Thyssen-Bornemisza v Thyssen-Bornemisza
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DUNN,LORD JUSTICE DILLON,LORD JUSTICE WALLER |
| Judgment Date | 08 November 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J1108-3 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0417 |
| Date | 08 November 1984 |
[1984] EWCA Civ J1108-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (INTERLOCUTORY LIST)
(MR JUSTICE EASTHAM)
Royal Courts of Justice,
Lord Justice Waller
Lord Justice Dunn
Lord Justice Dillon
84/0417
No. 5729 of 1983
MR L. HOFFMANB, Q.C., MR T. SCOTT BAKER, Q.C., and MR B.N. SINGLETON (instructed by Messrs. Norton Rose Botterell & Roche) appeared on behalf of the Appellant (Wife).
MR R. ALEXANDER. Q.C, MR R. JOHNSON, Q.C. and MR P. COLERIDGE (instructed by Messrs. Herbert Smith & Co.) appeared on behalf of the Respondent (Husband).
This is an appeal from an order of Mr Justice Eastham made on the 9th April 1984, whereby he dismissed applications by the wife for her petition to be dismissed, and for the cross-petition to be stayed or dismissed, and ordered that the wife be restrained from taking any step in any proceedings in respect of or arising out of the marriage (save in the English proceedings) either in Switzerland or elsewhere without leave of the Court. The facts are fully set out in the judgment of the Judge, and it is not necessary to repeat them in this judgment. However, in order to understand the basis of the Judge's findings, it is necessary to set out the principal steps taken by both parties in the proceedings both in England and Switzerland.
| 11.4.83. | Application by husband in Luganofor attempt at reconciliation. |
| 17.6.83. | Wife petitions for divorce in London. |
| 21.6.83. | Petition by husband in Lugano for provisional financial etc. arrangements. |
| 8.7.33. | Husband summons for stay of wife's English petition. |
| 25.10.83. | Husband's summons for stay dismissed by consent by Eastham J. |
| Husband files answer and cross-petition. | |
| Husband's summons for directions as to education and custody of child (a boy aged 9) · | |
| Husband's application for delivery up or transfer of jewellery and other property. | |
| 26.10.83. | Husband's application to Lugano court to withdraw divorce proceedings. |
| 28.10.83. | Order of lugano court striking out husband's petition. |
| 26.11.83. | Wife and child to Zurich. |
| 30.11.83. | Wife's application to dismiss her English petition and to stay cross-petition. |
| 1. 12.83. | Wife commences proceedings for "protection of the marriage" in Zurich. |
| 2. 12.83. | Child becomes Ward of Court by order of Wood J. |
| 6. 12.83. | Husband's summons for injunction to restrain continuation of "protection of marriage" proceedings. |
| 15.12.83. | Hearing before Eastham J. begins. |
| 16.12.83. | Interim orders of Eastham J. concerning jewellery, directions for hearing wife's summons to dismiss, injunction restraining Swiss "protection of marriage" proceedings, and as to education of child. Order made continuing Wardship and granting care and control to wife. |
| 7. 2.84. | Wife commences divorce proceedings in Switzerland by filing application for reconciliation. |
| 15. 2.34. | Wife files divorce petition in Switzerland. |
| 16. 2.84. | Hearing before Eastham J. Orders concerning jewellery, directions for evidence on summons to dismiss, and injunction restraining wife from continuing divorce proceedings in Switzerland. |
| 3. 4. 84. | Hearing of summons to dismiss begins before Eastham J. |
| 9. 4. 84. | Judgment of Eastham J. |
| 24.5. 84. | Order of District Court at Meilen that wife's divorce proceedings in Switzerland be discontinued. |
The Judge held on the 9th April that the wife was estopped, by reason of the order of the 25th October 1983, dismissing by consent the husband's application for a stay of the English proceedings, from applying for those proceedings to be dismissed. Alternatively he held in the exercise of his discretion that the balance of fairness (including convenience) was not such that it was appropriate for the wife's divorce proceedings in Switzerland to be disposed of before further steps were taken in the husband's cross petition in England. Accordingly he refused a stay of the husband's cross-petition, and also refused to dismiss the wife's English petition. In accordance with established practice, since the jurisdiction of the English court depends upon the wife's residence in England, he ordered a stay of the wife's petition so that the Court might retain jurisdiction and the cause proceed on the husband's cross-petition.
The Judge rejected a submission made on behalf of the husband that there was no jurisdiction to grant a stay under paragraph 9 of the 1st Schedule to the Domicile and Matrimonial Proceedings Act 1973, and this decision is the subject of a Respondent's Notice. I deal with the point first since it goes to jurisdiction. The question turns on the meaning of the words in paragraph 9 "…. before the beginning of the trial or first trial in any matrimonial proceedings". It was submitted that those words were not confined to a trial or first trial of the suit itself, but were apt to cover the trial of any issue in the proceedings, including the trial of an issue of custody or financial relief. It was said that the hearing in December 1983 of the wife's application for custody, and for directions as to the education of the child, extending as it did over two days with oral evidence, constituted a first trial in the matrimonial proceedings. Accordingly, it was said that since the wife's application to dismiss her petition and stay the husband's cross-petition did not come before the Court until after the beginning of that trial, the Court had no jurisdiction to consider it.
This is at first sight an attractive submission, especially since there are now very few contested divorce suits, and the issues of children and finance frequently involve contested hearings which have all the characteristics of trials, as that word is commonly understood. It would, on the face of it, be strange if a party could seek the intervention of the Court in matters of children or finance, which experience shows are not the main subjects of dispute in matrimonial proceedings, and then be entitled to apply to the Court under paragraph 9 unless there had been a trial or first trial of the suit itself.
However the question to be decided is what, in 1973, did Parliament mean by the phrase "trial or first trial in matrimonial proceedings?" I remind myself that the reforms in divorce law were, in 1973, only of comparatively recent date, that the case of Wachtel v. Wachtel had not been decided, and that defended divorce suits were still not uncommon. The Matrimonial Causes Rules, 1971, distinguished, as do the Matrimonial Causes Rules, 1977 as amended, between "trial" of the cause and hearing of applications for ancillary relief and custody. The word "trial" was and is used exclusively in relation to the former. Moreover, the Court had power, now contained in Matrimonial Causes Rule 45, to give directions "for the separate trial of an issue". These words are picked up in paragraph 4(1) of the 1st Schedule, which provides that: "References to...
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