The Court of Appeal very recently dealt with an interesting if complicated legal argument concerning foreign proceedings. The case concerned a husband and wife, both Indian Nationals and both living in India. They lived together in England for two years, from 2007 to 2009. The wife moved back to India in 2010, and the husband moved back to India in April 2012. However, he had already begun divorce proceedings in 2009 against the wife in India. Over two years later, in 2011, the wife issued her own petition for divorce in England. The English court had jurisdiction because at the time the husband was still living here. On the other hand the Indian courts also had jurisdiction.
The courts in India could make consequential financial orders, and so could the courts in England, but almost certainly the English courts would be more favourable to the wife than the Indian courts would be. That of course had to be the reason she filed divorce proceedings here.
The husband applied to stay the wife’s English petition. He said that India was the more appropriate forum to hear the proceedings. The wife appealed. She (or rather her barristers) argued that the judge did not have the power to order a stay of the wife’s petition.
Now historically the English courts have always had a discretion to stay English proceedings if there are competing foreign proceedings concerning the same issue. The test is a broad one, weighing up the factors as to whether the foreign courts would be better placed to hear the matter, whether a proper level of justice could be delivered, and overall whether it is the more appropriate forum.
However, the European Court of Justice in 2005 appeared to say that this discretion no longer applied by reason of the Brussels Regulation governing which countries courts had priority. The European Court of Justice held that the Brussels Convention did not just apply between European Union States, it bound all EU Member States even in relation to non-member States. The ECJ had decided that in hearing the case of Owusu –v- Jackson. Mr Owusu was British, living in Britain. So was Mr Jackson, but Mr Jackson owned a holiday villa in Jamaica. Mr Owusu rented it for a short holiday, suffered a serious accident whilst on holiday, and sued Mr Jackson for compensation. He filed the proceedings in England. Mr Jackson applied to stay those proceedings on the ground that Jamaica was the more convenient forum. The question for the ECJ was whether the court’s discretionary power to stay proceedings was compatible with the Brussels Convention, and it held that it was not. It said that the rules of jurisdiction must be highly predictable and should guarantee certainty.
In this recent case though the Court of Appeal overruled the wife’s argument and upheld the stay. It said that the Brussels II (Revised) Regulation that applies to matrimonial proceedings is worded differently to the one that governed Owusu –v- Jackson.
The leading judgment also noted with some relief that there was a similar decision made by the Cour de Cassation in France in 2009, and he dryly commented “the conclusion I have reached cannot, therefore, be regarded as a peculiarity of an island race of common lawyers. It is one that is shared by our civilian colleagues in mainland Europe.”
One apparently throwaway remark in the judgment gives me some concern. The leading judgment says that if the courts in India exercised their jurisdiction “…if they do so, orders of the courts in India will be recognised in England.” One hopes that the Lord Justice did not think that financial orders would be enforced in England as a matter of right, because the law on that aspect is most uncertain. Certainly a divorce granted in India, where the parties plainly had a real connection with India would certainly be recognised, but anyone relying on subsequent enforcement of financial orders may be in for a nasty surprise.