England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(MRS JUSTICE BARON)

		Royal Courts of Justice Strand, London, WC2A 2LL
		12th July 2007

Lord Justice Thorpe:

1. This is an application for permission to appeal with appeal to follow if permission be granted. The order challenged is that of Baron J of 18 May. It is common ground between Mr Le Grice QC and Mr Scott QC that the point is a short one.
2. What the judge did on 18 May was to give the applicant, the petitioner wife, her decree absolute rejecting an application on the husband's part for a stay in the change of status until the determination of a current appeal to the court of highest authority in France, the Cour de Cassation.
3. The circumstances in which the judge had to determine the question are set out concisely in her judgment between paragraphs 3 and 8:

"3. The wife was born in Singapore on 16^th June 1966 (40 years old). The husband is French, having been born on 8th March 1970 (37 years old). These parties met in Singapore in 1994, where the husband was undertaking his National Service working with a French Bank. In early 1996 the husband was offered employment by that bank in London. Accordingly, the parties moved to the United Kingdom where they lived in rented accommodation in Queensgate, South Kensington. On 16^th July 1996, the parties married in France, in the region of the husband's family home. In the summer of 1996, the parties purchased a property at Crown Lodge in Elystan Street, Chelsea. So far as I recall from the papers before me, that was the only property which they owned during their marriage. In early 1998, the parties moved to Tokyo where the husband took up a new job. He remained there for about eighteen months, before returning London, this time in the employment of Goldman Sachs. The parties then lived in rented property in South Kensington. However, their connection with Japan did not cease, for in April 2000 the husband was offered employment in Tokyo and the parties moved again. The only child of the marriage, Sebastian, was born there in May 2004.

"4. During 2004 (or thereabouts) it appears that the husband began an affair with another lady, as a result of which she became pregnant (giving birth to his second child on 6th June 2005). In late 2004 the husband was informed that he would be required to return to England in order to continue his employment with Goldman Sachs. The parties packed up their belongings in Tokyo and, after the wife had spent a period in Singapore, they each returned to the United Kingdom but did resume effective cohabitation because the husband decided that his future lay with his new partner. The wife has been resident in the United Kingdom since the early months of 2005. The husband continued to work in this jurisdiction for a period but he was made redundant by Goldman Sachs. Eventually he secured new employment on the basis that he returned to Japan.

"5. By this stage, of course, the marriage itself was at an end. Both parties issued proceedings on 24^th March 2005 - the wife in London and the husband in Paris. Consequently, there was a dispute about which jurisdiction should deal with the divorce proceedings as each court had jurisdiction. Under the provisions of Brussels 11, the rule is absolutely clear, the court first seised should assume jurisdiction. In the light of this factual conundrum, one court had to make a preliminary decision. Either of the parties could have proceeded to the courts in England or in France for such a determination but it was the husband who moved the court in France. In essence he sought a finding that the French court was first seised and therefore should assume its undoubted jurisdiction to hear the divorce proceedings. I say "undoubted jurisdiction" because the husband as a French national, had, in accordance with their law, the entitlement to bring any issue before the French court. The judge in France determined the matter and decided that the English court was first seised with proceedings. I understand that part of his decision rested upon the fact that the judge refused to admit evidence from the husband's lawyer as to the precise time at which the petition had been lodged at the relevant court office. As I have been told, it is an evidential rule in France that your own advocate is not permitted to give evidence on your behalf in the context of proceedings.

"6. The decision was clear, the French court determined that it would not exercise jurisdiction under the terms of Brussels 11, therefore the case should proceed in England. The husband was not satisfied with that decision and took the matter, on appeal, to the relevant Cour d'Appel. That court dismissed his appeal. Consequently the matter still fell to be dealt with in this jurisdiction.

"7. On 16^th October 2006 the husband's and wife's representatives appeared in front of Mr. Justice Singer. One of the applications on behalf of the husband was to the effect that the English court should make a determination on the merits as to whether it should exercise its jurisdiction to deal with the case. The learned judge decided, in my view absolutely correctly, that it would make a nonsense of inter-country disputes if -the English court failed to pay attention to the French decision. Therefore he declined to determine arguments as to whether this court was the jurisdiction first seised under the terms of Brussels 11. This court undoubtedly had fundamental jurisdiction as a result of the wife's residence during the relevant period. The decision of the learned judge given on 16^th October was subject to an appeal by the husband. In the course of the learned judge's decision he made an order, inter alia, in the following terms in relation to the divorce itself. If a decree nisi is pronounced that decree shall not be made absolute until the earliest of the following: (a) the determination of the respondent's proposed appeal to the Cour de Cassation in respect of his divorce proceedings instituted in the Tribunale de Grand Instance de Paris on 24" March 2005, or (b) further order of a judge of the Family Division. The appeal from that order was dismissed by the Court of Appeal in early 2007.

"8.The matter, as I am clear, did not rest there because the learned judge then dealt with this matter in December, as I have already outlined. On that occasion he granted a decree nisi. One of the reasons that his Lordship felt it appropriate to grant a decree nisi was his concern about the delay in prosecuting the appeal proceedings in France. From paragraph 62 (onwards) of his judgment his Lordship sets out his concern about events in France. It is clear from the terms of his judgment that he had been told that the husband was going to prosecute his appeal in France timeously. In para.73 the learned judge said as follows:

'I need to set out what I have been told on instruction by Mr. Marshall [who represented the husband on that occasion] is the information he has received from the French lawyers instructed to forge ahead with an appeal to the Cour de Cassation. He has confirmed that the husband will undertake to prosecute that appeal as soon as possible. I am told that he has given instructions to that effect. It is four weeks since the Cour d'Appel judgment. We have only, for the moment, the Pourvoi.'

The "Pourvoi" being the initiating document by which the application to the Cour de Cassation is made. I note that this was lodged on 12" October, some four days before Singer J. made his determination.

He continues:

'[The Pourvoi] gives no hint of what the grounds of appeal might be. He [the husband] has apparently six months to file what is referred to as a memorandum, equivalent to a skeleton argument (that may or may not be its correct designation). The matter is then, I was told, put before a single judge (who I guess might be a conseiller) to verify if there is any serious ground for appeal. He may, if he thinks there is not, dispose of it there and then. But if he does think there may be a serious ground, it is then submitted to the Cour de Cassation for a process described to me as 'appreciation'. If the Cour de Cassation regards the case as having merit, it will admit it. If not, it will issue a certificate of non-admission du pourvoi. It will reject the petition that will be an end of the matter. If it admits it, then matter goes forward to appeal. I am told that there is no other case law on this topic, and therefore in the opinion of Maitre Piole [that is the lawyer instructed by the husband in France] the Court de Cassation may well admit this appeal. The whole process is said to take about two years, which is a wide time-frame. I would think it can only begin to run once the husband has put in his memorandum. I have no idea how long it is then before the matter gets before the single judge at which point it may come to a halt, and if it gets past him, how long before the Court de Cassation appreciates it or not.'

"In passing, I note that from October 2006 that would project a minimum timescale ending in about October 2008. If the time begins to run from the date of the memorandum the date is extended to May 2009.

"It is obvious from the context of the judgment that I have just outlined that his Lordship was of the view, and had been so informed, that the husband would prosecute this appeal in France as soon as possible. However, far from so doing, I understand that it is conceded on his behalf that he did not lodge the necessary memoir until; 4^th May 2007. That being outside (albeit by a few days) the six month time limit provided in French procedural rules. I have no clear evidence before me as to whether a legal point may be taken against the admission of a memoir which is out of time."

4. The point that she had to decide on that factual background is an unusual one and she was undoubtedly entitled to exercise a broad discretion. What strongly influenced her was the weakness of the evidence in support of the husband's application of 8 May. In paragraph 9 she referred to the affidavit of Mr Tooth as a very brief affidavit, and one that failed to provide an opinion from the French lawyer setting out the realistic prospects of success of the appeal to the Cour de Cassation. She emphasised that the husband had failed to produce any other evidence as to the prospects of success of the outstanding appeal and she emphasised that the husband was in clearest breach of assurances that had been given to Singer J on 13 October by the husband's then counsel on the husband's express instructions.
5. Now Mr Le Grice asserts that the issue resolves on a balance between the contention that he advances, that there is a need to complete the appellate process in France before there can be any change of status in this jurisdiction, and Mr Scott's submission that, as a matter of fairness, his client is not to be denied otherwise clear rights to dissolution by decree absolute when the delay in the progress and pursuit of the appeal is extravagant and entirely the responsibility of the husband. On the one hand, it can be said that there is little discernible prejudice to the wife in postponing yet again the dissolution of the marriage until the completion of the outstanding ancillary relief proceedings in this jurisdiction fixed for trial in February next. On the other hand, it seems to me that the emphasis placed by the judge on the husband's misconduct post-13 October (not only in failing to pursue the proceedings in the appellate proceedings expeditiously but in total disregard of the assurances that he had given to the Family Division Judge in London) was properly determinative of the discretionary exercise.
6. We do not know what will be the legal consequence in France of the grant of the decree absolute and the consequential change of status; it is a matter of speculation. One possibility is that the French court would recognise such a final decree as being determinative of status and therefore leaving nothing upon which the French justice system could adjudicate under the provisions of the Brussels regulation. Another possibility is that the French court could conclude, if allowing the husband's appeal, that all the proceedings in England based on an erroneous deferral of jurisdiction were no more than nullity. Between those two poles is the possibility that the French court would have a discretion either to recognise the absolute decree or to proceed with the appellate process. There was an obvious opportunity for the husband to fortify his evidential case, both to meet the criticism from Baron J that there was absolutely no evidence as to the prospects of success and also to establish the consequence in French law of the grant of decree upon the outstanding appeal. The obligation was clearly on the husband to bring that evidence, highly relevant and, if available, highly supportive of his application to this court and he has failed to do so.
7. I would dismiss the appeal on the basis that Baron J was fully entitled to place great moment upon the husband's disregard of his obligations in France coupled with his seeming contempt for this court in his breach of assurances given to a judge of the Division. In reaching that conclusion I do not in any way mean any lack of respect for the process still live in France. Obviously it is for the Cour de Cassation to determine whether the husband's appeal falls at the preliminary stage, whether it proceeds to full hearing, what the outcome. All that is for the Cour de Cassation, and I do not mean by this judgment on this short point in any way to seem to preclude the completion of the process or to influence in any way the outcome of that process. My judgment is based squarely on the husband's conduct within the litigation in this jurisdiction and what seemed to me to be the proper consequences.
8. My Lord, Lord Justice May, reminds me that as a matter of form of order I would grant permission but dismiss the resulting appeal.

Lord Justice May:

9. I agree. These proceedings have gone forward in England on the basis that the English court is the court first seised and that a decision to that effect was made at first instance and in the cour d'appel in France, the French court being the competent court for that purpose. Within the English proceedings, and assuming that they are properly constituted jurisdictionally, there was plainly a discretion to order the pronouncement of the decree absolute. If it turns out that the English court does not have jurisdiction, some of the orders made by the English court, including, it might be, the pronouncement of a decree absolute, may logically be of no effect except to the extent that the French court as the court with jurisdiction will recognise or continue to give effect to historic orders made by the English court at a time when according to French law and procedure the English court did have jurisdiction.
10. We do not know, because the parties, and in particular the husband, have not put appropriate evidence to this court, whether to grant a decree absolute in this jurisdiction would affect the outcome of the French appeal proceedings or not. Logically, since the issue in France is one of jurisdiction, it should perhaps not affect the outcome unless there is somehow an element of discretion in the French court's decision. If there were such a discretion, then I would only suppose that the French court would exercise it to produce a just result in all the circumstances.
11. Mr Scott speculates that the French court might recognise an English decree absolute notwithstanding an otherwise putatively successful jurisdiction challenge, but we do not know. It was, I think, for the husband to make his case that there would be an adverse effect, and all that Mr Le Grice is able to say is that there might be. I do not think that this is good enough to resist the exercise by the English court of the discretion which, assuming jurisdiction, it undoubtedly has. That apart, there is no proper criticism of the way in which Baron J exercised her discretion. The other side of the coin is that there are theoretical risks for the wife in proceeding further down the expensive path of English proceedings which might possibly turn out to be without jurisdiction whether there is a decree absolute or not. It is she who is asking the English court to pronounce a decree absolute and she no doubt does this with her eyes open and with proper consideration and advice.
12. For these reasons I agree that the appeal should be dismissed.

Mr Justice Bennett:

13. I also agree. The judge was exercising her undoubted discretion. From at least October 2006, the husband knew that he had to get on with his appeal in France and that whether or not he did that would be closely watched by the wife and indeed by the English court. In my judgment the husband has brought the position down upon his head by his lack of action. The judge was in my judgment well within her discretion to come to the decision that she did and in my judgment it was wholly correct.
14. For these reasons and for the reasons given by my Lord I, too, would dismiss the appeal.

Order: Application allowed. Appeal dismissed.