Bentinck v Bentinck
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lord Justice Wall,Lord Justice Lawrence Collins |
| Judgment Date | 06 March 2007 |
| Neutral Citation | [2007] EWCA Civ 175 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2006/2580 |
| Date | 06 March 2007 |
[2007] EWCA Civ 175
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE KIRKWOOD
FD06D02697, FD06P00981 & FD06F00522
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Thorpe
Lord Justice Wall and
Lord Justice Lawrence Collins
Case No: B4/2006/2580
Mr B Singleton QC & Mr R D N Castle (instructed by Mayer, Brown, Rowe & Maw LLP) for the Appellant
Mrs R J Bailey-Harris (instructed by Messrs Payne Hicks Beach) for the Respondent
Hearing dates: 20th February 2007
Baron Bentinck, who I will hereafter refer to as the husband, appeals the order of Mr Justice Kirkwood of the 24 th November 2006. On its face the order appealed is no more than a case management order directing preparations for contested hearings scheduled for March and October 2007. However, in reality the appeal raises the fundamental question of whether this court should countenance wasteful competitive proceedings in two jurisdictions subject to the controls imposed by the Lugano Convention.
Background.
The respondent to this appeal is Baroness Bentinck, who I will hereafter call the wife. Little of the family background is necessary for the purposes of this appeal. The husband's origins are Dutch but he has permanent residency rights within Switzerland. The wife is Irish. They married on the 29 th May 1998 in Klosters, where the husband has his principal home. On the 20 th May 1998, in preparation for marriage, they entered into a premarital agreement providing for separation of estates and mutual renunciation of inheritance. It seems to be common ground that Swiss law does not permit premarital agreements as to maintenance obligations. The premarital agreement expressly provides that the contract and the marital relationship between the parties shall be governed by Swiss law and conflicts arising from the contract are subject to Swiss jurisdiction at the Klosters court 'providing there is no compulsory competence of another tribunal'.
There are three children of the marriage aged respectively 8, 6 and 5. There is a dispute as to the precise date of separation but it is agreed that it occurred either in 2004 or 2005. The parties also had a home in this jurisdiction and at the date of separation the wife and the children remained in the English home, the husband thereafter principally residing in Klosters.
The Litigation Chronology.
In international family litigation governed by an international instrument an analysis of the litigation chronology is generally crucial to outcome. Both parties filed a litigation chronology. The events recorded are common ground, although not of course their legal effect. I extract the principal steps from the chronology submitted by Mr Singleton QC for the husband.
The first significant date is the 25 th January 2006 when the husband issued conciliation proceedings for divorce and ancillary matters in the Klosters court. Two days later the husband applied for a stay to enable the parties to mediate. That application was granted on the 13 th February and the parties proceeded to unsuccessful mediation.
On the 19 th May the wife petitioned for divorce in the Principal Registry in London. Purely strategic applications were then issued on the 23 rd and 24 th May in London, the first for child periodical payments under Section 15 of the Children Act 1989, the second for maintenance under Section 27 of the Matrimonial Causes Act 1973. On the 24 th May the wife also filed her Form A seeking all forms of ancillary relief, including child maintenance and school fees. There is no evidence that the husband was aware of these steps when on the 1 st June he applied to the Klosters court to lift the stay on the conciliation proceedings. On the 7 th June the court sent notice of the conciliation hearing fixed for 3 rd July.
In preparation on the 14 th June the husband filed his application in Klosters for 'pronouncement of interim measures'. They were defined as:
i) Determination that the parties had lived separately since the beginning of 2004.
ii) Custody of the children to the wife.
iii) Reasonable access to the husband.
iv) An order of 6,000 Swiss Francs per month for the wife's maintenance.
v) An order of 2,000 Swiss Francs per month for the maintenance of each child plus school fees.
Meanwhile in this jurisdiction on the 16 th June the wife's solicitors wrote to the Foreign Process Office seeking service of the wife's divorce and other proceedings under the Hague Convention. Four days later the documents to be served were received by the Foreign Process Office. Bizarrely on the 20 th June the wife's solicitors sent a trainee to Klosters in an unsuccessful attempt to serve the husband personally with the London proceedings. Swiss law does not permit personal service of foreign process. As I shall demonstrate, service could only be lawfully achieved under the Hague Convention.
Equally bizarrely, on the 26 th June the wife's solicitors obtained from the District Judge on a without notice application an order for substituted service of the wife's proceedings on the husband's Swiss lawyer, who received the papers two days later.
In Klosters the conciliation appointment of the 3 rd of July was frustrated by the wife's failure to attend. Nor did she attend the adjourned hearing on the 7 th July. The hearing is, however, significant for the fact that it marks the wife's first challenge to the jurisdiction of the Klosters court. The order issued by the court was a Leitschein, translated as an Approval to Commence Proceedings. The recitals preceding the order include: —
“Prior to the start of the Second Conciliation Hearing Mr Müller, Lawyer, informed the District Court Office that Mrs Lisa Bentinck- Hogan disputed the jurisdiction of the court and was not entering an appearance in proceedings before the Klosters District Court.”
The order also recites the respondent's prayer: —
“On account of the lack of jurisdiction of the Klosters District Court the Petitioner's application should not be entertained and should be dismissed.”
It is to be noted that the challenge was to the jurisdiction; there was no application for a stay nor any assertion that the court in London was first seised.
The order of the 7 th July approving the commencement of proceedings transferred “the matter in dispute…to the competent court.”
In this jurisdiction on the 14 th July, the husband applied to set aside the order of the 26 th June for substituted service together with service in accordance with that order. On the 31 st July the husband was served with the London petition pursuant to the Hague Convention.
On the 2 nd August, the District Judge transferred the husband's application of the 14 th July to the High Court and required any answer to the petition by 9 th August, a direction that the husband complied with. On the 7 th August the husband issued his second application for an order that the wife's application for maintenance pending suit and under Section 27 be stayed in accordance with the Lugano Convention. A consent order was made on the 21 st August and fixed the wife's application for maintenance pending suit for the 11 th October when directions would be given on the husband's application for a stay. His application to set aside the order for substituted service was adjourned to be heard by a judge of the Division with a time estimate of one day. This consent order seems to me bizarre. The husband's application for a stay in accordance with the Lugano Convention needed to precede, or at least be listed with, the wife's application for maintenance pending suit. Equally, allowing a full hearing before a judge for the husband's attack on the substituted service order seems unjustified. He had by then been duly served in accordance with the Hague Convention and, insofar as the date of due service retained importance, it was short and not difficult to decide.
On the 31 st August the husband's lawyer filed his pleading in the Swiss proceedings. His applications had become more hostile. He sought custody of the children, a child maintenance order against the wife and an order for her maintenance at the rate of only 1,000 Swiss Francs per month. The pleading is full rather than formal, running to some ten pages in translation. The wife's pleading bears the same date and is even more substantial running to some twenty-two pages in translation. By her first prayer she sought the dismissal of the husband's application of the 14 th June. Alternatively she sought extensive protective measures in the event that the husband's application was entertained. Her challenge to the jurisdiction was based upon the assertion that “at the time the petition for divorce was lodged the parties had not yet lived apart for two years.” An English lawyer would characterise that as a defence to the petition rather than a challenge to jurisdiction.
On the 6 th October the husband filed his third application in this jurisdiction, an application for a discretionary stay under the Domicile and Matrimonial Proceedings Act 1973.
I come now to a very significant hearing before District Judge Berry on the 11 th October. First he transferred all applications to the High Court. Second he directed that the husband's application under the Lugano Convention be listed for determination as a preliminary jurisdictional issue with the hearing of the wife's application for maintenance pending suit to follow if...
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