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Cite as: [2013] EWCA Civ 464

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		Neutral Citation Number: [2013] EWCA Civ 464
		Case No: B6/2012/2809

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM WANDSWORTH COUNTY COURT
(HIS HONOUR JUDGE WELCHMAN)

Royal Courts of Justice
Strand, London, WC2A 2LL

10th April 2013

B e f o r e :

LORD JUSTICE THORPE
LORD JUSTICE JACKSON
and
LORD JUSTICE TOMLINSON
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	YORDANOVA	Respondent
	- and -
	IORDANOV	Appellant

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(DAR Transcript of
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Mr Michael Horton (instructed by Abbey & Nat Solicitors) appeared on behalf of the Appellant.
The Respondent did not appear and was not represented.
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HTML VERSION OF JUDGMENT
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Lord Justice Thorpe:

This is Mr Iordanov's application for permission to appeal the order of HHJ Welchman, and that order was made on 10 October 2012 at the culmination of complex proceedings in the Wandsworth County Court which I am afraid give little cause for satisfaction. The case went on far too long. There were far too many directions and orders and an effort to get the case tried effectively seemed to founder on Judge A not having sufficient time and Judge B, when he gets the case, allowing a very long adjournment in between the conclusion of evidence and the handing down or the pronouncement of judgment. But all that is by the by. The application for permission came before me as an application by a litigant in person and, having understood that the judge below had refused recognition of an apparently valid decree of divorce pronounced in Bulgaria on the ground that it was offensive to public policy, I directed an oral hearing without notice before a full court. On the eve of this hearing, Mr Iordanov was lucky to receive representation through the Bar Pro Bono Unit. Mr Michael Horton has done an outstanding job on Mr Iordanov's behalf. At almost no notice, he has mastered a considerable file, trial bundle and documents prepared in support of the permission application, and his oral argument this morning has been outstanding for its vigour and lucidity.

So with that brief introduction, I turn to the essential story. Mr Iordanov, who is a Bulgarian man, started a relationship with a Russian lady, Maria, and that relationship developed into marriage at the Bulgarian Embassy here in London on 4 September 2006. The marriage seems to have been blighted almost from the start. A Christmas holiday in Bulgaria was the reverse of successful. There seems to have been friction between the wife and her mother-in-law. She at some stage presented the husband with her wedding ring and on the last day of her visit more or less en route for the airport, the parties called on Bulgarian lawyers, before whom both signed powers of attorney relating to future divorce proceedings. There is a difference of view as to the state of the relationship back here in London. The husband accepts that they were beneath one roof, but asserts that they were living separate lives. The wife says no, they continued to live together as a married couple.

The Bulgarian Court was engaged on 13 August 2007 with what we would call a divorce petition. That led to hearings in the Bulgarian Court on 11 October and then on 21 January 2008. Certainly, according to the law of Bulgaria, the parties were divorced by the end of January 2008. The parties ceased to reside under one roof sometime in March 2009, and in September 2010, i.e. some 18 months later, the husband received a letter from London solicitors enclosing a draft divorce petition on the grounds of conduct. It was a letter written pursuant to good practice, namely inviting agreement as to the nature of the conduct that was to be put before the court, and specifically saying that there were no financial issues to be resolved.

The husband's predictable reply was: what on earth is this all about? We have been divorced ever since the beginning of 2008. Following solicitor correspondence, the wife's divorce petition was filed on 25 May 2011 and on 20 July 2011 the husband issued his strikeout application on the grounds that there was no subsisting marriage capable of dissolution. I glide over the unedifying history of proceedings in the county court and come straight to the hearing in front of HHJ Welchman on 27 June 2012. He heard evidence that day and on the following day and adjourned over to 10 October, when he gave judgment. It is plain from the content and style of the judgment that it was not a hand-down judgment, albeit it may be an ex tempore judgment delivered with the aid of notes. The husband was disappointed to hear that his application had been dismissed and that the judge had reached that conclusion in reliance upon Article 22(a) of Brussels II Bis and/or on the ground of Article 22(b). The Appellant's Notice was filed on 31 October and subsequently proceedings in this court I have already detailed.

There was a lot to be said on the husband's part in amplification of his case. There is no doubt at all from the record that the judge in the Pleven regional court investigated the application for divorce thoroughly and conscientiously and reached her conclusion in reliance of submissions from the lawyer to whom the husband had given power of attorney, and from the lawyer to whom the wife had given power of attorney. Furthermore, he heard brief oral evidence from the husband's mother to the effect that the marriage had been intemperate in its creation and plainly in tatters by the time they had paid their first visit to her and to his homeland. The husband, in reliance upon that decree albeit at a time when he was aware of the challenge mounted in the Wandsworth County Court, had contracted a marriage in Bulgaria, and accordingly to refuse recognition would be to create different outcomes in law in this jurisdiction and in Bulgaria and would be a manifest injustice to the lady who he had married as well as to himself. The contrary case which was advanced on behalf of the wife was that she had effectively been the victim of some fairly fast manoeuvring on the part of her husband. She had not understood that she was signing a power of attorney which would enable him to dissolve the marriage at will and without notice to her personally, and her understanding was that the document she signed was only in relation to property issues between them.

It seems to me that the judge could easily have decided the case in favour of the husband's application to stay or to set aside, and the crucial issue for the judge was an assessment of the respective credibility of the parties. He had to decide many issues of conflicting fact. He had to decide what was the nature of the relationship between the wife and the Bulgarian lawyer who apparently held her power of attorney, without any direct evidence from that attorney and with written evidence which the judge found to be quite profoundly unsatisfactory.

The attack which Mr Horton has advanced on the judge's conclusion to refuse recognition is: firstly, that the judge was wrong to have invoked public policy in relation to proceedings which were so clearly legitimate according to the law of Bulgaria; secondly, that he was wrong to hold that the Bulgarian decree should alternatively be refused recognition on the ground that the wife had not had notice of such a character as to enable her to arrange for her own defence within the proceedings; Mr Horton challenges the judge's finding that the wife did not understand the nature and effect of the power of attorney; and fourthly, he asserts that the judge was wrong to embark on a factual inquiry as to the validity of the Bulgarian power of attorney, since that was essentially a matter of Bulgarian law which he should have remitted to Bulgaria for investigation and decision.

Despite the forceful and skilful submissions advanced by Mr Horton, I am of the view that the judge conducted the factual inquiry on the essential issue, hearing from the crucial witnesses, namely husband and wife. Having found as he did that he preferred the evidence of the wife to that of the husband, and having accepted her clear evidence that she had no idea that the document to which she had put her signature on 4 January had the far-reaching consequences and to her interests the highly damaging consequences asserted, that was a matter of factual finding which it is not conceivable that this court would revisit or set aside, and on that simple ground it seems to me that it was evident to the judge to conclude that something that would pass muster in Bulgaria simply would not pass muster here in terms of our concept of justice and our concepts for due process in proceedings which have the consequence of changing status. If that is so, it seems to me unnecessary to consider Mr Horton's able argument in relation to the extent of Article 22(b).

The submission that the judge should have shrunk from ruling on the issue of the validity of the Bulgarian power of attorney cannot be right. The whole construction of Brussels II Bis creates, as it were, automatic recognition of certain orders but subject to exceptional provisions set out in Article 22. Manifestly, if the reliance is on manifestly contrary to public policy or upon failure to serve and give due notice, that investigation must be conducted and concluded in the jurisdiction within which challenge is mounted.

So for all those reasons I would simply refuse permission.

Lord Justice Jackson:

I agree. It is a necessary consequence of Article 22 of Council Regulation (EC) No 2201/2003 that in some exceptional cases a person's divorce and subsequent remarriage may be recognised in one Member State of the European Union but not in another. This is such an exceptional case. I only wish to add my appreciation of the excellent argument presented by Mr Michael Horton, who was instructed at short notice and appears today pro bono. It is no fault of Mr Horton that the proposed appeal has no real prospect of success.

For the reasons stated by my Lord, permission to appeal must be refused.

Lord Justice Tomlinson:

I agree with both judgments. I would only add that in my view Mr Horton has failed to persuade us that Article 26 of the Regulation is potentially engaged.

Order: Application refused