Tan Sri Dr Khoo Peng v Pauline Siew Phin Chai
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur DBE,Lord Justice Burnett,Lady Justice Hallett |
| Judgment Date | 18 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1312 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 December 2015 |
| Docket Number | Case No: B6/2014/3616/CCFMF |
[2015] EWCA Civ 1312
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM FAMILY DIVISION of the HIGH COURT
MR JUSTICE BODEY
FD13D00747
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Hallett DBE
Lady Justice Macur DBE
and
Lord Justice Burnett
Case No: B6/2014/3616/CCFMF
Mr T Scott QC and Mr P Duckworth (instructed by Shakespeares Solicitors) for the Appellant
Mr R Todd QC and Mr N Yates (instructed by Vardags Solicitors) for the Respondent
Hearing dates: 20 October 2015
This appeal arises from the order of Bodey J on 17 October 2014 by which he refused the application of Kay Peng Khoo ("the husband") to stay the petition for divorce which Pauline Siew Phin Chai ("the wife") had issued in England. In reality, the arguments in the court below and before this court centre on ground of 'forum conveniens', but draw upon contentions of res judicata/issue estoppel and abuse of process in the light of judgments handed down in the husband's concurrent proceedings in the High Court and Court of Appeal in Malaysia. In summary the husband argues that:
(i) the Malaysian Courts decided that Malaysia was the proper forum for the parties' matrimonial dispute to be litigated;
(ii) the wife's proceedings in this jurisdiction amount to an abuse of process; and, in any event,
(iii) the judge should have stayed the wife's English proceedings pursuant to the Domicile and Matrimonial Proceedings Act 1973, section 5(6) and Schedule 1, paragraph 9.
Patently, there is a substantial degree of overlap between these grounds. If successful, the husband asks this court to stay the English proceedings, and order the repayment of monies paid under orders for maintenance pending suit and in respect of the wife's legal expenses.
Not surprisingly the factual chronology of the marriage in terms of the personal links of the parties to various countries and also the matrimonial litigation history to date has been subject to close analysis in the court below. Nevertheless, for the purposes of this judgment the, largely undisputed, facts can be set out in very short form. This is a long marriage of two Malaysian nationals, the husband now 76 and the wife 68. There are five adult children, two of them born in Australia, where the family resided between 1980 and 1989, before moving to Canada where the wife obtained citizenship in 2004. In 2008 the husband suffered a stroke and he and the wife returned to Malaysia for about six months. In 1995 a large property was purchased in England, replaced subsequently in 2000 by a large estate, Rossway Park, in Berkhamstead, where the wife was found to have been habitually resident since 2012, and with whom the youngest child, who has a disability, resides and is likely to continue to do so. The husband is a successful and immensely wealthy businessman based in Malaysia with international commercial interests, albeit directed from the head office of holding companies in Kuala Lumpur, of which he is essentially the sole shareholder. Significantly, the husband no longer challenges the jurisdiction of the English court to entertain the petition on the basis of what Bodey J found to be the wife's habitual residence.
The relevant litigation history needs more detailed reference to give context to later parts of this judgment. The wife issued a petition for divorce on 14 February 2013 claiming domicile in England and Wales. On 18 February 2013 she successfully applied ex parte for non molestation and occupation orders in respect of Rossway Park. On 25 February 2013 she amended her petition to claim jurisdiction based on 12 months residence or, alternatively, at least six months residence and domicile. On 27 February 2013 the husband acknowledged service disputing jurisdiction by virtue of the wife's domicile and on the same day issued an application in Malaysia seeking a waiver of the necessity to embark upon a reconciliation process prior to issuing a divorce petition there. On 28 February 2013, the husband issued an application in England to strike out the wife's petition for want of jurisdiction and seeking transfer to the High Court, amended on 4 March to dispute not only the wife's domicile but also her assertion of residence. On 5 March 2013 the wife applied to strike out the husband's strike out application and on 19 March 2013 for a 'Hermain' injunction, ( Hermain v Hermain [1988] 2 FLR 388) seeking to prevent the husband litigating his application in Malaysia. On 3 May 2013 the wife applied for a stay of the husband's proceedings in Malaysia pending the disposal of the English proceedings. On 10 June 2013 the husband issued an application in England for stay of the wife's petition pursuant to section 5 and Schedule 1, paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973 and under the inherent jurisdiction of the court. On 24 June 2013 the wife applied to issue a further petition, which was listed before Coleridge J on 4 July 2013.
The wife's application to issue a second petition was adjourned "part heard" with directions given as to the filing of evidence. Specifically, Coleridge J refused the wife's oral application to restrain the husband from progressing his divorce suit in Malaysia in the interim albeit, in a recital to the order, inviting the Malaysian courts "in the meantime…to consider not taking any steps or make any orders in those proceedings that may prejudice the wife's application in these proceedings."
Nevertheless, directions and case management hearings were held in Malaysia in July and August 2013. The hearing of the husband's application a for waiver of the preliminary reconciliation process and the wife's application for a stay was heard by Judge Noraini in the Malaysian High Court on 8 November 2013. The wife was represented throughout. Judgment was handed down on 11 December 2013. In short the wife's application for a stay was refused. The husband's application to issue a petition, absent the parties' participation in a reconciliation process was granted. He issued proceedings immediately. The wife appealed. She was granted a stay of Judge Noraini's order until 11 March 2014.
On 8 January 2014 the husband applied for an order pursuant to section 49(3) of the Senior Courts Act 1981 that the wife's petition, as amended be stayed indefinitely or, in the alternative, struck out on the basis of the principle of international comity, supported by considerations of proportionality and the appropriate allocation of court resources. Directions were sought and given in England in the wife's outstanding application for a 'Hermain' injunction.
The wife's appeal in the Malaysian proceedings was heard in March 2014, and judgment was given on 22 April 2014. She succeeded in part. The Malaysian Court of Appeal (a) set aside the findings made in the High Court that the wife was domiciled in Malaysia and that therefore the Malaysian Courts had jurisdiction in the divorce proceedings; (b) remitted the husband's originating summons for dispensation of preliminary reconciliation process; but (c) refused her appeal in relation to her application for a stay of the husband's proceedings in Malaysia. Consequent applications for permission to appeal to the Federal Court of Malaysia by both husband and wife have been refused.
On 1 May 2014 after a contested hearing Holman J ordered, amongst other things, that upon the wife's undertaking to issue a fresh petition, the petition dated February 2013 be dismissed without any adjudication on the merits or jurisdiction. The fresh petition was issued on 7 May on the basis of habitual residence for 12 months prior to issue of the petition or residence of six months and domicile. The husband acknowledged service on 15 May, repeating his challenge to the jurisdiction. The 'jurisdiction' hearing took place over ten days and culminated in the order of Bodey J now under appeal. The husband appeared by video link. Both husband and wife gave evidence and were each represented by leading and two junior counsel. Bodey J gave two judgments (now reported at [2014] EWHC 3518 and 3519 (Fam)): the first after a preliminary argument concerning res judicata and abuse of process; the second in relation to arguments on forum.
Notice of Appeal was served on 7 November 2014 against the order refusing the husband's application for stay and/or debar as indicated above. Permission to appeal was granted by the single judge on 6 January 2015. A Respondent's Notice was served on 21 January 2015 seeking to uphold the judgment on different or additional grounds, "namely the arguments advanced on behalf of the respondent wife but which were rejected by Mr Justice Bodey". Those grounds asserted issue estoppel on the basis of the hearing before Holman J, challenged the competent jurisdiction of the Malaysian courts, contended that the husband's Malaysian petition was a nullity and that Bodey J had erred in law in his restricted interpretation of the exercise of his discretion pursuant to the relevant parts of the Domicile and Matrimonial Proceedings Act 1973. On 9 March 2015 the wife applied for conditions to be applied to the grant of permission so as to ensure her continued maintenance and funding of the ongoing litigation.
I have not made reference to all the applications that have been made and all the court hearings that have taken place in the course of the concurrent matrimonial proceedings in two jurisdictions, but the number and nature of those indicated above will found the distinct and proper conclusion that all have been fervently...
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