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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> T. -v- L. [2008] IESC 48 (29 July 2008)
URL: http://www.bailii.org/ie/cases/IESC/2008/S48.html
Cite as: [2009] 2 IR 434, [2008] IESC 48, [2009] 1 IR 434
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Judgment Title: T. -v- L. Composition of Court: Denham J., Hardiman J., Geoghegan J., Fennelly J., Kearns J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Dismiss | ||||||||||||||
THE SUPREME COURT Record No 137/2006 IN THE MATTER OF THE JUDICIAL SEPARATION AND FAMILY LAW REFORM ACT 1989,AND IN THE MATTER OF THE FAMILY LAW ACT 1995 AND IN THE MATTER OF THE FAMILY LAW (MAINTENANCE OF SPOUSES AND CHILDREN) ACT 1976 (AS AMENDED) AND IN THE MATTER OF THE FAMILY LAW (DIVORCE) ACT 1996 BETWEEN D.T. APPLICANT/RESPONDENT AND F. L. RESPONDENT/APPELLANT Denham J.Hardiman J. Geoghegan J. Fennelly J. Kearns J JUDGMENT of Mr. Justice Fennelly delivered the 29th day of July, 2008 1. The respondent wife commenced this action for judicial separation from the appellant, her husband, eight years ago. The appellant first claimed that the Irish courts should recognise his Dutch divorce of 1994 and that the Irish courts should decline jurisdiction on that ground. He failed in the High Court and in this Court, whereupon he commenced this second procedure by way of a motion in which he asks the courts to decline jurisdiction in respect of the ancillary reliefs sought by the respondent. He relies on the Brussels Convention, the several Community regulations, known as Brussels I, II and II bis, and a wide range of provisions of the EC Treaty. 2. The High Court (McKechnie J) rejected all his arguments. He presents a wide-ranging second appeal to this Court. 3. The action has yet to be heard. The appellant wishes the Court to refer a number of questions of interpretation for preliminary ruling to the Court of Justice of the European Communities. Facts 4. The appellant and the respondent are Irish citizens. 5. They were married to each other on the 30th August, 1980, in Dublin. 6. The three children of the marriage are now of full age. 7. From 1980 to 1987 approximately the parties jointly owned a family home in Dublin. In 1987 the appellant commenced employment with a large Irish company. In April, 1987 he took up a position with a subsidiary of that company in the Netherlands. The family home was sold in Ireland. The parties and their children resided in Holland from1987 until 1992. During this time unhappy differences developed in the marriage. 8. The respondent returned to Ireland with the children in the summer of 1992 in order to enable them to reintegrate into the Irish school system. 9. On the 26th October, 1993, solicitors acting for the respondent in the Netherlands wrote to the appellant seeking maintenance and financial support. In December of 1993 she caused a petition to be served on the appellant in the Netherlands, where the appellant was still resident. 10. On the 2nd February, 1994, an interim maintenance order was made by the County Court of Rotterdam. Under Dutch law the respondent had four weeks from that date within which to institute proceedings for divorce which would have enabled the interim maintenance order to remain in place and continue to be enforceable. She never instituted such proceedings. 11. On the 2nd March, 1994, the appellant instituted proceedings in the District Court of Rotterdam seeking a divorce. The appellant returned to Ireland permanently around the 28th May, 1994, to take up a senior executive position with an Irish company, which he continues to hold. 12. On the12th September, 1994, the District Court of Rotterdam granted a decree of divorce. The judgment recited provisions of Dutch law to the effect that the court was empowered in the matter, as the appellant had lived for more than twelve months in the Netherlands and that the respondent did not object. The judgment of the Court included provision for maintenance for the respondent but stated that it had no authority to make provision for custody or maintenance of the children. I will refer to this judgment as “the judgment of the Dutch Court.” Irish legal proceedings 13. On the 6th July, 2000, the respondent commenced the present proceedings by Special Summons in the High Court. She applies for a decree of judicial separation pursuant to section 2(1)(a) or (b) of the Judicial Separation and Family Law Reform Act 1989 or, in the alternative, a decree of divorce pursuant to the Family Law (Divorce) Act 1996. 14. She also seeks ancillary orders under headings lettered (a) to (v) in the Summons. Heading (f) relating to custody of children is no longer relevant as the children of the marriage are now of full age. 15. The appellant filed a replying affidavit sworn on the 20th November, 2000. He made specific response to a claim by the respondent that the decree of divorce granted in the Netherlands in September, 1994 was not entitled to recognition in the state. He also referred to a separation agreement reached between the parties in the Netherlands on the 12th September,1994. He argued, in his affidavit, that the High Court should determine, as a preliminary issue, whether that decree of divorce was entitled to such recognition. The sole legal issue raised by the appellant in his affidavit of reply was that the Irish courts should recognise his Dutch divorce. He said that the natural consequence of such recognition would be to prevent the respondent from maintaining the proceedings. He said that the respondent’s claim to be entitled to maintain the proceedings in this jurisdiction ought to be refused. 16. At the time of swearing of his affidavit, the appellant could have put forward any case based on the Brussels Convention of 1968. None of the Brussels Regulations, later discussed, had come into force at that time. 17. Save as described hereunder, no further step has been taken in the judicial separation proceedings. In particular, the respondent has not filed a statement of means pursuant to Rules of the Superior Courts (No. 3) of 1997 (S.I. No 343of 1997), as required by order of the Master of the High Court dated the 24th January, 2001. It seems that the respondent has agreed to leave this matter in abeyance while maintenance is being paid. 18. On the 6th July, 2001, the High Court, on the application of the respondent, made an order by consent of both parties that the issue which had been raised by the appellant, namely, whether the Dutch divorce decree of the 12th September, 1994, was entitled to recognition in this State pursuant to section 29(1) of the Family Law Act 1995, be tried as a preliminary issue. The parties contemporaneously reached agreement on interim maintenance to be paid to the respondent, without prejudice to the appellant’s objections that the matter was not properly before the court. The respondent agreed not to seek financial discovery or the filing by the appellant of an affidavit of means. 19. In a judgment of the 23rd November, 2001, following a five-day hearing, Morris P, determined that the appellant was not entitled to a declaration that the decree of divorce granted on the 12th September, 1994, under the civil law of the Netherlands was entitled to recognition in the State. 20. On the 4th February, 2002, the appellant appealed to this Court against the judgment and order of Morris P. 21. On the 26th November, 2003, this Court dismissed that appeal. Keane C. J. delivered the unanimous judgment of the Court, holding that it would not have been possible for the High Court to hold that the appellant had acquired a Dutch domicile of choice. 22. The decisions of the High Court and the Supreme Court were based on the rule of private international law applicable in Irish law, as modified by section 5(1) of the Domicile and Recognition of Foreign Divorces Act 1986, that a decree of divorce granted by the courts of another jurisdiction would be recognised in the State only if granted in a foreign country where either spouse was domiciled. The country of domicile of origin of the appellant was Ireland. The appellant contended that, at the time of the Dutch divorce decree, he had acquired a domicile of choice in the Netherlands. This Court unanimously rejected that argument. 24. On the 28th January, 2004, some two months after the decision of this Court, the appellant issued a new notice of motion seeking orders that the High Court should decline jurisdiction in respect of the claims of the respondent for any of the ancillary reliefs set out at letters (a) to (t) [other than the claim set out at (f)] of the Special Indorsement of Claim on the Special Summons. The appellant relied upon: · The provisions of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 (hereinafter “the Brussels Convention”) , as incorporated into Irish law pursuant to the Jurisdiction of Courts and Enforcement of Judgments Act 1998, and in particular, Articles 17, 19, 21 and 22 thereof; 25. It has become clear, from the written submissions filed on behalf of the appellant, that under the last heading it was intended to refer to articles of the Treaty establishing the European Community (“the EC Treaty”) and, in particular, to Article 39 concerning the free movement of workers. 26. The High Court (McKechnie J) heard the application of the appellant for an order that the court should decline jurisdiction in January and July 2005. McKechnie J delivered judgment on the 22nd February, 2006. He refused the application. 27. At the hearing before the High Court the respondent raised a preliminary objection that the new grounds of challenge to the jurisdiction of the court should have been raised and determined as part of the preliminary issue previously dealt with by the High Court, in the judgment of Morris P on the 23rd November, 2001, and in Supreme Court, where judgment was delivered on the 26th November, 2003. The respondent thus invoked the rule known as the rule in Henderson v Henderson [1843] 3 Hare 100, although that rule needs to be interpreted in the light of modern authority, including a number of decisions of this Court. McKechnie J held that the grounds raised in the notice of motion of the 28th January, 2004, both could and should have been raised in the context of the earlier notice of motion. He approved the existence and utility of the rule and thought that it would have “equal application to multiple preliminary issues as it has to multiple proceedings.” He added: “If such a rule did not exist, then considerable injustice could result to individual parties and great disturbance and inconvenience caused to the efficient administration of justice.” The learned judge, nonetheless, decided in his discretion in favour of permitting the appellant to proceed. 28. Following a comprehensive consideration of the case law, and the texts of the Brussels Convention and later Regulations, the learned High Court judge dismissed the application of the appellant. Since each of these matters needs to be considered anew on the hearing of this appeal, I will confine myself to a brief summary of the conclusions of the High Court judgment as follows: 1. The maintenance decree of the 12th September, 1994, came within the scope of the Brussels Convention, in particular Article 5(2). The application of that article was not affected by the fact that the Dutch maintenance order was ancillary to the contemporaneous Dutch divorce decree (see Case C-120/79 de Cavel v de Cavel [1980] ECR I-731); The appeal 29. The notice of appeal raises sixteen separate grounds. In summary, the appellant claims that the learned trial judge was wrong in the following principal respects: 1. In failing to hold that the judgment of the Dutch Court came within the provisions of Brussels I or, alternatively, Brussels II; 30. Apart from these points concerning the substance of the relief sought by the appellant pursuant to his notice of motion, the respondent argues on this appeal that the learned trial judge erred in failing to give effect to the rule in Henderson v Henderson. The appellant counters in a separate ground of appeal that the learned trial judge was wrong in law in failing to hold that he was obliged as a matter of Community law not to apply that rule to the issues of Community law raised by him. 31. In my opinion, this is not a case to which the Court should apply the rule in Henderson v Henderson with the effect of precluding the appellant from seeking the relief set out in his notice of motion. It is clear that Brussels I was not in force at the time of the first notice of motion for decision of a preliminary issue. That Regulation, as will appear later, is now the legal basis for enforcement of maintenance orders between the Member States. It is the principal focus of the appellant’s arguments. It entered into force on the 1st March, 2002, which was after the delivery of judgment by Morris P. It could not have been invoked in those proceedings. While this temporal problem does not affect the Brussels Convention or Brussels II, it clearly also applies to Brussels II bis. I do not think it is desirable to separate out one part of the case. The arguments concerning the Convention and Brussels I, in particular, are closely interlinked. It is preferable, in the circumstances, to deal with the arguments on their merits. The Convention and Regulations 32. The appellant maintains that the ancillary orders sought by the respondent in her claim conflict with the maintenance aspect of the judgment of the Dutch court in 1994. Thus, an Irish court cannot entertain them and must decline jurisdiction because the entire proceeding runs the risk of inconsistent judgments. 33. Counsel for the appellant drew attention to a principle well-established in the case law of the European Court of Justice. Though decided in the context of the Brussels Convention, it may be assumed to be equally applicable to the Brussels Regulations. The underlying objective of the Convention is to avoid conflicts between judgments delivered in the courts of the Member States between the same parties and touching on the same subject-matter. It follows that the courts of the Member States must act so as to prevent conflicting judgments from arising. The matter was expressed as follows in the judgment in Case C-163/95 von Horn v. Cinnamond [1997] ECR I-5451:
34. The principal argument is that Brussels I (Council Regulation (EC) No 44/2001) rather than the Brussels Convention applies to the judgment of the Dutch Court. If this point is accepted, the appellant does not have to meet the objection that, by virtue of Article 27 of the Brussels Convention, the judgment of the Dutch Court was not, when it was delivered, entitled to recognition in Ireland because it was ancillary to a judgment concerning the status of the parties (divorce). Brussels I contains no provision equivalent to Article 27(4) of the Brussels Convention. 35. The appellant submits, in the alternative, that Brussels II (Council Regulation (EC) No 1347/2000) or, since that Regulation is now repealed, its replacement Brussels II bis (Council Regulation (EC) No. 2201/2003) applies. 36. The transitional provisions of the respective regulations are crucial to this argument. 37. I will now examine these points in more detail. It is both logical and chronologically more convenient to commence with the Brussels Convention. The Brussels Convention 38. The Jurisdiction of Courts and Enforcement of Judgments Act 1988 gave effect in Irish law to the Brussels Convention. It was repealed and replaced by the Jurisdiction of Courts and Enforcement of Judgments Act 1998. I assume, for the purposes of this first part of the analysis, that the Convention remains in force, at least as between the parties and for the purposes of this case, though that very matter is very much in contention. Article 5 lays down special rules for the exercise of jurisdiction in a number of types of case. One of those is maintenance. A person domiciled in a Contracting State may be sued, pursuant to Article 5(2) in another Contracting State:
40. A judgment given on the basis of the exercise of jurisdiction in accordance with the Convention may be enforced in another contracting state pursuant to Section 2 of the Convention and must be recognised pursuant to Article 26. The latter provides that;- “A judgment given in a Contracting State shall be recognized in the other Contracting States without any special procedure being required.” 41. It follows that it is not permissible to issue proceedings in a second contracting state in respect of a matter on which the court of another contracting state has already given judgment between the same parties. In Case 42/76 de Wolf v Cox [1976] ECR 1759 the plaintiff sued in the Dutch courts in respect of a debt for which he had already obtained judgment in a Belgian court. It appears that it was less expensive simply to sue again rather than follow the Convention enforcement procedure under Dutch law. The Court held, on a reference from the Hoge Raad of the Netherlands, that:
That provision is evidence of the concern to prevent the courts of two contracting states from giving judgment in the same case.” 43. However, the Brussels Convention also provides for non-recognition of judgments in certain cases. Article 27 provides that:- “A judgment shall not be recognized: ……………….
4. if the court of the State of origin, in order to arrive at its judgment, has decided a preliminary question concerning the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills or succession in a way that conflicts with a rule of the private international law of the State in which the recognition is sought, unless the same result would have been reached by the application of the rules of private international law of that State” 45. The leading case is Case 145/86 Hoffmann v Kreig [1988] ECR 645. The facts are important. The husband and wife were German nationals. They were married in 1950. In 1978, the husband left the matrimonial home and moved to live in the Netherlands. In 1979 a German court, on the wife’s application, ordered him to pay maintenance to her as a separated spouse. In 1980, a Dutch court, on the application of the husband, granted a decree of divorce. At that time, as the Court of Justice makes clear in its judgment, the decree of divorce fell outside the scope of the Convention. It had not been recognised by the German court under German law at the time of the maintenance order. In 1981, the wife applied in the Dutch courts pursuant to the Brussels Convention for enforcement of the German maintenance order. The German maintenance order was not enforceable in the Netherlands for what the Court of Justice, on the matter being referred to it, described as “reasons which lie outside the scope of the Convention.” The Court said at paragraph 13 of its judgment:
46. The court then proceeded to consider whether the grant of the Dutch decree of divorce could terminate the enforcement of the German maintenance judgment, which remained enforceable in Germany, “the decree of divorce not having been recognised there.” It recalled that Article 1(2) of the Convention provided that “the Convention did not apply, inter alia, to the status or legal capacity of natural persons” and that the Convention “contains no rule requiring the court of the state in which enforcement is sought to make the effects of a national decree of divorce conditional on recognition of that decree in the state in which the foreign maintenance order is made.” 47. The court found support for that statement in the provisions of Article 27(4):
17. It follows that the Convention does not preclude the court of the state in which enforcement is sought from drawing the necessary inferences from a national decree of divorce when considering the enforcement of the foreign maintenance order . 18. Thus the answer to be given to the national court is that a foreign judgment whose enforcement has been ordered in a Contracting State pursuant to Article 31 of the Convention and which remains enforceable in the state in which it was given must not continue to be enforced in the state where enforcement is sought when, under the law of the latter state, it ceases to be enforceable for reasons which lie outside the scope of the Convention .” 48. In my view, the Hoffmann case conclusively establishes that the Convention does not require the Irish courts to recognise the judgment of the Dutch Court in respect of maintenance. Naturally, the respondent is not seeking to enforce it. She wants to obtain maintenance from the Irish court. However, the appellant says that the Irish courts are bound, by virtue of Article 26, to recognise it. Hoffman says, as does the Convention, that it does not apply to “the status of natural persons.” That, as is obvious from the judgment, includes marital status. Contracting states were free to continue to apply their rules of private international law with regard to the recognition of foreign judgments concerning status, i.e., divorce. Article 27(4) in particular permits national courts to apply their own law regarding divorce and to refuse to enforce a foreign judgment which is inconsistent with the status of the parties under its own law. It is true that the facts of the present case are the converse of Hoffmann. There the parties were divorced in the state second seised but remained married according to the law of the state first seised. Here, the situation is reversed. The parties remain married under Irish law, though they are divorced according to the law of the Netherlands. The principle in Hoffmann is that the courts of the state where enforcement is sought are free, in accordance with the Brussels Convention, to apply their own rules of private international law where enforcement would conflict with those rules. 49. The Court has not heard any argument suggesting that a distinction in principle could be founded on the difference in the facts. I am satisfied that no such distinction could be made. Enforcement of a maintenance order granted as ancillary to a Dutch divorce decree would conflict with the existing judgment of this Court, which ruled finally on the status of the parties in 2003. 50. I am satisfied that, if the Brussels Convention continues to apply to the facts of this case, and specifically if it continues to apply to the question of whether the Irish courts should decline jurisdiction by reason of the existence of the judgment of the Dutch Court, the appellant’s case must fail. The Brussels Regulations 51. The inescapable fact which faces the appellant is the date of the judgment of the Dutch Court, which is in September 1994. If it had been delivered at any time since the entry into force of either Brussels I (1st March 2002) or Brussels II (1st March 2001), the position might well have been radically different. It will be necessary to consider the actual effects of those Regulations only if either or both of them applies. 52. Following the entry into force of Brussels II (since repealed) there was in existence a Community instrument purporting to regulate, as is clear from its title, “jurisdiction and the recognition and enforcement of judgments in matrimonial matters…” between the Member States. Article 2 of that Regulation regulated jurisdiction between the courts of the Member States “in matters relating to divorce, legal separation and marriage annulment.” Crucially, however, as was made clear by Recital 10, the Regulation was “confined to proceedings relating to divorce, legal separation or marriage annulment.” Specifically, it did not affect “the maintenance obligation or any other ancillary measures,” although, as provided for by Recital 11, it covered parental responsibility “on issues that are closely linked to proceedings for divorce, legal separation or marriage annulment.” Consequently, none of the provisions of Chapter III on “Recognition and Enforcement” extended to maintenance orders, which is clear from the definition of judgment in Article 13. 53. To complete the picture, I should refer to Article 42 of Brussels II, headed “Transitional Provisions.” That provision was, mutatis mutandis, identical with Article 66 of Brussels I to which I refer in more detail later and which is, with Article 68 of that instrument, central to the appellant’s argument. Article 42(1) provides that:- “The provisions of this Regulation shall apply only to legal proceedings instituted, to documents formally drawn up or registered as authentic instruments and to settlements which have been approved by a court in the course of proceedings after its entry into force.” In simple terms, it applied only to divorces granted after the 1st March, 2001. Article 42(2) allowed the Regulation to apply where the proceedings were issued before the 1st March, 2001, but where judgment was given after that date. 54. No argument was addressed to this Court on the appeal to suggest that this Article could be interpreted so as to apply to the judgment of the Dutch Court of 1994. Brussels II represented a radical step in the mutual recognition of divorces between Member States. It clearly and unambiguously applied only to decrees granted after the date of its entry into force on the 1st March, 2001. 55. Brussels II was repealed and replaced as from the 1st August ,2004, by Brussels II bis (Council Regulation (EC) No 2201/2003). From Article 1, headed “Scope,” it is clear that the Regulation, like Brussels II which it replaced, applies only to divorce, legal separation and marriage annulment together with parental responsibility, but not to “maintenance obligations.”(see Article 1(3)(e)). Article 64 contains “Transitional Provisions.” Article 64(1), in terms more or less identical with Article 42 of Brussels II provides that the Regulation is to apply only to legal proceedings instituted and similar matters, “after its date of application in accordance with Article 72.” The latter Article provides that the Regulation is to enter into force on the 1st August, 2004. 56. Other parts of Article 64 provide for the application of Brussels II bis to judgments given in a range of transitional situations. But “judgment” is defined in Article 2 so as to apply only to matters (divorce etc.) within the material scope of application of the Regulation. It has been necessary to refer to Brussels II bis only because of the repeal of Brussels II. Any judgments covered by Brussels II and rendered after the 1st March, 2001, would now be enforceable pursuant to Brussels II bis. 57. However, it is beyond doubt that the judgment of the Dutch Court could never have come within the scope of either Brussels II or II bis, although both of these were put forward by the appellant in his notice of motion as grounds on which the Irish courts should decline jurisdiction. This point was expressly maintained in the grounds of appeal to this court and, at least in respect of Brussels II, in the written submissions of the appellant. 58. The appellant’s case, therefore, must depend entirely on the application of Brussels I. That Regulation continues to exclude the “status of natural persons” from its scope of application (see Article 1(2)(a)). That is logical: recognition of judgments in matters of divorce, legal separation and annulment have been successively regulated by Brussels II and II bis. The latter regulations, however, exclude maintenance. 59. Article 5(2) of Brussels I, in substitution for the identically numbered Article of the Brussels Convention lays down, as a rule of special jurisdiction, that a person, though domiciled in one Member State, may be sued in another Member State:
60. Brussels I replaces the Brussels Convention at least for future cases but I will return to the question of the transitional provisions. Brussels I contains no provision corresponding with Article 27(4) of the Brussels Convention. Article 34 provides that: “A judgment shall not be recognised: 1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought; 2.[not relevant] 3. if it is irreconcilable with a judgment given in a dispute between the same parties in the Member State in which recognition is sought.” Paragraph 3 is materially identical with Article 27 (3) of the Brussels Convention. So far as Article 34(1) is concerned, it could scarcely be suggested that public policy could any longer be invoked in this State to refuse recognition of a foreign divorce, where such recognition is so extensively provided by law. 61. Thus, the central question is whether Brussels I applies. The answer depends on the transitional provisions. 62. Chapter VI of Brussels I is headed “TRANSITIONAL PROVISIONS.” Its only Article is numbered 66. It reads:
2. However, if the proceedings in the Member State of origin were instituted before the entry into force of this Regulation, judgments given after that date shall be recognised and enforced in accordance with Chapter III, (a) if the proceedings in the Member State of origin were instituted after the entry into force of the Brussels or the Lugano Convention both in the Member State or origin and in the Member State addressed; (b) in all other cases, if jurisdiction was founded upon rules which accorded with those provided for either in Chapter II or in a convention concluded between the Member State addressed which was in force when the proceedings were instituted. 63. The Regulation entered into force as is provided by Article 76 on the 1st March, 2002. Hence, Article 66(1) means that the Regulation applies “only” to legal proceedings instituted after the 1st March, 2002. This primary provision is clear and unambiguous. Article 66(2) qualifies that statement only to the extent that, where the proceedings were issued before the 1st March, 2002, the Regulation will apply to judgments given after that date. 64. This is a clear and logical provision. Paragraph (2) tends to reinforce the primary temporal scope of the article. The Regulation does not apply to judgments delivered prior to the 1st March, 2002. 65. Counsel for the appellant submitted, however, that Article 66 is qualified by Article 68, which provides:
2. In so far as this Regulation replaces the provisions of the Brussels Convention between Member States, any reference to the Convention shall be understood as a reference to this Regulation. 1. Nothing in Article 66 confines or reduces the very wide definition of “judgments” contained in Article 32 of the Regulation, nor does it limit the scope of Article 33, to confine it to a particular species of judgment; 67. The respondent submits that the temporal aspect of the implementation of the Regulation is a pre-condition to the recognition of the judgment of the Dutch Court and that the learned trial judge, McKechnie J., was correct in holding (see paragraph 51 of the judgment):
69. Before addressing these submissions, it is important to note the context and effect of the interpretation sought by the appellant. This Court has already decided, in a proceeding pursued by the appellant by way of appeal, that the judgment of the Dutch Court is not entitled to recognition in Irish law in accordance with Irish rules of private international law. Hence, as a matter of Irish law, the judgment of the Dutch Court is not entitled to recognition. That result is compatible with Community law. The Brussels Convention was in force between the Member States at the time of the judgment of the Dutch Court. That Convention did not apply to “the status or legal capacity of natural persons.” This point was emphasised by the Court of Justice in its judgment in Hoffmann, already cited. The consequence of the interpretation of the transitional provisions of Brussels I advocated by the appellant would be to reverse retrospectively the effect of the Brussels Convention and judgments given, including that given by this Court, on the basis that it applied. 70. It is a general principle of law, widely recognised in different systems of law, that provisions intended to have a retrospective effect must be clearly expressed so as to lead to that result. As the Court of Justice held, at paragraph 20 of its judgment in Racke v Hauptzollamt Mainz, cited by the respondent, “although in general the principle of legal certainty precludes a Community measure from taking effect from a point in time before its publication, it may exceptionally be otherwise where the purpose to be achieved so demands and where the legitimate expectations of those concerned are duly respected.” 71. I have already stated that the wording of Article 66 is clear and unambiguous. It would require something clear to contradict or qualify it. There is no merit in the appellant’s first suggestion, based on the entirely general definition of “judgments” in Article 32. The judgments affected by the Regulation are only those specified by Article 66, those delivered after the 1st March, 2002. Nor can I see any merit in the argument based on the word “supersede,” used in Article 68(1). Article 68(2) says that the Regulation “replaces” the Convention. It is clear that “supersede” has the same meaning. The same word, “remplace” is used in the two paragraphs in the French text. Likewise, in Italian, “sostituisce;” and in Spanish: “sustituirá; sustituye”. Although English is not unique in employing a different verb (German also uses different ones), the key point is that no reason has been suggested to support the view that Article 68, by using the word, “supersede” or for any other reason means that Brussels I rather than the Brussels Convention should apply to judgments delivered prior to its entry into force. 72. The appellant cites the views of certain learned authors for the purpose of casting doubt on the meaning of Articles 66 and 68. The learned trial judge referred to the conflicting views of two distingished authors on the question of whether the Convention or the Regulation applies to existing situations. He cited the13th Edition of Dicey and Morris on Conflicts of Law. Counsel provided the Court, on the appeal, with the statement maintained in the 14th edition.
73. A contrary statement appears in Briggs and Rees, (both the 3rd and 4th edition) of Civil Jurisdiction and Judgments (London, 2005). At paragraph 7.29 of the 4th edition the learned authors state:-
75. The appellant’s next point is that Regulation 14 of the European Communities (Civil and Commercial Judgments) Regulations 2002 (S.I. No 52 of 2002) has the effect that the Brussels Convention will apply to his case. That provision reads:
…………………………… (b) affect the previous operation of the enactment or anything duly done or suffered under the enactment, (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment.” 78. This conclusion is not affected by the decision of Andrew Smith J in Tavoulareas v Tsavliris and others, [2006] 1 All E.R. (Comm) 109, cited by the appellant. In that case, proceedings had been issued in Greece before the entry into force of Brussels I, but judgment was not given until after that date. The opposing party issued proceedings in England after the 1st March, 2002. That is a situation precisely covered by Article 66(2) of the Regulation. The dispute resolved by Andrew Smith J concerned Article 30 of the Regulation, which concerns the date when a court is deemed to be seised. The party supporting the later English proceedings contended that the Greek proceedings had never been served and that, by virtue of Article 30, the Greek court was not seised. The decision does not support the proposition that the Brussels Convention ceased from the 1st March, 2002, to apply to existing situations. The report of this decision contains no suggestion that the Greek proceedings would not, if properly served, have come within the scope of the Regulation. 79. In considering whether there is any reason to doubt the plain and obvious intent of the temporal provisions of Article 66 of Brussels I, it is useful to examine the recitals to the Regulation. Recital 19 refers to continuity between the Brussels Convention and the Regulation as the objective of the transitional provisions. 80. To explain the context, it should be noted that the procedure for making references for preliminary ruling on the interpretation of Brussels I (indeed any of the three jurisdiction regulations) to the Court of Justice is, unlike the case of the Brussels Convention, found in the Treaty itself. The Convention, on the other hand, needed its own special reference procedure, because international agreements of that kind were not covered by Article 234 (then Article 177) of the Treaty. The Brussels Regulations, however, were adopted pursuant to Part IV of the EC Treaty and are subject to the modified reference procedure set out in Article 68 of that Part. 81. In this light, recital 19 is revealing. It provides:
83. Acccording to the appellant the effect of Article 68 is that Brussels I applied after the 1st March, 2002, to all cases covered up to that date by the Brussels Convention, a proposition that flies in the face, not only of Article 66, but also of recital 19 and the fact that the Court of Justice has accepted and ruled on many references concerning the Convention after that date. If the appellant’s submission were correct, the Court of Justice would not have had jurisdiction to consider cases under the Brussels Convention after 1st March 2002. 84. I am satisfied that it is clear beyond argument that neither Brussels I, Brussels II or Brussels II bis apply to the judgment of the Dutch Court. Sincere Co-operation, Supremacy and Effectiveness 85. The appellant has submitted, in his written submissions, a broad series of propositions concerning the above-mentioned matters, all expressed at a high level of generality. The only ones that have any even remote bearing on his case are those which refer to Articles 61 and 65 of the EC Treaty. 86. Article 61 provides that:-
….
87. Article 65 provides that:-
Free movement of persons and citizenship of the Union. 89. The appellant’s final claim is that the Irish rules of private international law with regard to the recognition of foreign divorces constitute a restriction on the right of free movement of persons within the European Community. He points to the facts of his own case. He has exercised his rights of free movement as a worker and as a national of a Member State, firstly in 1987 on moving to live and work in the Netherlands and secondly in 1994, in returning to Ireland. 90. The appellant suggests that a later maintenance order of an Irish court, inconsistent with that of the of the Dutch Court, might force him to terminate his employment in Ireland and move to another Member State, where the judgment of the Dutch Court will be recognised. If he were subsequently to return to Ireland, he could be compelled to respect a conflicting Irish order. This would represent a potential restriction on his rights of free movement. 91. This argument is, in my view, theoretical and unreal. The appellant does not suggest, nor could he, that a court in either jurisdiction would contemplate ordering the payment of double or duplicate maintenance. Nor does he suggest that an order of an Irish court would be likely to be less favourable to him than such an order of a Dutch court. Such a proposition would place him in the uncomfortable position of using the Dutch court to protect himself to the detriment of his wife (or, as he would see it, his former wife). Above all, he does not suggest that he should not be subject to a duty to pay maintenance to his wife or, following divorce in any jurisdiction, to his former wife. 92. The appellant makes no attempt to show how the refusal, in accordance with law, of the Irish courts to recognise a maintenance order of a court of another Member State would constitute a restriction on free movement of persons. 93. However, the proposition should be addressed, as if it were meritorious, even if highly theoretical. 94. Even on that assumption, the one most favourable to the appellant, one returns to the legal situation which pertained at the time of the judgment of the Dutch Court. The Brussels Convention was the only legal basis for recognition of judgments of courts of other contracting states, but, as I have already shown, the Convention did not extend to “the status or legal capacity of natural persons.” That remained the situation until the entry into force of Brussels II. Thus, the appellant is necessarily confined to the Brussels Convention. If it were not for the provisions, authorising non-recognition, of Article 27 of that Convention the maintenance order would have to be recognised here. For the reasons already given, he cannot succeed on that ground. Thus it is the provisions of the Brussels Convention itself that represent the obstacle of which the appellant complains. 95. Finally and decisively, the argument made under this heading is related essentially to the question of recognition of the judgment of the Dutch Court, upon which this Court ruled in its judgment of Novmber 2003. When asked why this argument was not then advanced, counsel said that it was a matter which the Court should itself have raised. I do not think so. It is true that the lis pendens rules both of the Brussels Convention (Article 21) and of Brussels I (Article 27) require a court secondly seised to decline jurisdiction “of its own motion” where the same subject-matter is the subject between the same parties in another Member State. But the court must be made aware of the fact, if it is so to act. It is highly far-fetched to suggest that this Court should, in 2003, have thought of a novel argument which has occurred to the appellant only on this appeal. 96. It is a fact that this Court has already conclusively decided that the judgment of the Dutch Court is not entitled to recognition in this State. That remains the case. The judgment of this Court is final and conclusive under the Constitution. 97. I would reject all the appellant’s ground of appeal. Should there be a reference to the Court of Justice? 98. Article 234 of the EC Treaty obliges this Court to refer any question of interpretation of provisions of Community law, defined in that Article, if a ruling on that “question is necessary to enable it to give judgment.” 99. The appellant has raised a number of questions of Community law upon which I have expressed very clear opinions, all adverse to the appellant. 100. The appellant relies on Case 283/81, CILFIT v. Ministry of Health [1982] ECR 3415. This Court, though obliged prima facie to make a reference, because questions of interpretation are involved, may decide not to do so if the point is clear beyond argument. (acte clair). There are, of course, many and extensive qualifications in the CILFIT judgment. These are well known. They relate in particular to the fact that Community legislation is drafted in several languages and that it has its own peculiar terminology. 101. Nonetheless, the judgment recognizes that “the correct application of Community law may be so obvious as to leave no scope for any reasonable doubt………”(paragraph 16). It also accepts that the Court of Justice may already have dealt with the point of law in question, “even though the questions at issue are not strictly identical.” (paragraph 14). 102. The judgment in CILFIT stipulates that, even in those cases, where the court of a Member State is not obliged to make a reference, it retains, nonetheless, a discretion to do so. I consider, therefore, whether the Court is obliged to make a reference and, separately, whether it should, in its discretion, do so in any event. 103. I have come to very clear conclusions to the effect that the appellant’s arguments are unfounded and, in many respects, without merit. 104. Insofar as the appellant’s case might have been founded on the Brussels Convention, I believe that Article 27 of the Convention, as interpreted by the Court of Justice in Hoffmann, rendered the maintenance aspect of the Dutch Court judgment unenforceable in Ireland. Paragraph 14 of CILFIT shows that the Court is not obliged to refer where a point has already been clearly decided by the Court of Justice. In any event, I believe that Article 27(4) of the Convention clearly deprived the Dutch maintenance order of the right to recognition. 105. The principal basis of the appellant’s case was Brussels I. I believe that the transitional provisions of that instrument are clear beyond doubt or argument and that the appellant’s arguments to the contrary are tenuous at best. Provisions laying down dates, times or numbers are generally more likely to justify the description acte clair. 106. The arguments based on sincere co-operation, supremacy and effectiveness postulate direct effect of a wide range of Treaty provisions, none of them even remotely related to the appellant’s case. Articles 61 and 65 provide power to take action. They are incapable of having effect on their own and the appellant has produced no authority to show that they can. 107. The argument based on free movement is, firstly, unexplained and, secondly, in conflict with the principles underlying the Brussels Convention. Most importantly, this argument questions the final and conclusive decision of this Court delivered between the same parties in November 2003. 108. For these reasons, I do not believe this Court is obliged by Article 234 of the Treaty as interpreted by the Court of Justice to refer questions to that Court. 109. In addition, I do not believe this Court should, in the exercise of its discretion, make a reference. I am principally influenced by the propensity of the appellant to use legal procedures so as to delay and the attendant injustice to the respondent. In his first affidavit in November, 2000 he raised one legal point only, namely the recognition of his Dutch divorce. He appealed his unsuccessful pursuit of that point to this Court. Only then did he raise a number of other arguments to resist the jurisdiction of the Irish courts. He has appealed against the judgment of McKechnie J to this Court. It is now more than eight years since the issue of the Special Summons. The appellant has been able to resist complying with his normal obligations to furnish information as to his means, by agreeing to pay maintenance to his spouse on a provisional basis. 110. It will be more than eight years from its date of issue before the respondent is able to get to hearing with her claim. I would not wish to delay her access to justice any further by reason of a reference, even in circumstances where I believe that the new urgent procedures before the Court of Justice might enable the reference of some questions to be concluded within a period of months. 111. I would not refer any questions to the Court of Justice. I would dismiss the appeal and affirm the order of the High Court. | ||||||||||||||