Tan v Choy

Judgment

Lady Justice Macur DBE :

1. 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”.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

7. 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.”

8. 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.

9. 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.”

10. 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.

11. 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.

12. 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.

13. 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.

14. 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.

15. 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).

16. 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.

17. 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.

18. 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 children involved in cases of international wrongful removal or retention and the ambiguity of the definition of “resided” absent adverb within the Regulation. Such arguments may well be compelling in specific factual scenarios – but not that presented by this case.

19. The test for making a reference is set out in Article 267 of the Treaty on the Functioning of the European Union 2008. It provides that: “The [CJEU] shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties… Where such a question is raised before any court …of a Member State, that court may if it considers that a decision on the question is necessary to enable it to give judgment request the Court to give a ruling thereon…(emphasis added).

20. A more timid judge than HHJ Horowitz QC may well have seized the opportunity to adjourn the wife’s applications to avoid the apparent legal complexities foretold in the skeleton arguments. However, in my view, he correctly and clear-sightedly “determined at the outset that [he] would not make a referral to the CJEU without hearing the evidence to enable [him] to make findings”. In this respect he applied the “measure of self restraint” which in Trinity Mirror Plc v Commissioners of Customs & Excise [2001] EWCA Civ 65 at paragraphs 51 to 53 the Court of Appeal noted had been urged upon referring courts by the CJEU.

21. The judge’s exercise of his discretionary power to stay the English proceedings is conducted in paragraphs 145 to 157 of the judgment, and paragraph 72 inserted to deal with a point raised by Mr Turner upon receipt of the draft judgment. The judge correctly identifies the authoritative guidance to be that of De Dampierre v De Dampierre [1988] AC 92 and conscientiously applies the same. In paragraph 72 of the judgment he refers to calibration of the balance to be struck. It is an entirely apt phrase to describe the basis of his review of the competing relevant arguments of the husband and wife.

22. Mr Turner fails to illustrate any error in the balancing exercise, other than effectively to assert it to be flawed because the outcome did not favour the wife. I find no substance whatsoever in his argument that the judge was “hoodwinked” by the prospect of a jurisdictional argument abroad. This does not feature in the judge’s articulated balance. He had no need to consider the same in view of the “very issues [of jurisdiction] involved in this judgment”. It is impossible to conclude that the judge’s determination was outside “the generous ambit of reasonable disagreement or wrong”. To the contrary, I consider him to have been right.

23. The wife’s liability to pay the costs of the hearing below is not disputed. Mr Turner’s argument in this respect is directed against the order that £100,000 on account of the costs be paid from the proceeds of sale of the parties’ wine as provided for by previous order on 10 December 2012. The wife seeks to preserve her liquid assets to meet family expenses. She argues that delay in payment of the costs will not disadvantage the husband who achieved a significant lump sum from the sale of the wine representing his half share. He has sufficient security over other assets and will be entitled to interest on unpaid costs.

24. The judgment under review does not address the issue of costs. The award of costs and consequent directions are a matter of the judge’s discretion and followed upon his judgment in favour of the husband in all respects. Mr Turner’s skeleton argument indicates that the points deployed before this court were apparently deployed below – to no effect. Other judges may have taken a different stance but I see no legitimate basis for this Court to overturn this part of the order. It is not demonstrably wrong.

25. I would dismiss the appeal, lift the stay of paragraphs 1 – 7 of the order of 12 March 2013 and direct written submissions on the question of costs.

Lord Justice Aikens:

26. I agree that the appeal should be dismissed on all the issues raised by the appellant. These issues are: (i) was the judge wrong to conclude that the husband could found jurisdiction in England and Wales to bring divorce (and associated) proceedings in these courts based on indent five of Article 3(1)(a) of Council Regulation (EC) 2201/2003, known asBrussels II Revised; (ii) was the judge wrong to refuse to refer a question on the construction of Article 3(1)(a) indent five to the Court of Justice of the European Union (“CJEU”); (iii) was the judge wrong to refuse to stay those proceedings pursuant to section 5(6) and Schedule 1 paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973 (“DMPA 1973”); and (iv) was the judge wrong to order that the wife pay £100,000 on account of costs out of sums already realised from the sale of wine, the property of both parties, as opposed to being paid from other assets which might be realised in the future or from other possible sources.

27. The principal dispute between the husband and wife on the appeal is a “jurisdictional spat” to use the words of Mummery LJ in Pacific International Sports Clubs Limited v Igor Surks [2010] EWCA Civ 753at [23]. The husband wishes to bring divorce and ancillary relief proceedings in England and Wales. His wife wishes to bring them in Malaysia. Each presumably thinks that there are juridical advantages in proceedings in their preferred jurisdiction and so each has started proceedings there.

28. The husband says that he is entitled to found jurisdiction in England and Wales by virtue of the provisions of Article 3(1)(a) of Brussels II Revised. Under Article 3(1)(a) there are six possible bases on which a person wishing to bring proceedings “relating to divorce, legal separation or marriage annulment” may found jurisdiction in the courts of a Member State of the EU. The fifth indent of Article 3(1)(a) provides that jurisdiction for such proceedings shall lie with the courts of a Member State in whose territory “-the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made”.

29. The precise meaning of the wording of this fifth indent has been debated in a number of decisions at first instance in England and Wales. The latest decision (prior to the decision under appeal) to which we were referred is the decision of Peter Jackson J in V v V (Divorce) [2011] 2 FLR 778. Brussels II does not define “habitually resident”, although in European law the concept of “habitual residence” is well recognised and means the place where a person has established on a fixed basis the permanent or habitual centre of his interests, with all the relevant factors being taken into account. It is also established, in European law, that one cannot habitually reside in two places at once. There is no definition of “residence” or “resides” in either Article 2 or 3 of Brussels II Revised.

30. In these circumstances I would accept that there could be legitimate debate as to what is the precise construction of Article 3(1)(a) indent five. It seems to me that there are (at least) three possible constructions. First, it could mean that the person seeking to found jurisdiction has to be “habitually resident” in the territory concerned at the date the proceedings are started and he also has to have “resided” there for at least a year before the relevant proceedings are started. Secondly, it could mean that the person seeking to found jurisdiction has simply to have been “habitually resident” for one year prior to the start of the proceedings. Thirdly, it could mean that the person seeking to found jurisdiction has to establish that he/she is “habitually resident” at the time the proceedings are started and that this fact is proved by establishing that he/she has “resided” in that territory for at least a year immediately before the proceedings were started (“…application was made”).

32. Secondly, Mr Turner accepted that in this case the judge had therefore to focus on where the husband’s “habitual residence” was during the period January 2011 to January 2012, the latter date being that of the start of the present proceedings. This means that if it is demonstrated that the husband was “habitually resident” in England and Wales during that period, then any one of the three possible constructions of indent five of Article 3(1)(a) I have outlined would be established.

“There is a serious question whether [the husband] has abandoned his Malaysian domicile of origin notwithstanding the presumption of continuance referred to in the expert advice. That of itself raises an initial hurdle to be considered before substantial progress can be made in the Malaysian proceedings”.

Sir Brian Leveson P: