Mittal v Mittal
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Jackson,Lord Justice Rimer |
| Judgment Date | 18 October 2013 |
| Neutral Citation | [2013] EWCA Civ 1255 |
| Docket Number | Case No: B6/2012/3098 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 October 2013 |
[2013] EWCA Civ 1255
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
Mr Justice Bodey
FD11D06323
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Rimer
Lord Justice Jackson
and
Lord Justice Lewison
Case No: B6/2012/3098
Mr J Turner QC & Ms K Chokowry (instructed by Dawson Cornwell, London) for the Appellant
Mr T Amos QC & MR D Brooks (instructed by the The International Family Law Group LLP, London) for the Respondent
Hearing date : 10 October 2013
Introduction
Both the husband and the wife were born in India and are Hindu. They are both Indian nationals. Both of them live in India, as do their respective families. They were married in India in 2003 and their only daughter was born in India in 2004. Until October 2006 they lived together in India. In that month the husband came to this country, and his wife and daughter joined him in February 2007. They separated in September 2009; although the wife did not leave this country until August 2010, following an unsuccessful immigration appeal. Neither of them has any assets or income in England or Wales. Neither of them is in work. The wife has no entitlement under the immigration rules to be in this country; although the husband has indefinite leave to remain. On 31 August 2009 the husband began divorce proceedings against the wife in Uttar Pradesh in India. By October 2009, at the latest, the wife discovered the existence of those proceedings. Over two years later on 21 December 2011 the wife issued her own petition for divorce in England. At that time the husband was still living in England, but he returned to India in April 2012. It is not disputed that the courts in India have jurisdiction to determine the proceedings initiated by the husband and to make consequential financial orders. Nor is it disputed that the courts in India are willing to exercise their jurisdiction or that, if they do so, orders of the courts in India will be recognised in England.
In his judgment of 10 October 2012 Bodey J stayed the wife's English petition on the ground that India was the more appropriate forum to hear the proceedings ( forum non conveniens). His judgment is at [2012] EWHC 3841 (Fam) and is reported at [2013] 2 FLR 29. If he had the power to stay the wife's petition, there is no doubt in my mind that he was right to do so. The main question raised on this appeal is the narrow jurisdictional question: did the judge have the power to order a stay of the wife's petition? There was also a subsidiary question that concerned the wife's free-standing application for maintenance under section 27 of the Matrimonial Causes Act 1973, but that was abandoned in the course of the argument.
The wife's appeal was presented by Mr James Turner QC and Ms Katy Chokowry. The husband's case was presented by Mr Tim Amos QC and Mr Duncan Brooks. All counsel and solicitors were acting pro bono; and the court is especially grateful to them all for the depth of the legal research that they undertook and for the quality of their submissions, both written and oral.
For the reasons that follow, in my judgment the judge had the power to stay the wife's petition; and therefore the appeal should be dismissed.
The domestic jurisdiction
There are two possible statutory sources of an English court's jurisdiction to stay matrimonial proceedings:
i) Section 5 (6) of and Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 ("the DMPA 1973"); and
ii) Section 49 of the Senior Courts Act 1981.
Section 5 of the DMPA 1973 provides, so far as relevant:
"(2) The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if)—
(a) the court has jurisdiction under the Council Regulation; or
(b) no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun."
The Council Regulation in question is Council Regulation (EC) No 2201/2003, commonly known as Brussels II bis or Brussels II Revised ("BIIR"). Section 5 continues:
"(6) Schedule 1 to this Act shall have effect as to the cases in which matrimonial proceedings in England and Wales are to be, or may be, stayed by the court where there are concurrent proceedings elsewhere in respect of the same marriage, and as to the other matters dealt with in that Schedule; but nothing in the Schedule—
(a) requires or authorises a stay of proceedings which are pending when this section comes into force; or
(b) prejudices any power to stay proceedings which is exercisable by the court apart from the Schedule.
(6A) Subsection (6) and Schedule 1, and any power as mentioned in subsection (6)(b), are subject to Article 19 of the Council Regulation."
Schedule 1 paragraph 9 of the DMPA 1973 provides:
"(1) Where before the beginning of the trial or first trial in any matrimonial proceedings, other than proceedings governed by the Council Regulation, which are continuing in the court it appears to the court—
(a) that any proceedings in respect of the marriage in question, or capable of affecting its validity or subsistence, are continuing in another jurisdiction; and
(b) that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for the proceedings in that jurisdiction to be disposed of before further steps are taken in the proceedings in the court or in those proceedings so far as they consist of a particular kind of matrimonial proceedings,
the court may then, if it thinks fit, order that the proceedings in the court be stayed or, as the case may be, that those proceedings be stayed so far as they consist of proceedings of that kind.
(2) In considering the balance of fairness and convenience for the purposes of sub-paragraph (1)(b) above, the court shall have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being stayed, or not being stayed."
The words "other than proceedings governed by the Council Regulation" were introduced by statutory instrument made under the European Communities Act 1972 in order to comply with BIIR.
Section 49 (2) of the Senior Courts Act 1981 provides:
"(3) Nothing in this Act shall affect the power of the Court of Appeal or the High Court to stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings."
The Brussels Convention and the Judgments Regulation
The wife's argument is that the decision of the ECJ in Case C-281/02 Owusu v Jackson [2005] QB 801 [2005] 2 All ER (Comm) 577 applies to the present case, with the consequence that if the courts of England and Wales have jurisdiction to determine the wife's petition they must exercise it; and that there is no discretion to refuse to do so. In order to evaluate that argument it is necessary to consider what Owusu v Jackson decided and why; and also what it did not decide.
Mr Owusu rented a holiday villa in Jamaica from Mr Jackson. Both Mr Owusu and Mr Jackson were domiciled in England. While on holiday Mr Owusu suffered a serious accident for which he wished to recover compensation. He sued in England. The defendants were not only Mr Jackson but also three Jamaican companies. Mr Owusu's action in England was the only legal proceeding in existence. Mr Jackson and the Jamaican defendants applied to stay those proceedings, on the ground that Jamaica was a more convenient forum for the dispute. The question for the ECJ was whether that discretionary power was compatible with the Brussels Convention (which subsequently became the Judgments Regulation). The provision of the Convention in question was article 2 which provided:
"Subject to the provisions of this Convention, persons domiciled in a Contracting State shall, whatever their nationality, be sued in the courts of that State."
The Judgments Regulation explains its purpose in a series of recitals, of which the following need to be mentioned:
"(2) Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters and to simplify the formalities with a view to rapid and simple recognition and enforcement of judgments from Member States bound by this Regulation are essential."
"(11) The rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant's domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction."
"(15) In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in two Member States. There must be a clear and effective mechanism for resolving cases of lis pendens and related actions and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the...
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