filing of evidence in preparation for that hearing.
i) The court had jurisdiction under Article 2 of the Regulation, both parties being German nationals.
ii) The German court was first seised under the provisions of Article 11.4(a).
iii) The husband's application for substituted service was well founded since at the material time he did not know where the wife was living. The wife's contention that the husband had been devious in seeking substituted service of his petition was rejected. Furthermore the court made the contrary finding that the wife had been endeavouring to avoid service of the husband's petition.
"1. Where proceedings involving the same cause of action and between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established.
3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.
In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.
4. For the purposes of this Article, a court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;"
"In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that state as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter."
"Where at anytime after the presentation of a petition, it appears to the court that, under Articles 9, 10 or 11 of the Council Regulation, the court does not have jurisdiction to hear the petition and is required or may be required to stay the proceedings, the court shall stay the proceedings and fix a date for a hearing to determine the questions of jurisdiction and whether there should be a stay or other order and shall serve notice of the hearing on the parties to the proceedings"
Given the clear terms of the rule Mr Mostyn QC rightly observes that what appears as the second recital to the order of 13 August should have constituted the first paragraph of the order.
"The meaning of the term 'provisional, including protective, measures' has been the subject of some discussion. I was referred to an explanatory report prepared by Dr Alegria Borras explaining the consequences of this European legislation. It would be surprising, give rise to the possibility of tactical abuse and be impractical if a right to support were to be suspended without remedy.
In my judgment, the term 'provisional, including protective, measures' does cover an application such as this, and I hold that I have jurisdiction to make the orders sought."
"It was common for English Courts to be asked to make financial provision for a wife in circumstances similar to this which were known as protective measures."
Johnson J no doubt had in mind cases in which maintenance pending suit had been ordered during the currency of a jurisdictional challenge to an asserted domicile or habitual residence. The case of Ghoth v Ghoth  2 FLR 300 is an instance.
"Applies to measures which are intended to preserve a factual or legal situation in one member state so as to safeguard rights which are the subject matter of litigation in the court of another member state which has jurisdiction as to the substance of the matter."
"A measure does not come within the scope of Article 31 if its provisional character is not guaranteed; a court order requiring the defendant to make an unconditional interim payment cannot be a provisional measure for the purposes of Article 31 unless, if the claimant is unsuccessful, the defendant can obtain repayment."
"32. The court has already declared in the judgment in Case 143/78 De Cavel v De Cavel  ECR 1055, at paragraph 8, that as provisional or protective measures may serve to safeguard a variety of rights, their inclusion in the scope of the Convention is determined not by their own nature but by the nature of the rights which they serve to protect. It added, in paragraph 9 of that judgment, that the provisions of Article 24 of the Convention cannot be relied upon to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded therefrom.
34. The expression 'provisional, including protective, measures' within the meaning of Article 24 must therefore be understood as referring to measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter."
"46. However, an order for interim payment of a sum of money is, by its very nature, such that it may pre-empt the decision on the substance of the case. If, moreover, the plaintiff were entitled to secure interim payment of a contractual consideration before the courts of the place where he is himself domiciled, where those courts have no jurisdiction over the substance of the case under Articles 2 to 18 of the Convention, and thereafter to have the order in question recognised and enforced in the defendant's State, the rules of jurisdiction laid down by the Convention could be circumvented.
47. Consequently, interim payment of a contractual consideration does not constitute a provisional measure within the meaning of Article 24 unless, first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, second, the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the courts to which application is made."
"As provisional protective measures relating to property – such as the affixing of seals or the freezing of assets – can serve to safeguard a variety of rights, their inclusion in the scope of the Convention is determined not by their own nature but by the nature of the rights which they serve to protect."
i) An application for maintenance pending suit clearly cannot be categorised as a protective measure.
ii) Nor can it be categorised as a provisional measure: the wife is penniless and would be quite unable to repay even the first instalment which would have fallen due on 2 December but for this court's stay.
iii) Article 12 is restricted to 'urgent cases'. There was no evidence of urgency in this case and the wife had failed to advance any reason why she had not moved the German court for interim maintenance when present and represented at the hearing on 10 October. The only inference is that her application to the English court had nothing to do with urgency but was founded on a perception that she would be awarded more in London than she would be in Mainz.
LAWRENCE COLLINS J: