Jkn v Jcn
| Jurisdiction | England & Wales |
| Judgment Date | 2010 |
| Neutral Citation | [2010] EWHC 704 (Fam) |
| Year | 2010 |
| Date | 2010 |
| Court | Family Division |
Divorce – Conflict of laws – Stay of proceedings – Forum non conveniens – American-born husband and wife living in UK for duration of marriage – Wife returning to New York – Husband planning to follow – Marriage breaking down – Wife filing divorce petition in UK – Husband issuing summons for divorce proceedings in New York – Husband applying to English High Court for stay of wife’s petition – Whether High Court having jurisdiction to grant stay – Whether stay should be granted – Domicile and Matrimonial Proceedings Act 1973, Sch 1, para 9 – Council Regulation (EC) 44/2001, art 2 – Council Regulation (EC) 2201/2003, art 3.
The husband and wife, who were American-born, lived in London from the date of their marriage in 1996 until 2008. They and their four children had dual United Kingdom and United States nationality. In July 2008, the wife and the children moved to New York, where the children commenced full-time education. The husband was to follow when his job was transferred. After a period of counselling, and following the husband’s involvement in a relationship with another woman, the marriage broke down. On 20 May 2009, the wife issued a divorce petition in the UK and applied for maintenance. On 5 June, the husband issued a summons for divorce proceedings in New York. He subsequently filed an acknowledgement of service stating that he did not intend to defend the UK proceedings and that New York was the appropriate forum, and applied to the High Court for a stay of the UK proceedings. In July, he moved to New York. The central issue which arose on the husband’s application for a stay was whether the High Court was prevented from exercising its discretionary jurisdiction to stay the English divorce proceedings by the operation of art 3 of Council Regulation (EC) 2201/2003 (BIIR) and the case of Owusu v Jackson (t/a Villa Holidays Bal-Inn Villas) Case C-281/02 [2005] 2 All ER (Comm) 577 (Owusu). Owusu concerned art 2 of Council Regulation (EC) 44/2001 (Brussels I), which provided: ‘(1) … persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State’. In that case, the Court of Justice of the European Communities ruled that an English court was not entitled to stay personal injury proceedings, arising out of an accident in Jamaica, which had been brought by an English claimant against a number of defendants, most of whom were based (ie domiciled) in Jamaica. The court held that, since art 2 was mandatory and Brussels I contained no express exception relating to forum non conveniens, it was not open to a court of a contracting state to decline
jurisdiction conferred on it by art 2 on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other contracting state was in issue or the proceedings had no connecting factor with any contracting state. The wife argued, inter alia, that the Owusu doctrine applied to BIIR, with the result that the court’s discretion to order a stay on principles of forum non conveniens, in accordance with para 9 of Sch 1 to the Domicile and Matrimonial Proceedings Act 1973, was no longer available. The husband submitted that a key aspect of the decision in Owusu was that there were no competing proceedings in Jamaica, which meant that Owusu did not address the position which arose under the 1973 Act where, by definition, there were concurrent proceedings. Accordingly, he contended that Owusu was not binding in the instant circumstances and that a major question left open by the European court was whether its reasoning should be extended to cover a situation where there were competing proceedings in a non-member state.
Held– (1) It was neither necessary nor desirable to extend the Owusu principle to cases where there were parallel proceedings in a non-member state. To do so would undermine the objectives of the Brussels scheme, namely avoiding irreconcilable judgments between member states and ensuring recognition of judgments between member states. It would lead to an undesirable lacuna, there being no mechanism in place for resolving such a situation, with the consequence of both proceedings continuing (with consequent increased uncertainty and cost). The reasoning underpinning Owusu was not incompatible with retaining the discretionary power to grant a stay where there were parallel proceedings in a non-member state. It did not undermine certainty for the defendant (as he would be bringing the proceedings in a non-member state); the claimant would have knowledge of the proceedings in the non-member state and it was likely to be in his interests to have one set of proceedings rather than two (the latter would happen if the Owusu doctrine was extended); and there would be less risk of irreconcilable judgments given in member states which were not recognised in another member state. In any event, even if the court was wrong on that conclusion, it remained unnecessary and undesirable for the Owusu doctrine to be extended to BIIR; there was no direct connection between Brussels I and BIIR and, whilst the court could look at one regulation to interpret the other where their language was identical, the respective provisions were different in a number of material respects. Authority made clear that forum non conveniens was not an anathema to BIIR. For those reasons, the court retained the judicial discretion to grant a stay in the instant case (see [149], below); Re I (a child) (contact application: jurisdiction)[2010] 1 FCR 200 and dicta of Jacob LJ in Lucasfilm Ltd v Ainsworth [2010] 3 All ER 329 at [111], [129], [134] applied; Owusu v Jackson (t/a Villa Holidays Bal-Inn Villas) Case C-281/02 [2005] 2 All ER (Comm) 577 distinguished.
(2) For the court to grant a stay, it was established that the husband had to demonstrate that there was another available forum which was clearly or
distinctly more appropriate than the English forum. If he did so, the stay would ordinarily be granted unless there were circumstances by reason of which justice required that a stay should nevertheless not be granted. It was a two-stage test. The court had to consider the interests of both parties and the ends of justice. Accordingly, provided that substantial justice could be done in the available, more appropriate forum or in both forums, the court should not have regard to a particular juridical advantage for one party in one forum rather than the other. In the circumstances of the instant case, it was clear that New York was the more appropriate forum. The parties were living there; the fact that the husband had been lying to the wife about his extra-marital relationship at the time of the family’s decision to return to New York should not be determinative in exercising the court’s discretion when there were no plans to return to live in England. There was also an obvious physical ‘convenience’ in terms of the logistics of seeing lawyers and attending court, which outweighed the advantages of having legal teams up to full speed in the UK. Furthermore, there were factors relevant to maintenance variation applications which the New York court was better equipped to deal with in the short and long term, such as the cost and availability of accommodation. There were no compelling considerations of justice or fairness that required a contrary determination. The husband’s application would therefore be granted (see [154]–[156], [158]–[161], below); Spiliada Maritime Corp v Cansulex Ltd, The Spiliada [1986] 3 All ER 843 applied.
Cases referred to in judgmentArkwright Mutual Insurance Co v Bryanston Insurance Co Ltd [1990] 2 All ER 335, [1990] 2 QB 649, [1990] 3 WLR 705.
Berisford (S & W) plc v New Hampshire Insurance Co [1990] 2 All ER 321, [1990] 2 QB 631, [1990] 3 WLR 688.
Besix SA v Wasserreinigungsbau Alfred Kretzschmar GmbH & Co KG Case C-256/00 [2004] 1 All ER (Comm) 521, [2003] 1 WLR 1113, [2002] ECR I-1699, ECJ.
Catalyst Investment Group Ltd v Lewinsohn, ARM Asset-Backed Securities SA v Lewinsohn [2009] EWHC 1964 (Ch), [2010] 1 All ER (Comm) 751, [2010] Ch 218, [2010] 2 WLR 839.
Cook v Plummer[2008] EWCA Civ 484, [2008] 2 FLR 989.
Coreck Maritime GmbH v Handelsveem BV Case C-387/98 [2000] ECR I-9337, ECJ.
de Cavel v de Cavel Case 143/78 [1979] ECR 1055, ECJ.
de Dampierre v de Dampierre [1987] 2 All ER 1, [1988] AC 92, [1987] 2 WLR 1006, [1987] 2 FLR 300, HL.
Deutsche Bank AG v Sebastian Holdings Inc [2009] EWHC 3069 (Comm), [2010] 1 All ER (Comm) 808.
Ella v Ella[2007] EWCA Civ 99, [2007] 3 FCR 768, [2007] 2 FLR 35.
Equitas Ltd v Allstate Insurance Co [2008] EWHC 1671 (Comm), [2009] 1 All ER (Comm) 1137.
Erich Gasser GmbH v MISAT Srl Case C-116/02 [2005] 1 All ER (Comm) 538, [2005] QB 1, [2004] 3 WLR 1070, [2003] ECR I-14693, ECJ.
GIE Groupe Concorde v The Suhadiwarno Panjan (master) Case C-440/97 [1999] 2 All ER (Comm) 700, [1999] ECR I-6307, ECJ.
Global Multimedia International Ltd v Ara Media Services [2006] EWHC 3107 (Ch), [2007] 1 All ER (Comm) 1160.
Gomez v Gomez-Monche Vives [2008] EWHC 259 (Ch), [2008] 1 All ER (Comm) 973, [2009] Ch 245, [2008] 3 WLR 309.
Goshawk Dedicated Ltd v Life Receivables Ireland Ltd [2008] IEHC 90, Ir HC.
Goshawk Dedicated Ltd v Life Receivables Ireland Ltd [2009] IESC 7, [2009] ILPr 26, Ir SC.
Hadadi v Mesko Case C-168/08 [2009] All ER (D) 38 (Sep), ECJ.
Harrods (Buenos Aires) Ltd, Re [1991] 4 All ER 334, [1992] Ch 72, [1991] 3 WLR 397, CA.
I (a child) (contact application: jurisdiction), Re[2009] UKSC 10, [2010] 1 FCR 200, [2010] 1 All ER 445, [2010] 1 AC 319, [2009] 3 WLR 1299, [2010] 1 FLR 361.
J v P[2007] EWHC 704 (Fam), [2007] All ER (D) 529 (Mar).
Konkola Copper Mines plc v Coromin [2005] EWHC 898 (Comm), [2005] 2 All ER (Comm) 637; affd[2006] EWCA Civ 5, [2006] 1 All ER (Comm) 437.
Lacks v Lacks (1975) 50 AD 2d 785, NY SC (App Div); affd (1976) 41 NY 2d 71, NY Ct of Apps.
Lucasfilm Ltd v Ainsworth[2009] EWCA Civ 1328...
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