Mandy Gray v Hamish Hurley
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson |
| Judgment Date | 12 December 2019 |
| Neutral Citation | [2019] EWCA Civ 2222 |
| Date | 12 December 2019 |
| Docket Number | Case No: A2/2019/2023 |
| Court | Court of Appeal (Civil Division) |
[2019] EWCA Civ 2222
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT QUEEN'S BENCH DIVISION
Mr Justice Lavender
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Patten
Lord Justice Hickinbottom
and
Lord Justice Peter Jackson
Case No: A2/2019/2023
Jonathan Cohen QC & Marc Delehanty (instructed by Grosvenor Law) for the Appellant
The Respondent did not attend and was not represented
Hearing date: 3 December 2019
Approved Judgment
Lord Justice Peter Jackson (giving the judgment of the Court):
Summary
This is an appeal from the refusal of an anti-suit injunction.
Article 4(1) of Regulation (EU) No 1215/2012 of the European Parliament and Council of 12 December 2012 (“the Judgments Regulation”) provides that:
“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”
In this case, two issues arise about the interpretation of this provision:
(1) As a matter of law, does Article 4(1) oblige the court to grant an anti-suit injunction to prevent the respondent from litigating against the appellant in a third (non-EU) State?
(2) If not, was the Judge wrong to treat Article 4(1) as irrelevant when deciding whether or not to grant the injunction?
Following a hearing on 3 December 2019, we have concluded that the meaning of Article 4(1) and its applicability in this case is not acte clair and we shall therefore stay the appeal proceedings and request the Court of Justice to give a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union. The questions to be referred are:
(1) Does Article 4(1) confer a directly enforceable right upon a person domiciled in a Member State?
(2) If it does,
(a) Where such a right is breached by the bringing of proceedings against that person in a third State, is there an obligation upon the Member State to provide a remedy, including by the grant of an anti-suit injunction?
(b) Does any such obligation extend to a case where a cause of action available in the courts of a third State is not available under the law applicable in the courts of the Member State?
In this judgment, we explain our reasons for seeking the preliminary ruling. It is also necessary for us to decide a prior question raised by the appellant, who submits that both the Judge and this court are bound by previous decisions of this court to grant the injunction. We do not accept that submission for the reasons given below.
Background
This is to be found in two judgments given by Lavender J in proceedings brought in the Queen's Bench Division by Ms Mandy Gray, the appellant, against Mr Hamish Hurley, the respondent. The first judgment, given on 25 June 2019, set out the facts in detail, rejected a challenge by Mr Hurley to the court's jurisdiction, and disposed of a range of case management issues: [2019] EWHC 1636 (QB). The second, given on 23 July 2019, contains the Judge's ruling on the anti-suit injunction issue: [2019] EWHC 1972 (QB).
The facts can be shortly stated. Ms Gray was until 2014 a United States citizen. In 1995 she married Randy Work, a successful investment manager. After periods living in Japan and Hong Kong, they moved to London in 2008. In 2013, they separated and in 2015 they divorced. There were heavily contested financial proceedings, from which Ms Gray emerged with half of the matrimonial assets, her share amounting to some US$120 million: Gray v Work [2015] EWHC 834 (Fam), a decision upheld on appeal: Work v Gray [2017] EWCA Civ 270.
Mr Hurley is a New Zealand citizen who was born and educated in New Zealand. He married in 1997 and came to live and work in England in 2002 with his wife. In 2008 they separated and in 2014 they divorced.
In 2009, Ms Gray met Mr Hurley in London, where he worked as a physical therapist. In March 2013, they began a romantic relationship that lasted until January 2019.
During the relationship, the couple pursued a lavish international lifestyle funded entirely by Ms Gray. They spent more time abroad than in the UK and they each acquired Maltese citizenship in February 2017. The following assets (and others not the subject of legal proceedings) were acquired using Ms Gray's money but were held either in joint names or in Mr Hurley's sole name or in corporate names:
(1) A property in Italy costing €9.5 million upon which a further €9 million was spent on restoration and renovation.
(2) A farm in New Zealand costing NZ$25 million.
(3) Four sports cars in Switzerland costing over €11million.
(4) Deposits on two further cars at between €0.5 million and €1 million for the first and CHF 30,000 for the second.
(5) Business investments totalling US$9.1 million.
In January 2019, Ms Gray ended the relationship. She changed her will, cancelled Mr Hurley's credit cards, and closed their joint accounts.
The litigation
In February 2019, Ms Gray's solicitors began to assert her rights to the assets listed above in correspondence to Mr Hurley and his solicitors.
On 25 March, Mr Hurley began proceedings in New Zealand seeking an order under the Property (Relationships) Act 1976 which applies to qualifying co-habiting couples following the end of a relationship. It distinguishes between ‘relationship property’ and ‘separate property’. It provides for the division of ‘relationship property’, with a presumption of a half share. Mr Hurley's claim as pleaded covers the listed assets and other assets purchased during the relationship, such as a yacht and artwork.
On 26 March, Ms Gray issued proceedings in the High Court in England seeking a declaration that she was entitled absolutely to the listed assets, or that they were held on resulting trust, or for restitution by reason of undue influence.
At the same time Ms Gray obtained an order for alternative service from Master Cook pursuant to which she served the High Court Claim on Mr Hurley via WhatsApp message and by other means. Service was deemed to have taken place on 28 March.
There followed a welter of applications by both parties:
(1) On 9 April, Ms Gray issued an application for a proprietary injunction restraining Mr Hurley from dealing with the listed assets, and
(2) for an anti-suit injunction restraining Mr Hurley from pursuing the New Zealand Proceedings.
(3) On 24 April, Mr Hurley issued an application challenging the jurisdiction of the High Court to determine the dispute, and
(4) seeking to set aside the order for alternative service.
(5) On 30 April, Ms Gray issued a cross-application seeking leave to serve the High Court Claim out of the jurisdiction.
(6) On 3 May, Mr Hurley issued an application seeking to adjourn the various applications and for various case management directions to be given.
On 8 May, the various matters came before the court, when they were adjourned for a short time.
On 11 June, the matter came before Lavender J. He heard Mr Hurley's jurisdiction challenge together with Ms Gray's cross-application, and adjourned the other matters until a ‘consequentials hearing’ at which he would hand down judgment on the jurisdiction challenge.
On 17 June, Mr Hurley issued an application seeking to stay the English proceedings pursuant to the lis pendens provisions in Article 34 of the Judgments Regulation. He subsequently abandoned this application and it was dismissed.
On 25 June, the consequentials hearing took place. The Judge handed down his first judgment dismissing Mr Hurley's jurisdiction challenge and made orders reflecting that decision. He then heard Ms Gray's anti-suit application, and ordered that a further consequentials hearing would take place at which he would hand down judgment on that issue. He accepted undertakings from Mr Hurley that he would not pursue the New Zealand Proceedings until the further consequentials hearing. He made no order on Ms Gray's proprietary injunction application, accepting Mr Hurley's undertakings that he would not deal with the listed assets in any way until judgment in the action or further order of the court.
By way of digression, we note that one of Mr Hurley's arguments was that the Judgments Regulation does not apply in this case because Article 1(2)(a) excepts:
“… rights in property arising out of matrimonial relationship or out of a relationship deemed by the law applicable to such a relationship to have comparable effects to marriage.”
The Judge did not agree. He referred to the Rome II Regulation ( Regulation (EC) No 864/2007), which contains an equivalent provision to Article 1(2) and which, by Recital 10, states that the exception:
“should be interpreted in accordance with the law of the Member State in which the court is seised.”
The Judge accepted the argument of Ms Gray that the applicable law is English law and that as English law does not deem a relationship of this kind to have comparable effects to marriage, the exception did not apply. The alternative approach would have been for English law to treat New Zealand law as “the law applicable to such a relationship”. There has been no appeal from the Judge's ruling on this issue, or indeed from any other aspect of the first judgment, and we express no view about the correctness of the conclusion on this issue.
What is of relevance is that in the first judgment the Judge determined the issue of the parties' domicile for the purposes of Article 4. He found that Ms Gray was domiciled in England. Mr Hurley's case was that he was, and always had been, domiciled in New Zealand. The Judge however found that there was a good arguable case for Mr Hurley being domiciled in England up to January 2019 but that by 26 March 2019 he was no longer resident or domiciled here. It was however his last...
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