England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
FAMILY DIVISION, PRINCIPAL REGISTRY
(MR JUSTICE RODERIC WOOD)

		Royal Courts of Justice Strand London, WC2
		Wednesday, 12 January 2005

1. LORD JUSTICE THORPE: This appeal raises a number of questions as to the application of Article 11 of the Regulation Brussels II (Council Regulation (EC) No 1347/2000), which came into force in March 2003. For the purposes of determining those issues it is only necessary to give a very short resumé of the relevant facts and history.
2. The parties to the appeal commenced cohabitation in February 1996 and, prior to their eventual separation in May 2002, they had four children. The first was born in November 1996, the second in May 1998, the third in February 2000 and the fourth in April 2001. Sadly, the eldest child died in infancy; but the parties married before the birth of the youngest child. Their marriage was celebrated initially in a registry office in London on 19th August 2000, but subsequently at a religious ceremony in France. That introduces the fact that the husband is English and the wife French.
3. They entered into a prenuptial contract, which stipulated France as the appropriate jurisdiction should the marriage fail. They also chose a second home in the south of France in the environs of Nice.
4. Following the separation, the first divorce proceedings were issued by the husband on 10th January 2003 in the Tribunal de Grande Instance de Nice.
5. The form of divorce proceedings for fault in France requires the initial submission of a Requête. That triggers a process of automatic conciliation at a hearing before a judge, during the course of which the judge may make preliminary orders, including orders for financial support. Thereafter, with the court's leave, the proceedings may be extended by the filing of an Assignation.
6. The first appointment for conciliation was fixed for 24th March 2003, but was adjourned without hearing to 10th June at the wife's request.
7. At the adjourned hearing on 10th June the wife again did not attend, but the judge nevertheless made an order granting the husband permission to proceed with the divorce, and orders for interim contact and for maintenance.
8. Against that order the wife lodged an appeal to the Cour d'Appel d'Aix en Provence. The ground of her appeal was that her Article 6 rights had been breached and she sought a declaration that the order of 10th June was accordingly a nullity.
9. Perhaps with the advantage of hindsight it might be said that the issue of a petition for divorce in this jurisdiction by the wife on 8th January 2004 was ill-judged, for it had the consequence of initiating competing proceedings between the same parties to resolve the same issues in two jurisdictions.
10. The wife's appeal to the Cour d'Appel d'Aix was, on 9th February 2004, given a hearing date for 16th September.
11. In this jurisdiction the husband's solicitors attacked the petition by serving a notice of application seeking its dismissal on the grounds of lack of jurisdiction.
12. That summons came before District Judge Bradley on 27th April. She made a brisk order, transferring everything to a judge of the Family Division for determination on 23rd June. She stayed the wife's London petition in the interim. She gave clear directions to ensure that the evidence before the High Court judge was prepared in a tidy fashion and to ensure that the experts on each side not only put their opinions in sequential order, but also to ensure that they had sufficient time to agree a schedule of the issues between them prior to the hearing.
13. During the course of the brief hearing of 27th April the husband specifically raised for the District Judge's consideration whether to leave the French court to determine if it was the court first seised under the terms of Article 7. For all that was in dispute between the parties was the proper characterisation of the French process: was the issue of the Requête the proper commencement of the proceedings or was it only the subsequent issue of the Assignation, following the judicial conciliation investigation?
14. The husband put that question before the District Judge by proposing an order, drafted by Mr Smith, then appearing for the husband, which recorded, first, an undertaking by the husband to apply forthwith to the relevant court in France for a declaration or other determination of the issue of seisin for the purpose of Article 11(1) and (3) of the Regulation. On that undertaking Mr Smith's proposed order was that the petition should be stayed until the conclusion of the hearing referred to in the undertaking on the ground that there were proceedings for divorce pending in the Tribunal de Grande Instance de Nice and it appeared that that court was first seised for the purposes of Article 11. The District Judge specifically rejected that disposal.
15. Accordingly, the husband issued a notice of appeal, dated 11th May 2004. He specifically sought an order that the issue of seisin should be determined by the appropriate court in France and that there should be a stay of the English proceedings pending that determination.
16. The grounds of appeal were shortly stated thus: the learned District Judge was plainly wrong to give directions for the determination of the issue of seisin by a judge of the Family Division rather than stay the proceedings pending determination of the issue of seisin by a French court because (a) the only issues to be resolved were issues of French law and a French court was in a manifestly better position to determine them, and (b) despite the petitioner's contention that the Tribunal de Grande Instance de Nice was not seised of the divorce, she had lodged an appeal against the Ordonnance de Non-Conciliation made by the tribunal and that appeal was to be heard on 16th September.
17. Immediately prior to the filing of that notice of appeal the husband had filed his Assignation of divorce on 6th May. Much has been made of the delay between the grant of permission by the Nice court on 10th June 2003 and the subsequent filing almost twelve months later. Mr Turner QC, who appears in this court to lead Mr Smith, has accepted that there is a degree of strategy in that issue on 6th May, but he has resolutely explained that the husband's position in France was that it was perhaps vain to proceed with the Assignation so long as the wife's appeal to the Cour D'Appel d'Aix was outstanding.
18. In any event the district judge's reference and the husband's appeal both came before Wood J on 23rd June. He conducted a three-day hearing, including expert evidence from the wife's French advocat and from the husband's French advocat, and then delivered a reserved decision. He had, of course, not only to determine the issue referred to him by the District Judge, but also the husband's appeal of 11th May. He dismissed the husband's appeal, holding that he was obligated to determine the question of which court was first seised. He went on to express the conclusion that the issue of the Requête in France did not trigger the Article 11 priority and that, since the wife's petition in this jurisdiction comfortably preceded the issue of the Assignation in France, the wife had established primacy under the regulation.
19. Against that decision a notice of appeal was duly issued on 6th September, supported by a skeleton argument, fully and persuasively drawn by Mr Turner.
20. On the same day was the hearing of the husband's Assignation in Nice. Again the wife did not appear and accordingly the court simply adjourned to a date in December.
21. Of much greater significance is the outcome of the wife's appeal to the Cour d'Appel d'Aix. In a judgment which is available to us in translation, it is apparent that the court dismissed the wife's contention that the hearing of 10th June was a nullity and further went on to decide, in clearly reasoned terms, why in the opinion of that court the divorce proceedings had been initiated by the issue of the husband's Requête on 10th January 2003, with the consequence that the French proceedings were first in time by a period of almost precisely twelve months.
22. There can be no doubt that the appeal proceedings initiated by the husband in this court were considerably fortified by that decision. I do not think that that was known to me when I made a paper order directing that the application for permission be listed for oral hearing on notice, with appeal to follow and a time estimate of one day.
23. This, then, is that fixture; and we have had the advantage of oral argument from Mr Turner in brief support of his skeleton and a response from Mr Dyer, who has acted throughout in this matter for the wife.
24. Mr Dyer has been under some difficulty, in that, for a time, the wife was unable to continue to fund the litigation. So Mr Dyer gallantly acted pro bono, as did his instructing solicitors, to bridge the gap before the issue of public funding to the wife on 29th December.
25. Mr Turner's submission to the court can be very briefly summarised. He simply says that, given the enormous advantages of a determination by a French court of such an issue as the proper characterisation of a French process, and given the impending hearing of the Assignation on 6th September, Wood J was plainly wrong to have embarked on a determination of an issue here in London. Mr Turner's skeleton then, as persuasively, attacks the judge's conclusion that in France it is the issue of the Assignation rather than the issue of the Requête that commences proceedings and seises a court for the purposes of Article 11.
26. Mr Turner has accepted that if he succeeds in his first submission it would not be appropriate for this court to proceed to determine his second submission.
27. Mr Dyer is in a difficulty given the outcome of his client's appeal to the d'Aix court. However, he has firmly stressed that the wife does not accept the rightness of the conclusion, certainly on the issue of jurisdiction, and that she has initiated and will pursue to conclusion an appeal to the Cour de Cassation. Accordingly, he says to avoid prejudice to his client the appropriate disposal today is for this court simply to extend the stay and to adjourn the appeal generally to await the decision of the Cour de Cassation.
28. Before expressing my conclusions on this relatively straightforward point I would refer briefly to the terms of the regulation and also to the relevant provisions of the Family Proceedings Rules.
29. Article 11, in so far as relevant for the purposes of this appeal, is as follows:

"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 seised 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.

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."

30. The relevant rule, inserted into the Family Proceedings Rule 1991 by amendment in preparation for the advent of the regulation, is rule 2.27A. Paragraph 1 of the rule reads:

"(1) An application for an order under Article 11 of the Council Regulation shall be made to a district judge, who may determine the application or refer the application, or any question arising thereon, to a judge for his decision as if the application were an application for ancillary relief.

(2) Where at any time after the presentation of the 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."

31. So it is against that background that Wood J reached the decision that he did.
32. Now it is apparent from both paragraph 41 and 108 of his judgment that he fully recognised that the sensible course was to refer a question of characterisation to a French judge. In paragraph 41 he said:

"... it seemed to be both daunting and unhappy that an English judge should determine such issues of French law and procedure ..."

33. In paragraph 108 he said:

"Whilst it may be more convenient, and in my judgment would almost always be wholly desirable, for a Member State to determine issues of interpretation of its own law and procedure, Brussels II does not require that that should occur."

34. So given that the judge clearly saw the very great practical advantages of deferring to his French colleague, what were his reasons for taking on the task? They are to be found in a relatively brief passage of judgment. Although from paragraphs 36 to 39 he refers to a number of submissions advanced on the wife's behalf, his essential conclusion is expressed in paragraph 40, when he said:

"Mr Nigel Dyer ... argued that at the time of the issue of the wife's English petition there were no equivalent proceedings in France. Indeed he submitted that there was not even any 'apparent' equivalent proceeding in France, and therefore the English Court was first seised, and the provisions of Brussels II could not be invoked by the husband to thwart the wife's English proceedings."

35. In the following paragraph the judge said that he had necessarily undertaken the task of determination "because of the issue identified in Mr Dyer's submission referred to in paragraph 40".
36. Now I have very great difficulty in sharing the judge's reasoning on this question. In reality all that Mr Dyer had stated was a definition of the issue that required to be determined by the appropriate court. It was not an argument that pointed to London as the appropriate court of determination; it was simply a statement of the issue that fell to be determined. Accordingly, I cannot agree that a mere statement of the issue for determination compelled determination by him rather than by a colleague in France, given the inevitable advantages that a French judge would enjoy, advantages which the judge had himself spelt out in the two paragraphs I have already cited.
37. Earlier paragraphs that I have not read into this judgment also deal with other considerations that bore on the judge's mind. It is unnecessary to investigate those considerations further given that the judge so specifically said in paragraph 41 that it was the argument addressed by Mr Dyer (and recorded in the preceding paragraph 40) that had driven his conclusion. But Mr Turner is, in my judgment, fully justified in his submission that the judge seemingly misunderstood the significance of the hearing of the Assignation fixed for 6th September. For, on that occasion, the French court would be bound to address the question of jurisdiction in the context of Article 11, and that development was there in the calendar a mere three months forward. Deferring to that fixture had the huge advantage of avoiding the risk of conflicting decisions in the neighbouring jurisdictions on a pure issue of characterisation of French process.
38. I will also deal briefly with the judge's reasons for dismissing the husband's appeal of 11th May.
39. In paragraph 106 of the judgment the judge explained that, despite the fact that the husband had again proffered an undertaking to pursue a determination in France, he was nevertheless dismissing the appeal. He said:

"It was, in my judgment, essential to grapple with the issue of whether or not there was an equivalent proceeding as a result of which Article 11 of Brussels II would engage."

He then in the following paragraph cited in full the provisions of Rule 2.27A and concluded, in paragraph 109, by saying:

"The combination of Family Proceedings Rule 2.27A and the language of Article 11 of Brussels II creates a framework within which it was a proper course for the District Judge to give the directions she gave, and, having taken account of the English authorities ..., it was well within the ambit of her proper discretion to take the course which she did."

40. That raises in my mind an anxiety that the terms of Rule 2.27A(2) are capable of leading the court to the conclusion that it has only a limited menu of choice when a point is taken under Article 11. For the paragraph says that where an Article 11 point is taken "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". Now that subparagraph may be read to suggest that the court's management is limited to fixing a date for determination and serving notice on the parties to the proceedings. The reality is more expansive. The court clearly has the additional discretion merely to grant a stay pending the determination of the issue in the court of some other Member State. If the District Judge or Wood J construed rule 2.27A(2) as obliging the court to determine the question, that was, in my judgment, an erroneous construction.
41. So I have sufficiently explained why in my judgment Wood J wrongly exercised his discretion in dismissing the husband's appeal and in proceeding to determine an issue which he well recognised was more appropriately determined elsewhere. The logical consequence, in my judgment, is that we should allow the appeal and, as a matter of logic, not proceed further to rule on Wood J's conclusion that effectively it is the Assignation and not the Requête that initiates the divorce proceedings in France.
42. I am not attracted by Mr Dyer's submission that this appeal should simply be adjourned generally pending the outcome of the proceedings in the Cour de Cassation. It seems to me that if Mr Turner has demonstrated that the judge wrongly exercised his discretion he is entitled to have a judgment to that effect from this court today. It may be that there is the possibility of prejudice to the wife, in that, apparently, the court in France has no jurisdiction to grant a stay of the husband's continuing divorce proceedings pending the outcome of the appeal to the Cour de Cassation. If that be the state of French law there is nothing that this court can do to protect her.
43. However, before concluding this judgment I would like to express two further views. If this regulation and particularly Article 11 of this regulation are to achieve the objectives that all Member States intended during the course of the lengthy negotiation of the text, then manifestly it is essential that the filing of the Requête in France be held to be the first manifest step. If the Cour de Cassation were to reach the conclusion that as a matter of proper characterisation only the issue of the Assignation amounted to an initiation then it would seem to me imperative that France amend its internal proceedings to ensure that the first manifest step, even if it only be a step towards a conciliation process, constitutes initiation.
44. My final observation is that this is most evidently the sort of dilemma that the creation of the European Judicial Network is intended to resolve. Although the EJN was initially created for the more harmonious conduct of civil proceedings in Member States, it has become highly relevant for family lawyers and family judges since the advent of the Regulation that we consider and it will become even more relevant with the introduction of the replacement regulation on 1st March next. The creation of the Network presents an important opportunity to ensure direct judicial communication to enhance the prospect of judicial collaboration across frontiers. The Good Practice Guide which the Commission has recently prepared for the benefit of lawyers and judges throughout the Member States stresses the importance of direct judicial communication: see Chapter 10. Had that new arrival been drawn to the judge's attention in June last he might have seen the obvious opportunity for a telephone call or an email to the judge in Nice so that there could be a collaborative approach to ensure that the issue was, first addressed by the more appropriate court, second addressed without unnecessary delay, and third addressed without unnecessary expense. I would have thought that, given all the facts of this case, such a conversation, had it taken place in June 2004, would inevitably have persuaded Wood J of the sense of leaving the case to the judge in Nice, whatever may be the terms of rule 2.27A.
45. So for all those reasons I would simply grant permission, allow the appeal and set aside the order below, save in so far as it imposes a stay on the wife's London petition.
46. LORD JUSTICE TUCKEY: I agree.
47. LORD JUSTICE DYSON: I also agree.

ORDER: Appeals allowed; costs before the District Judge to be costs in the suit; wife to pay the husband's costs before Wood J and of the appeal until 29th December (when the wife obtained public funding) to be subject to a detailed assessment, on the standard basis if not agreed; costs after 29th December to be subject to assessment by the costs judge.