NP v TP

The application before the court is made by NP, who I shall refer to as ‘the husband’. His application (20 October 2021) is made under section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (‘MFPA 1984’) and it appears (though this is not apparent from the face of the application) that he seeks the rescission of part of an order which I made on 16 August 2021 by which I directed that the stay on TP’s (hereafter ‘the wife’s’) divorce petition issued in this country in February 2020 be lifted. I made this order having found as a fact that the English Court was the court first seised of divorce process. I found then that the divorce petition was “lodged” with the English Court on 12 January 2020, several weeks before the husband’s petition had been lodged in the courts of Bulgaria (4 February 2020).

The husband seeks to persuade me at this hearing that evidence which has recently come to light, and which was not before the court in July 2021 when I made that determination, undermines the factual basis of my finding.

The judgment which explains my earlier order is reported as P v P (Divorce: Jurisdiction) [2021] EWHC 2306 (the ‘2021 Divorce judgment’). I have previously also given a judgment in these proceedings, under the citation P v P (Re P: Discharge of Passport Order) [2020] EWHC 3009 (Fam) (‘the 2020 Passport judgment’); it would be useful, for an understanding of the factual background to the case, for reference to be made to §5-§30 of that 2020 Passport judgment.

The hearing of the application was adjourned once, as I was satisfied that the wife had not received proper notice, and I wished to give her the chance to re-instruct her former solicitors (Dawson Cornwell) to represent her. In fact, those solicitors were not instructed, and the wife represented herself at the hearing; she did so ably, and I made due allowance for the fact that she was doing so in her second language. The husband was represented by Mr Roger Birch, of counsel.

The proceedings between NP and TP are extremely contentious. The parties have been litigating for more than 2 years, in England and Bulgaria, principally over issues of jurisdiction and interim relief concerning the dissolution of the marriage and arrangements for their child. There is little to show for their efforts. Neither party has shown any real restraint in how they have placed material before the court; they have been indifferent to court-imposed timetables and/or restrictions on the volume of documentary material lodged, and have shown questionable focus on the actual issues. The hearing of the husband’s application was given a time estimate of 2 hours. I heard oral submissions, and both before and after the hearing have considered the 1,000 or more pages of submissions and evidence in order to reach a view.

To set a context for my decision, it is right to return first to the 2021 Divorce judgement which I delivered on 16 August 2021. That judgment set out my reasons for finding that the wife had lodged her petition for divorce first in time, and that the courts of England and Wales were therefore first ‘seised’.

In that judgment, I had reproduced §13 of the 2020 Passport judgment which, for context, I do again here:

“[13] Litigation between these parties began in earnest in early January 2020, when the mother (Footnote: ¹) applied (on-line) for a divorce in the Court in England; her petition was issued on 29 January 2020. On 4 February 2020, the father applied for a divorce (and child arrangements and financial relief) through the Bulgarian Court. Confusingly, on 21 February the English Court issued a second divorce petition on the mother's application (bearing the same case number). The mother claims that the Bulgarian divorce proceedings have not been served on her, a fact disputed by the father who points out that the mother applied successfully on 16 March 2020 within the Bulgarian proceedings for those proceedings to be transferred to her local court. The father has confirmed, by an Answer filed in England on 16 March, his intention to defend the English divorce proceedings on the basis of the divorce proceedings in Bulgaria; the English divorce proceedings have therefore currently been stayed.”

For reasons which I summarised at §18 of the 2021 Divorce judgment, this is a ‘legacy’ case to which the provisions of Council Regulation 2201/2003 (‘BIIR’) continue to apply. At §24 of the 2021 Divorce judgment, I set out Article 16 BIIR. Given its significance to the instant issue, I repeat it again here:

“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;

or

(b)

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.”

I have added underlining to give emphasis to the key provisions.

Additionally, at §25 of the 2021 Divorce judgment, I referenced Article 19 of BIIR, and then the decision of the CJEU in MH v MH (Case C-173/16) [2017] ILPr 23, EU:C:2016:542, 503. I went on to reproduce paragraphs §25, §26 and §29 of MH v MH, and repeat those paragraphs here, again for ease of reference:

I went on to consider the judgment of the Court of Appeal in Thum v Thum [2018] EWCA Civ 624, specifically at §55. I return to this decision at §25 below.

At §30 of the 2021 Divorce judgment, I cited the extensive passage in the judgment of Judge Kostadinova of the Plovdiv Family Court in Bulgaria, and her finding, confirmatory of my earlier finding, that the English Court was the court first seised. I repeat now what I said then – namely my admiration for the “very careful, thorough, and legally impeccable analysis of the current situation” which the Bulgarian Judge had brought to the issue.

I continued in the 2021 Divorce judgment at §33 – 37 to say this:

“33.

The mother’s case is that her petition was successfully lodged (on-line) in England on 12 January 2020.  The undisputed material documentary evidence which relates to this is as follows:

i)

TP has produced an e-mail receipt in respect of her on-line submission for divorce at 8:53:38pm on 12 January 2020; at that stage, the receipt recorded the following information: “Petition awaiting payment”;

ii)

At 11:03pm on 12 January 2020 (i.e., a couple of hours later on the same day), TP received a further receipt by e-mail confirming that “Your payment of £550 to Divorce was successful”, and a payment reference was given;

iii)

Simultaneously to the message above (at (ii)) (11:03pm on 12 January 2020), TP received an e-mail in these terms: “Your divorce application has been submitted to the Courts and Tribunals Service Centre”.  A temporary reference number was given, and this was followed by the words “You’ll be given a full case number when your application has been accepted and issued”.

34.

As I earlier indicated (see the extract from my earlier judgment quoted at §16 above), it appears that the English petition was confusingly actually issued more than once, on 29 January 2020 (Footnote: ²), on 20 February 2020 (Footnote: ³) and/or on 21 February 2020 (Footnote: ⁴).  On each occasion, the petition was given the same case-number.

35.

It is recorded, and is not disputed, that NP issued his divorce proceedings in Varna Bulgaria on 4 February 2020 (Footnote: ⁵).  NP’s primary case is that the court should treat the latest date in the sequence above (§33/34) i.e., 20/21 February (when final confirmation was received of the issuing of TP’s petition) as the date when the English Court was ‘seised’.  However, I am concerned not when the petition was issued, but when it was lodged.  When pressed, Mr Birch accepted that there was no evidential uncertainty about the date on which the English petition was submitted online, or ‘lodged’, and that was 12 January 2020 (he conceded in submissions that “it is difficult to say that it was not lodged then”).

36.

When is a petition (“the document instituting the proceedings or an equivalent document”) “lodged with the court” (per Article 16)?  The answer to this question is located in the judgment in MH (see above at §27): it “is the time when that document is lodged with the court concerned, even if under national law lodging that document does not of itself immediately initiate proceedings”.

37.

In my judgment, it is clear that TP’s divorce petition was successfully “lodged” in the English Court on the evening of the 12 January 2020 (Footnote: ⁶).  While it is not material for me to decide whether this was at 8.53pm when TP received the receipt for her on-line submission, or when she received the later confirmation of her effective submission (11.03pm) once payment had been made, in my judgement it is likely to be the earlier time, and that would have been effective to establish seisin, provided that she went on to pay the requisite fee (a step which she would have been required to take prior to service on the Respondent: see Article 16(1)(a)), and that she did indeed serve NP (which I am satisfied she did).  On any view, she lodged her petition in England many days before NP lodged his petition with the Bulgarian Court.  I am, for the avoidance of doubt, satisfied on the authorities that it was not necessary for the court to issue the proceedings, nor for actual service to be effected on the respondent, in order to establish seisin under Article 16.”

At §50(iii)(a) of the 2021 Divorce judgment, I concluded:

“England is the court first seised of divorce process; the divorce petition was lodged with the court on 12 January 2020.  This conclusion has separately been reached by the Bulgarian Court, who will be invited in the circumstances to decline jurisdiction now in accordance with Article 19(3) BIIR;”

Since my ruling in August 2021, both the husband and Mr Birch have jointly and individually made extensive enquiries to establish with greater specificity the manner in which the wife’s petition for divorce was processed in this country. They plainly sought evidence which (a) would explain the anomaly of two petitions apparently being issued in the English Court, and (b) would unsettle my finding that the wife’s divorce petition was lodged (within the meaning of Article 16 BIIR) on 12 January 2020. They have obtained copies of most of the documents which were contained in the Family Court file (I myself went through the file in its entirety and ordered the release of a significant number of the documents), and with my permission they have obtained further printouts from the FamilyMan system (this is the Family Court’s Case Management System).

It is evident that, in spite of the considerable additional material now before the court, there are still some gaps in the documentary archive, and I recognise that I am, even now, working with an incomplete suite of material. By way of example, it has been confirmed to the court by the Operations Manager at the relevant Court and Tribunal Service Centre (CTSC) (at which HMCTS provides centralised administration in the processing of divorce applications) that automatically generated e-mails sent by the CTSC to the wife in January/February 2020 “will not be retrievable. The notifications are automatically generated when a case moves into a different status within the digital system”.

Notwithstanding the gaps, of which there may be a few, the upshot of the husband’s research is that a more detailed timeline of events is now available to the court. There having been no single, unified, chronology prepared by either party, I have prepared one for myself, and incorporate it (below) into this judgment. While the key dates in this chronology were known to me in July 2021, some of the detail was not:

The Operations Manager at the relevant CTSC has further said (Footnote: ⁷):

“For clarity the case was issued on the 29^th January, then once the case admin realised, they had concerns over the addresses being the same, but the petitioners marked as confidential, they moved the case back into a rejected state, uploaded an email to [TP] querying the addresses, then into a status awaiting clarification from the Petitioner”.

In the same e-mail she also explains:

“At this point [January 2020] we did not have a confidential document holding space on the digital system and therefore would not upload such a document. This has since been rectified within the system…”

I reproduce the salient parts of this communication here because Mr Birch relies on the use of the words “rejected state” in the narrative above as signifying the CTSC’s repudiation of the petition completely. As will be later apparent, that is not, in my finding; it appears that there was (contrary to the position now) no confidential document holding space on the digital system, and therefore nowhere for the administrators at the CTSC then to ‘file’ a petition which requested the storage of confidential information. I do not find that this means that the petition was refused; the e-mail is clear that the CTSC had moved the petition “into a status awaiting clarification from the Petitioner”, taking no subsequent step (such as returning the fee) to indicate that this was indeed the CTSC’s intention. I should add in preparing the chronology above, I have drawn on the original and contemporaneous documents materials, and not on the comments or interpretations offered by the HMCTS employees which are contained in subsequent e-mails to counsel and to NP.

There are two specific legal issues in play, the first procedural, the second substantive:

NP has brought this application under section 31F of the MFPA 1984. Section 31F falls within Part 4A of the MFPA 1984; this is the part of that legislation which created the Family Court. Section 31F deals with ‘Proceedings and Decisions’. Section 31F(6) specifically provides as follows:

“The family court has power to vary, suspend, rescind or revive any order made by it, including—

(a)

power to rescind an order and re-list the application on which it was made,

(b)

power to replace an order which for any reason appears to be invalid by another which the court has power to make, and

(c)

power to vary an order with effect from when it was originally made.”

If not explicit, it will nonetheless have been clear from the context of my earlier order (see §5 and 6 of the 2021 Divorce judgment) that in considering whether to lift the stay of the petition I was exercising the jurisdiction of the Family Court (which had specifically referred the issue to me for consideration), as I am again now.

I recently had cause to consider how the court could/should exercise the jurisdiction under section 31F(6) MFPA 1984 in the case of Re A and B [2021] EWFC 76. I set out at §25 to §39 of that judgment the not insignificant jurisprudence which has grown up around the application of section 31F of the MFPA 1984 and equivalent procedures. I concluded in Re A & B that the powers of the court exercisable under section 31F(6) are, on the face of the statute alone, reasonably extensive, but that the jurisdiction has been subsequently circumscribed by caselaw. I summarised the ways in which the power had been so circumscribed at §39:

“Section 31F(6) of the 1984 Act is most likely to be deployed in a children's case where the relief sought is rescission of an earlier order (as here). The Family Court has wide powers under the CA 1989 to vary or indeed discharge its own order where it can be demonstrated that the circumstances have changed, and the interests of the child require variation or discharge of the court-ordered arrangements. In determining an application for variation or discharge under the CA 1989, the child's welfare will unquestionably be paramount; this may influence the jurisdictional route which the applicant chooses to take. Having considered the arguments and the caselaw above, it seems to me that the principles by which the court will determine whether to exercise its power to rescind (or, where applicable, vary, suspend or revive) an earlier order under section 31F(6) of the  1984 Act are as follows:

i)

Litigants should not be permitted to have 'two bites at the cherry' by applying again before the same court in relation to the same matter; there is an important public policy in achieving finality of litigation;

ii)

It is equally important for the court not to subvert the role of the Court of Appeal; if the litigants assert that the trial judge was wrong, the route for them to follow is an appellate one;

iii)

The first point of reference should be whether one of the 'traditional grounds' for proposed review has been established:

a)

Fraud, mistake, innocent (or otherwise) misstatement of the facts on which the original decision was made;

b)

Material non-disclosure;

c)

A new event or material change of circumstances which invalidates the basis, or fundamental assumption, upon which the order was made;

d)

If the order contains undertakings;

e)

If the terms of the order remain executory.

Although in Re A & B I was considering section 31F of the MFPA 1984 in the context of children proceedings, the principles adumbrated there and set out in §22 above are of equal application to an application which arises in other forms of family proceedings.

In the 2021 Divorce judgment I addressed the legal issues engaged in consideration of Article 16 BIIR (see §16-29 of that judgment). At §9 above, I have reproduced the important passages from MH v MH on which I had earlier relied. At §29 of the 2021 Divorce judgment I reproduced a passage from the Court of Appeal’s judgment in Thum v Thum [2018] EWCA Civ 624; again, for completeness, I reproduce this below:

“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” (§55).

At this hearing, both parties returned to this exposition of law, bringing greater focus on what Moylan LJ had said at §47 – 52 of his judgment in the Thum case. It is not immaterial to note that in that case, the wife had lodged a petition in the English Court, but had delayed for four months before serving it on the husband; when she did so, she did not in fact provide sufficient details of the husband’s address to allow for effective service. The first instance court did not embark on any factual enquiry into her reasons for delaying service, a point which was not criticised on appeal (see §8 of Thum: “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”). In giving the leading judgment on appeal, Moylan LJ considered extensively the dicta of the Court of Appeal in the case of Debt Collect London Ltd and another v SK Slavia Praha-Fotbal AS [2011] 1 WLR 866 (‘Debt Collect’) in which Lloyd LJ had determined (in an equivalent provision to Article 16 (Footnote: ⁸)) that a ‘failure’ to take a required step to effect service on the respondent had to be a ‘culpable failure’:

“One of the issues is what is meant by failure to take steps in this context. 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. The failure must be, in some sense at least, a culpable failure.” (emphasis added)

Moylan LJ went on to consider MH v MH (see above), and cited paragraphs 22-27 of that judgment (which I have largely reproduced at §9 above). Moylan LJ pointed out that:

“This case [i.e. MH] 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.” (§55 of Thum)

As the Court of Appeal had observed in MH, so he too described the “overarching purpose” of the proviso in Article 16 as the “protection from abuse of process” (§55 Thum).

In Thum, Moylan LJ discussed (§57-77) the absence in the Family Procedure Rules 2010 (‘FPR 2010’) of any requirement to serve a petition within a defined period of time, and resisted counsel’s invitation to import into the FPR 2010 any inferred term as to service within a reasonable period of time, or as soon as practicable. Moylan LJ was clear that there are no specific required steps in relation to the service of a petition (§76) and, for the avoidance of doubt, a petitioner is not “required immediately to embark on effecting service” (§74), even if the result of this analysis may lead to results which are “not entirely satisfactory” (§77).

On behalf of the husband, Mr Birch argued that on the material now available it is clear that, contrary to my earlier finding, the English petition was not ‘lodged’ on 12 January 2020. He contends that for three reasons the petition was not ‘lodged’ until after 20 February 2020:

TP, addressing the court in person, argues to the contrary:

The wife’s secondary/reserve position was that the proceedings were not lawfully ‘lodged’ in Bulgaria until 20 February 2020 at the earliest and that even if the husband were able to show that the English proceedings were not effectively ‘lodged’ on 12 January 2020, they were certainly ‘lodged’ by 19 February 2020 when the wife asked the Court to advance the application. The wife took me to a number of Bulgarian court orders which, she says, demonstrate that the divorce proceedings were not effectively lodged there on 4 February.

Having reviewed the new evidential material, and heard more extensive argument on the issue of seisin at this hearing, I remain firmly of the view that the English Court was seised of the divorce process on 12 January 2020. The husband has failed to demonstrate any misstatement of the facts on which the original decision was based.

First, it remains clear (indeed there was no argument to the contrary) that the wife lodged her petition for divorce on 12 January 2020; she made payment of the relevant fee on that day. The CTSC later confirmed (despite the various inconsistent messages) that the wife started her divorce process on 12 January 2020 (e-mail 5 May 2020). In my finding this is the one and only petition lodged in this country, and is the same petition which was the subject of the stay which I earlier lifted, eighteen months later.

Secondly, in spite of the more extensive material available from the court file, I am satisfied that there was no specific step in the divorce process which the wife failed to take. The ‘old’ (Footnote: ⁹)Part 7 of the FPR 2010, which were in force at the material time, contains no specific timeframe, nor other specific step, with which it could be said that the wife had failed to comply. Even if as a matter of fact the wife asked the CTSC to put the divorce process ‘on hold’ for a short time on the 13^th January and/or 4^th February, she could not be said to have "failed" to take the "required" step to effect service on the husband. As in Thum, in the absence of evidence that the wife had failed to take a specific required step to prosecute her petition, it is not necessary for me to investigate her reasons for delaying.

Thirdly, insofar as there were delays in the service on the husband, in my judgment these were not attributable to any culpability on the part of the wife. I do not find, furthermore, that over the period between 12 January and 19 February she was responsible of any abuse of the court’s due process.

I thus reject Mr Birch’s argument on behalf of the husband that the wife’s delay in serving the husband constituted a ‘failure’ to take the relevant step; this argument was effectively dismantled in Thum (see §36 of Thum). As pointed out by Moylan LJ in that case, if this argument were to be correct then the court would not be seised until, potentially, service was effected; this would radically alter the meaning and effect of the proviso in Article 16(1)(a).  Insofar as the delays were occasioned by the problems over the format in which the marriage certificate was submitted, I conclude that (a) this did not represent culpable failure on the part of the wife to take steps to serve the petition, and (b) the issue was in any event resolved by 28 January 2020. If the issue of the confidential address impeded the ability of the CTSC to process the petition for service, this was not the fault of the wife.

I am further influenced in reaching my conclusion by a combination of the following facts:

In my earlier judgment, I had referenced the decision of Judge Kostadinova in Bulgaria, and indeed cited extensively from her judgment. I remain of the view that this analysis was correct. The husband appealed that decision in the Bulgarian Court. The Bulgarian Appeal Court rejected his appeal on 4 February 2022.

For the avoidance of doubt, I should add that I decline to consider the wife’s secondary argument. It is not a matter for me to determine whether, as a matter of Bulgarian law, the petition was or was not effectively lodged in that country on 4 February. Moreover, it would be quite wrong for me to go behind Judge Kostadinova’s ruling (quoted in §30 of my earlier judgment) in which she said that: “The proceedings in the present case were instituted by the claimant [NP] on 04.02.2020”.

For the reasons set out above, I refuse the husband’s application.

That is my judgment.