Oliver Thum v Catja Marion Thum

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLady Justice King,Lord Justice David Richards,Lord Justice Moylan
Judgment Date12 Jul 2018
Neutral Citation[2018] EWCA Civ 624
Docket NumberCase No: B6/2016/4244

[2018] EWCA Civ 624

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM

Mr Justice Mostyn

High Court of Justice

Family Division

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lady Justice King

Lord Justice David Richards

and

Lord Justice Moylan

Case No: B6/2016/4244

Oliver Thum
(Appellant)
and
Catja Marion Thum
(respondent)

Mr Christopher Pocock QC and Mr Richard Castle (instructed by Farrer & Co) for the Appellant

Mr Martin Pointer QC/ Mr Stephen RubinQC andMrs Rebecca Carew Pole (instructed by Schillings International) for the Respondent

Hearing date: 15 th March 2018

Lord Justice Moylan

Introduction:

1

Article 16 of Council Regulation (EC) No 2201/2003 (“BIIa”) provides that:

“”

“1 A court shall be deemed to be seised:

at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; or

if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.”

Only sub-paragraph (a) is relevant in this appeal. The issues raised by this appeal are (i) what steps is a petitioner “required to take to have service effected” of a divorce petition issued in England and Wales for the purposes of Article 16 and (ii) whether the wife in this case has failed to take such steps.

2

The issues arise in the context of the wife's divorce petition having been issued in England on 26 th October 2015 and the husband's divorce petition having been issued in Germany on 20 th January 2016. The answers to those issues will determine whether the English court or the German court was first seised for the purposes of Article 19 of BIIa. I note, in passing, that the relevant time under Article 16 is, in fact, the time when the application is “lodged with the court”. However, nothing turns on this distinction in this case.

3

The respective dates of the petitions make plain how long these parties have already had the misfortune to be engaged in litigation to resolve what is only the preliminary question of which courts have jurisdiction to deal with their divorce. No doubt behind this preliminary conflict lie their competing views as to which courts will be more beneficial when determining the financial consequences of their divorce. However, this is an irrelevant consideration for the purposes of this appeal as we are concerned only with the question of which court has precedence because it was first seised.

4

The husband appeals from the order of Mostyn J of 21 st October 2016 dismissing his application seeking the stay or dismissal of the wife's petition on the basis that the English court was second seised. Mostyn J decided that the English court was first seised. He determined that the wife had not “failed to take the steps (she) was required to take to have service effected on the” husband and that, accordingly, pursuant to Article 16 the English court was seised when the wife lodged her petition here. As a result, the English proceedings were first in time and took precedence pursuant to the lis pendens provisions of Article 19 of BIIa.

5

The grounds of appeal, as advanced at the hearing, can be condensed into two:

(i) The judge's interpretation of the effect of the proviso in Article 16(1)(a) was wrong;

(ii) The judge was wrong to conclude that the wife had not failed to take the steps she was required to take to have service effected.

Background

6

The relevant factual background is as follows.

7

The husband and wife are both German. They married there in March 2001 and moved to live in London in 2009. They have two children. The marriage broke down in October 2015.

8

As referred to above, on 26 th October 2015 the wife's divorce petition was issued in England (“the English petition”). The wife took no steps to serve it on the husband until 19 th January 2016. The wife provided an explanation for this in a statement filed in the proceedings. She set out what she said were the “various factors” which had “led to delay in serving the petition” on the husband. I do not propose to set these out but the wife relied on them when refuting the husband's “suggestion” that the delay had been tactical. The judge made no findings about what had happened. Indeed, rightly in my view in the circumstances of this case, Mostyn J does not appear to have been invited to explore the reasons why the wife had acted as she did.

9

On 19 th January 2016 the wife's then solicitors sent the English petition to the Foreign Process Section of the High Court for service under Council Regulation (EC) No 1393/2007 (“the Service Regulation”). The husband's address for service was given as No 214 Kurfurstendamm, Berlin. This was, in fact, the address of the husband's business. His home address was No 215. The documents were returned on 22 nd January 2016 by the relevant German service authority with a certificate of non-service on the basis that “address unknown”. It appears, as set out in paragraph 10 below, that this was probably because the wife had given insufficient details. The wife had not given the name of the business and it appears that there were a number of units at No 214.

10

Under the relevant German law service can be effected at any address where “there is a serious chance that service can be effected duly” (informal translation from the expert report obtained in these proceedings). The German Federal Court of Justice has held that, when the service is being effected by the court, sufficient details must be provided to enable the court to serve the document. Accordingly, to quote from the expert report, “it appears not to be sufficient if the applicant specifies only the name of the respondent and the address of the establishment … without indicating the establishment where the addressee works (eg name of company) and the professional function of the addressee within the establishment”.

11

The husband was personally served with the English petition on 27 th February 2016 when he was in England. This was, as the judge noted, just over four months from the date of issue.

12

The husband commenced divorce proceedings in Germany on 20 th January 2016. These proceedings were served on the wife on 3 rd March 2016.

13

It is not in dispute that the husband took all the steps required by German law. The focus of this appeal is on the wife's actions and whether, as a result, the proviso is engaged in respect of the English petition leading to the German court being first seised with divorce proceedings.

Mostyn J's Judgment

14

On 21 st April 2016 the husband issued his application seeking the stay or dismissal of the English petition on the basis that the German court was first seised. Each party filed statements.

15

The application was determined by Mostyn J after hearing submissions only.

16

In a concise judgment, Mostyn J determined that under Article 16 a court is seised when the proceedings are lodged. This can then be “defeated if it is later shown that the applicant failed to take the steps she was required to take to have service effected on the respondent”. The “required steps are those prescribed by the domestic law of the country in which the application was issued”.

17

He next considered the service requirements under English law which are set out in the Family Procedure Rules 2010 (“FPR”). He noted that r.7.8 contains no time limit for service and merely requires that a copy of the petition “must be served on the respondent”. Mostyn J noted that this contrasts with the rule applicable to service of a claim form under Civil Procedure Rules 1998 (“CPR”) r.7.5. This stipulates that service within the jurisdiction “must” be effected within four months and out of the jurisdiction within six months. These time limits can be extended under CPR r.7.6.

18

Mostyn J considered that “a strategic petition which is filed and left to hibernate for years while parties carry on with their marriage is likely to be struck out as an abuse under FPR r.4.4(1)(b) or as disclosing no reasonable grounds under FPR r.4.4(1)(a)”. He then continued:

“… subject to that, it seems to me, rightly or wrongly, that the only formal requirement imposed by the law on a petitioner for divorce is to serve the petition at some unspecified point in the future. I agree with Gloster J that I cannot read the words “forthwith” or “as soon as possible” into rule 7.8. The furthest I would go would be to infer a requirement of acting reasonably promptly and that promptitude should be informed in a broad way by the (extendable) time limits in CPR r.7.5”.

19

In the absence of any specified time for service, Mostyn J decided that the wife had not “failed” to take any required step. The error given in the address for service on the husband in Germany, “if indeed it was an error (was) not one that can be said to demonstrate that the wife had failed to take steps required of her within the terms of Article 16”. He further concluded that the wife had acted with “reasonable promptitude” and dismissed the husband's application.

The Legal Framework

20

The relevant provisions of Article 16 are set out above. Article 19 provides:

“1. Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established …

3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of...

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2 cases
  • Thum v Thum
    • United Kingdom
    • Family Court
    • 16 April 2019
    ...1 All ER 555, [2010] 2 FLR 814. Thum v Thum[2016] EWHC 2634 (Fam), [2017] 1 FCR 69, [2016] 4 WLR 171, [2017] ILPr 14. Thum v Thum[2018] EWCA Civ 624, [2018] 3 FCR 568, [2019] 2 WLR 127, [2019] 1 FLR Tibbles v SIG Plc[2012] EWCA Civ 518, [2012] 1 WLR 2591, [2012] 4 All ER 259, [2012] CP Rep ......
  • Mb v Tb (Jurisdiction: Divorce: Court First Seised)
    • United Kingdom
    • Family Division
    • Invalid date
    ...both of service and of potential abuse of process. The case was adjourned until after judgment had been handed down in Thum v Thum[2018] EWCA Civ 624; in that case the Court of Appeal confirmed that FPR r 7.8 contained no requirement that a petition must be served within a stipulated period......
1 firm's commentaries
  • Jurisdiction And Applicable Law In Divorce: How To Secure, How To Defend
    • United Kingdom
    • Mondaq UK
    • 1 November 2018
    ...can be made to show that the applicant had not met one of the criteria needed to file for divorce but the recent cases of Thum v Thum [2018] EWCA Civ 624 and MG v MG [2018] EWHC 2035 (Fam) show that delay of service of a petition is unlikely to be sufficient for the English Court to decline......

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