Re Macartney. Macfarlane v Macartney (No 2)
| Jurisdiction | England & Wales |
| Date | 1921 |
| Court | Chancery Division |
Conflict of Laws - Foreign Judgment - Enforcement - Affiliation Order against deceased Father's Estate - Public Policy - Cause of Action unknown in England - Final and Conclusive.
A valid foreign judgment in personam cannot be enforced in England in (inter alia) the following circumstances:-
(a) If it is contrary to public policy — e.g., by recognizing the right of an illegitimate child to perpetual maintenance against the putative father and his estate.
(b) If the cause of action is unknown in England — e.g., the right to a posthumous affiliation order.
(c) If the judgment is not final and conclusive as to the amount payable — e.g., if the maintenance can be varied or terminated according to the child's circumstances.
CLAIM in administration action.
On February 15, 1913, the testator who was domiciled in England died in Malta, leaving a Maltese fiancee to whom he was to have been married on February 20 enceinte of a posthumous daughter who was ultimately born on September 19.
On May 1, 1914, the plaintiff, one of the executors, proved the will in England, on January 18, 1915, an administration decree was made, and on April 13, 1917, the assets were ordered to be lodged in Court.
A claim was made by the fiancée as a judgment creditor under a judgment of the Court of Appeal in Malta dated July 7, 1920.
The particulars of this claim were as follows:—
On November 7, 1916, the claimant obtained authority from the Maltese Court to institute proceedings on behalf of the infant against the testator's estate for a declaration of paternity and fixing of maintenance, and on February 6, 1917, Page was appointed curator to represent the testator's estate and he and the curator of an infant legatee were made defendants to the action — Citation No. 91 of 1917.
A preliminary plea to the jurisdiction was disallowed by the Court of first instance on January 11, 1918, and by the Court of Appeal on July 23, 1919.
On April 12, 1920, by which time the claimant was married to an Englishman living at Woolwich, the Court of first instance allowed the claim on the merits and fixed the child's maintenance payable to the claimant every six months in advance from the filing of the citation at 150 l. a year.
On July 7, 1920, the Court of Appeal declared that the infant was the natural daughter of the claimant and the testator and condemned the testator's estate to provide the infant with an alimentary allowance of 75 l. payable from six months to six months and to run from the filing of the citation, i.e., January 29, 1917.
On July 15, 1920, Adrian Dingli, an expert in Maltese law, advised on the jurisdiction and on the nature and effect of the first three judgments, and his opinion was accepted as applicable to the last Court of Appeal confirmatory judgment, which he had not in fact seen.
As to the jurisdiction he advised that art. 749 of the laws of organization and civil procedure of Malta laid down the causes subject to the jurisdiction of Maltese tribunals. They were (inter alia) causes concerning those persons wherever domiciled and of whatever nationality who had contracted an obligation towards a British subject, provided the judgment could be executed in Malta. In the present case the claimant was a British subject, the curator represented the estate of a British subject, and assets were deliberately retained in Malta so as to render at any rate partial execution of the judgment possible. The obligation on which the case was founded was one arising from a principle adopted by the Maltese law and was of a quasi-delictual character. The Court of Appeal on the jurisdiction point argued that in dealing with obligations of this character, the personal law of the defendant was immaterial, the lex loci actus being the only criterion. If the English Courts thought that jurisdiction was rightly assumed, he thought they would recognize the judgments as conclusive and binding.
As to the nature of the proceedings he explained that by Maltese law illegitimate children had a right to inquire into their parentage and the Court's judgment declaring a defendant the putative father carried with it financial consequences on which the Court pronounced. He was obliged to provide whatever was strictly necessary for the child's board, clothing and shelter estimated in accordance with the mother's social position. The obligation continued for the child's life and at the father's death bound the inheritance. The judicial investigation was not prevented by the previous death of the putative father, but the action could, as in the present case, be brought against the representatives of the estate. The obligation might be terminated if the father could show that the child was no longer in need of the provision — e.g., if a child adopted a calling producing a sufficient income, or if female married so that her husband became liable to maintain her.
As to the effect of the order of April 12, 1920, he said that execution could at once be levied on assets in Malta, but as to assets outside the jurisdiction the Maltese judgment must first be recognized as conclusive and binding by the Court of the country where those assets were situated. The child could not claim any definite assignment of any part of the testator's estate to guarantee future payments but the heirs — i.e., the holders of the inheritance — were jointly and severally bound to provide the pension, and the child might adopt measures of enforcement against all or any of them, and they should not take the risk of dispersing the assets without providing a sufficient...
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