Hemain v Hemain
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,LORD JUSTICE BALCOMBE,LORD JUSTICE STOCKER |
| Judgment Date | 19 February 1988 |
| Judgment citation (vLex) | [1988] EWCA Civ J0219-2 |
| Docket Number | 88/0139 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 February 1988 |
[1988] EWCA Civ J0219-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(Mrs. Justice Booth)
Royal Courts of Justice
Lord Justice May
Lord Justice Balcombe
and
Lord Justice Stocker
88/0139
MR. N.A.R. WILSON, Q.C. and MR. I.G.F. KARSTEN (instructed by Messrs Withers Crossman Block) appeared on behalf of the Respondent/Petitioner.
MR. M.B. CONNELL, Q.C. and MR. H.P.D. BENNETT (instructed by Messrs Theodore Goddard) appeared on behalf of the Appellant-Respondent.
In this matter the parties are husband and wife and I propose to refer to them as such in the course of this judgment. They are each a French national, but they have both lived in England, the husband since 1968 and the wife since 1977. The matrimonial home is in London. It could be on such evidence as we have that the wife is domiciled in England.
The parties were married on 26th September 1978. There is one child, a son Christopher, who was born on 14th March 1983. He presently attends a pre-prep school in North London and is intended thereafter to be educated in this country.
Unfortunate differences arose between the parties and ultimately the marriage broke down. On 31st December 1987 the wife filed a petition in London. Although it is apparent that the husband's solicitors were aware of that fact, they were unable to obtain instructions to accept service. The husband filed a petition also seeking a dissolution in Paris on 7th January 1988. He left for Canada the following day. He was served in Montreal with the wife's divorce proceedings on 14th January 1988. On 19th January a summons was issued in Paris in relation to a conciliation hearing in the French divorce proceedings which is due to take place on 22nd February 1988, that is to say Monday; this court is hearing the appeal on the preceding Friday.
On 22nd January 1988 the husband filed an acknowledgement of service of the English proceedings, indicating his intention to apply for a stay of them. That summons was issued, amongst others, on 28th January. Owing to the state of the Family Division lists, that cannot be heard until 9th May 1988.
On 1st, or it may be 8th February (it matters not), the wife applied for injunctions, in effect to hold the French proceedings from going any further until after the hearing by the English court on 9th May of the husband's application to stay the English divorce proceedings.
On 11th February that application by the wife was heard by Mrs. Justice Booth and granted. The order that the learned judge made is at page 123 of the bundle. Taking the matter quite shortly, it is an order which requires the husband to take all necessary steps to secure the adjournment of the appointment of the conciliation hearing for 22nd February and of all further appointments in the proceedings until after the hearing and determination by the English court of the application for a stay returnable on 9th May and also that by himself, his servants or agents or otherwise he be restrained until further order and the determination by this court of the stay application from instituting any further proceeding or pursuing any claim against the wife in France relating to the marriage of the parties or to any property of either or both of them. It is against those orders of the learned judge that the husband now appeals and it is that matter which has come before us.
The principal contention which is made in challenge of the learned judge's order is that injunctions of the nature that I have outlined should only be issued with the greatest caution and that the learned judge, from her judgment at any rate, does not appear to have borne that principle in mind in making the orders that she did.
We were referred, and I briefly return, to the recent decision of Societe Nationale Industrielle Aerospatiale v. Lee Kui Jak [1987] A.C.871. The relevant passages are on pages 892 and 896. I merely at this stage draw attention to the fact that the underlying principle to which I was referring was stated in another authority to which we were referred and which was expressly approved by Lord Goff in the Privy Council case, namely Cohen v. Rothfield [1919] 1 K.B. 410. In that case, in particular in so far as is relevant to the present proceedings, Scrutton L.J. said page 414:
"Where the plaintiff in the foreign action is not plaintiff, but defendant, in the English action, the case against interference is even stronger, for the person to be stayed has not himself initiated two proceedings. He has initiated one, and has been compelled to appear in another over which he has, as defendant, no control."
Then the learned judge referred to a number of authorities and towards the bottom of the page said—
"That case was Bushby v. Munday in which the plaintiff, who was suing to set aside a bond alleged to have been given for a gaming debt, succeeded in restraining the defendant from suing on the bond in Scotland by proving that, owing to the superior powers of discovery possessed by the English Court, there would be more likelihood of the facts being correctly ascertained in England. While, therefore, there is jurisdiction to restrain a defendant from suing abroad, it is a jurisdiction very rarely exercised and to be resorted to with great care and on ample evidence produced by the applicant that the action abroad is really vexatious and useless."
As I have said, Mr. Connell on behalf of the husband, accepts that the decision of the learned judge below was made in the exercise of her discretion, with the limitations that that imposes upon the powers of this court in relation to any such decision, but he submits that clearly the learned judge either did not take the general principle into account, or in the alternative her decision was plainly wrong.
For my part I cannot accept that submission. It is quite clear from what we have been told on both sides, that the learned judge had the relevant authorities submitted to her in the morning of the day on which she gave judgment. She had submissions on those authorities and on the general principles made to her. She is a judge of substantial experience in these matters and in the light of the well-known decision of, for instance, Hadmor Productions v. Hamilton and similar cases, I would not be prepared to interfere. However, even if the learned judge had only exercised her discretion in this matter as, it might be said, is reflected to a limited extent in her short judgment and that this could be criticised on the basis I have indicated so that in the result the discretion has to be exercised by this court, I would exceptionally on the authorities dismiss this appeal.
I now return to the Societe Nationale Industrielle Aerospatiale case and in particular to page 892 F where Lord Goff of Chieveley, in giving the judgment of the Privy Council, listed various aspects of the law relating to injunctions restraining a party from commencing or pursuing legal proceedings in a foreign jurisdiction, and...
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