Moore v Moore
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe |
| Judgment Date | 20 April 2007 |
| Neutral Citation | [2007] EWCA Civ 361 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B4/2007/0393/FAFMI & B4/2007/0393(Y)PTAP |
| Date | 20 April 2007 |
[2007] EWCA Civ 361
Lord Justice Thorpe
Lord Justice Lawrence Collins and
Mr Justice Munby
Case No: B4/2007/0393/FAFMI & B4/2007/0393(Y)PTAP
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE FAMILY DIVISION
MR JUSTICE McFARLANE
FD04D04094
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr B Singleton QC Ms D Eaton & Mrs R Bailey-Harris (instructed by Withers LLP) for the Appellant
Mr L Marks QC & Mr S Leech (instructed by Charles Russell LLP) for the Respondent
Hearing date: 20 March 2007
I Introduction
This is the judgment of the court. The principal architect of the judgment has been Lawrence Collins LJ. He has also drafted the section of the judgment dealing with the EC Council Regulations and the conflict of laws. Munby J has dealt with the judge's exercise of discretion. Thorpe LJ has drafted the parts on the course of the litigation and the context in which McFarlane J conducted a four day hearing in the Family Division in January 2007.
The parties are in their mid-forties and seemingly very rich. Their relationship lasted over some 15 years although they only married on 22 October 1998. They have three children aged respectively 16, 10 and 7. In September 2003 the family emigrated to Spain, apparently to avoid United Kingdom tax. The marriage did not long survive the move. They separated in December 2003. We were told that the financial consequences of their separation were the subject of long negotiations and that there came a point at which the husband believed that an agreement had been reached, a belief apparently not shared by the wife.
The husband obtained a divorce in Spain and the proceedings in England have been concerned to date largely with the question of whether it is the Spanish court or the English court which should exercise jurisdiction to deal with the financial consequences.
By his judgment of 1 February 2007 McFarlane J confirmed the permission to the wife, granted by Baron J at a hearing without notice on 11 July 2006, to apply for orders for financial relief pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 (“the 1984 Act”). McFarlane J also dismissed the husband's application to set aside the permission granted to the wife by Baron J.
McFarlane J himself granted permission to appeal. In so doing he observed that the litigation was complex, it gave rise to novel points of law and that the wife had succeeded despite his provisional conclusion that she was a blatant forum shopper.
An extraordinary feature of the present case is the parties have spent about £1.5 million in legal fees, most of it in proceedings concerning the question whether the financial consequences of the divorce should be determined in Spain (as the husband contends) or in England (as the wife contends). Yet (as Mr Lewis Marks QC, counsel for the wife, emphasises) it is common ground between the parties, their Spanish lawyers and their eminent Spanish experts that, if the Spanish court were to take jurisdiction to determine these issues, it would apply English law. We do not know whether this lamentable and grotesque waste of family resources is the result of the intransigence of one or other of the parties or because the husband hopes, or has been advised, that the Spanish court, if seised, will misapply English law to his benefit. We asked Mr Barry Singleton QC, counsel for the husband, what advantage the husband might gain from litigating in Spain, but he was unable to give any positive answer.
There is another feature of this case which is disturbing and not, it would seem, uncommon, since something similar occurred in Bentinck v Bentinck [2007] EWCA Civ 175, another case in which enormous resources were going to be devoted to a sterile jurisdictional issue had this court not intervened. Despite the enormous financial and human resources put into the present litigation, the English lawyers (as we point out below) were not able to give the court an up-to-date assessment of the likely progress in the foreign proceedings. We think that it is elementary that in cases involving overlapping proceedings in different jurisdictions there should be someone on each team who is co-ordinating the proceedings and understands what is going on, and is able to inform both courts of the progress in the other jurisdiction.
II The litigation
On 22 June 2004 the husband filed his divorce petition in Marbella. The final matrimonial home lies within the jurisdiction of that court. It is not in dispute that if the financial consequences of divorce were not to be agreed, then the wife would prefer to have the decision of a London judge and the husband would prefer the decision of a Spanish judge. In those circumstances it is surprising that in his petition the husband did not invoke the financial jurisdiction of the Marbella court. He asserted:
“Both litigants having similar economic circumstances as well as each enjoying a substantial economic capacity, neither of them would be entitled to receive any economic benefit payable by the other.”
When, at the hearing before us, Mr Singleton was asked to explain the strategy underlying that pleading he said that he could only speculate that the Spanish lawyer must bear responsibility for what were to prove serious consequences.
On 24 June 2004 the wife issued her petition in London. The provisions of Council Regulation (EC) 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters etc (“Brussels II”) were then applicable since Council Regulation (EC) 2201/2203 (“Brussels IIbis” sometimes also called Brussels II Revised) came into force only on 1 March 2005. Brussels II of course gave primacy to the husband's petition since it was first in time. Accordingly on 14 July 2004 Dame Elizabeth Butler-Sloss P stayed the wife's petition, and ordered that it be dismissed on the grant of a divorce in Marbella.
On 29 October 2004 the wife filed her answer to the husband's Spanish petition. She did not seek financial relief, although asserting that the husband “should pay the money that corresponds to his situation. We shall deal with this point later on.” Of course it was both predictable and understandable that the wife would not invoke the jurisdiction of the Spanish court since her preference was for a London judge.
On 2 December 2004 the husband filed his reply in Spain and pleaded:
“In this case, [the husband] has not sought the recognition of any economic right vis-à-vis the wife and it has not been sought in the counterclaim, so the Court should declare unequivocally that neither of the spouses is entitled to any right of an economic nature vis-à-vis the other. … Rights of an economic nature: Both spouses agree that neither is entitled to any rights of an economic nature vis-à-vis the other. Although they could have sought such recognition, they have not done so.”
The husband's petition was listed for hearing in Marbella on 9 March 2006. We were told that both parties attended, as did their lawyers. The court documents in the Spanish proceedings record that during the proceedings the husband proposed to pay the wife £6 million in addition to such properties as were registered in her ownership. This was apparently the essence of the husband's final offer in negotiation which he believed had at some stage been agreed. The wife's lawyer requested the judge to suspend the hearing in order to enable her to consider the proposal fully. The application was coupled with a request for the continuation of the proceedings by consent. Article 770, in the section of the Spanish Law of Civil Procedure dealing with matrimonial proceedings, is the appropriate provision for cases that are contested, and Article 777 deals with matters proceeding by consent.
This request was refused on 15 March 2006. To family specialists in this jurisdiction, that seems surprising given the obligation on judges in the family jurisdiction to support wherever possible mediation and negotiation designed to achieve the prize of consensual disposal. The judgment was:
“…[The husband] proposed to [the wife], in conformity with English law, the payment of six million pounds and her maintaining the real properties which are in her name. [The wife] expressed her agreement, except in respect of that which related to the new financial proposal, soliciting suspension of the hearing to enable her to study the same. … I did not allow the new proposal of [the husband] since it had neither been included in the petition nor in the counter-claim. …The parties are to be served with this resolution, they being informed that the same is not final since an appeal against it may be filed in this Court within a period of 5 days of its service.”
It is difficult to understand the husband's reaction to the order of 15 March 2006. Instead of appealing the judge's refusal to become involved in the financial consequences of divorce, on 17 March 2006 he issued an application for a declaration that neither party was entitled to any economic settlement from the other as neither had requested a financial settlement in the pleading.
The wife's response of 24 March 2006 was the submission that the husband's application was incompatible with his financial offer during the hearing. She asserted that the question of assets remained open and should be dealt with in new proceedings. That plea demonstrates a degree of ambivalence as to her preferred jurisdiction.
On 24 April 2006...
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