Summary
The English proceedings were between a husband and wife. The parties were married in 1981, residing in England before moving to France in 1986 (or 1988). The matrimonial home, which had been in Essex, was sold then. The family also had two flats in London. The wife, who was English, seemingly returned to England in 2004.
This was a jurisdictional battle. The husband petitioned for divorce in France.
Subsequently, the wife started proceedings in England.
The French courts were first seised with the divorce proceedings. However, in the English proceedings, the wife was seeking financial remedies in respect of the immovable property located in England. In particular, she was seeking a declaration that she had equity share in respect of the London flats; she was also tracing the money from the sale of the Essex house.
A stay of legal proceedings was requested by the husband. Lady Justice Pauffley, sitting as a judge in the High Court, dismissed the husband’s application, holding that the English court has jurisdiction under Article 22 of Brussels I (i.e. conferring exclusive jurisdiction to the courts where the property is located).
An appeal was made to the Court of Appeal. The husband’s appeal was allowed, and the stay of the English proceedings was granted. One of the reasons for the stay was that the English proceedings would have been incompatible with the objectives of Brussels IIa. In this context, Lord Justice Thorpe held:
“26 Of course some European jurisdictions will be regarded as a happy land for an applicant or, put the other way, a bad land for a respondent. No doubt this wife would have preferred her financial provision to have been determined by a London judge. No doubt that was the basis of the issue of her competing divorce proceedings in this jurisdiction. But the issue of TOLATA proceedings, once her petition was stopped, is to be characterised in my judgment as plainly strategic and plainly superfluous to the well-established French ancillary relief proceedings.
27 If other reasons were required for my firm conclusion that the discretion must be exercised in favour of a stay, I would point to the risk of substantial waste of costs and the equal risk of unnecessary stress to the litigants if two sets of proceedings are litigated instead of one, and those two sets in different jurisdictions. The proportionality between the costs in ancillary relief proceedings and the amounts in issue are, so far as this jurisdiction is concerned, a matter of continuing concern, certainly to judges and probably to practitioners. It is very important to impose judicial restriction to curtail unnecessary proceedings.
28 My last reason, if further reason be required, is that the whole force of developing European legislation in the family law field is to impose clear and simple rules to establish the primary jurisdiction and to ensure that once that primary jurisdiction is established it is given the fullest support in the discharge of its consequent responsibilities. We have recognised the primacy of the French jurisdiction by the stay imposed upon the divorce proceedings initiated by the wife in this jurisdiction. It would be quite inconsistent with the objectives and underlying policy of the revised Brussels II Regulation were we now to say in the exercise of the discretion, that it was perfectly in order for the wife to bring civil proceedings in this jurisdiction which only thinly disguise their true competitive objectives.” [26-28]