England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY, FAMILY DIVISION
(MR JUSTICE SINGER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st May 2010

Lord Justice Thorpe:

1. There have been long drawn bitter and very expensive proceedings between this husband and wife following a very brief marriage. There have been proceedings both in London and in Moscow and a good deal of chicanery in relation to the procuring of a decree of divorce within the Moscow proceedings. That led to an undertaking on 11 August which the husband gave to HHJ Pearlman that he would not take any further step in the Russian proceedings, all on the basis that he asserted the validity of a divorce apparently pronounced in the high summer. On the same basis an order was made by Mr Alex Verdan QC on 20 October prohibiting the husband from taking further steps towards any sort of dissolution in Moscow. That was on the basis that he would apply for adjournment of his Moscow proceedings at a hearing on 29 October. When he did not do so the matter was before Bennett J on 10 November and before him a statement or affidavit from a Swiss expert in Russian law to the effect that an application in Moscow in reliance on an English prohibition or stay would be unlikely to succeed and that total security could only be obtained by the husband taking positive steps such as to withdraw the petition. Bennet J after due consideration essentially repeated the prohibition. He made a prohibitory order. He did not make a specific order that the husband take any step to withdraw or otherwise halt proceedings in Moscow.
2. There were then hearings in the Moscow court on 7 December, 17 December and 25 December. At these three hearings both husband and wife were represented, and there is no doubt at all that the husband's lawyer by a statement drew attention to the existence of Bennett J's order and it is plain that that statement was laid before the court on 7 December; as to that, see bundle 7 pp.304 and 306. We see a minute of the hearing on 7 December at bundle 8, p.220 and we see a minute of the hearing of 25 December at bundle 7, p.314. What seems to me the bizarre aspect is that at all three hearings it was the husband's lawyer who was drawing attention to the existence of a London prohibition and the wife's lawyer, who one might assume would have been praying in aid that prohibition in support of her application for adjournment, seems to have sat silent on the point. So there was no strong reliance before the Moscow judge by the party for whose protection the order was made, and perhaps that may in some part explain how it was that on 25 December the Russian court pronounced the decree.
3. There then followed an application by the wife to deny recognition on the grounds of breach of public policy, and that application came before Singer J. The application took a long time. There was a lot of evidence. There was a good deal of dispute as to whether witnesses who were not before the court should be brought before the court and whether witnesses who were available to give evidence should or should not be permitted to do so. In the end the judge gave a robust judgment in which he refused recognition on the simple ground that an order prohibiting a party was an order of such consequence not only in this jurisdiction but throughout the civilised world, that a foreign jurisdiction pronouncing a decree in disregard of that order could hardly expect the decree to receive recognition here.
4. Mr Southgate who has prepared an erudite argument commencing with the decision of this court in Bater v Bater [1906] P 209 essentially says in the end that the refusal of recognition to a decree of divorce pronounced in a foreign state should be restricted to cases in which some offensive ingredient has been demonstrated in the proceedings. He would have the public policy exception limited to cases of obvious procedural irregularity and the denial of natural justice. I doubt that that submission is sustainable, but I think it must be plainly arguable that Singer J was wrong to refuse the recognition of a divorce duly pronounced without procedural irregularity by the judge of the Moscow court. The order pronounced in London was before the court, was drawn to the court's attention and as such it cannot be said that the husband has by deceit or fraud denied the Russian court the knowledge of the aspirations of the competitive court in this jurisdiction.
5. So on that simple ground I would grant permission. The point has not been considered in this court before. It is entirely an entirely novel point. It brings into consideration comity and the interrelationship of jurisdictions that transcends the squabble between this young couple.

Lord Justice Etherton:

6. I agree

Order: Application granted