England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		6th July 2015

MR. JUSTICE BODEY:

[Judges note: on discussion with Counsel, it was agreed that my Clerk and I would produce this Judgment to save delay and expense. This version is therefore the official version and no application need or should be made to the transcribers for any other transcript].

A. INTRODUCTORY

1. This is a former husband's application to dismiss or stay an application issued by the former wife on or about 25^th April 2014 under the Trusts of Land and Appointment of Trustees Act 1996 ("TOLATA"). By that application, the wife seeks an order for the sale of a property in West London which is held in the parties joint names and for the equal division of the proceeds. Although the parties are divorced (following divorce proceedings in France) I will refer to them for convenience as "the husband" and "the wife". I will call the subject property "the London house".
2. The husband has been represented by Counsel Mr Horton and the wife by Mr Amos QC with Ms Younis. Each has put in a main Skeleton Argument together with a supplemental Skeleton Argument and I have heard their respective oral submissions. I have read a lever arch file or more of documents. The case has been strenuously argued. The husband asserts (for reasons I will come to) that the wife is 'forum shopping' in this jurisdiction. The wife asserts that he is 'filibustering' so as to put off any decision about the London house by insisting that its future should be determined in Poland. Many points have been argued, all of which I have taken into account; but I do not propose to comment on them all, merely those which are most important in reaching a determination.
3. The issues may be summarised as follows:

(a) Was the husband domiciled in England for the purpose of Article 2 of Council Regulation (EC) No. 44/2001 ('Brussels I') on 25 April 2014, when the wife issued her TOLATA application? If not then, subject to the questions raised at (b) and (c) below, the English Court does not have jurisdiction.

(b) Does the wife's application have as its object rights in rem? If so, then by Article 22 the English Court as the Court of the Member State in which the property is situated would have exclusive jurisdiction; but if not, and if the object of the wife's application is rights in personam, then Article 22 would not apply to give the English court jurisdiction.

(c) Is the husband being sued as a trustee or beneficiary of a trust created by the operation of a statute? If so, then by Article 5(6) he may be sued in the courts of the Member State in which the trust is domiciled.

(d) If the wife succeeds under sub-paragraph (a) or (c) above, then did the parties 'prorogue' jurisdiction to the Polish court by virtue of an agreement in December 2013/January 2014? This issue about prorogation does not arise if the wife succeeds under sub-paragraph (b) above, because if her application has as its object rights in rem, then jurisdiction under Article 22 is exclusive to the court of the Member State where the property is situated (ie England) (Article 23(5)).

(e) Does the English court have a discretion to stay the wife's TOLATA application under Article 28 on the basis that the proceedings here and in Poland (which I will mention in a moment) are 'related actions'?

B. BRIEF BACKGROUND

4. The parties were married in 1985 and have three children, now all in their twenties. Both parties are now in their 50s. In 1990, the parties purchased the London house in their joint names. It appears that it was either to be their home, or else an investment property. In the event they never lived there.
5. In 1990, the family moved to Poland. The London house was split into flats and rented out for the next 10 years between 1991 and 2001.
6. In 1993, the parties acquired a second home in the south of France ('the French house'). Five years later, in 1998, the wife left Poland and moved to the French house. The following year, 1999, the husband purchased a flat in Poland ('the Polish flat').
7. In 2001 the parties separated. The wife remained in the French home. The husband's place of residence thereafter is a matter of strong disagreement between the parties. The husband says it has been in England and the wife says it has been in Poland. That same year, 2001, divorce proceedings started in France, which concluded in 2013.
8. In 2006, the wife and youngest child lived in Poland for one year (separately from the husband). This is significant, because it founds jurisdiction for the Polish court to hear proceedings between the parties pursuant to a Polish-French agreement dated 5^th April 1967.
9. In April 2010, the husband commenced proceedings in Poland for (a) the establishment of separation of the marital estate (including the London house) as from 31 July 1998 and (b) an unequal division in his favour of their world-wide assets. In October 2010 the Polish court rejected the wife's challenge to the Polish court's jurisdiction.
10. On 26 October 2011, the wife 'severed the joint tenancy' in respect of the London house. Since then, under English law, the parties have been tenants-in-common. Polish law does not recognise this 'severance' as having any legal effect.
11. On 13 December 2011, the Court of Appeal in the south of France ordered that the husband do pay 250,000 euros to the wife as 'prestation compensatoire'. The husband appealed (see below).
12. On 26 June 2012, the District court in Poland gave judgment separating the marital estate as from 26 April 2010, but not as from 1998 as sought by the husband. The husband appealed against that choice of date. On 22 November 2012, the Regional court in Poland dismissed that appeal. The husband appealed that decision to the Polish Supreme Court (see below).
13. On 1 July 2013, the husband issued a further application to the District court in Poland. By it he seeks (in summary) a 90/10 division in his favour of the joint estate. It is the application said on his behalf to be a 'related action' and (if the wife has otherwise established the English court's jurisdiction) to justify a discretionary stay of the TOLATA proceedings.
14. On 10 July 2013, the Supreme Court in France dismissed the husband's appeal against the French court's order of 13 December 2011 (above). The divorce in France therefore became effective, as did the requirement that the husband must pay the wife the 250,000 euros 'prestation compensatoire' already mentioned.
15. By December 2013, the husband had not fully paid that sum of 250,000 euros. A debt collector, Mr W, was instructed on the wife's behalf to get the money in and he set about doing so. There was an exchange of letters between him and the husband's solicitors, to which I will come in part F. It is said by the husband to amount to an agreement to prorogue any proceedings in relation to the London house to the Polish court for determination. In February 2014, the husband paid the then outstanding part, some 173,000 euros, of the 250,000 euros 'prestation compensatoire'.
16. On 25 April 2014, the wife's TOLATA claim was issued in London.
17. On 28 May 2014, the Supreme Court in Poland dismissed the husband's appeal against the order of the Regional court dated 22 November 2012 (above) about the date for the separation of the parties' joint estate. The date for such separation of the joint estate was thus confirmed as being 26 April 2010.
18. On 9 June 2014, District Judge Aiken transferred the wife's TOLATA application to the High Court. On 4 July 2014, the husband issued his Summons for that application to be dismissed or stayed (being the Summons to which this Judgment relates).
19. On 7 July 2014, the Polish District court dismissed the husband's application dated 1 July 2013 (above) because it held that he had breached the equivalent of an "unless order" made in June 2014. The husband appealed. On 8 December 2014, the Polish Regional court allowed that appeal, reinstating his application.
20. On 9 February 2015, the District court in Poland repeated aspects of the Regional court's judgment of 8 December 2014, particularly to the effect that the Polish court was dealing with the Polish flat and with moveable items in Poland "…to the exclusion of the properties located in [France and] London". It required the husband to indicate the precise properties in Poland which he wished the Polish court to deal with, not being properties covered "…. by any proceedings held before appropriate authorities in France or England". Mr Horton says that the husband complied with that order.

C. WAS THE HUSBAND DOMICILED IN THIS JURISDICTION AS AT 25 APRIL 2014, THE DATE OF ISSUE OF THE WIFE'S TOLATA APPLICATION?

21. Unless the case is within Article 5(6) and/or Article 22 of Brussels I (both discussed below) the answer to this question has to be 'Yes' before the English court has jurisdiction over the wife's TOLATA application. This is because Article 2 provides:

"Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State".

Paragraph 9 (2) of Schedule 1 of the Civil Jurisdiction and Judgments Order 2001 states that:

"…. an individual is domiciled in the United Kingdom if and only if (a) he is resident in the United Kingdom and (b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom".

22. There is an issue between Counsel as to which party bears the burden of proof about the husband's domicile. Mr Horton says that the wife bears it; Mr Amos says that the husband bears it. He (Mr Amos) submits that there is sufficiently strong evidence that the husband was domiciled in England up to 2012 that it is incumbent on him (the husband) to satisfy the court of a change in that domicile. Mr Horton accepts that, if there were a sufficiently recent status quo of domicile here, then it would indeed be for the husband to demonstrate a change. He (Mr Horton) maintains however (a) that there is no sufficient evidence of any such a status quo and (b) that such evidence as there might be is too old to mean that any burden falls on the husband. Wherever the burden lies, as to which I state my conclusion below, the standard is the balance of probabilities.
23. The case has proceeded on submissions. Each party has made a statement. The husband gives his address as the Polish flat and asserts that he lives there and has done so for many years. He points out that he is the Honorary Consul for [a third country] in Poland. In her statement, the wife asserts to the contrary, that he resides in England at the London house. There are, in addition to these contrary claims, a number of documents in the bundle which touch on the question of where the husband has been living at different times. Since there are indications both ways in these documents, I will set out some of the pointers upon which each party relies in support of his / her case.
24. The wife can pray in aid the following in support of her case that the husband lives in England (ie did so at the material time when she issued her TOLATA application in April 2014).

(a). At a hearing in France on 20 December 2001, the husband's address was given on the court record as being the London house.

(b). In paragraph 8 of a statement dated November/December 2003 in injunction proceedings brought in England by the husband against the wife to stop her entering the London house, he referred to his place of residence as being 'in England'. He said that for the previous two years he had been 'based at our property in London'. In a second statement, dated March 2004, he said "… I maintain the UK residence as my primary residence". At a hearing in this jurisdiction in 2004, based on these assertions, the husband was granted injunctive relief against the wife, which remains in force, to stop her coming to the London house.

(c). In 2009, the husband's Polish tax return (seemingly prepared by the company in Poland for which he was working) states his address as the London house.

(d). On 23 April 2012 and 26 April 2012 two firms of lawyers in France issued notices of appeal on the husband's behalf against the French court order dated 13 December 2011 (above) which both describe the husband as 'domicilié' (resident) at the London house.

(e). On 1 July 2013, in the Notice of Application in the husband's current proceedings in Poland, he described the Polish flat as his place of permanent residence since February 1999. [Emphasis added]. But this does not reconcile with the matters set out in the previous sub-paragraphs.

(f). On 7 July 2014, the Polish District court said that it could be seen from the case files that the husband had several properties and that his professional activities were concentrated primarily in England. The court continued "… in the documents enclosed with the suit, the place of residence is visible e.g. [sic] in London."

(g) On 3 November 2014 the husband was registered only for temporary residence at the Polish flat. He was not registered there at all as at April 2015.

25. The husband can pray in aid the following in support of his case that he resides in Poland (ie that he did so at the material time in April 2014).

(a) Where in his statement dated March 2004 in the English injunction proceedings (above) the husband claimed that he was residing in the London house, the wife hand-wrote on her copy of that statement that he had lived in the Polish flat since 1999.

(b) When the district court in Poland gave its judgment on 26 June 2012 (above) separating the marital estate as from 26 April 2010, the court described the London house as being "managed by" the husband and "used by him". Mr Horton submits that this language would not have been used if the husband had been residing there. It is right to say, incidentally, that that court preferred the testimony of the wife to the testimony of the husband on one particular issue, namely as to whether the wife's leaving home in Poland and moving to France in 1998 had been with his consent (as she was maintaining) or without his consent (as he was maintaining).

(c) In a letter from the wife's solicitors to the husband's solicitors dated 4 October 2013 (proposing that the London house be sold and the net proceeds divided equally) those solicitors wrote: "…. your client [the husband] continues to live in Warsaw and earns a very high income, whilst our client is left with absolutely no capital …..".

(d) On the 12 February 2014 the wife's solicitors again wrote to the husband's solicitors pressing for a sale of the London house, stating that it had been "… occupied for approximately the last 18 months by two of the parties' adult children …. [and that] from time to time when your client [the husband] is staying in London, our client understands he also occupies the property".

(e) In her Particulars of Claim dated 25 April 2014 in her TOLATA proceedings, the wife averred that the London house had been occupied for the last 18 months by two of the three adult children, saying "… from time to time, when the Defendant [husband] is staying in London, the Claimant believes that he also occupies the property". [Emphasis added]. Moreover, at paragraph 7 she averred "…. the parties also jointly own a flat in Poland, which is presently occupied by the Defendant [husband]." [Emphasis added].

(f) On 28 May 2014, the Polish Supreme Court (when rejecting the husband's appeal against the date for separation of the marital estate being fixed as 26 April 2010) said among other things: "… it can be seen from the case files that in 1999 the Plaintiff [the husband] purchased an apartment in [Poland], in which he lived and continues to live" [Emphasis added].

(g) The husband produces recent bank statements relating to two London bank accounts in his name both stating his address as an address in Poland, not the London house. He also relies on the fact (i) that in June 2010 he registered himself as a self-employed business entity in Poland and (ii) that in April 2013 the English tax authorities accepted his accountants' claim that he no longer needed to fill in English tax returns.

26. It will be seen from the above summary of the documentary material that it supports the contradictory cases of each party in more or less equal measure. It would not in such circumstances be satisfactory to reach a conclusion at an interlocutory hearing without oral evidence and cross-examination, on the basis that one or other party is or may be the more credible. In the result, I am driven back to the question of the burden of proof. In my judgment, it rests on the wife, who has to show on the balance of probabilities that the husband was domiciled in this jurisdiction within the meaning of the 2001 Order when she issued her TOLATA application here on 25^th April 2014. Considering all I have read and the submissions I have heard, I conclude that everything remains too equivocal for me to hold that she has discharged that burden. Accordingly I am not satisfied that Article 2 applies to give the English court jurisdiction on the basis of the husband's domicile.

D. DOES ARTICLE 22 APPLY: DO THE WIFE'S TOLATA PROCEEDINGS HAVE AS THEIR OBJECT RIGHTS IN REM IN THE LONDON HOUSE?

27. Article 22 is as follows:

"The following courts shall have exclusive jurisdiction, regardless of domicile: … in proceedings which have as their object rights in rem in immovable property … the courts of the Member State in which the property is situated ..[etc. etc.]."

Mr Amos maintains that this Article clearly applies in respect of the wife's application, by which she seeks an order for the sale of the London house. He asserts the good sense of this by reference to the advantages of ready access to documents and ease of enforcement. Mr Horton submits that Article 22 does not apply, because the object of the wife's application is not rights in rem, but rather rights in personam. He relies on Webb –v- Webb 1994 QB 696, a decision of the Court of Justice of the European Communities (CJEC), which he submits is indistinguishable from this case. In that case, a flat in France had been purchased in the name of an adult son with his father's money. Much later, the father sued the son in England for (a) a Declaration that the son held the flat beneficially for him, the father, and (b) an order requiring the son to vest the title in him, the father. The son challenged the jurisdiction of the English court. He maintained that the predecessor of Article 22 applied, since the father's claim had as its object rights in rem and that therefore only the French court as the 'lex situs' had jurisdiction. The CJEC rejected that argument holding that Article 22 did not apply, since the father's application had as its object rights in personam. Therefore the decision of the Chancery Division of the High Court in England (Webb v Webb 1991 1WLR 1410) had been correct in assuming jurisdiction over the father's application.

28. One particular authority cited to the CJEC in Webb v Webb was Reichert –v- Dresdner Bank AG 1990 ECR 1. There the court had determined that not all actions concerning rights in rem in immovable property fell within the predecessor of Article 22, "….but only those which both come within the scope of the Brussels Convention and are actions which seek to determine the extent, content, ownership, or possession of immovable property, or the existence of other rights in rem therein and to provide the holders of those rights with the protection of the powers which attach to their interest". The Advocate General also cited to the CJEC in Webb v Webb an extract from the Schlosser Report, Official Journal 1979 C 59/71, that "…a right in personam can only be claimed against a particular person; … a right in rem on the other hand is available against the whole world. The most important consequence flowing from the nature of a right in rem is that its owner is entitled to demand that the thing in which it exists be given up by anyone not enjoying a prior right".
29. At paragraph 14 of its judgment in Webb v Webb, the CJEC said that, in order for the predecessor to Article 22 to apply, it was not sufficient "…that a right in rem in immovable property be involved in the action, or that the action have a link with immovable property: the action must be based on a right in rem and not a right in personam, save in the case of the exception concerning tenancies of immovable property". At paragraph 15 the CJEC continued:

" The aim of the proceedings before the national court [England] is to obtain a declaration that the son holds the flat [in France] for the exclusive benefit of the father … The father does not claim that he already enjoys rights directly relating to the property which are enforceable against the whole world, but seeks only to assert rights against the son. Consequently, his action is not an action in rem within the meaning of Article 16(1) of the Convention, but an action in personam".

30. Mr Horton relies further on Prazic –v- Prazic 2006 2FLR 1128 (CA). There, an English husband and wife had moved to live in France leaving two flats in London. When the husband petitioned for divorce in France, the wife responded by petitioning for divorce in England; but those proceedings were stayed. She thereupon brought proceedings in England under TOLATA in which she sought a declaration that she was an equal owner in equity of the flats in London. The Court of Appeal stayed those proceedings too on the basis that they were not based on rights in rem, but on rights in personam, and that there was nothing in dispute requiring any 'on the spot' investigations. The wife's TOLATA application was held to be "… plainly strategic and plainly superfluous to the well established French ancillary relief proceedings".
31. In my judgment, the instant case is distinguishable from Webb v Webb. There the father was seeking to establish and acquire rights in immovable property by way of a Constructive or Resulting Trust, on the basis that the French flat in the son's name had been purchased with his (the father's) money. Here, by contrast, the existence (or not) of a trust is not in dispute. The wife already has proprietary rights in the London house as co-owner. What she is seeking to do is to enforce and give effect to those rights. It is fair comment that the order which she seeks would be as against the husband personally, requiring him to join with her in selling the property. To that extent it would be an in personam order; but the right which would lead to such an order is a right of ownership in the property 'available against the whole world'.
32. Based on Prazic, however, Mr Horton submits that it does not matter whether the immovable property concerned is held in joint names, or is in the name of one of the parties only. I do not accept that. I acknowledge that Thorpe LJ said at the outset of his Judgment in Prazic "…. Seemingly during the marriage the parties, or one of them, acquired two flats in Notting Hill" [Emphasis added]. But other parts of the Judgment make it sufficiently clear that the flats were in the husband's sole name. At paragraph 13 he, Thorpe LJ, said that what was really in issue was "… whether the dealings between the parties result in the creation of an equitable interest [in the wife's favour]". Further, at paragraph 23, he cited from the trial judge, who had referred to the wife's claim as "… a claim to a beneficial interest arising under a constructive trust ….", implying that the wife was not a joint owner of the flats. Even if that is wrong, there is nothing in the judgment in Prazic to suggest that the wife was seeking an order for sale. Paragraph 2 of the Judgment makes clear that what she was seeking was a declaration against the husband that she was an equal owner of the flats in equity. By party of reasoning with Webb v Webb, that would be a claim in personam. So the court was able to stay Mrs Prazic's TOLATA application. It would have been unable to do so on the basis of Article 22 if the object of the application had been rights in rem, because in that event the English court's jurisdiction as the lex situs would have been exclusive (although it would still have been possible to do so on the ground that the TOLATA application was an abuse, given the extant French financial proceedings in that case).
33. For these reasons, I hold that the wife's TOLATA application here falls within Article 22 as having as its object rights in rem in the London house. Accordingly the English court has exclusive jurisdiction, regardless of wherever the husband's domicile may be.

E. DOES ARTICLE 5(6) APPLY?

34. Article 5(6) reads as follows:

"A person domiciled in a Member State may, in another Member State, be sued…: (6) as settlor, trustee, or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the Member State in which the trust is domiciled ….".

Mr Amos embraced this Article when I said during argument that I could not at first blush see why it should not apply here. Mr Horton maintains that it does not apply because in his submission the court is concerned here with a resulting or constructive trust, unsupported by any evidence in writing. I do not follow that argument. When the London house was purchased in 1990, it was placed into the parties' joint names. At that time, they therefore held it on the statutory trusts imposed by the Law of Property Act 1925, including the statutory Trust for Sale. Since the date when TOLATA came into force in 1996, jointly-owned real property is held on a Trust of Land; but still by way of statutory imposition. This seems to me to fulfil that part of Article 5(6) which refers to 'a trust created by the operation of a statute'. The parties are the trustees and beneficiaries of that trust. Such trust cannot sensibly be regarded as being domiciled anywhere other than in this jurisdiction, since the London house is situate here and the parties were living here at the time of its purchase, when the Law of Property Act 1925 imposed a Trust for Sale. It follows to my mind that the ingredients of Article 5(6) are made out. I therefore hold that the English court has jurisdiction under Article 5(6) as being the Member State in which the trust relating to the London house is domiciled.

F. ARTICLE 23(5): HAVE THE PARTIES BY AGREEMENT PROROGUED JURISDICTION TO POLAND?

35. By Art 23(5) prorogation by agreement does not apply where a Court has exclusive jurisdiction by virtue of Art 22 (above). So this part of this Judgment only applies in respect of jurisdiction under Article 5(6) just discussed in part E, or if I am wrong in saying in part C that this court does not have jurisdiction under Article 2.
36. Art 23(1) provides:

"If the parties, one or more of whom is domiciled in a Member State, have agreed that a Court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise …(etc etc)".

In saying that the parties here have progrogued jurisdiction to Poland, Mr Horton relies on an exchange of correspondence between Mr W (the wife's debt collector) and the husband's solicitors. Mr W was seeking to get in the debt of €250,000 owed by the husband to the wife pursuant to the French Supreme Court's order dated 10^th July 2013 (above). On 16^th December 2013, he wrote to the husband's solicitors (copied to the wife's solicitors) calculating the amount still owed as being €173,000 including interest and costs of enforcement. The letter contains a paragraph:

"Our client [the wife] does not wish either to muddy the waters or to "juggle the finances" concerning the Prudential policy [a matured endowment policy securing the mortgage on the London house] and she is content to allow the Polish Courts to determine the distribution of other former matrimonial assets. Your client [the husband] will be put to specific proof of any maintenance or other deductions from their respective shares of the value of the property in London, in any event".

37. By letter dated 23^rd December 2013, the husband's solicitors replied to Mr W disagreeing the amounts claimed and making a counter-offer of payment by instalments in a lower sum, such to be the subject of a written agreement. There was a concluding paragraph under a separate heading "division of matrimonial estates" as follows:

"…. Additionally, we are instructed to relate that our client [the husband] is pleased to note that your client [the wife] "is content to allow the Polish courts to determine the distribution of other former matrimonial assets". We will now present a copy of your letter to the Polish courts to rely on this statement in the proceedings issued in Poland as to the division of economic interests [and] to determine the shares of the estate and, of course, in England should your client be minded to issue proceedings in respect of the [London house]". [Emphasis as in original].

38. Agreement about the debt was subsequently reached and on 4 February 2014 the husband paid the final tranche of the €250,000, namely €173,000. Prior to that, on 27 January 2014, the husband's solicitors had written to Mr W saying "… our client has concerns about your authority to conclude the matter, as you are not a firm of solicitors regulated by the SRA with the protections that go with it. So given the sum of money involved, please provide forthwith written signed authority from your client to you to agree and receive the outstanding balance and interest agreed …". Mr W replied by saying that, although his firm was covered with professional indemnity cover of £1m, he was content for the money to be paid to the wife's solicitors. He also re-faxed to the husband's solicitors his letter of 16 December 2013 setting out his calculation of the total sum owed in the sum of €173,000 and containing the paragraph about the Polish court determining other matters.
39. There are a number of issues as to the proper construction of these exchanges. I propose to take them shortly and deal with only three of them, since I have in any event held that Article 22 gives the English court exclusive jurisdiction which cannot be varied by agreement. First, there is an issue as to whether Mr W has been shown to have had authority to bind the wife to a prorogation of any proceedings relating to the London house. There is no evidence of any actual authority given by the wife to Mr W and so the question is as to whether he had any implied or ostensible/apparent authority? Mr Horton says Yes; Mr Amos says No. The burden here rests on Mr Horton. There is no evidence of any representation made by the wife to the husband or his solicitors that Mr W was authorised to enter into a prorogation agreement which would be binding on her: see per Diplock LJ in Freeman and Lockyer -v- Buckhurst Park Properties Ltd. (Mangal) Ltd 1964 2QB 480. Nor in my view would a debt collector have implied or apparent authority to enter into an agreement collateral to the relevant debt involving potentially far-reaching legal consequences. This is not the same as a debt collector's accepting (as in Mr Horton's example) a car in partial lieu of cash. I am fortified in this by the husband's solicitors' own concerns about Mr W's 'authority to conclude the matter' referred to in their above letter of 27 January 2014. Second and very briefly, I am unclear as to what 'consideration' the husband gave in return for any such agreement to prorogue the matters to Poland, as he only in fact paid the sum (plus interest) which he had been ordered to pay by the French court.
40. Accordingly, I am not satisfied that there was an agreement binding on the wife to prorogue any proceedings about the London house to the Polish court for determination. Third, even if there were such an agreement, it would in my judgment have been subject to an implied term that the Polish courts would actually deal with the London house which, as will be seen at part H below, is not the case.

G. ARTICLE 27: LIS PENDENS

41. I do not need to consider this Article, because Mr Horton accepts that the husband's proceedings in Poland do not constitute the same cause of action as the wife's TOLATA proceedings in this jurisdiction.

H. ARTICLE 28: RELATED ACTIONS

42. By Article 28:

"1. Where related actions are pending in the courts of different Member States, any court other than the court first seized may stay its proceedings.

2 . For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings".

If this Article applies, then the court has a discretion to stay its proceedings unless it is the court first seized. Before stating my conclusion in respect of this Article I need to mention (a) the Polish expert evidence now before me and (b) the stated approach of the Polish court itself to the proceedings before it.

The Polish expert evidence.

43. The two Polish experts have produced a joint report and have answered questions from both sides. They say "… [the London house] …is not subject to the proceedings in respect of the division of the joint estate and dissolution of co-ownership before the Polish court". They continue that, whilst the Polish court can rule that there be unequal (or equal) shares of the entirety of the joint estate, it is "….not admissible to apply this rule as the legal basis for ascertainment of the spouses' unequal shares only in certain parts of this joint estate". Therefore, "… the consequences of the decision resolving the case are going to affect the ownership of the property situated in Poland and moveable items. However, they are not going to extend to the ownership of the property situated in London (and in France) since this falls outside the scope of the application for the division of joint estate. As a result, the Polish court is not going to adjudicate in respect of the division of co-ownership of the property located in London eg by ordering its auction sale". [Emphasis added]. This is stated to be notwithstanding that the ability of the Polish court to fix the shares (equal or unequal) of the entire joint estate includes the London house. In other words, as it seems to me, the Polish court will not look at individual assets within the joint estate, although it will look at the joint estate in the round, including the London house. Last the experts' report states that "…at the date of initiation of the proceedings before the London court, the case was not yet pending (lis pendens) before the Polish court, as the condition of pendency is contingent on the service on the other party to the proceedings [the wife]".

The approach of the Polish court as stated by the Polish court itself.

44. The decision of the Polish court on which that latter opinion of the joint experts was based was that of the Regional court dated 8 December 2014 (above). That court held as follows:

"As far as the first hearing in the proceedings for the division of joint estate in respect of the real property located in London, initiated by the [wife's TOLATA] application of 25 April 2014 is concerned, this was held on 9 June 2014 [by DJ Aikens] which date also preceded the day when the dispute in the case VI 657/14 [in Poland] became pending. A copy of the [husband's] application in the present case has not so far been served on the participant [wife]".

The Polish court went on to refer to the proceedings in respectively London and France, saying "…none of these proceedings [in England and France] extend to the parties' moveable belongings and [or] the apartment located in Poland. At the same time, these cases are already pending in Great Britain and France, as opposed to the present case [the husband's Polish application] in which a copy of the application has not yet been served …. Bearing in mind the above circumstances, the challenged decision [the Polish district court's decision dated 7 July 2014 to strike out the husband's application] had to be annulled in order to enable continuation of the [husband's] proceedings for partial division of the inheritance in respect of the property located in [Poland] and moveable belongings of the parties, as well as their property rights, with the exception of any rights to the real properties situated respectively in [France] and London". [Emphasis added]. That decision was picked up in the subsequent order of the Polish district court dated 19 February 2015 where it ordered the husband's attorney "…to correct formal defects of the application by its unambiguous clarification that is to indicate precisely the current content of the application …. ie what all the assets are (properties in Poland and moveable items of the parties as well as their estate related rights not covered by any proceedings held before appropriate authorities in France or in England) which are to be subject to division by this court" [emphasis added].

And so.

45. Two things thus emerge from the Polish proceedings and the Polish expert evidence. The first is that, in the view of Polish law, the English court was first seized by way of the issue of the wife's TOLATA application. That is because, although it was not issued until 25 April 2014, the husband's Polish application of 1 July 2013 (above) had not been served on the wife by that time. This is borne out by a letter of protest by the wife's solicitors dated 18 August 2014 and by the wife's statement of August 2014 in these proceedings averring (although giving a wrong date) that she and her solicitors had not yet been served with the husband's application.
46. The second thing to emerge from the Polish proceedings is that the Polish court has expressly stated that it is not dealing with the London house (nor the parties' property in France). Mr Horton says that the husband could add an application to the Polish proceedings to include the London house being dealt with specifically and as an independent item of property. He maintains further that, having made a division of the totality of the joint estate, the Polish court could then move on to making orders for sale, or ordering transfers with balancing payments and so on. As Mr Amos submits however, that is not what the experts' report says and, although I raised the possibility of further questions of the experts to support (or not) Mr Horton's submission and clarify the position, that was not taken up.
47. Accordingly there are not 'related actions' pending in the two different jurisdictions, because the English court would deal with the London house, whereas on the evidence the Polish court would not. Even if there were proceedings in Poland relating to the London property, they would not necessarily produce an irreconcilable judgment because the Polish court would look at the entirety of the estate in the round; whereas the English court would deal specifically and solely with the London house. As Mr Amos said, any decision of the Polish court could be made to reconcile with the outcome of the English proceedings, namely by taking account of the amount which the wife had already been held entitled to in this jurisdiction. Last but not least, I repeat the conclusion of the Polish court about non-pendency in Poland and the unchallenged assertion of the wife that when she issued her TOLATA application she had not been served with the husband's Polish proceedings. I therefore hold that the English court is the court first seised and that no discretion arises to stay the TOLATA proceedings in favour of any proceedings in Poland. For these several reasons Article 28 does not apply. If I had a discretion to stay, I would not exercise it in favour of a jurisdiction which has made it clear that the question of the London house is not an issue with which it regards itself as dealing.

I. CONCLUSION

48. Having worked through the ways in which the English court would have jurisdiction over the London house, I conclude that it does have such jurisdiction. This is (a) because the property is situated here and the wife's claims are based on her rights in rem over it and (b) because the trust of land relating to it is domiciled here and both parties are trustees/beneficiaries thereof. I am not persuaded that there was any agreement binding on the wife to prorogue proceedings about the London house to Poland and, even if there had been, it would not affect the exclusivity of jurisdiction under Article 22. Last, I find that there is no discretion to stay the TOLATA proceedings under Article 28. So the husband's application before me must be dismissed. This is one of those cases where, in spite of the very obvious advantages of getting everything dealt with together, the parties as things stand will have to litigate in different jurisdictions. I urge them strongly however to come to some pragmatic overall agreement about their assets, rather than continue paying out legal costs in three separate jurisdictions.
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