Ilaria Giusti v Ferruccio Ferragamo
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lord Justice Baker |
| Judgment Date | 17 April 2019 |
| Neutral Citation | [2019] EWCA Civ 691 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 April 2019 |
| Docket Number | Case No: B6/2018/3044 |
[2019] EWCA Civ 691
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION
HIGH COURT OF LONDON
MR JUSTICE FRANCIS
ZC18D00019
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Moylan
and
Lord Justice Baker
Case No: B6/2018/3044
Mr T Scott QC (instructed by Blanchards Law) for the Appellant
Mr N Cusworth QC and Mrs R Bailey-Harris (instructed by CH-R Solicitors) for the Respondent
Hearing date: 1 st April 2019
Approved Judgment
Introduction
The wife appeals from the order of Francis J dated 19 th November 2018 by which he stayed the wife's English divorce petition and dismissed the wife's application for a single joint expert to be instructed to provide an opinion on Italian law.
One of the issues between the parties, which only emerged clearly during the hearing of the appeal, is the basis on which the judge made his decision. Was it because he was satisfied that the provisions of Article 19 of Brussels IIa ( Council Regulation (EC) No 2201/2003) (“BIIa”) applied, in that there were proceedings relating to legal separation continuing in Italy resulting in the English court being second seised, or was it on some other basis?
In addition, it became clear during the hearing that the substantive question raised by the appeal was not, as it had appeared to me from the papers, whether the judge had been entitled to conclude that the Italian court was first seised, because judicial separation proceedings were continuing in Italy, or whether he should have directed the parties to obtain expert evidence before determining that issue. Rather, the issues raised by the parties are as follows.
The wife's primary case is that the judge should have determined that the status aspect of the husband's Italian separation proceedings had been finally determined, leading to the English court being first seised with divorce proceedings because the wife's English petition preceded the husband's Italian divorce proceedings. It is only if this submission does not succeed that she advances the alternative argument that the judge should have directed that expert evidence be obtained for the purposes of deciding which court is first seised.
The husband's case is that the judge did not decide that the Italian court was first seised. Rather, it is his case that the judge decided simply that it was for the Italian court to determine whether it was first seised and that the English court should defer to that court's decision.
The wife is represented in this appeal by Mr Scott QC, who did not appear below. The husband is represented by Mr Cusworth QC, who did, and Mrs Bailey-Harris, who did not.
Background
The parties married in 2004. They are both Italian nationals. The husband issued judicial separation proceedings in Italy on 4 th May 2012. In Italy, judicial separation proceedings were then, at least in the circumstances of this case, a necessary first step to a divorce. On 14 th March 2018, the Court of Cassation dismissed the wife's appeal from the separation order which had been made by the Italian court on 4 th December 2015.
The husband then commenced divorce proceedings in Italy on 15 th March 2018. By this date the wife had commenced divorce proceedings in England. There are, in fact, two petitions, the first dated 16 th January 2018 and the second, for which permission was granted, dated 7 th March 2018. The first petition has never been served on the husband. The second petition was served on him in April 2018.
The wife has applied for the stay or the dismissal of the husband's divorce proceedings in Italy on the basis, perhaps among other points, that the Italian court is second seised. This was due to be heard on 6 th November 2018 but that hearing was adjourned because the wife was unwell. The hearing took place on 13 th February 2019 and judgment was reserved.
At the hearing of this appeal, the parties were not agreed as to what had taken place at the hearing in Italy on 13 th February, nor what issues any judgment would determine, nor when judgment might be given. Since the hearing before us, the court in Florence has given its decision. An agreed translation has been provided. It appears from this that the court has made no substantive determination in respect of the wife's application. The judge has appointed himself as the “investigating judge” and fixed “the date of the hearing before him for the appearance of the parties and the discussion on 17 December 2019”.
The husband applied for a stay of the wife's English divorce proceedings. The parties jointly requested that these proceedings be allocated to a High Court judge. In support of this request, the wife summarised her case as being that her English divorce petition was first in time. The husband summarised his case as being that the prior judicial separation proceedings “means that the Italian court has seised jurisdiction for not only the separation proceedings but also the divorce proceedings”.
A consent order was made on 10 th July 2018 which contained the following recital:
“Upon the applicant having invited the respondent to agree the instruction of a single joint expert on Italian law to answer the following question and the respondent having confirmed that he wishes this to be determined by the High Court, to be appointed in this case following the agreed transfer of this case …
“Is Article 5 of Brussels IIa engaged in this case, such that the Italian Court has jurisdiction to convert separation proceedings into those of divorce, or does Italian law treat this differently?”
The order also provided for a case management hearing in the High Court on 19 th November 2018.
Prior to that hearing, the wife's English solicitors again sought the agreement of the husband's solicitors to the instruction of an expert. His solicitors replied that directions about case management, including the appointment of an expert, would need to be dealt with at the case management hearing. This led to the wife making a formal application for the instruction of an expert which, by an order dated 2 nd November 2018, was listed for determination on 19 th November 2018.
On 13 th November 2018, the husband's solicitors informed the wife's solicitors that they would be inviting the court to stay the wife's proceedings.
The wife's position for the 19 th November hearing, as set out in her written submissions, was that the “only issue” before the court was the appointment of an expert. The wife contended that the husband's informal application for a stay was too late; was unparticularised; and would, in any event, require evidence including expert evidence on Italian law. The wife's understanding remained that the husband's case rested on Article 5 of BIIa.
In the husband's skeleton argument for the hearing on 19 th November 2018 it was submitted that the Italian court was first seised of matters within the scope of Article 19 and “was, and remains, validly seised of the separation proceedings which continue in Italy, and in which both parties are continuing to participate, specifically in relation to financial issues”. The husband acknowledged that the Italian court had made a separation order but argued that, because the judicial separation proceedings were continuing, the wife would need to establish that the lis pendens provisions in Article 19 did not apply. Reference was made to the case of A v B, Case C-489/14, [2016] Fam 345, [2016] 1 FLR 31 but it was argued that the circumstances of that case were different because of “the clear continuation of the Italian divorce proceedings” in the present case.
Mr Scott also relies on other aspects of the husband's skeleton for that hearing. In particular, when it was said that, while the wife's appeal to the Court of Cassation was pending, a “formal divorce petition could not be lodged”; and that, once her final appeal against the separation order had been dismissed, “a formal application for divorce could now be made”.
During the hearing of this appeal, both Mr Scott and Mr Cusworth spent some time analysing the nature of the parties' respective cases as advanced during the hearing before Francis J. This served to demonstrate, as is not uncommon in appeals, that the submissions made to us have not had the same focus as the submissions made at first instance. This is not to criticise counsel. It is largely the result of their cases adjusting to the terms of the judgment below. It does, however, help to explain the approach taken by Francis J.
In summary, it appears to me that the wife's case, as advanced in oral submissions before Francis J, was that it was clear that the separation proceedings in Italy were not continuing, having concluded with the Court of Cassation's dismissal of the wife's appeal from the separation order. The wife accepted that financial matters were still being dealt with by the Italian court but submitted that this was not relevant because such matters are not within the scope of BIIa. Alternatively, if the judge was in any doubt as to whether judicial separation proceedings were continuing in Italy, it was submitted that expert evidence should be obtained. It was also submitted that the judge should not stay the English petition because that might give the impression that he had decided that this court was not first seised.
In respect of the husband's case, it seems to me that he was submitting that it was, equally, clear that the separation proceedings were continuing such that there should be a “mandatory stay” of the wife's English petition. The Italian court remained seised. It was accepted that a divorce petition could not be issued until there had been a “declaration of separated status” but it was submitted that this did not mean...
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