Summary
The parties were both from India where they were living. They married there; their child was born in India in 2004.
In 2006, the husband came over to England. The wife and their daughter joined him in 2007.
The parties separated in 2009. The wife left England in 2010.
The husband returned to India in April 2012.
A set of divorce proceedings were initiated by the husband in August 2009 in India.
The wife filed a divorce petition in England in December 2011 when the husband was still in the jurisdiction.
In the light of Owusu, a central question was whether the English court was entitled to stay its proceedings under Brussels IIa.
The English High Court held that India was the more appropriate forum for the trial.
An appeal was made. The Court of Appeal dismissed the appeal. Lord Justice Lewison held:
“37 In my judgment Owusu v Jackson has little to do with our case. First, it was concerned with a different convention regulating jurisdiction in a very different field of activity. Almost by definition BIIR is concerned with matters that are not commercial, and will often involve how to divide up assets in a finite “pot”. Second, the legislative language under consideration in Owusu v Jackson was very different from the language of BIIR. As Mr Amos pointed out, whereas the language of article 2 of the Judgments Regulation is mandatory, transitive, and prescriptive, the language of article 3.1 of BIIR is intransitive and facilitative: cf Re A (Children) [2013] UKSC 60 at [32]. Third, both the Advocate-General and the court declined to answer the question that arises in our case, namely whether proceedings should be stayed in favour of competing prior proceedings in a non member state. Part of the policy of both the Judgments Regulation and BIIR is to avoid competing and potentially conflicting judgments in different jurisdictions ( lis alibi pendens ). Since Owusu v Jackson was concerned with different facts, different legislative language and a different piece of legislation, it could therefore only be applied to BIIR by way of analogy. The analogy would have to found itself on the policy underlying both the Judgments Regulation and BIIR. But fourth, the policy objectives of the Brussels Convention (and latterly the Judgments Regulation ) were different from those of BIIR. Fifth, BIIR itself recognises diversity in different legal systems, which was one of the objections in Owusu v Jackson . Sixth, the policy underlying the Judgments Regulation has itself changed. The new Judgments Regulation , (EC 1215/2012), due to operate from 10 January 2015, now recognises a discretionary power to stay proceedings. [37]
It was further noted:
“50 I would therefore dismiss the wife's appeal. I do not consider that it is necessary to make a reference to the Court of Justice. I am comforted in that conclusion by the decision of the Cour de Cassation in France of 17 June 2009 (Appeal No 08–12456). That court held that divorce proceedings in France should be stayed in favour of prior divorce proceedings in Iceland (which is not a member state) on the ground of lis alibi pendens ; and that to order a stay on that ground was not an infringement of BIIR. The conclusion I have reached cannot, therefore, be regarded as the peculiarity of an island race of common lawyers. It is one that is shared by our civilian colleagues in mainland Europe.” [50]