E v E (Article 19 and Seiesing BIIa)

This case concerns, principally, the application of Art.19 of Brussels IIA (“BIIA”), namely Council Regulation (EC) No. 2201/2003.

The husband, through Mr. Leech QC, submits that, in the circumstances of this case, I must decline jurisdiction and should do so by dismissing the wife’s English petition.

The wife, through Mrs. Bailey-Harris, submits that I should make an order which does not involve dismissing the wife’s petition. This is so that it can be restored in the event of the husband’s French proceedings being dismissed. During the course of the hearing, I invited Mrs. Bailey-Harris to indicate the order that she was inviting me to make. It is as follows:

“It is ordered that the court decline jurisdiction in respect of the wife’s Petition. It shall be revived in the event that the husband’s French suit is dismissed.”

There is a subsidiary issue, which was canvassed during the course of the hearing, as to service on the wife in England of the husband’s French petition, called an assignation. I regard this very much as a subsidiary issue, which I propose to deal with at the end of the judgment relatively briefly.

Given (i) that the parties have very limited resources; (ii) the relatively straightforward nature of the issues in this case; and (iii) that this appears to be a tactical jurisdictional battle which does not address the substantive issues at all, I have come to the clear conclusion that this case has not been pursued in accordance with the overriding objective. In particular, the obligation to deal with a case “in ways which are proportionate to the nature, importance and complexity of the issues”; the obligation of “saving expense”; and the obligation to allot to a case “an appropriate share of the court’s resources”. This can, in part, be demonstrated by the fact that the parties have together spent approximately £50,000 on legal costs in England alone.

I need start the background history only with the commencement of divorce proceedings by the husband in France in 2011. The wife had herself issued what is called a requête, but subsequently withdrew it. By that date, the parties had been living in France for approximately nine years.

In June 2012, the French court determined that it had jurisdiction and would exercise jurisdiction in respect of the proceedings. During the course of the hearing before the French court, the wife had indicated that she wanted the divorce proceedings to be determined in England, in part, it appears, based on her having moved to live in England with the parties’ children at the end of December 2011.

The French court determined that it had jurisdiction pursuant to BIIA because, at the time the proceedings were commenced in France, both parties were habitually resident in France. The wife’s application, in so far as it was a properly constituted application for the divorce proceedings to be determined in England, was not accepted.

On 20^th November 2012, the French court issued a non-conciliation order. The parties were authorised, pursuant to this order, to apply for divorce by filing an assignation. In the event that no, what I will call a, petition (although it does not translate into an English style petition) was filed within 30 months, to quote the order in translation, “all the hearing authorisations become void, including the authorisation for petitioning for divorce”.

On 5^th or 12^th May 2015 – it is not necessary for me to determine which – the husband filed an assignation en divorce at the French court. Both of these dates are within the 30 month period.

After the expiry of the 30 month period, namely on 21^st May 2015, the wife issued a divorce petition on England. The wife says that, at that time, she was unaware that the husband had filed a petition in France. Her French lawyers had made enquiries, it appears in April, of the French court. This was, therefore, prior to the husband having filed his petition as referred to above.

On receipt of the wife’s English petition, the husband immediately responded, by email dated 26^th May 2015, stating that the divorce was active and underway in France. He followed this with an email, dated 1^st June 2015, inviting the withdrawal or the setting aside of the wife’s English petition.

This was not accepted by the wife’s solicitors who wrote, on 23^rd June 2015, that the English proceedings had been validly commenced, because it was their understanding that the husband had not filed a petition in France prior to the expiry of the deadline on 20^th May. The husband replied the same day, stating that he had complied with the deadline and that, as a result, the “French case takes precedence as it is active”. The wife’s English solicitors subsequently asserted, on 7^th July 2015, that the English petition was first in time.

Whilst this correspondence was continuing, the husband’s French lawyers had requested service of the French petition pursuant to Service Regulation (EC) No. 1393/2007. On 5^th May 2015, local huissiers, acting as public officers of the French court, sent the request for service to England, using the standard form as required by the Regulation, namely Annex 1. This was received by the Queen’s Bench Foreign Process Section (Room E16) on 12^th May 2015.

On 15^th May 2015, the request was forwarded to the relevant local court in England. A certificate of service was, in due course, completed by a court bailiff. In this, it is stated that the wife was served with the documents by them being posted through her letterbox at her home address on 9^th June 2015. The Certificate of Service of Foreign Process (as it is called), sent by the Foreign Process Section, sets out the wife’s address correctly, including in respect of the postal code. The court bailiff has completed and signed the relevant section. In this, he has abbreviated the wife’s address, stating simply “13 The Orchard, Hexham”, omitting the balance of the address, namely Acomb, which appears before Hexham, and the postal code, which is NE46 4SZ. In her statement, dated 27^th November 2015, the wife denies ever having received the documents and raises a question about the abbreviated address in the certificate.

Enquiries were made of the bailiff. He has responded by email, first confirming that service was effected as set out in the certificate, but then, in the same email, somewhat confusing the position by giving an incorrect postcode, namely NE46 4DS. However, I note that the balance of the address is correct. Further, when asked to clarify whether he had served the papers at 13 The Orchard, Acomb, Hexham NE46 4SZ, he confirmed that this was the address he attending, adding “There is only one”.

In addition, the parties’ respective French lawyers were in communication with each other. Whilst the precise sequence is not clear, on 10^th July 2015, a French lawyer instructed by the wife sent to her English solicitors “the Summons for Divorce” that the husband had served and filed at the court in France. The email also raises the possibility of the regularity of service being contested in France.

Further, on 6^th August 2015, the wife’s French lawyers filed a response to the French petition, expressing “reservations for all grounds”.

An order has been made by the French court, on 24^th November 2015, requiring the wife’s French lawyers to submit their documents by 14^th January 2016.

Returning to the progress of the English divorce petition, on 8^th July 2015 District Judge Wildsmith listed the “jurisdictional issue” for hearing. In doing so he was acting in accordance with r.7.27(2) of the Family Procedure Rules 2010 (“FPR”), which provides:

“Where at any time after the making of an application under this Part it appears to the court in matrimonial proceedings that, under Articles 16 to 19 of the Council Regulation, the court does not have jurisdiction to hear the application and is or may be required to stay the proceedings, the court will:

(a)

stay the proceedings; and

(b)

fix a date for a hearing to determine the questions of jurisdiction and whether there should be a further stay or other order.”

As required by that rule, District Judge Wildsmith stayed the proceedings, as well as making directions for the listing of a hearing to determine jurisdiction. Subsequently, directions were given for the parties to file relevant documents addressing this issue.

At a directions hearing before Her Honour Judge Richardson, on 16^th October 2015, attended by the husband in person and by Mrs. Bailey-Harris on behalf of the wife, the judge was persuaded that the court needed to determine (a) whether service of the French petition by the bailiff had been effected in accordance with the laws of England and Wales and (b) whether such service was in accordance with Art.7(2) of the Service Regulation. This was because she was persuaded that the relevant issue in the English proceedings is that of seising under Art.16 rather than that of lis pendens under Art.19.

Art.16 provides

“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.”

It is plain from the wording of Art.16 that it is addressing the institution of proceedings. Simply stated, as both parties at this hearing have accepted, the French proceedings were instituted in 2011, when the husband issued his requête. Accordingly, it appears to me that Art.16 has no relevance to the current circumstances. This is why I regard the issue of seising of the petition which has been raised by the wife and the issue of service as very much subsidiary matters.

For the purposes of this hearing, I have been provided with a bundle of documents, which includes copies of the French orders and proceedings and statements from the wife, dated 27^th November 2015, and the husband, also dated 27^th November 2015. In addition, I have read and heard comprehensive written and oral submissions from Mr. Leech and Mrs. Bailey-Harris, for which I am very grateful.

I will first consider the application of Art.19, which provides:

“Article 19

Lis pendens and dependent actions

1.

Where proceedings relating to divorce, legal separation or marriage annulment 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 seised 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.”

In essence, on this issue, Mrs. Bailey-Harris submits that I should not dismiss the wife’s English petition because of the effect of the recent decision of the Court of Justice of the European Union (“the CJEU”) in A v B case C-489/14, 6^th October 2015.

Prior to this decision, Mrs. Bailey-Harris acknowledges that the right order would have been for the wife’s petition to be dismissed, as she argued successfully in Ville De Bauge v China [2015] 2 FLR 873. In that case, Nicolas Cusworth QC, sitting as a Deputy High Court Judge, dismissed an English divorce petition under Art.19, accepting Mrs. Bailey-Harris’ submissions. In para.9 of his judgment, Mr. Cusworth said:

“With respect to Mr. Vine, both of the examples which he cites, and all those others to which he referred me in argument, address the situation which obtains before the court first seised has confirmed jurisdiction, or at best, before the court second seised has been able to ascertain whether that has happened. I can find no support for the suggestion that, once such confirmation has been received, the question of jurisdiction in the second court remains in some way deferred. Declining and deferring are two very different concepts, and each has a clear and distinct meaning. Whilst deferral, and so stay, may be the appropriate mechanism before the court first seised has confirmed its own jurisdiction, thereafter, the declining of jurisdiction by the court second seised in mandatory, and must be absolute.”

In para.12, he reiterates his view that, once the jurisdiction of the court first seised has been established, then any process in this (second) jurisdiction should be dismissed, again drawing a distinction between deferring and declining.

Mrs. Bailey-Harris submits that A v B has fundamentally affected how the word “decline” in Art.19 should be interpreted. As a result, she submits that I should not dismiss the wife’s petition. I should, in some way, suspend it until the French proceedings have concluded so that, in the event of those proceedings being dismissed or concluded other than by a substantive determination, the wife’s petition (to use Mrs. Bailey-Harris’ word) can be “revived”.

As referred to earlier in this judgment, Mrs. Bailey-Harris accepts that the French proceedings were instituted or commenced with the requête and (I emphasise) that the petition or assignation is a further step in or continuation of those proceedings.

In relation to Art.19, Mr. Leech submits that the position is clear. There are proceedings relating to divorce between the same parties before the courts of different Member States. The jurisdiction of the French court, as court first seised, has been established as long ago as 2012. I am, therefore, required to decline jurisdiction. He submits that this should be effected by my dismissing the wife’s English petition.

Turning to my determination of the Art.19 point, I propose first to address A v B as it appears to me to be pivotal to Mrs. Bailey-Harris’ case.

In A v B, a husband had filed a requête in France in March 2011. A non-conciliation order was made on 15^th December 2011. No petition or assignation was filed within the required 30 month period. This led to the provisions of the non-conciliation order expiring at midnight on 16^th June 2014.

The wife had first filed a divorce petition in England on 24^th May 2011. This was dismissed by consent on 7^th November 2012 because of the existence of the French proceedings. In the CJEU’s decision, this is described as follows: “The English court declined jurisdiction.” It appears clear from this description that, in the CJEU’s view, dismissing a petition constituted or comprised declining jurisdiction.

On 13^th June 2014, the wife filed a second divorce petition in England. She had attempted, without success, to ensure that this was only issued with effect from one minute past midnight on 17^th June 2014, this being the day after the expiry of the non-conciliation order. As I say, that attempt was not successful. In fact, the wife’s English petition was issued on 13^th June 2014.

On 17^th June 2014, at 8.20am, the husband filed a petition in France. The CJEU noted, at para.29, that:

“As regards the purpose of the rules of lis pendens in Article 19 … it must be 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 (see judgment in Purrucker , C-296/10, EU:C:2010:665, paragraph 64). 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 …”

The CJEU decided that the English court was properly seised on 13^th June 2014. It stated, at para.41 of its decision:

“It must be pointed out that the fact that there were other proceedings before a French court when the United Kingdom was seised, on 13 June 2014, does not in any way preclude the United Kingdom court from having been properly seised under the rules in Article 16 of that regulation.”

I interpolate that what the CJEU was stating, in effect, was that Art.19 has no impact on the rules as to seising, as set out in Art.16.

On this basis, the CJEU decided that, once the French proceedings had lapsed, the English court became the court first seised: see para.38. The court’s decision is encapsulated in para.45:

“It follows from all the foregoing considerations that the answer to the questions referred is that, in the case of judicial separation and divorce proceedings brought between the same parties before the courts of two Member States, Article 19(1) and (3) of [the] Regulation … must be interpreted as meaning that, in a situation such as that at issue in the main proceedings in which the proceedings before the court first seised in the first Member State expired after the second court in the second Member State was seised, the criteria for lis pendens are no longer fulfilled and, therefore, the jurisdiction of the court first seised must be regarded as not being established.”

Mrs. Bailey-Harris submits that this case fundamentally impacts on the application of Art.19 and specifically the meaning of “decline”.

I respectfully disagree. All that A v B decides, in my view, is (i) that the issue of when a court is seised is not affected by Art.19 or by the existence of other proceedings in another Member State at the date or time of the court being seised and (2) that, if proceedings before a court first seised expire after another court is seised, the criteria for lis pendens are no longer fulfilled. The latter conclusion is because the lis pendens provisions require two extant sets of proceedings in different Member States.

With respect to Mrs. Bailey-Harris, I fail to see how the court’s determination in A v B has any effect on the application of Art.19 in the present case or on the meaning of “decline”. In the course of its judgment, the court states at para.35:

“Where that jurisdiction [of the court first seised] is deemed to be established under the rules in Article 3 … the court second seised is to decline jurisdiction in favour of the court first seised, in accordance with Article 19(3) of that regulation.”

I have already referred to the fact that the court, in the course of its judgment, refers to the English court, when it dismissed the wife’s first petition, as having “declined” jurisdiction.

It is plain to me that Mrs. Bailey-Harris, on behalf of her client, is seeking to obtain some potential tactical advantage. It is unclear as to whether there is, in fact, any prospect of the husband’s French petition being dismissed. However, as the terms of Art.19 are clearly established, including that the jurisdiction of the court first seised has been established (and I repeat, again, is agreed to have been established), I consider that I should decline jurisdiction by dismissing the wife’s petition. In my view, the court should not encourage, and should actively discourage, the tactical filing of a second set of proceedings in England when the jurisdiction of the court of another Member State has been established.

Accordingly, in my judgment, the appropriate method of declining jurisdiction is to dismiss the petition, not to stay it or somehow otherwise to leave it in place, as proposed by Mrs. Bailey-Harris. If I were to follow this submission, I would, in effect, be doing no more than staying the petition, as it would remain in existence. That there is a difference between staying and declining is also, in my view, made clear from Black LJ’s judgment in Re G (Jurisdiction: Art 19 BIIR) [2015] 1 FLR 276, para.64.

Also, as Thorpe LJ said in Wermuth v Wermuth No. 2 [2003] 1 FLR 1029 at para.34:

“Firstly we must espouse Brussels II 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 disapproved or declined. Secondly, one of the primary objectives of Brussels II 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 for only they can afford such folly.”

Turning now to the issue of service, I have heard an interesting debate as to which rules apply to the service of foreign process within the scope of BIIA. I have also been taken to the specific provisions both of the Family Procedure Rule 2010 (in Part 6) and the Civil Procedure Rules 1998, also in Part 6. I do not consider that this case provides an appropriate opportunity for me to address which rules apply to the service of such foreign process. I would want further enquiries, in particular of the Foreign Process Section and the Senior Queen’s Bench Master, to take place before I addressed a topic with such potentially far-reaching consequences. However, a question has clearly been raised, which I will seek to have addressed, namely whether such process should be served in accordance with the CPR, as appears to be the view of the Foreign Process Section, or the FPR.

Dealing briefly with the issue of service in this case, as Lord Clarke said in Abela v Baadarani [2013] UKSC 44, at para.37:

“Service has a number of purposes but the most important is to my mind to ensure that the contents of the document served … are communicated to the defendant.”

He also quoted from the judgment of Lewison J (as he then was) in that case, in which he said:

“The purpose of service of proceedings, quite obviously, is to bring proceedings to the notice of a defendant. It is not about playing technical games.”

He went on to say:

“There is no doubt on the evidence that the defendant is fully aware of the proceedings …”

In the present case, there can be no doubt that the wife is fully aware of the husband’s petition or assignation in France. I am not able to decide without hearing evidence, given the wife’s absolute denial, whether she received the papers on 9^th June 2015 in the manner set out in the certificate of service, but I would comment that the certificate itself is powerful evidence that she did receive them in that manner. Further, her (local) French lawyer has clearly received them, because she has filed a response in the French court, as referred to above, as has her lawyer in Paris, who forwarded a translation on 10^th July 2015.

Mr. Leech has pointed to the court’s power, under CPR 6.15 and FPR 6.19 and 6.35, where it appears to the court that there is good reason, to direct that steps already taken to bring a document to the attention of a respondent by an alternative method or at an alternative place is good service. These provisions, in my view, render sterile the debate as to whether what has happened so far in this case complies technically with the routes available for service as set out either in the CPR or the FPR.

Given the parties’ limited resources, the nature of the proceedings in this case and, as I have indicated, the fact that the wife has clearly had ample notice of the French proceedings, there would be good reason to make an order under the relevant provisions in the event that service has not, in fact, taken place in accordance with the rules.

I do not propose to make an order to that effect at this stage, but, if it were to become necessary, this issue could be determined at a hearing (at which, if necessary, evidence could be given by the wife and the bailiff). In the event that the evidence of the bailiff was accepted, an order could be made to the effect that the wife was served on 9^th June 2015. Alternatively, the wife would have been served, at least, when she was sent the petition in translation on 10^th July 2015. I say “at least” because it is not clear to me when the wife’s local French lawyer received the divorce proceedings. I am addressing this aspect of the case in this way in the expectation that this will bring an end to what Lewison J described, in a way which I adopt, namely as “the playing of tactical games”.