England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT
His Honour Judge Booth sitting as a Deputy Judge of the High Court
Claim Number BB12D00309

		Royal Courts of Justice Strand, London, WC2A 2LL
		28th January 2014

Lord Justice Vos:

Introduction

1. In this case, there were parallel divorce proceedings in England and Spain, and the question is which of these two sets of proceedings is to take precedence in the light of the provisions of the Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (the "Council Regulation").
2. Ms Diana Hilary Jefferson, the Petitioner, (the "wife") issued the first proceedings in time in England in March 2010. In December 2010, Mr Conor Dominic O'Connor, the Respondent, (the "husband") arranged for divorce proceedings by mutual consent to be issued in the Spanish Court. Both proceedings remained on foot at the time of the hearing before the judge.
3. On 2^nd April 2012, HH Judge Booth, sitting as a Deputy Judge of the Family Division of the High Court, decided that the English proceedings should be stayed (and, as a result, dismissed) on the primary ground that the parties had entered into an agreement on 23^rd September 2010 (the "Agreement") whereby the wife undertook that she had abandoned the English divorce proceedings, so that she was estopped from arguing that those proceedings remained extant.
4. In the briefest of outline, Mrs Rebecca Bailey-Harris, counsel for the wife (who did not appear below), has argued that the effect of the Council Regulation is to prevent the court implementing any agreement by the parties as to the appropriate jurisdiction for divorce proceedings. She submits that the effect of articles 16 and 19 of the Council Regulation is to give jurisdiction to the court first seised of the matter, and to require the second court to decline jurisdiction in favour of the first court. In this case, the English court was seised first, and accordingly no subsequent agreement of any kind can displace its jurisdiction.
5. HH Judge Booth declined permission to appeal, but Lewison LJ extended the wife's time for appealing by more than a year, and granted her permission to appeal.
6. I should mention at this stage that Mr Edmund Farrell, who appeared for the husband, was only instructed very late (even though he had appeared originally before HH Judge Booth) when this court declined the husband's application to adjourn the appeal. The court refused to adjourn because there is a final hearing in the Spanish divorce proceedings that is set for 5^th February 2014. Accordingly, if the appeal had been any longer delayed, the outcome might have become academic were this court to decide to allow the appeal, if a Spanish divorce were pronounced on that date.
7. I shall first briefly set out the basic facts.

Chronological background

8. In 2006, the parties married in Las Vegas, and lived thereafter in Spain. There are no children of the marriage. In August 2009, the parties separated, and the wife returned to England whilst the husband remained in Spain.
9. On 29^th March 2010, the wife issued a divorce petition in the Altrincham County Court.
10. On 23^rd September 2010, the parties signed the Agreement in Spanish stating (in the English version upon which the judge relied) as follows:-

"[the wife] undertakes that upon signature of this agreement and in a maximum time limit of two days she will duly prove that she has abandoned the divorce proceedings taken in the United Kingdom …

The parties hereto grant power of attorney to each other to file this agreement before the courts and tribunals of Estepona to be properly ratified, thereby submitting their divorce to the Spanish jurisdiction".

11. On 13^th December 2010, according the joint expert's report on Spanish law relied upon by the judge (but not put before us), the spouses jointly requested a divorce by mutual agreement from the Spanish Court.
12. On 9^th June 2011, the English divorce proceedings were transferred from the Altrincham County Court to the Blackburn County Court.
13. On 13^th September 2011, the Spanish court ruled that the proceedings there were closed, due to the wife's failure to ratify the Agreement, a decision from which the husband appealed.
14. On 23^rd September 2011, the husband applied to the Spanish court for the consensual proceedings to be converted into contentious proceedings. The judge explained in some detail the difference between these two procedures in Spain, but the details are not relevant to what we have to decide.
15. On 30^th November 2011, the husband served his application for a stay of the English divorce proceedings on the grounds of the Agreement. On 20^th January 2012, District Judge Talbot transferred the English divorce proceedings to the High Court.
16. On 5^th March 2012, the husband issued contentious divorce proceedings in Spain, something that the judge was not fully aware of when he decided the case. On 28^th March 2012, the Spanish court informed the parties that the consensual divorce proceedings were to be provisionally dismissed, and that the husband had 20 days to appeal that decision.
17. On 2^nd April 2012, HH Judge Booth held that the wife had in fact never abandoned the English divorce proceedings, and that the Spanish divorce proceedings were continuing at that date. He said that the Agreement was the most significant feature of the case, having been entered into by adults who had been advised by Spanish lawyers. The judge said that he was satisfied that the effect of the Agreement was to estop the wife from arguing that the English divorce proceedings remained extant. Accordingly, the judge decided that he would grant a stay, although after further argument he decided in fact to dismiss the proceedings. No point is taken before us as to this.
18. On 11^th April 2012, the wife issued a second English divorce petition, which HHJ Booth stayed nearly a year later on 19^th March 2013. It is acknowledged before us that these events are also irrelevant to the issues we have to decide.
19. There was then a significant delay, upon which Mr Farrell places particular reliance, and to which I shall need to return. But some 13½ months later, on 28^th May 2013, the wife filed her Appellant's Notice.

The issue

20. Against the background of these facts, the single issue on this appeal is, as I have said, whether the judge was right to think that the court had jurisdiction to stay English divorce proceedings on the ground that the wife was estopped under the Agreement from arguing that the proceedings remained on foot.
21. Before turning to the arguments advanced by the parties in a little more detail, it is useful to set out the relevant parts of the Council Regulation and of the Domicile and Matrimonial Proceedings Act 1973 (the "DMPA").

The Domicile and Matrimonial Proceedings Act 1973

22. The power to stay divorce proceedings is found in section 5 of the DMPA which provides as follows:-

"(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) –

(a) the court has jurisdiction under the Council Regulation; or …

(6)     Schedule 1 to this Act shall have effect as to the cases in which matrimonial proceedings in England and Wales … are to be, or may be, stayed by the court where there are concurrent proceedings elsewhere in respect of the same marriage, and as to the other matters dealt with in that Schedule; but nothing in the Schedule—

(a)     requires or authorises a stay of proceedings which are pending when this section comes into force; or

(b)  prejudices any power to stay proceedings which is exercisable by the court apart from the Schedule.

(6A)     Subsection (6) and Schedule 1, and any power as mentioned in subsection (6)(b), are subject to Article 19 of the Council Regulation".

23. Paragraph 9 of schedule 1 to the DMPA provides as follows:

"(1) Where before the beginning of the trial or first trial in any matrimonial proceedings, other than proceedings governed by the Council Regulation, which are continuing in the court it appears to the court –

(a) that any proceedings in respect of the marriage in question, or capable of affecting its validity or subsistence, are continuing in another jurisdiction; and

(b) that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for the proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings in the court or in those proceedings so far as they consist of a particular kind of matrimonial proceedings,

the court may then, if it thinks fit, order that the proceedings in the court be stayed or, as the case may be, that those proceedings be stayed so far as they consist of proceedings of that kind".

The Council Regulation

24. Article 3 of the Council Regulation provides for the courts which are to have jurisdiction as follows:-

"1. In matters relating to divorce … jurisdiction shall lie with the courts of the Member State

(a) in whose territory:

- the spouses are habitually resident, or

- the spouses were last habitually resident, insofar as one of them still resides there, or

- the respondent is habitually resident, or

- in the event of a joint application, either of the spouses is habitually resident, or

- the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or

- the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses".

25. Article 12 of the Council Regulation provides for prorogation of jurisdiction as follows:-

"1. The courts of a Member State exercising jurisdiction by virtue of Article 3 on an application for divorce … shall have jurisdiction in any matter relating to parental responsibility connected with that application where:

(a) at least one of the spouses has parental responsibility in relation to the child; and

(b) the jurisdiction of the courts has been accepted expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility, at the time the court is seised, and is in the superior interests of the child …".

26. Article 16 of the Council Regulation provides for the seising of a court as follows:-

"1. 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;

or

(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court".

27. Article 19 of the Council Regulation provides as follows in relation to lis pendens and dependent actions:-

"1. Where proceedings relating to divorce … 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. In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised".

The parties' arguments

28. I have already referred to Mrs Bailey-Harris's central submission and I shall not repeat it. In her skeleton argument, she contended that the only alternative source of power to stay a divorce petition was the court's inherent jurisdiction to be exercised in accordance with the well known principles in Spiliada Maritime Corporation v. Consulex Ltd [1987] AC 460 (to the effect that "a stay will only be granted where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice" per Lord Goff at page 476). She said in her skeleton that this inherent jurisdiction was expressly preserved by section 5(6)(b) of the DMPA, but there was no scope for its exercise on forum non conveniens grounds in this case, because of the categorical provisions of the Council Regulation.
29. In oral argument, Mrs Bailey-Harris relied upon the Court of Appeal's recent decision in Mittal v. Mittal [2013] EWCA Civ 1255, which was a rather different case, where the court upheld a decision to stay an English divorce petition in favour of prior Indian proceedings on forum non conveniens grounds. Lewison LJ (with whom Jackson and Rimer LJJ agreed) referred, without express approval, at paragraph 36 to the appellant's counsel's concession that proceedings could be stayed on the grounds that they were an abuse of process or temporarily on case management grounds. Mrs Bailey-Harris suggested, however, that these were the only possible grounds for a stay in this case. Lewison LJ's judgment was mostly concerned with the effect of the decision of the Court of Justice of the European Union in Owusu v. Jackson (Case C-281/02) [2005] QB 801. He decided that the reasoning in that case could not be extended to the circumstances of Mittal v. Mittal, and that the power to grant a stay under the DMPA had survived the Council Regulation. Mittal v. Mittal, however, was not a case "governed by the Council Regulation" within the exclusion in paragraph 9 of schedule 1 to the DMPA.
30. Finally, Mrs Bailey-Harris submitted that an estoppel was an exercise of judicial discretion that could not exist alongside the Council Regulation, and the fact that the prorogation provisions in Article 12 of the Council Regulation (supra) were applicable only to matters concerning parental responsibility demonstrated that it was not intended that there should be any like provisions in relation to divorce proceedings.
31. Mr Farrell's skeleton argument complained that the wife had engaged in forum shopping, and made other allegations about her conduct in relation to both the English and Spanish divorce proceedings. It did not, however, address the main points on jurisdiction made on behalf of the wife in support of her appeal. In oral submissions, Mr Farrell submitted that the petition should be regarded as having lapsed, but relied primarily on the argument that the judge was right to say that the wife was estopped from pursuing the petition. When pressed by the court, but not before, Mr Farrell did say that we should set aside the extension of time, because Lewison LJ appears to have been under the misapprehension that he was extending time for the appeal by a "relatively short" time, when in fact he was extending it by more than a year. It seems he may have inadvertently and mistakenly thought that the Appellant's Notice and the judgment of HH Judge Booth were in the same year rather than some 13 months apart.

Extension of time

32. I will deal first with the application to set aside the extension of time that Lewison LJ granted. I should say at once that the words he used does make it appear that he made the mistake as to the dates which I have already mentioned. That said, I am entirely satisfied that, in the unusual circumstances of this case, there were good grounds for the lengthy extension required. Hogg J granted an even longer extension in a similar situation in B v. R [2009] EWHC 2026 (Fam) where she held that the court was without jurisdiction and that the order that had been made was a nullity, even where the delay was reprehensible. Here, there were, as Lewison LJ found, real prospects of success on jurisdiction and, in my judgment, an extension was justified. The delay in appealing was seemingly caused by the fact that Mrs Bailey-Harris and her instructing solicitor were not instructed until April 2013, after the wife's second petition had been stayed by HH Judge Booth in March 2013.

The jurisdictional issue

33. The power to stay English divorce proceedings in section 5 and paragraph 9 of schedule 1 to the DMPA (supra) is subject to the provisions of the Council Regulation. Indeed the express power to stay in paragraph 9 does not apply to "proceedings governed by the Council Regulation". The Court of Appeal in Mittal v. Mittal supra (per Lewison LJ at paragraph 48) and Ms Lucy Theis QC in JKN v. JCN [2010] EWHC 843 (Fam) at paragraph 149(iii), have held that proceedings are only "governed by the Council Regulation" if they fall within article 19 of the Council Regulation, and there are parallel proceedings in an opted in Member State. This is, of course, such a case.
34. The question then arises as to whether any power to stay proceedings exercisable outside paragraph 9 of schedule 1 to the DMPA has survived the Council Regulation. As to that, section 5(6)(b) of the DMPA (supra) preserves such powers, but section 5(6A) of the DMPA (supra) expressly provides that section 5(6)(b) is subject to article 19 of the Council Regulation. Thus it seems that the inherent power to stay proceedings referred to in section 49(2) of the Senior Courts Act 1981, to which section 5(6)(b) is referring, is thereby made subject to article 19 of the Council Regulation in cases where that article is applicable. I would prefer to say nothing in this case, where the points do not arise, as to the possibility of a stay still being granted on the grounds of abuse of process or on temporary case management grounds.
35. This interpretation of the applicable provisions, therefore, demonstrates that it is the Council Regulation that is intended to govern cases, such as this, where there are two sets of divorce proceedings in Member States that have opted in to the Council Regulation. Article 19 is clear. It provides that "[w]here the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court".
36. Leaving aside for a moment the question of estoppel, the Council Regulation establishes a system where the first divorce proceedings in time are intended to take precedence. Thorpe LJ (with whom Latham LJ agreed, and Lawrence Collins J delivered a concurring judgment) explained at the beginning of his judgment in Wermuth v. Wermuth (No 2) [2003] 1 FLR 1029 at paragraphs 2-3 how this had come about:-

"During the negotiating process the United Kingdom held profound reservations at the prospect of resolving jurisdictional conflicts in this field by the rule of lis alibi pendens rather than by the doctrine of forum conveniens, which had statutory expression in paragraph 9 of Schedule 1 of the [DMPA]. … The objection to the proposed convention was encapsulated in two arguments: first that an arbitrary rule of lis alibi pendens was a poor substitute for a balanced discretionary appraisal of fairness and convenience that the doctrine of forum conveniens permits. The second argument was that the introduction of a rule giving priority to the court of first issue would inevitably encourage a rush to be first, eliminating or minimising attempts at reconciliation or conciliation. However the experience of 18 months of operation has been reassuring. Research carried out … in September 2002 did not suggest that the Regulation had resulted in any significant shift in accepted standards of professional good practice at the stage when divorce proceedings are in contemplation. Furthermore, in relation to the first argument, the loss of an ability to conduct a balanced judgment of the more appropriate jurisdiction is compensated by the elimination of the need for expensive litigation (generally conducted concurrently in both jurisdictions) as each party manoeuvres to establish the jurisdiction of his or her preference as the more convenient jurisdiction".

37. This is not a case in which it can be said that the need for expensive litigation has been eliminated, but, that aside, it can be seen that it was clearly understood at the outset that the Council Regulation would have the effect of giving precedence to the first divorce proceedings in time.
38. I turn then to the estoppel argument upon which the judge relied. In my judgment, neither an estoppel nor a jurisdiction agreement can be raised by the parties to defeat the effect of article 19 of the Council Regulation. I say this for 3 main reasons:-

i) First, article 12(1) of the Council Regulation (supra) expressly provides for the extension of the jurisdiction of a court exercising jurisdiction under article 3 in divorce proceedings to matters relating to parental responsibility where such jurisdiction has been expressly agreed by the parties. Article 12 also provides other extensions of jurisdiction in cases of agreement, but there is no provision permitting articles 16 and 19 allowing precedence to the first divorce proceedings in time to be overridden by agreement between the parties.

ii) The thrust of article 19 (and article 16) of the Council Regulation is prescriptive, and section 5 and schedule 1 to the DMPA clearly exclude cases to which article 19 applies. Thus, it seems to me that a simple rule was intended to apply in divorce proceedings without exceptions.

iii) If the parties wish to agree that jurisdiction over their divorce shall be in a particular Member State having jurisdiction under article 3 of the Council Regulation, it is still open to them to achieve that result. They can simply start only one set of proceedings in that Member State or, if there are already two sets, withdraw or discontinue the proceedings they do not wish to pursue. Thus, whilst it is true that the Council Regulation prevents the parties contracting out of the jurisdiction of the court in the first Member State seised, it does not prevent them giving effect to an agreement if they still wish to do so. In this case, if the wife had carried out her Agreement to abandon the English divorce proceedings, the Spanish proceedings would have become first in time and would have taken precedence.

39. The judge's holding that the effect of the Agreement was to estop the wife from arguing that the English divorce proceedings remained extant had precisely the same effect as if he had expressly enforced an agreement as to jurisdiction. Article 19 inhibits any such process. In my judgment, therefore, the judge was wrong to order a stay of the proceedings on the basis of the Agreement. He ought to have held that the provisions of article 19 of the Council Regulation were applicable and could not be overridden by the Agreement. In these circumstances, Mr Farrell's suggestion that the proceedings should be taken to have lapsed cannot succeed.
40. In the Agreement, the wife undertook that upon signature she would prove that she had abandoned the English divorce proceedings. This was something she had not done at the time, and in fact never did. She was not estopped from arguing that the English divorce proceedings remained in existence, but she could easily have withdrawn those proceedings. Since she did not do so, the judge was wrong, in my judgment, to stay or dismiss them.

Disposal

41. For the reasons I have given, I would allow the appeal, thus reinstating the wife's English divorce petition.

Lord Justice McFarlane:

42. I agree.

Lord Justice Rimer:

43. I also agree.