Tan v Choy
| Jurisdiction | England & Wales |
| Judge | Lady Justice Macur DBE,Lord Justice Aikens,Sir Brian Leveson P |
| Judgment Date | 19 March 2014 |
| Neutral Citation | [2014] EWCA Civ 251 |
| Docket Number | Case No: B6/2013/0682 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 March 2014 |
[2014] EWCA Civ 251
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY (FAMILY DIVISION)
HHJ HOROWIZ QC
FD12D00093
Royal Courts of Justice
Strand, London, WC2A 2LL
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
( Sir Brian Leveson)
Lord Justice Aikens
and
Lady Justice Macur DBE
Case No: B6/2013/0682
Mr James Turner QC & Mrs Rebecca Bailey-Harris (instructed by The International Law Group LLP) for the Appellant
Mr Timothy Bishop QC & Mr Stephen Trowell (instructed by Dmh Stallard LLP) for the Respondent
Hearing dates: 28 January 2014
Council regulation (EC) No 2201/2003 (Brussels II) concerns "jurisdiction….in matrimonial matters". This appeal concerns the fifth indent of Article 3(1) (a) which provides that "[i]n matters relating to divorce… jurisdiction shall lie with the courts of the Member State (a) in whose territory… the applicant is habitually resident if he or she has resided there for at least a year immediately before the application was made".
The plethora of documents filed in the several bundles, an extraneous application to admit "new" evidence, the length of the skeleton arguments produced (even when reduced in compliance with the direction of the President of the Queen's Bench Division to accord with PD 52C para 31(1)(a) which is reflected in the views of Moore Bick and Aikens LJJ in Standard Bank v Via Mat International [2013] EWCA Civ 490) and the time estimate given would suggest a far greater ambit to this appeal than is actually the case. As it was the hearing was disposed of within half a day.
In short, the husband wishes to litigate matrimonial matters arising from the impending dissolution of his marriage in England; the wife wishes to litigate in Malaysia.
The wife appeals against the order of HHJ Horowitz QC, sitting as a High Court Judge, sealed on 12 March 2013 which dismissed her application for (i) a reference to the Court of Justice of the European Union ("CJEU"); (ii) dismissal of the husband's petition; alternatively, (iii) a stay of the husband's petition. She also appeals the order that she shall make a payment of £100, 000 on account of costs.
The order arises from the judge's affirmative decision as to the husband's habitual residence and his determination of forum conveniens being in England and Wales. He did not consider that the law and/or facts of the case required clarification by ruling of the CJEU.
The "outline history" of the parties and the marriage recorded in paragraphs 74 to 100 of the judgment at first instance in fact contains extensive domestic detail. (This is not a critical comment; rather I consider it reflects the great care taken by the judge to assimilate the background which necessarily forms the context of the husband's claim of habitual residence in England and Wales.) It is a redundant exercise to repeat it here. Cases involving disputed claim to jurisdiction are fact specific.
Where there were issues of fact the judge's adjudications are clearly articulated in paragraphs 101 to 139 of the judgment. It is not surprising that the majority of disagreement centred upon the relevant period of the twelve months preceding the filing of the husband's 'divorce' petition in London, namely January 2011 to January 2012. However, significantly, the judge found "of the two competing narratives, on the balance of probabilities, …[the husband's] account that he had elected divorce and was contemplating an end to the marriage consistently since September 2010 (emphasis added) more likely to be true."
There can be little doubt that the husband and wife each seek juridical advantage in relation to financial resolution proceedings which arise at the end of their marriage. This feature is commonplace in relation to matrimonial breakdown involving parties with several international property bases. The judge was obviously aware of this feature (see paragraph 154) and undoubtedly would have borne it in mind when assessing the evidence of the parties that formed the basis of his decision relating to the husband's habitual residence.
Paragraphs 24 and 25 of the appellant's replacement skeleton argument in support of the ten grounds of appeal contain the nub of the wife's appeal in respect of jurisdiction in these terms:
"24. In the domestic jurisprudence of England and Wales there has been a dispute as to whether the expression "resided", as used in the fifth indent (and in indents 2 and 6) is intended to encompass a different (and lesser) quality of residence than the concept of "habitual resident" that has already been used in the indent.
25. The judge in the present case sided with the view that the two expressions do mean something different, but nevertheless concluded that the husband had been "habitually resident" in England not only at the date of the institution of the divorce proceedings but throughout the whole of the preceding 12 months. Therefore, the dispute as to the possible difference in meaning between the two expressions is only relevant if (i) the judge misconstrued the meaning of the expression "habitually resident" itself: and/or (ii) erred in his conclusion that habitual residence during the whole of the relevant 12 months was made out on the evidence."
As to the first point, James Turner QC, on behalf of the wife, was specifically invited to specify what he divined to be the necessary features of "habitual residence" from the authorities. He did so in terms that there must be demonstrated in the subject matter's living arrangements in the location under consideration : (i) a permanence or stability, not temporary or intermittent; (ii) the centre of his/her interest; (iii) exclusivity of such circumstances; that is to possess but one habitual residence.
This accords entirely with the judge's identification of "the common core of interpretation of the term habitual residence ….broadly the centre of interests test" as 'distilled' from Marinos [2007] 2 FLR 1018 at paragraphs 21 to 25 which the judge considered "persuasive and authoritative" and as applied previously and subsequently in respective relevant context by the authorities. I agree.
Consequently, I struggle to find any point in Mr Turner's written or oral submissions which demonstrates that the judge at first instance did "misconstrue" the meaning of habitual residence for the purposes of Article 3(1) (a). His reference to jurisprudence dealing with the concept in other fields and jurisdictions and to the academic debate on the topic is discursive. He postulates hypothetical factual scenarios to test the concept but fails to undermine or to challenge the judgment in this regard.
As to the second point, Mr Turner recognised the difficulty inherent in challenging the primary findings of fact made. Patently, he does challenge the evaluation/interpretation of those findings of fact, albeit he seemed disinclined to acknowledge the same during his oral submissions. However, he did so by reference to factors which he contended had been inadequately or inaccurately appraised.
I found his arguments on this score to be undermined by a conspicuous failure to cross reference them to and balance them against the findings actually made by the judge in his appraisal of the relevance of issues to the question to be determined. Further, I considered the facts that he submitted had been left out of account were obviously those which had been interpreted by the judge below in a different way to that which he, Mr Turner, had contended for on behalf of the wife.
In accordance with the judgments in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, it is necessary for this court to ask itself whether the judge's evaluation of the facts is wrong (see paragraphs 44, Lord Wilson JSC and 110, Lord Kerr JSC). In doing so I would regard the value judgment to be made by a first instance judge in determining habitual residence to be entirely dependent upon the primary facts and his impression of the reliability of the spouse seeking to establish habitual residence in expressing his/her sense of exclusive and stable centre of interests. That is, the benefit of "hearing the witnesses and watching the evidence unfold will result in the trial judge having a particular advantage over an appellate tribunal…" (see paragraph 60, Lord Neuberger PSC).
Mr Bishop QC, whom we did not call upon, in his written skeleton argument emphasises "the unrivalled vantage point" of the judge at first instance to adjudicate upon the evidence. I agree that he had such an advantage and clearly demonstrates the same in his observations of the demeanour of the husband and wife both when giving evidence and listening to the other do so.
The judge found the primary facts and was entitled to assess relevance and weight in informing his decision as to the husband's habitual residence. That he chose one interpretation of those facts over another does not make it wrong in the absence of a verifiable misconstruction of the evidence whether by factual mistake or omission to take into account material information that indisputably undermines the essential premise. Mr Turner's arguments are simply incapable of displacing the findings made.
Mr Turner, in his efforts to persuade this court and the court below to refer a question to the CJEU, concentrates on the conflicting obiter dicta at first instance garnering academic debate and opinion, the inability to transpose the decisions of the Supreme Court and CJEU relating to habitual residence of...
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