Wermuth v Wermuth

The issue in this appeal is the proper construction of Article 12 of the Council Regulation generally known as Brussels II. Its official designation is Regulation (EC) No 1347/2000. It came into force on 1 March 2001. The primary purpose of the Regulation was to avoid jurisdictional conflicts between the states of the European Community in cases for divorce, judicial separation and nullity (to use our terminology). Thus the Regulation is entitled ‘On the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses’.

In the event Denmark elected not to be a party to the Convention negotiations that culminated in the Regulation with the consequence that it binds only the 14 other member states. During the negotiating process the United Kingdom held profound reservations at the prospect of resolving jurisdictional conflicts in this field by the rule of lis alibi pendens rather than by the doctrine of forum conveniens, which had statutory expression in paragraph 9 of Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973. That provision, of course, continues to regulate conflicts between this jurisdiction and jurisdictions other than the 14 member states of the European Union.

The objection to the proposed convention was encapsulated in two arguments: first that an arbitrary rule of lis alibi pendens was a poor substitute for a balanced discretionary appraisal of fairness and convenience that the doctrine of forum conveniens permits. The second argument was that the introduction of a rule giving priority to the court of first issue would inevitably encourage a rush to be first, eliminating or minimising attempts at reconciliation or conciliation. However the experience of 18 months of operation has been reassuring. Research carried out by specialist practitioners in London and Edinburgh in preparation for the Fourth Anglo-German Family Law Judicial Conference in September 2002 did not suggest that the Regulation had resulted in any significant shift in accepted standards of professional good practice at the stage when divorce proceedings are in contemplation. Furthermore, in relation to the first argument, the loss of an ability to conduct a balanced judgment of the more appropriate jurisdiction is compensated by the elimination of the need for expensive litigation (generally conducted concurrently in both jurisdictions) as each party manoeuvres to establish the jurisdiction of his or her preference as the more convenient jurisdiction.

With that introduction to the Regulation I turn to the facts in the present appeal. The parties are in their mid 30s, the husband being basically German and the wife Russian. They married on 20 September 1997 in Russia. Since 1999 they have had homes in England and Germany. On 28 April 2000 they entered into a marriage contract in Germany. On 13 February 2002 the wife became a naturalised German citizen. In the same month they seemingly decided to make London their main base but separated at the end of March 2002. On 12 April 2002 the lease on the wife’s London flat terminated and thereafter the husband did not know her address. Accordingly on 8 May 2002 the husband swore an affidavit seeking an order for substituted service of the German petition that he was preparing to issue. The petition was filed in the Mainz Amtsgericht on 14 May. On the previous day the husband sent the wife an e-mail letter:

“Dear Yana, I have filed for divorce. For you to receive the papers, could you please let me have your address such that the documents could be delivered to you personally? Thanks. Jochen.”

The wife responded at length on the following day but ignored the request. The request was repeated in an e-mail on 16 May. The wife’s e-mail response of the following day stated that the papers could be served at Atelier 214, 176 Finchley Road, which was a post office box set up by the wife on that very day for the receipt of mail.

Accordingly on 20 May the husband applied for an order for substituted service. The order was made on 24 May and, under its terms, service was deemed to have been effected on 12 June.

The wife’s competing divorce proceedings in this jurisdiction were filed on 24 May and were deemed served by an order for substituted service made on 11 June. On 26 June the husband applied to strike out the wife’s English petition on the obvious ground that primary jurisdiction lay with the Amtsgericht in Mainz. That application came before Deputy District Judge Solomons on 13 August 2002. Both parties appeared by counsel. There are two recitals to the order as follows:

“(a)

Both parties have agreed that it is their intention that the hearing in the German divorce proceedings fixed for 27 August 2002 should proceed;

(b)

no steps should be taken in the English divorce proceedings, including ancillary relief, save under Article 12 of the Brussels II [Regulation] pending the hearing in England referred to at paragraph 1 below.”

Paragraph 1 of the order provided that the husband’s strike-out application be heard by a judge of the Division on the first open date after 15 November. The other provisions of the order regulated the filing of evidence in preparation for that hearing.

The hearing in Germany referred to in the first recital was to have been the hearing of the husband’s application for an order that the Mainz Amtsgericht was first seised within the terms of Regulation Brussels II and that the husband had established the jurisdictional grounds for divorce. We were told that the hearing had to be adjourned since an interpreter had not been arranged for the wife.

On 24 September in reliance on the second recital to the order of 13 August the wife issued an application for maintenance pending suit. We were told that District Judge Million on about 15 October referred it to be heard by a judge of the Division and that hearing took place on 22 October before Johnson J. How the wife obtained a full hearing before a judge of the Division only seven days after the district judge’s direction I do not know.

Before Johnson J counsel for the husband submitted that the wife’s application for maintenance pending suit did not fall within the exceptions provided by Article 12 of the Regulation. Mr Justice Johnson rejected that submission and ordered the husband to pay maintenance pending suit at the rate of £150,000 a year, two thirds of which was intended to provide funds with which to enable the wife to litigate. The order was backdated to 11 June 2002, the date of service of the wife’s petition. The payment in respect of the period 11 June to 10 November (£62,500) was ordered to be paid on or before 2 December and future payments due on 11 November and subsequently were ordered to be paid monthly in advance by standing order. The judge refused an application for permission to appeal and for a stay. Those applications were subsequently granted by me on paper on 7 November. However permission was granted only to argue the Brussels Regulations points. By a further ground the husband sought to challenge the practice (approved in two recent first instance authorities) of including within a maintenance pending suit order provision for litigation costs. I refused permission to advance that ground only in the circumstances of this case and this judgment is not to be read as an implicit approval of the practice.

The hearing in Mainz, adjourned from 27 August, duly took place on 10 October. Judgment was delivered on 14 November. The essential conclusions of that judgment are as follows:

The husband’s application to strike out the wife’s petition, fixed by paragraph 1 of the order of 13 August, was heard by Bracewell J on 9 December. There was no dispute that the court had jurisdiction founded on the wife’s habitual residence throughout the twelve months immediately preceding the presentation of the petition. However Bracewell J, like the judge in Mainz, concluded that primary jurisdiction rested with the Mainz court as the court first seised. However, given that Mr Amos relied on the wife’s intention to appeal the Mainz judgment of 14 November, counsel for the husband accepted that the appropriate consequential order was for a stay of the English petition rather than a strike-out.

I turn now to the regulations and rules directly relevant to this appeal. Article 2 of Brussels II sets out the basis upon which states acquire jurisdiction. Since it is common ground that both Germany and the United Kingdom have jurisdiction it is unnecessary to enter that area of the text. The relevant provisions of Article 11 are as follows:

“1.

Where proceedings involving the same cause of action and 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 seized is established.

3.

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

In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.

4.

For the purposes of this Article, a court shall be deemed to be seised:

(a)

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;”

Article 12, the Article that governs the outcome of this appeal, provides:

“In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that state as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.”

Finally I refer to amendments to the Family Proceedings Rules which came into effect in September 2001 as a belated response to the precipitate arrival of the Council Regulation. The rule most relevant to this appeal is Rule 2.27A(2) which is in these terms:

“Where at anytime after the presentation of a petition, it appears to the court that, under Articles 9, 10 or 11 of the Council Regulation, the court does not have jurisdiction to hear the petition and is required or may be required to stay the proceedings, the court shall stay the proceedings and fix a date for a hearing to determine the questions of jurisdiction and whether there should be a stay or other order and shall serve notice of the hearing on the parties to the proceedings”

Given the clear terms of the rule Mr Mostyn QC rightly observes that what appears as the second recital to the order of 13 August should have constituted the first paragraph of the order.

Before expressing my own conclusions I record the reasoning of Johnson J. It must be remembered that this was a brief hearing and I doubt whether the judge received much if any forewarning of the difficult and novel point upon which the husband’s counsel relied. Accordingly Johnson J’s reasoning is understandably and commendably brief. He said only this:

“The meaning of the term ‘provisional, including protective, measures’ has been the subject of some discussion. I was referred to an explanatory report prepared by Dr Alegria Borras explaining the consequences of this European legislation. It would be surprising, give rise to the possibility of tactical abuse and be impractical if a right to support were to be suspended without remedy.

In my judgment, the term ‘provisional, including protective, measures’ does cover an application such as this, and I hold that I have jurisdiction to make the orders sought.”

Mr Mostyn informs us that the third sentence in the above passage represents the judge’s second thoughts. His instructing solicitor’s shorthand note of the judgment has this for that sentence:

“It was common for English Courts to be asked to make financial provision for a wife in circumstances similar to this which were known as protective measures.”

Johnson J no doubt had in mind cases in which maintenance pending suit had been ordered during the currency of a jurisdictional challenge to an asserted domicile or habitual residence. The case of Ghoth v Ghoth [1992] 2 FLR 300 is an instance.

Of course the correction of a transcript of an oral judgment provides the judge with the opportunity to express himself differently and I only record both his first and second thoughts because each are independently legitimate and require separate consideration if this judgment is to cover comprehensively this fresh field of law.

In relation to the judge’s first thought I do not consider that prior practice cases involving a challenge to jurisdiction can have any application to cases that are directly governed by the Regulation. We must find our answer in the words of Article 12 and such guidance as there is as to its construction. Nor do I think that the judge’s second thought provides a secure foundation for his conclusion. The right to support would not be suspended without remedy by a stricter construction of Article 12. The right would be exercisable in the jurisdiction first seised and only suspended in the jurisdiction second seised.

I doubt whether the judge’s task was much clarified by the reference to the explanatory report prepared by Dr Borras. Article 12 is considered in paragraphs 58 and 59 of her report but the text is dense and by no means easy to understand even after repeated readings.

So what then is the extent and the effect of Article 12?

I come now to the rival submissions. Mr Mostyn took us through the terms of the Convention on the enforcement of judgments in civil and commercial matters (Brussels I) (both in its old form as adopted by the then six member states in 1968 and in its modern replacement, namely Council Regulation No 44/2001) and particularly Articles 21 and 24 of the Convention and Articles 27 and 31 of the Regulation which are the provisions matching Articles 11 and 12 of Brussels II. The relevance of the mirror provisions in Brussels I is twofold: first Brussels I and not Brussels II is concerned with jurisdiction and enforcement in relation to maintenance. Second the report of Dr Borras confirms that Article 12 was modelled on Article 24 of the 1968 Convention and accordingly decisions on the construction of Article 24 are directly in point. He prefaced his review of decided cases by reference to a published work of my lord, Lawrence Collins J, (The Civil Jurisdiction and Judgments Act 1982: Butterworths 1983) where, at page 99, critical comment is directed to excessive claims to jurisdiction founded on the provisional measures exception. He also derives support from Jaffey on the Conflict of Laws second edition at 139 where the authors state that Article 31 of the Brussels I Regulation:

“Applies to measures which are intended to preserve a factual or legal situation in one member state so as to safeguard rights which are the subject matter of litigation in the court of another member state which has jurisdiction as to the substance of the matter.”

On the same page the authors write:

“A measure does not come within the scope of Article 31 if its provisional character is not guaranteed; a court order requiring the defendant to make an unconditional interim payment cannot be a provisional measure for the purposes of Article 31 unless, if the claimant is unsuccessful, the defendant can obtain repayment.”

The authorities for these propositions are first Reichert v Dresdner Bank AG (No 2) [1992] ECR 1-2149. In that authority Mr Mostyn relies upon paragraphs 32 and 34 of the judgment to this effect:

“32.

The court has already declared in the judgment in Case 143/78 De Cavel v De Cavel [1979] ECR 1055, at paragraph 8, that as provisional or protective measures may serve to safeguard a variety of rights, their inclusion in the scope of the Convention is determined not by their own nature but by the nature of the rights which they serve to protect. It added, in paragraph 9 of that judgment, that the provisions of Article 24 of the Convention cannot be relied upon to bring within the scope of the Convention provisional or protective measures relating to matters which are excluded therefrom.

34.

The expression ‘provisional, including protective, measures’ within the meaning of Article 24 must therefore be understood as referring to measures which, in matters within the scope of the Convention, are intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere from the court having jurisdiction as to the substance of the matter.”

The authority for the second proposition is Van Uden Maritime BV v Firma Deco-Line [1998] ECR 1-7091. From this authority it is sufficient to cite only paragraphs 46 and 47:

“46.

However, an order for interim payment of a sum of money is, by its very nature, such that it may pre-empt the decision on the substance of the case. If, moreover, the plaintiff were entitled to secure interim payment of a contractual consideration before the courts of the place where he is himself domiciled, where those courts have no jurisdiction over the substance of the case under Articles 2 to 18 of the Convention, and thereafter to have the order in question recognised and enforced in the defendant’s State, the rules of jurisdiction laid down by the Convention could be circumvented.

47.

Consequently, interim payment of a contractual consideration does not constitute a provisional measure within the meaning of Article 24 unless, first, repayment to the defendant of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and, second, the measure sought relates only to specific assets of the defendant located or to be located within the confines of the territorial jurisdiction of the courts to which application is made.”

Mr Mostyn also referred us to the earlier case of De Cavel principally since it was authority in relation to matrimonial property. His reliance is on paragraph 8 containing the following short citation:

“As provisional protective measures relating to property – such as the affixing of seals or the freezing of assets – can serve to safeguard a variety of rights, their inclusion in the scope of the Convention is determined not by their own nature but by the nature of the rights which they serve to protect.”

On those authorities Mr Mostyn observes that had the wife applied under Article 31 of Regulation Brussels I (the regulation concerned with maintenance matters) these authorities would have been fatal to her claim. How then can she fare better by relying on Article 12 of Brussels II?

In summary Mr Mostyn submits:

Mr Lewis Marks QC in his response concedes that he cannot support the judge’s order on the grounds that it constitutes a protective measure. He submits that the order constitutes a provisional measure and relies on the case of Van Uden Maritime BV as an illustration of the fact that the payment of money can be classified as a provisional order. He says that whilst a guarantee of repayment in civil cases may be a strict requirement there should be no such in family proceedings where the court has a wider interest in justice and the protection of the vulnerable. In the alternative he claims that his client is in a position to guarantee repayment since she is the owner of two flats in the Moscow area. His claim that they had a value of several hundred thousand dollars was modified on instructions to £60,000. Finally Mr Marks submitted that the requirement of urgency was met in the present case since by 23 September the wife’s reserves had reduced to £14,000.

In his reply Mr Mostyn was swift to contrast Mr Marks’ presentation of the wife’s financial circumstances with paragraph 24 of her affidavit of means of 23 September in which the wife had asserted that she owned only one flat, that it was unsaleable and that the transfer of funds from Russia was difficult if not impossible.

I accept the general thrust of Mr Mostyn’s submissions. On the facts of this case I am quite clear that the order made by Johnson J on 22 October cannot be classified as a provisional measure. The order to pay at the rate of £150,000 per annum for an indefinite period has a substance and an undefined duration that I would classify as an unwarranted invasion of the proper function of the German judge as the judge of the court first seised. On the facts of this case there are simply no realistic prospects of repayment were the substantive judgment on the merits so to require. Plainly the order cannot be classified as a protective measure, as Mr Marks has sensibly conceded. Finally the order could not possibly be brought within a definition of ‘urgent cases’. As Mr Mostyn has pointed out the wife could have had an earlier hearing in Mainz.

However it is necessary to look beyond the facts of the present case to consider more generally the application of Articles 11 and 12 to financial claims ancillary to the proceedings for divorce, judicial separation or nullity. Plainly Brussels II has no direct application to such claims. In modern times the real issues litigated as a consequence of the breakdown of relationships are usually money and children. In modern times the utility of the power to order maintenance pending suit has much diminished and the right to apply for it is much less often exercised. For those with little means there is the safety net of benefit entitlement. The affluent generally have capital reserves or the ability to borrow. The procedures for the preparation of the substantive financial claims have been streamlined, partly in an attempt to avoid the unnecessary expense of a contested hearing to determine the level of temporary provision only to be followed by a contested hearing to settle the long-term future. In these cases with an international dimension the temptation on the parties first to manoeuvre and then to fight to establish the jurisdiction which one believes will be more generous and the other believes will be less generous need to be firmly kerbed. It does not require great insight to see that a judgment on pending suit provision is likely to impact upon the outcome of the substantive application, even if it does not pre-empt the operation of the alternative jurisdiction. It is manifest, in my judgment, that an application for maintenance pending suit cannot be categorised as a protective measure. The cases of De Cavel and Reichert make that plain and the principles there stated should equally be applied to Article 12 of Brussels II.

I am also myself of the opinion that an application for maintenance pending suit cannot even be categorised as a provisional measure. Over-payments or payments obtained by material non-disclosure are at best given some indirect reflection in a later quantification of substantive orders. Furthermore if the duty to quantify the substantive order is to be discharged in the court of another member state the payee may well escape even that reflection.

If this last point be finely balanced then the balance should in my judgment be settled by a strict construction of Article 12 for policy reasons. First we must espouse the Regulation and apply it wholeheartedly. We must not take or be seen to take opportunities for usurping the function of the judge in the other member state. Once another jurisdiction is demonstrated to be apparently first seised, this jurisdiction must defer, by holding itself in waiting in case that apparent priority should be disproved or declined. Second one of the primary objectives of the Convention is to simplify jurisdictional rules and to eliminate expensive and superfluous litigation. A divorcing couple that has to litigate the consequences of the marital breakdown is not blessed. The couple that first litigates where to litigate might be said to be cursed. In reality it is a curse restricted to the rich. Only they can afford such folly. This case is a paradigm example. Let me assume that the husband is a man of means. The wife is said to be destitute. Yet she has incurred costs here of £153,000, of which only £16,000 has been paid on account. Her solicitors have no security for the payment of the balance of £137,000, billed but unpaid. In that sense they have funded this litigation. The husband’s costs are put at £108,000 in this jurisdiction. By contrast the costs in Germany are said to be £11,000 for the wife and £2,600 for the husband. The inevitable comparison should give the specialist practitioners in London pause for thought. All this might perhaps be prevented for the future were this appeal to contribute to the adoption of a narrow construction of Article 12 here and in other member states pending a possible future ruling of the European Court of Justice.

There is one additional point that arose during the course of debate which I have yet to record. At the date of the hearing before Johnson J the identity of the jurisdiction first seised was disputed both in Germany and in London and determined in neither place. In such circumstances Mr Marks submitted that Article 12 would operate as a denial of remedy in both. Of course we are now at the stage where there is a judgment in both jurisdictions establishing Germany as the jurisdiction first seised. But the German judgment is said by Mr Marks to be under appeal and with excellent prospects of success since the wife has Professor Schlosser on her side and he will outweigh the contrary opinion of Professor Danneman. (In this as in other family appeals expert witnesses on issues of law seem still to be available to deliver partisan opinions.) So it is said that until the exhaustion of the appellate process the identity of the court first seised remains undetermined and Article 12 available as a defence in both. I would unhesitatingly reject that submission not only on the basis of the judgments recently delivered in Mainz and London but also as things stood at the date of the hearing before Johnson J. There must be a strong presumption that, absent a clear case of irregularity, the court of first issue is the court first seised.

For all those reasons I would allow this appeal and discharge the order for maintenance pending suit. The husband is accordingly relieved from the obligation to make any further payment and is entitled to repayment of or credit for the single payment made prior to the grant of the stay.

I agree.

I also agree that this appeal should be allowed, and I add these observations because we are differing from a judge with very considerable expertise not only in matrimonial proceedings, but also in cases with an international element. Provisional measures vary from one context to another, and from one country to another, but what they have in common is that their object is to ensure that the rights of parties and the ultimate effectiveness of a judgment are not frustrated by the actions of one party pending resolution of their respective rights. In the international context it is vitally important to ensure that provisional measures are not used to frustrate internationally agreed principles of jurisdiction.

The important features of this case are that prima facie the German court was seised by the husband on 14 May 2002, a day after he told the wife that he was filing for divorce, and ten days before she filed for divorce in England; that (subject to appeal) the Mainz court has now decided that it was first seised; and that on 13 August 2002 the Deputy District Judge ordered (in a form embodied in a recital) that pending the husband’s application to strike out the English divorce proceedings no steps should be taken in them “including ancillary relief, save under Article 12 of the Brussels II [Regulation].”

Article 12 (and the corresponding provisions in Article 24 of Brussels I and of the Lugano Convention, and Article 31 of Council Regulation 44/2001) do not, of course, require provisional measures to be taken. They give a power to a court which has no jurisdiction over the substance of the matter if (a) the measures are provisional measures within the meaning of Article 12 and the corresponding provisions; (b) the court has power to grant the measures under national law; (c) the court considers that in the circumstances of the case it is appropriate to grant them; and (d) the case is urgent (which is explicit in Article 12, but must be implicit in the corresponding provisions).

Article 12 of Brussels II pre-supposes that the court which takes provisional measures is not the court with jurisdiction over the substance of the case. The court which takes the provisional measures is therefore acting in support of the main litigation. So in Case C-261/90 Reichert v. Dresdner Bank [1992] ECR I-2149 the European Court of Justice held that Article 24 referred to measures which were intended to preserve a factual or legal situation so as to safeguard rights the recognition of which was being sought elsewhere from the court having jurisdiction over the substance of the matter: para 34.

Ever since Brussels I came into force in 1973 there has been controversy over whether orders for provisional payments (especially of damages) are within the scope of Article 24. The principal objections to them were (a) that they involved a preliminary determination of the merits of the case by the court purporting to exercise jurisdiction under Article 24, when ex hypothesi the jurisdiction to determine the merits was vested in the court with jurisdiction over the substance; and (b) that in substance such orders granted the party some or all of the relief which he was only entitled to seek in the country with jurisdiction over the substance. The second objection, but not the first, has been met (at least in cases relating to contractual claims) by the ruling in Case C-391/95 Van Uden Maritime BV v. Firma Deco-Line [1998] ECR I-7122, para 47 (confirmed in Case C-99/96 Mietz v. Intership Yachting Sneek BV [1999] ECR I-2299) that the court taking provisional measures must therefore impose conditions or stipulations so as to guarantee their provisional or protective character, ie it must ensure that repayment to the defendant is assured if the plaintiff is ultimately unsuccessful in the main proceedings abroad, and so not pre-empt the effect of the ultimate decision of the court with jurisdiction over the substance.

I agree with my lord, Lord Justice Thorpe, that in the light of the order which was made on 13 August 2002, there are no grounds for a successful argument that the order in this case (especially when two-thirds of it was to provide funds for litigation at the rate of £8,000 per month) could legitimately have been made under Article 12.