Thum v Thum

Article 16 of Council Regulation (EC) No 2201/2003 (“BIIa”) provides that:

“”

“1

A court shall be deemed to be seised:

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; or

if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.”

Only sub-paragraph (a) is relevant in this appeal. The issues raised by this appeal are (i) what steps is a petitioner “required to take to have service effected” of a divorce petition issued in England and Wales for the purposes of Article 16 and (ii) whether the wife in this case has failed to take such steps.

The issues arise in the context of the wife’s divorce petition having been issued in England on 26^th October 2015 and the husband’s divorce petition having been issued in Germany on 20^th January 2016. The answers to those issues will determine whether the English court or the German court was first seised for the purposes of Article 19 of BIIa. I note, in passing, that the relevant time under Article 16 is, in fact, the time when the application is “lodged with the court”. However, nothing turns on this distinction in this case.

The respective dates of the petitions make plain how long these parties have already had the misfortune to be engaged in litigation to resolve what is only the preliminary question of which courts have jurisdiction to deal with their divorce. No doubt behind this preliminary conflict lie their competing views as to which courts will be more beneficial when determining the financial consequences of their divorce. However, this is an irrelevant consideration for the purposes of this appeal as we are concerned only with the question of which court has precedence because it was first seised.

The husband appeals from the order of Mostyn J of 21^st October 2016 dismissing his application seeking the stay or dismissal of the wife’s petition on the basis that the English court was second seised. Mostyn J decided that the English court was first seised. He determined that the wife had not “failed to take the steps (she) was required to take to have service effected on the” husband and that, accordingly, pursuant to Article 16 the English court was seised when the wife lodged her petition here. As a result, the English proceedings were first in time and took precedence pursuant to the lis pendens provisions of Article 19 of BIIa.

The grounds of appeal, as advanced at the hearing, can be condensed into two:

The relevant factual background is as follows.

The husband and wife are both German. They married there in March 2001 and moved to live in London in 2009. They have two children. The marriage broke down in October 2015.

As referred to above, on 26^th October 2015 the wife’s divorce petition was issued in England (“the English petition”). The wife took no steps to serve it on the husband until 19^th January 2016. The wife provided an explanation for this in a statement filed in the proceedings. She set out what she said were the “various factors” which had “led to delay in serving the petition” on the husband. I do not propose to set these out but the wife relied on them when refuting the husband’s “suggestion” that the delay had been tactical. The judge made no findings about what had happened. Indeed, rightly in my view in the circumstances of this case, Mostyn J does not appear to have been invited to explore the reasons why the wife had acted as she did.

On 19^th January 2016 the wife’s then solicitors sent the English petition to the Foreign Process Section of the High Court for service under Council Regulation (EC) No 1393/2007 (“the Service Regulation”). The husband’s address for service was given as No 214 Kurfurstendamm, Berlin. This was, in fact, the address of the husband’s business. His home address was No 215. The documents were returned on 22^nd January 2016 by the relevant German service authority with a certificate of non-service on the basis that “address unknown”. It appears, as set out in paragraph 10 below, that this was probably because the wife had given insufficient details. The wife had not given the name of the business and it appears that there were a number of units at No 214.

Under the relevant German law service can be effected at any address where “there is a serious chance that service can be effected duly” (informal translation from the expert report obtained in these proceedings). The German Federal Court of Justice has held that, when the service is being effected by the court, sufficient details must be provided to enable the court to serve the document. Accordingly, to quote from the expert report, “it appears not to be sufficient if the applicant specifies only the name of the respondent and the address of the establishment … without indicating the establishment where the addressee works (eg name of company) and the professional function of the addressee within the establishment”.

The husband was personally served with the English petition on 27^th February 2016 when he was in England. This was, as the judge noted, just over four months from the date of issue.

The husband commenced divorce proceedings in Germany on 20^th January 2016. These proceedings were served on the wife on 3^rd March 2016.

It is not in dispute that the husband took all the steps required by German law. The focus of this appeal is on the wife’s actions and whether, as a result, the proviso is engaged in respect of the English petition leading to the German court being first seised with divorce proceedings.

On 21^st April 2016 the husband issued his application seeking the stay or dismissal of the English petition on the basis that the German court was first seised. Each party filed statements.

The application was determined by Mostyn J after hearing submissions only.

In a concise judgment, Mostyn J determined that under Article 16 a court is seised when the proceedings are lodged. This can then be “defeated if it is later shown that the applicant failed to take the steps she was required to take to have service effected on the respondent”. The “required steps are those prescribed by the domestic law of the country in which the application was issued”.

He next considered the service requirements under English law which are set out in the Family Procedure Rules 2010 (“FPR”). He noted that r.7.8 contains no time limit for service and merely requires that a copy of the petition “must be served on the respondent”. Mostyn J noted that this contrasts with the rule applicable to service of a claim form under Civil Procedure Rules 1998 (“CPR”) r.7.5. This stipulates that service within the jurisdiction “must” be effected within four months and out of the jurisdiction within six months. These time limits can be extended under CPR r.7.6.

Mostyn J considered that “a strategic petition which is filed and left to hibernate for years while parties carry on with their marriage is likely to be struck out as an abuse under FPR r.4.4(1)(b) or as disclosing no reasonable grounds under FPR r.4.4(1)(a)”. He then continued:

“… subject to that, it seems to me, rightly or wrongly, that the only formal requirement imposed by the law on a petitioner for divorce is to serve the petition at some unspecified point in the future. I agree with Gloster J that I cannot read the words “forthwith” or “as soon as possible” into rule 7.8. The furthest I would go would be to infer a requirement of acting reasonably promptly and that promptitude should be informed in a broad way by the (extendable) time limits in CPR r.7.5”.

In the absence of any specified time for service, Mostyn J decided that the wife had not “failed” to take any required step. The error given in the address for service on the husband in Germany, “if indeed it was an error (was) not one that can be said to demonstrate that the wife had failed to take steps required of her within the terms of Article 16”. He further concluded that the wife had acted with “reasonable promptitude” and dismissed the husband’s application.

The relevant provisions of Article 16 are set out above. Article 19 provides:

Article 16 of BIIa is in the same terms as Article 30 of the original Brussels I Regulation (No 44/2001) and Article 32 of the Recast Regulation (No 1215/2012). Recital 15 of Brussels I (21 in the Recast) provides:

“In the interests of the harmonious administration of justice it is necessary to minimise the possibility of concurrent proceedings and to ensure that irreconcilable judgments will not be given in different Member States. There should be a clear and effective mechanism for resolving cases of lis pendens and related actions, and for obviating problems flowing from national differences as to the determination of the time when a case is regarded as pending. For the purposes of this Regulation, that time should be defined autonomously.”

FPR r.7.8 provides:

“(1)

After an application for a matrimonial or civil partnership order has been issued by the court, a copy of it must be served on the respondent and on any co-respondent”.

Part 6 of the FPR contains provisions dealing with the means by which service is to be effected. There are a number of alternative permitted methods available for service of a petition. In respect of service in the jurisdiction these include those set out in FPR r.6.4 which provides:

“An application may be served by one of the following methods –

(a)

personal service in accordance with rule 6.7;

(b)

first class post, or other service method which provides for delivery on the next business day, in accordance with Practice Direction 6A; or

(c)

where rule 6.11 applies, document exchange.”

There are also provisions dealing with service by the bailiff (r.6.9) and service on a solicitor within the jurisdiction or in any EEA state (r.6.11).

The rules as to service out of the jurisdiction are set out in Chapter 4 of Part 6 of the FPR. Rule 6.43 sets out “general provisions” which include:

“(3)

Where the applicant wishes to serve an application form … on a respondent out of the United Kingdom, it may be served by any method –

Provided for by –

rule 6.44 (service in accordance with the Service Regulation);

rule 6.45 (service through foreign governments, judicial authorities and British Consulate authorities); or

permitted by the law of the country in which it is to be served.”

It is also relevant to note that time limits feature in other aspects of the divorce process. An acknowledgement of service (which must include notice of whether the respondent intends to defend the case) must be filed within the time stipulated by FPR r.7.12 and r.6.42. This ranges from “within 7 days” of the date on which a petition was served in England and Wales to longer periods if service was effected out of the jurisdiction. Those rules also stipulate the time within which an answer must be filed. Other provisions also contain the time within which certain steps must be taken, such as in FPR r.7.31(2) which deals with applications to prevent a decree nisi being made absolute.

We have been referred to a number of authorities including R v R (Divorce: Stay of Proceedings) [1994] 2 FLR 1036; In re I (A Child)(Contact Application: Jurisdiction) [2010] 1 AC 319; Debt Collect London Ltd and another v SK Slavia Praha-Fotbal AS [2011] 1 WLR 866; UBS AG v Kommunale Wasserke Leipzig GmbH [2010] EWHC 2566 (Comm), [2010] CLC 499; W v W [2011] 1 FLR 372; Aannemingsbedrijf Aertssen NV v VSB Machineverhuur BV (Case C-523-14) [2016] ILPr 16, 387; and MH v MH (Case C-173/16) [2017] ILPr 23, 503.

The case has been attractively and persuasively argued by both parties. Whilst acknowledging also the comprehensive nature of their submissions, I propose only to summarise them in this judgment.

It initially appeared that Mr Pocock QC was inclined to submit that the “steps” referred to in Article 16 should be determined autonomously. This was in part based on Recitals 15 and 21 of the Brussels’ Regulations, set out above, which address the need for “time” to be defined autonomously for the purposes of determining “the time when a case is regarded as pending” so as to provide a “clear and effective mechanism for resolving cases of lis pendens and related actions”.

However, it became clear at the hearing that Mr Pocock accepted that the “steps” required to be taken for the purposes of Article 16 are those required by the domestic law of the relevant Member State. In my view, for the reasons set out below, he was right to do so.

Mr Pocock submitted that Mostyn J’s interpretation and application of Article 16 and the FPR do not give proper effect to the purpose of the proviso in Article 16(1)(a) which is to stop the abuse of process. If the rules are interpreted as imposing no obligatory steps at all the proviso could never be engaged. Priority would always be preserved “no matter how many years after issue the applicant decided to serve”. This, Mr Pocock submitted, would not give proper effect to the proviso.

Although, in his written submissions, Mr Pocock had contended that the FPR do not require the petition to be served, or that a step towards service must be taken, within any particular time (my emphasis), he developed his position during the hearing. He submitted that FPR r.7.8 imposes “a continuing and immediate obligation to serve the petition” (my emphasis), applying, by analogy, this court’s determination in Debt Collect v SSPF. That case concerned the obligation under Czech law to pay a fee on the commencement of proceedings, without payment of which they would not be served by the court. This was held to create an immediate and continuing obligation to pay the fee, breach of which was a failure under the equivalent proviso in Article 30 of Brussels I.

In response to questions from the court to clarify this submission, Mr Pocock proposed that immediate means, in this context, “as soon as possible” or “as soon as practicable”. These words, he submitted, must be implied into FPR r.7.8. He relied on R v R in which Ewbank J said, at p. 1038:

“I have to say that a divorce petition does not stand in the same position as a writ in a civil action; a divorce petition is dealing with the status of parties and is subject to the rules set out in the Matrimonial Causes Rules 1977; it ought not to state that a marriage has broken down irretrievably if that is not the instructions of the client; and it ought to be served as soon as practicable after filing. It is not appropriate in the Family Division for petitions to be filed and held in secret and not served until it suits the petitioner. Having said that, however, in my view nothing turns on that aspect.”

Mr Pocock submitted that, accordingly, in taking no steps to serve the petition until 19^th January 2016, the wife had failed to take the required steps. In simple terms, he submitted that in doing nothing to effect service for over two and a half months the wife had failed to effect service “as soon as practicable” nor had she acted “diligently”, applying MH v MH paragraph 27. Further, when the wife did then try to effect service in Germany she failed to achieve service because, it would appear, of insufficient details being given to enable the husband to be served at his office address. The wife had, therefore, failed “to take the steps necessary to effect service”: Dicey, Morris & Collins, The Conflict of Laws 15^th Ed, 12-067. This was a culpable failure, applying Debt Collect v SSPF, as well as, again, constituting a failure to act “diligently”.

In summary Mr Pocock submitted that the Article 16 proviso is engaged in this case either because (a) the wife took no steps to effect service until 19^th January 2016 and/or because (b) the steps she did then take were ineffective because of her default. It is no answer that domestic law does not require steps to be taken within a specified period. As a result because, prior to service being effected on the husband on 27^th February 2016, another EU Member State had become seised with divorce proceedings the courts of that State are first seised pursuant to Article 19.

The wife’s case, also in summary, as advanced by Mr Pointer QC and Mr Rubin QC is that the question of what steps are required under the Article 16(1)(a) proviso is to be determined by our domestic law. The FPR provide no time by which service must be effected and, it is submitted, no additional required steps, including as to time, can be incorporated by implication. The wife has, therefore, not failed to take any “required” steps.

Mr Pointer argued that, on the husband’s proposed interpretation of what the wife was required to do, the effect would be that a petitioner who delayed at all in taking steps to effect service would have “failed” to take the “required” steps. As a result the court would cease to be seised until, potentially, service was effected. He submitted that this would “radically alter” the meaning and effect of the proviso in Article 16(1)(a). He also relied on Debt Collect v SSPF, in particular what Lloyd LJ said at paragraph 43 (see below).

Mr Pointer further submitted that, in order to achieve the necessary degree of certainty, if a specific duty is to be imposed on a party (additional to the general obligation to serve) then it must be one which is clearly expressed in the relevant rules. There is, he submitted, no scope for any specific additional duty to be implied. Further, if an obligation was to be implied it would have to be both necessary and clear. In his submission, none of the formulations proposed by the husband could be considered either necessary or clear. Accordingly, Mr Pointer submitted that the question of whether any additional obligations, as to time or otherwise, should be imposed is a matter for the Family Procedure Rule Committee.

It was submitted, therefore, that the wife has not failed to take any step required under English law. There has been no breach and certainly no culpable breach. Mr Pointer also submitted that the judge’s determination that the wife acted with reasonable promptitude cannot be challenged. It was a determination which was open to him and, it is submitted, there is no ground on which this court could properly interfere with this finding.

During the course of his oral submissions Mr Pointer referred to the fact that no time limit for a petition to be served has been stipulated at any time since the Matrimonial Causes Act 1857 introduced judicial divorce. None of the versions of relevant rules has included such a requirement. He submitted that this is not surprising given the historical policy underlying the divorce process which has been to try, so far as possible, to preserve marriages and encourage reconciliation. He pointed, for example, to the provisions of section 6 of the Matrimonial Causes Act 1973 which include that the court may adjourn proceedings at any stage where it appears “that there is a reasonable possibility of a reconciliation”.

Although, as referred to above, effectively accepted by Mr Pocock, I start by dealing with the question of whether the required steps referred to in Article 16 are to be determined autonomously or by reference to the relevant domestic law.

I have no doubt that Mr Pocock was right to accept that it is the domestic law of the relevant Member State which determines what steps an applicant is “required to take to have service effected”. This is, in part, because BIIa and the Brussels I Regulations contain no provisions stipulating what steps are required to effect service. The position is made clear by VSB Machineverhuur in which the CJEU said in respect of Article 30 of Brussels I:

“59 In the absence of any such duty to effect prior service, it would have to be concluded that the investigating magistrate … was seised at the time when the complaint … was lodged at that court, provided however that (the complainants) did not omit to take the measures which they were, again under the applicable national law, obliged to take to ensure that the document lodged should thereafter be served on the defendants” (my emphasis).

There is no reason why the same approach would not apply to the identical provisions in Article 16, a conclusion supported by MH v MH (paragraph 25: see below).

The Recitals in the Brussels Regulations, referred to above, are addressing another question, namely the difficulties which would be created if the different domestic rules as to when a case is regarded as “pending” continued to apply. To ensure consistency this question needs to be determined autonomously. Accordingly, under Article 16 the question of when a court is seised is to be determined autonomously: see, for example, A v B (Case C-489/14) paragraph 106 of Advocate General P Cruz Villalon’s Opinion and paragraph 29 of the judgment; and MH v MH paragraph 25.

The court is seised, under Article 16(1)(a), when the “document instituting the proceedings … is lodged with the court”. As stated in MH v MH “the lodging of the document of itself renders the court seised, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected” (paragraph 26). In earlier English authorities, this structure was referred to as a “condition defeasant”: Lord Clarke in Re I (A Child) [2010] 1 FLR 361 at paragraph 87: see also Holman J’s decision in Weiner v Weiner [2011] 1 FLR 372.

There are a number of authorities which have considered whether there has been a failure to comply with a required step, mainly by reference to Article 30. They provide guidance on the issues of when a step comes within the proviso and when a party will be found to have failed to take a required step.

In WPP Holdings Italy Srl v Benatti [2007] 1 WLR 2316, Toulson LJ (as he then was) considered that Article 30 “is purely concerned with seisin” (paragraph 67). As a result “it does not matter whether” valid service has been effected (paragraph 66). Sir Antony Clarke MR (as he then was) agreed with this reasoning (paragraph 96). Toulson LJ also observed that the words in Article 30 mean what they say in that a claimant must “not have subsequently failed to take the steps he was required to take” (paragraph 65).

In UBS v KWL Gloster J (as she then was) decided that UBS had not failed to take the required steps when service had been delayed for six weeks while without prejudice negotiations took place. She rejected an argument that UBS’ conduct was an abuse of process. She noted that the relevant rule, CPR 7.5, imposed no obligation for service to be effected “forthwith” or “as soon as possible” (paragraph 70) but merely within the stipulated periods of time depending on whether service was within or outside the jurisdiction. Her conclusion was as follows:

“73.

… in any event, it does not seem to me that my conclusion as to the reasonableness of UBS' behaviour is of any relevance. It cannot be appropriate that, under Article 30, the relevant court has to conduct an enquiry as to whether, applying some wholly uncertain subjective criteria, it regards the issuing party as having inappropriately delayed the service of process. That would introduce the very uncertainty that Article 30 was apparently designed to avoid. The only criterion has to be that the issuing party has subsequently ‘failed to take the steps he was required to take to have service effected on the defendant’.”

I consider that Debt Collect v SSPF is particularly relevant to this appeal, so I deal with it at some length.

Proceedings had been commenced in the Czech Republic prior to the commencement of proceedings in England. However, service of the Czech proceedings was not effected prior to the commencement of proceedings in England, and their service, because the applicant had not paid the fee due on the filing of the proceedings. Payment was not made until 6^th August 2009. The commencement of proceedings had created an obligation to pay the fee, without which the Czech court would not effect service. The proceedings in England were issued on 15^th June and served on 29^th June 2009. Tugendhat J decided that SSPF had failed to take a step that it was required to take to have service effected in that it had failed to pay the fee. As a result, the Czech court was not the court first seised.

His decision was upheld by the Court of Appeal. It was argued on behalf of SSPF at the appeal hearing that a “delay” in paying the fee should not be equated with a “failure” within Article 30. This was because SSPF had “simply waited, as was the usual practice under Czech law, for a request to be made by the court and when the request was made, it had paid the fee” (paragraph 20). It was also submitted that to treat it as a failure would lead to “unjust and irrational results” in that “if the fee were paid one day late … that would be a “failure” to take a required step” (paragraph 21).

These submissions were rejected. In response, Mummery LJ said:

“24

I do not accept Mr Keith's submissions as (to) the correct interpretation of article 30(1) or on its application to the facts of this case. I agree that the Czech proceedings were lodged in the Czech court before the English proceedings were issued and served. The problem is the legal effect, under the proviso to article 30(1), of SSPF's non-payment of the court fee before the English proceedings were issued and served. It only becomes necessary to consider the effect of that article when the courts of another member state (in this case the English court) appear on the litigation scene. When there are two sets of pending proceedings there will be an issue under articles 27 and 28 as which courts are first seised of the pending proceedings. The proviso to article 30(1) makes it necessary to consider the domestic law of the member state (in this case Czech law) to see if there has been a failure to take the required step to have service of them effected on the defendant and, if so, what is the legal effect of that failure.

25

In this case the consequence of SSPF's non-payment of the Czech court fee was that service of the Czech proceedings was not and could not be effected on DCL or ENIC. I agree with the judge that, from the date of the lodging of the Czech proceedings on 15 April 2009 until 6 August 2009, there was a continuing failure by SSPF to perform its legal duty, which arose on its lodging of the proceedings, to pay the Czech court fee. Payment of the court fee was a required step for the service of the Czech proceedings. SSPF did not take that step. It was established by an opinion of the Czech Supreme Court of 29 September 1988 (No 2/1989) that the court shall not serve the proceedings on other parties before the fee has been paid. SSPF's evidence and submissions on the possible procedural consequences under Czech law of that failure upon the proceedings (whether they are stayed, or dismissed or cease to be valid) are irrelevant. What matters are the consequences for being seised of proceedings under the Judgments Regulation, which simply looks at whether or not there has been a failure to take a required step to effect service of the proceedings.”

In his judgment Lloyd LJ decided that there had to be a “culpable failure” (paragraph 43). He referred to the Proposal which had led to Brussels I in which it had been said, at p.20, that the proviso in Article 30 required the applicant “to take all the requisite steps to have it served on the defendant” which would “depend on the legal system” and, by way of example, might “include transmission to the court of all material facts enabling it to serve notice of the action”. He then considered the effect of the proviso:

Stanley Burnton LJ made the general observation that it was “clearly undesirable” for a court to be seised by a litigant without the “foreign defendant” being served “reasonably promptly” (paragraph 55). On the issue of whether there had been a relevant failure by SSPF he said:

“59

In my judgment, “failure” in article 30(1) is a failure to comply with a duty imposed by the procedural law of the jurisdiction in question. SSPF failed to comply with its duty to pay the Czech court fee. Its duty had arisen as soon as it lodged its claim with the Czech court. As a result of that failure, DCL had not been served when this court became seised with the present proceedings. It follows that for the purposes of the Judgments Regulation, the English court was first seised.”

The next case is MH v MH, an important decision by the CJEU, which refers to its earlier decision (not reported in English) of P v M (C-507/14) which had dealt with Article 16(1)(a). Based in part on its earlier decision, the CJEU addressed the purpose and effect of Articles 16 and 19:

“22

As regards the purpose of the rules of lis pendens in art.19 of Regulation 2201/2003, the Court noted that those rules are intended to prevent parallel proceedings before the courts of different Member States and to avoid conflicts between decisions which might result therefrom. For that purpose, the EU legislature intended to put in place a mechanism which is clear and effective in order to resolve situations of lis pendens (see judgment of 6 October 2015 in A v B (C-489/14) [2016] I.L.Pr. 10, [29]).

23

As is apparent from the words “court first seised” and “court second seised” in art.19(1) and (3) of Regulation 2201/2003, that mechanism is based on the chronological order in which the courts concerned have been seised.

24

In order to determine when a court is deemed to be seised and thereby establish which is the court first seised, it is necessary to refer to art.16 of that Regulation, entitled “Seising of a Court.”

25

The Court has held, in para.[30] of the order of 16 July 2015 in P v M (C-507/14) EU:C:2015:512, that that article contains an autonomous definition of the time when a court is deemed to be seised. The EU legislature adopted a uniform concept of the time when a court is seised, which is determined by the performance of a single act, namely, depending on the procedural system under consideration, the lodging of the document instituting the proceedings or the service of that document, but which nevertheless takes into consideration whether the second act was in fact subsequently performed. Thus, pursuant to art.16(1)(a) of Regulation 2201/2003, the time when the court is seised is 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 (order of 16 July 2015 in P v M (C-507/14) EU:C:2015:512, [32]).

26

The Court stated that, for the court to be deemed seised, art.16(1)(a) of Regulation 2201/2003 requires the satisfaction not of two conditions, namely that the document instituting the proceedings or an equivalent document must have been lodged and service thereof must have been effected on the respondent, but merely of one – that of lodging the document instituting proceedings or an equivalent document. Pursuant to that provision, the lodging of the document of itself renders the court seised, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent (order of 16 July 2015 in P v M (C-507/14) EU:C:2015:512, [37]).

27

The Court observed, in respect of that condition, that its objective is to ensure protection against abuse of process. Thus, for the purposes of checking compliance with that condition, account would not be taken of delays caused by the judicial system applicable, but only of any failure of the applicant to act diligently (order of 16 July 2015 in P v M (C-507/14) EU:C:2015:512, [34]).”

The court concluded that, for the purposes of Article 16(1)(a), this meant that the “time when a court was seised may be objectively established solely on the basis of the time … when the document instituting the proceedings … was lodged with that court, irrespective of any national procedural rule intended to determine when and in what circumstances proceedings are initiated or are considered to be pending, provided that the applicant has not subsequently failed to comply with the condition relating to service of that document on the respondent”: paragraph 28 (my emphasis).

It can be clearly seen from MH v MH that a court is seised once the petition is lodged with the court and that the overarching purpose of the proviso is protection from abuse of process. This case and the other authorities referred to above also establish, in my view, that in order for the proviso to apply there has to be a failure to comply with a specific step required by the domestic law in order “to have service effected”, not a more general failure to effect service, and that the failure must be due to the applicant having failed to act diligently by not taking the required step.

I now turn to the issue of what steps are required under our domestic law.

FPR r.7.8 stipulates only that a petition must be served on the respondent and any co-respondent. There is no requirement that it must be served within a stipulated period. A petition can be served in a number of ways, as referred to above, and it is also for the petitioner to decide whether to seek to serve it in or out of England and Wales.

I do not consider it possible to imply any specific time limit by analogy with the CPR. I also do not consider that it is possible to imply words such as, “as soon as possible” or “as soon as practicable”, as submitted by Mr Pocock or even “reasonably promptly” as proposed by the judge.

It is, of course, possible for additional powers or obligations to be implied into procedural rules. The submissions in this case have not extended beyond a reference to the Supreme Court’s decision in Abela v Baadarani [2013] 1 WLR 2043. In that case Lord Clarke considered it to have been rightly conceded that a power prospectively to permit alternative service abroad was to be implied into the rules. This was because it “must have been the intention of the drafter of the 2008 amendments to the CPR Pt 6”, paragraph 20. To take another example, as was said by Kay LJ in Totty v Snowden [2002] 1 WLR 1384 (a case to which we were not referred), paragraph 33:

“Thus in order to justify the interpretation for which the defendants contend, it would be necessary, since there are no express words to that effect, to conclude that the provisions of rule 7.4 … clearly imply that rule 7.6 is to apply to the particulars of claim as well as to the claim form”.

Service is a critical part in the conduct of proceedings and parties need to know easily and clearly what they must do in order to comply with the rules as to service. It might be sensible or even appropriate for some additional specific obligation to be included but I can see no principled basis on which such can be implied. What period would be selected and why would that period be appropriate? In this context, what would “as soon as possible” or “as soon as practicable” mean? The situation is different from that which existed in UBS v KWL because the CPR include express time limits for service. However, I agree with Gloster J when she questioned whether it would be appropriate for the court to apply “some wholly uncertain criteria” to determine an issue such as this and when she remarked that this would “introduce the very uncertainty that Article 30 was apparently designed to avoid”. As set out in MH v MH the purpose of the provisions is “to put in place a mechanism which is clear and effective” (paragraph 22). To imply words that service must be effected “as soon as possible” would create a mechanism which was not clear and of dubious effectiveness.

Accordingly, I do not consider that the additional proposed words can be implied into r.7.8 on the basis that this must have been the intention of the drafter or on any other basis. I am fortified in this conclusion by the fact that no time for service of a divorce petition (or any other specific obligation in respect of service) has ever been stipulated. If such was considered appropriate it would not have been difficult to include a provision to this effect.

I have not overlooked that, in interpreting the rules, the court must also seek to give effect to the overriding objective. However, in my view, to imply words as submitted by Mr Pocock would be to re-write the rules not to apply any accepted rule of construction. As I have said, it is clearly arguable that a time limit might be appropriate but I agree with Mr Pointer’s submission that if any time or other requirement is to be imposed it is for the Family Procedure Rule Committee to decide whether and if so what should be imposed.

What of Mr Pocock’s submission that FPR r.7.8 creates an immediate and continuing obligation to serve a petition or, although I am not sure he specifically formulated his submissions to include this, to embark on effecting service?

The first thing to note is that this has never been how this rule, or any of its predecessors, has been interpreted. Ewbank J’s obiter observation was not dealing with the requirements of the rules but was a general comment about petitions being “held in secret”. The rule as to service has never been considered to create any additional obligation to serve “immediately” or to embark on steps to effect service “immediately” nor to require an application by the petitioner if he/she was not intending to do so (as submitted by Mr Pocock as referred to below).

The second important point is that the proposed interpretation would have the result, as was made clear during the hearing when Mr Pocock responded to a question from King LJ, that any delay in seeking to effect service, including say because of a significant family event, would be a failure to take the required steps. This could, he suggested, only be cured by an application for service to be delayed.

For the reasons set out below, that this proposed interpretation should have this effect supports the conclusion that it is not consistent with the structure of the rules as to service or the need to have clarity as to what a party must do in order to comply with the rules as to service as referred to in paragraph 60 above. It would also be inconsistent with Mr Pocock’s developed submission that immediate means “as soon as possible” or “as soon as practicable” (see paragraph 32 above).

Rule 7.8 simply requires the petitioner to serve the petition. No particular step is stipulated as having to take place “immediately” or by a certain date. Further, a petitioner can choose how to seek to effect service including the method of service and whether to seek to serve out of the jurisdiction. In this context, what would the proposed obligation to serve, or to embark on service, immediately mean? It could not, for example, sensibly be suggested that a petitioner would have failed to comply with r.7.8 because they had delayed seeking to serve the respondent when they had decided to wait for a few days (or more), until the respondent had returned to the jurisdiction, to effect personal service rather than serve out of the jurisdiction merely because only the latter course could be undertaken immediately. It would also not to be consistent with the overriding objective to require the petitioner to make an application in such circumstances.

Indeed, further testing the proposed interpretation, it would create what I would regard as the absurd position that, by waiting even one day before embarking on service, a petitioner would have failed to comply with the rule. This would be an oppressive interpretation and, again, inconsistent with aspects of the overriding objective. It would, no doubt, lead to applications under FPR r.6.19 that steps already taken should be treated as “good service” and/or under r.4.1(1)(b) which permits a court to extend the time for compliance with any rule.

Further, how would these issues be determined? Given that no step beyond service is mandated, by what test would a court determine whether the petitioner had acted “immediately”? Again, I agree with Gloster J when she pointed to the difficulties which would result if the court was to apply “some wholly uncertain subjective criteria” when deciding whether a party had “inappropriately delayed the service of process”: UBS v KWL paragraph 73.

Considering the structure of the rules I also do not consider that Debt Collect v SSPF supports his submissions as suggested by Mr Pocock. That case was dealing with a single event, namely the payment of the fee. This clearly fell within the proviso as it was a step which the plaintiff was required to take to have service effected. In the present case, as referred to above, no specific step is mandated beyond service itself. Absent any specific step, the result of the proposed interpretation would create the same difficulties identified by Lloyd LJ in Debt Collect v SSPF in respect of Article 30 namely, to repeat (paragraph 43):

“… It cannot refer only to the fact that the plaintiff has not yet taken the relevant steps. Otherwise, in practice, the court would only be seised once the required steps had been taken, even if they were taken promptly. That is clearly not the result that article 30 is intended to achieve.”

Although the interpretation of the FPR is, of course, a matter of domestic law, I cannot but note that, if the proposed interpretation was correct, it would create difficulties in the application of Article 16 which it would be surprising if the drafters of the FPR would have intended to create having regard to the fact that Article 16 is also part of our legal framework.

By creating uncertainty as to when the domestic rules had been fulfilled it would create uncertainty as to when the proviso had similarly been fulfilled. Parties would frequently be unsure whether the English court was seised until service had, in fact, been effected because any and every delay would have to be assessed to see whether it was “culpable” or constituted a failure to act “diligently”. It could also be said not to be consistent with the purpose of Article 16 which is to prevent abuse of process and to be part of a “clear and effective” mechanism.

Further, by creating an obligation merely to serve, this interpretation would undermine the primary focus of Article 16 because it would make the proviso the determinative part of the Article for the purposes of determining seisin when the CJEU has made it clear that the act of lodging is the act which seises the court. As referred to above (paragraph 45) the Article is “concerned with seisin not service”: WPP v Benatti, Lord Clarke, paragraph 96. It requires a failure to take a specific step or steps which our domestic procedural law requires a petitioner to take to have service effected. It is directed to a specific step or steps and not the general obligation to effect service.

Accordingly, I also reject the husband’s case that our domestic provisions should be read as requiring a petitioner to serve a petition immediately. In addition, although it may be my formulation, I do not consider that a petitioner is required immediately to embark on effecting service. In short, the rules do not permit of any sensible application of the word “immediately” if this was treated as being the effect of r.7.8.

I do not consider it appropriate to deal generally with the issue of abuse of process. It does not arise in this case and we only heard very brief submissions on it.

The outcome to this appeal is found by determining (i) what steps under English law a petitioner is “required to take to have service effected” and (ii) whether the wife has failed to take those steps. As set out above, there are no specific required steps. There is only the generally stated obligation to serve. Accordingly, the wife in this case has not failed to take any required step. Further, given that there are no required steps, the fact that the wife gave insufficient details to enable the husband to be served at the address given for service in Germany cannot amount to a failure to take a required step. In my view, the appeal must, therefore, be dismissed.

I acknowledge that this situation is not entirely satisfactory because I would agree with the observations made by Ewbank J and by Stanley Burnton LJ that, to adopt the latter’s formulation, in general it can be said to be “undesirable” for a party to seise the court without the respondent being served “reasonably promptly”. However, for the reasons given above, I do not consider it is for the court to decide whether, and if so how, this issue should be addressed. Accordingly, I propose that the Rule Committee should be invited to consider whether any additional obligations as to service should be included in the FPR.

I agree.

I also agree.