E v E
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Moylan |
| Judgment Date | 04 December 2015 |
| Neutral Citation | [2015] EWHC 3742 (Fam) |
| Court | Family Division |
| Docket Number | No. HG15D00682 |
| Date | 04 December 2015 |
[2015] EWHC 3742 (Fam)
B
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
The Strand, WC2A 2LL
Mr. Justice Moylane V E
No. HG15D00682
Mrs. R. Bailey-Harris (instructed by Paradigm Family Law) appeared on behalf of the Applicant.
Mr. S. Leech QC (instructed by Clarion Solicitors) appeared on behalf of the Respondent.
(As approved by the Judge)
This case concerns, principally, the application of Art.19 of Brussels IIA ("BIIA"), namely Council Regulation (EC) No. 2201/2003.
The husband, through Mr. Leech QC, submits that, in the circumstances of this case, I must decline jurisdiction and should do so by dismissing the wife's English petition.
The wife, through Mrs. Bailey-Harris, submits that I should make an order which does not involve dismissing the wife's petition. This is so that it can be restored in the event of the husband's French proceedings being dismissed. During the course of the hearing, I invited Mrs. Bailey-Harris to indicate the order that she was inviting me to make. It is as follows:
"It is ordered that the court decline jurisdiction in respect of the wife's Petition. It shall be revived in the event that the husband's French suit is dismissed."
There is a subsidiary issue, which was canvassed during the course of the hearing, as to service on the wife in England of the husband's French petition, called an assignation. I regard this very much as a subsidiary issue, which I propose to deal with at the end of the judgment relatively briefly.
Given (i) that the parties have very limited resources; (ii) the relatively straightforward nature of the issues in this case; and (iii) that this appears to be a tactical jurisdictional battle which does not address the substantive issues at all, I have come to the clear conclusion that this case has not been pursued in accordance with the overriding objective. In particular, the obligation to deal with a case "in ways which are proportionate to the nature, importance and complexity of the issues"; the obligation of "saving expense"; and the obligation to allot to a case "an appropriate share of the court's resources". This can, in part, be demonstrated by the fact that the parties have together spent approximately £50,000 on legal costs in England alone.
Background
I need start the background history only with the commencement of divorce proceedings by the husband in France in 2011. The wife had herself issued what is called a requête, but subsequently withdrew it. By that date, the parties had been living in France for approximately nine years.
In June 2012, the French court determined that it had jurisdiction and would exercise jurisdiction in respect of the proceedings. During the course of the hearing before the French court, the wife had indicated that she wanted the divorce proceedings to be determined in England, in part, it appears, based on her having moved to live in England with the parties' children at the end of December 2011.
The French court determined that it had jurisdiction pursuant to BIIA because, at the time the proceedings were commenced in France, both parties were habitually resident in France. The wife's application, in so far as it was a properly constituted application for the divorce proceedings to be determined in England, was not accepted.
On 20 th November 2012, the French court issued a non-conciliation order. The parties were authorised, pursuant to this order, to apply for divorce by filing an assignation. In the event that no, what I will call a, petition (although it does not translate into an English style petition) was filed within 30 months, to quote the order in translation, "all the hearing authorisations become void, including the authorisation for petitioning for divorce".
Divorce Proceedings
On 5 th or 12 th May 2015 — it is not necessary for me to determine which — the husband filed an assignation en divorce at the French court. Both of these dates are within the 30 month period.
After the expiry of the 30 month period, namely on 21 st May 2015, the wife issued a divorce petition on England. The wife says that, at that time, she was unaware that the husband had filed a petition in France. Her French lawyers had made enquiries, it appears in April, of the French court. This was, therefore, prior to the husband having filed his petition as referred to above.
On receipt of the wife's English petition, the husband immediately responded, by email dated 26 th May 2015, stating that the divorce was active and underway in France. He followed this with an email, dated 1 st June 2015, inviting the withdrawal or the setting aside of the wife's English petition.
This was not accepted by the wife's solicitors who wrote, on 23 rd June 2015, that the English proceedings had been validly commenced, because it was their understanding that the husband had not filed a petition in France prior to the expiry of the deadline on 20 th May. The husband replied the same day, stating that he had complied with the deadline and that, as a result, the "French case takes precedence as it is active". The wife's English solicitors subsequently asserted, on 7 th July 2015, that the English petition was first in time.
Whilst this correspondence was continuing, the husband's French lawyers had requested service of the French petition pursuant to Service Regulation (EC) No. 1393/2007. On 5 th May 2015, local huissiers, acting as public officers of the French court, sent the request for service to England, using the standard form as required by the Regulation, namely Annex 1. This was received by the Queen's Bench Foreign Process Section (Room E16) on 12 th May 2015.
On 15 th May 2015, the request was forwarded to the relevant local court in England. A certificate of service was, in due course, completed by a court bailiff. In this, it is stated that the wife was served with the documents by them being posted through her letterbox at her home address on 9 th June 2015. The Certificate of Service of Foreign Process (as it is called), sent by the Foreign Process Section, sets out the wife's address correctly, including in respect of the postal code. The court bailiff has completed and signed the relevant section. In this, he has abbreviated the wife's address, stating simply "13 The Orchard, Hexham", omitting the balance of the address, namely Acomb, which appears before Hexham, and the postal code, which is NE46 4SZ. In her statement, dated 27 th November 2015, the wife denies ever having received the documents and raises a question about the abbreviated address in the certificate.
Enquiries were made of the bailiff. He has responded by email, first confirming that service was effected as set out in the certificate, but then, in the same email, somewhat confusing the position by giving an incorrect postcode, namely NE46 4DS. However, I note that the balance of the address is correct. Further, when asked to clarify whether he had served the papers at 13 The Orchard, Acomb, Hexham NE46 4SZ, he confirmed that this was the address he attending, adding "There is only one".
In addition, the parties' respective French lawyers were in communication with each other. Whilst the precise sequence is not clear, on 10 th July 2015, a French lawyer instructed by the wife sent to her English solicitors "the Summons for Divorce" that the husband had served and filed at the court in France. The email also raises the possibility of the regularity of service being contested in France.
Further, on 6 th August 2015, the wife's French lawyers filed a response to the French petition, expressing "reservations for all grounds".
An order has been made by the French court, on 24 th November 2015, requiring the wife's French lawyers to submit their documents by 14 th January 2016.
Returning to the progress of the English divorce petition, on 8 th July 2015 District Judge Wildsmith listed the "jurisdictional issue" for hearing. In doing so he was acting in accordance with r.7.27(2) of the Family Procedure Rules 2010 ("FPR"), which provides:
"Where at any time after the making of an application under this Part it appears to the court in matrimonial proceedings that, under Articles 16 to 19 of the Council Regulation, the court does not have jurisdiction to hear the application and is or may be required to stay the proceedings, the court will:
(a) stay the proceedings; and
(b) fix a date for a hearing to determine the questions of jurisdiction and whether there should be a further stay or other order."
As required by that rule, District Judge Wildsmith stayed the proceedings, as well as making directions for the listing of a hearing to determine jurisdiction. Subsequently, directions were given for the parties to file relevant documents addressing this issue.
At a directions hearing before Her Honour Judge Richardson, on 16 th October 2015, attended by the husband in person and by Mrs. Bailey-Harris on behalf of the wife, the judge was persuaded that the court needed to determine (a) whether service of the French petition by the bailiff had been effected in accordance with the laws of England and Wales and (b) whether such service was in accordance with Art.7(2) of the Service Regulation. This was because she was persuaded that the relevant issue in the English proceedings is that of seising under Art.16 rather than that of lis pendens under Art.19.
Art.16 provides
"A court shall be deemed to be seised:
(a) at the time when the document instituting the proceedings or an equivalent...
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