Neutral Citation Number: [2016] EWCA Civ 129 2 
  Case No: B6/2015/239 0 
IN THE COURT OF APPEAL (CIVIL DIVISION)  
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION  
MR JUSTICE BODEY  
FD14F0034 5 
  Royal Courts of Justice  
Strand, London, WC2A 2L L 
  15/12/201 6 
B e f o r e :  
LADY JUSTICE BLACK  
LORD JUSTICE SALES  
and 
LORD JUSTICE IRWI N 
____________________  
Between:  
 
 EDWARD JAN MAGIERA  Appellant  
 - and -  
 EVE TERESE MAGIERA  Respondent  
____________________  
Mr Michael Horton & Mr Alexander Laing (instructed by Dawson Cornwell) for 
the Appellant  
Mr Tim Amos QC & Ms Saima Younis (instructed by Howard Kennedy) for the 
Respondent  
 
Hearing date: 1st November 2016   
____________________  
HTML VERSION OF JUDGMENT APPROVED
 
____________________  
Crown Copyright ©  
Lady Justice Black:   
1. This appeal concerns the jurisdiction provisions of the Council Regulation 
(EC) No 44/2001 on jurisdiction and the recognition of judgments in civil and 
commercial matters ("Brussels I"). It is against an order made by Bodey J, on 
6 July 2015, refusing to dismiss or stay proceedings brought in relation to a 
London house under the Trusts of Land and Appointment of Trustees Act 
1996 ("TLATA 1996" or simply "TLATA"). The appellant also appeals 
against an aspect of the judge's order in relation to the costs of his application 
for stay or dismissal of the TLATA proceedings. Bodey J not only ordered the 
appellant to p ay the respondent's costs of the application but also provided that 
the outstanding costs may be charged on the appellant's share of the house. 
There is no appeal against the costs order as such but the appellant appeals 
against the charging provision.  
The TLATA application and Bodey J's decision on jurisdiction  
2. The parties were once husband and wife and, although they are now divorced, 
in an endeavour to make this judgment easier to understand, I will refer to 
them as such hereafter, with apologies to th em for this inaccuracy. They 
acquired a London house in their joint names during the course of their 
marriage. In late April/early May 2014, the respondent wife issued an 
application under TLATA 1996 seeking an order for sale of the house, 
together with an  order that the proceeds, after redemption of the mortgage, be 
distributed between herself and the appellant husband in equal shares.  
3. The husband contested the jurisdiction of the English court to entertain the 
wife's proceedings and applied for them to b e dismissed or stayed. The wife 
argued that the courts of England and Wales had jurisdiction on the basis of 
several of the jurisdictional grounds set out in Brussels I. Bodey J held that it 
had not been established that the husband was domiciled here, so Article 2 did 
not assist the wife. However, he held that two other jurisdictional grounds 
were made out.  
4. First, and foremost, the judge held that there was jurisdiction under Article 22 
on the basis that the TLATA proceedings had as their object rights in rem in 
immovable property situated here.  
5. Secondly, as an alternative basis of jurisdiction, Bodey J held that Article 5(6) 
applied because the husband was being sued "as settlor, trustee or beneficiary 
of a trust created by the operation of statute" and "the trust is domiciled" here. 
Unlike jurisdiction under Article 22, jurisdiction under Article 5(6) is not 
exclusive and can be displaced. The judge therefore went on to consider the 
husband's argument that there had been prorogation of jurisdiction, in 
accordance with Article 23, in favour of the courts of Poland, reaching the 
conclusion that there had not. He also considered the husband's argument that 
there were "related actions" in Poland and England and that, under Article 28, 
he should stay the Engli sh proceedings. He held that Article 28 did not apply, 
not least because, in his judgment, there were not related actions pending in 
the two jurisdictions. Furthermore, he took the view that the English court, not 
the Polish court, was first seised so Arti cle 28 did not entitle him to stay the 
English proceedings.  
6. I will not seek to summarise Bodey J's judgment further here. It can be found 
on bailii.org identified as G v G  [2015] EWHC 2101 (Fam)  and is extremely 
clear, dealing with the various arguments that were advanced before the judge 
and also with the factual background to  the case. Before turning to the legal 
issues that arise, I will refer very briefly to the history, but this appeal can be 
resolved without going into it in any detail.  
History  
7. The TLATA proceedings were preceded by an extensive history of litigation 
betw een the parties.  
8. The marriage appears to have broken down years ago. The wife began 
matrimonial proceedings in France as long ago as 2001 and formal divorce 
proceedings there in 2002. Much litigation in France followed, prior to the 
divorce becoming effec tive in July 2013. Meanwhile, proceedings had been 
begun in Poland by the husband, in relation to the division of the parties' 
assets. There have been various moves in those proceedings but there has been 
no final resolution as yet.  
9. During the marriage, t he parties acquired property in France, Poland and 
England which they still own. I have already referred to the acquisition of the 
London house in their joint names. This was in 1990. It was recorded in the 
transfer that the survivor could give a valid rec eipt for capital money arising 
on a disposition of the land. The joint tenancy was later severed by the wife, 
on 26 October 2011.  
10. The wife's particulars of claim in the TLATA proceedings give the following 
information about the house. The purpose of the p urchase is said to have been 
"as a joint investment or as a family home in the event that the parties were to 
live in London". However, it is said that they never occupied it as a family 
home because they moved to Poland in 1991. For 10 years, having been 
subdivided into two flats, the property was rented out but, according to the 
particulars of claim, at some point after the parties separated in 2001, the 
husband converted it into a single dwelling and, for the 18 months prior to the 
issue of the proceedin gs, it had been occupied by two of the parties' children.  
The appeal in relation to jurisdiction: ground 1: Article 22  
11. With the exception of the judge's finding as to domicile, which was in 
accordance with the husband's case, the husband's grounds of app eal 
challenged each one of the judge's conclusions. For the present, I will 
concentrate upon his challenge to the judge's decision that the English court 
has jurisdiction under Article 22. I do so because, in the event that the 
husband's argument in this r espect fails, that will be determinative of the 
appeal. As Article 22 provides for exclusive jurisdiction, if the English court 
does have jurisdiction under it, there is no room for arguments about 
prorogation under Article 23, or staying the English proce edings under Article 
28 so as to allow the Polish courts to proceed with a related action. Similarly, 
with jurisdiction established under Article 22, there would be no need to 
consider the points raised in the wife's Respondent's Notice, by which she 
sough t to argue that the judge should have found that the husband was 
domiciled in England and Wales at the material time.  
12. The argument in front of Bodey J revolved around the case of Webb v Webb  
(Case C -294/92) [1994] QB 696, a decision of the (as it then was) Court of 
Justice of the European Communities ("CJEC"). Mr Horton, on behalf of the 
husband, argued that, properly applied to the facts of this case, it led to the 
conclusion that the wife's TLATA proceedings had as their object rights in 
personam , not rights in rem  as required by Article 22. Bodey J distinguished 
Webb v Webb , his reasoning being as follows:  
"31. In my judgment, the instant case is distinguishable from Webb v Webb . 
There the father was seeking to establish and acquire  rights in immovable 
property by way of a Constructive or Resulting Trust, on the basis that the 
French flat in the son's name had been purchased with his (the father's) money. 
Here, by contrast, the existence (or  not) of a trust is not in dispute. The wife 
already has proprietary rights in the London house as co -owner. What she is 
seeking to do is to enforce and give effect to those rights. It is fair comment 
that the order which she seeks would be as against the husband personally, 
requiring him to join with her in selling the property. To that extent it would 
be an in personam  order; but the right which would lead to such an order is a 
right of ownership in the property 'available against the whole world'." 
[emph asis in the original]  
13. Mr Horton's argument on appeal was that Bodey J was wrong to distinguish 
Webb v Webb  in this way. In seeking to persuade us of this, he relied also on 
the English authorities of Re Hayward  [1997] Ch 45 and Ashurst v Pollard  
[2001] Ch 595 .  
14. Immediately before the hearing of the appeal, a further decision of the Court 
of Justice of the European Union ("CJEU") came to light, namely Komu v 
Kom u (Case C -605/14) [2016] 4 WLR 26 . On the face of it, this presented Mr 
Horton with a considerable obstacle, but he endeavoured to surmount it in 
argument. Ultimately, I was not persuaded that it could be surmounted, for the 
reasons which I will now set out.  
Article 22 and the case law  
15. The starting point is Article 22 itself[1] which, so far as material, reads:  
"The following courts shall have exclusive jurisdiction, regardless of domicile:  
1. in proceedings which have as their object rights in rem  in immovable 
property or tenancies of immovable property, the courts of the Member State 
in which the property is situated;"  
16. In surveying the European and domestic authorities which may assist in 
interpreting Article 22, it is important to recognise that it is the European 
authorities and not the domestic ones which ultimately govern the 
interpretation of Article 22. This is because, as the CJEU has made clear, in 
order to ensure that the rights and obligations arising from the Regulation for 
Member States  and for individuals are as equal and as uniform as possible, an 
independent definition must be given in EU law to the wording of Article 22 
(for recent statements of this principle, see Weber v Weber (Case C -438/12) 
EU:C:2014:212 ; [2015] Ch 140  at §40 and Komu v Komu  at §23, and also see 
Ashurst v Pollard (supra) at §34 where it was acknowledged, in relation to the 
predecessor of Article 22, by the English Court of Appeal).  
17. I will therefore start with the European decisions. Webb v Webb  forms part of 
a chain of authorities starting considerably earlier in time. Fo r present 
purposes, it may be sufficient to commence with Reichert v Dresdner Bank 
A.G. (Case C -115/88) [1990] ECR I -27 ("Reichert" ). In that case, the 
provision in question was Article 16(1) of the Convention on Jurisdiction and 
the Enforcement of Judgments in Civil and Commercial Matters 1968  
(hereafter "Article 16(1) of the Convention") which, in all material respects, is 
in identi cal terms to Article 22(1) of Brussels I. Mr and Mrs Reichert owned 
immovable property in France, the legal ownership of which they donated to 
their son. The Dresdner Bank was a creditor of Mr and Mrs Reichert and 
challenged the donation in the French cour t as being a transaction "in fraud of 
their rights". It sought, by means of what was known in French law as an 
"action paulienne ", to have the donation set aside. The French court held that 
it had jurisdiction on the basis of Article 16(1). The Reicherts a ppealed and the 
French appeal court sought a preliminary ruling from the European Court.  
18. The Court held that the action did not come within Article 16(1). It made a 
number of observations about the interpretation of the provision which recur 
in the later jurisprudence, including the following:  
i) Article 16 was not to be given a wider interpretation than was required "by 
its objective", since its effect was to deprive people of a choice of forum and, 
in certain cases, it could result "in their being broug ht before a court which is 
not that of any of them" (§9).  
ii) The objective, or as the Court put it in §10, "the essential reason for 
conferring exclusive jurisdiction on the courts of the Contracting State in 
which the property is situated", is:  
"that th e courts of the locus rei sitae  are the best placed, for reasons of 
proximity, to ascertain the facts satisfactorily and to apply the rules and 
practices which are generally those of the State in which the property is 
situated (judgments of 14 December 197 7 in Sanders v Van der Putte [(1977) 
ECR 2383 ] and of 15 January 1985 in Case 241/83 Roesler v Rottwinkel 
((1985) ECR 99 )." 
iii) Article 16(1) does not encompass all actions concerning rights in rem  in 
immovable property but only those which both come within the scope of the 
Brussels Convention and are "actions which seek to determine the extent, 
content, ownership or possession of immovable property or the existence of 
other rights in rem  therein and to provide the holders of those rights with the 
protection of t he powers which attach to their interest." (§11)  
19. In the view of the Court, an action paulienne  was based on the creditor's 
personal claim against the debtor, seeking to protect whatever security he may 
have over the debtor's estate. If successful, its effe ct was to render the 
impugned transaction ineffective as against the creditor alone. Moreover, the 
Court considered (§12) that such an action did not "involve the assessment of 
facts or the application of rules and practices of the locus rei sitae  in such a 
way as to justify conferring jurisdiction on a court of the State in which the 
property is situated."  
20. Webb v Webb  involved a flat in France, which was purchased in 1971 with 
funds provided by a father, the legal title being conveyed to his son. In 1990, 
the father brought proceedings in the English court for a declaration that the 
son held the property as trustee for him and for an order requiring the son to 
execute the documents necessary to vest the legal title in him. The son 
defended the claim on the basis of the presumption of advancement, but also 
challenged the jurisdiction of the English court on the ground that the action 
related to a right in rem  in immovable property and that the French courts 
therefore had exclusive jurisdiction by virtue of Article 16(1) of the 
Convention. At first instance, the judge held that the father's claim did not 
relate to rights in rem  and dismissed the son's objection to jurisdiction, going 
on to find that he held the pr operty on resulting trust for the father. On the 
son's appeal to the Court of Appeal, the court made a reference to the CJEC, 
seeking a preliminary ruling on the question of jurisdiction.  
21. The CJEC held that the father's proceedings did not relate to right s in rem . The 
judgment is quite short, but we were taken to passages from the Advocate 
General's opinion as well. The son had argued that, as the father's ultimate 
purpose was to secure ownership of the flat, the proceedings had as their 
object rights in rem. The CJEC did not accept that. It said, in the light of the 
judgment in Reichert , that it was (§14):  
"not sufficient … that a right in rem  in immovable property be involved in the 
action or that the action have a link with immovable property; the actio n must 
be based on a right in rem  and not on a right in personam …" 
22. At §15 the Court examined the nature of the proceedings. I will set the 
paragraph out in full, but I think the essence of it is that, in the view of the 
Court, the father was not claiming t hat he already  enjoyed rights directly 
relating to the property which were enforceable against the whole world, but 
was proceeding against the son personally, seeking to have him execute the 
documents that would transfer the flat into his ownership. What t he Court said 
was:  
"15. The aim of the proceedings before the national court is to obtain a 
declaration that the son holds the flat for the exclusive benefit of the father and 
that in that capacity he is under a duty to execute the documents necessary to 
convey ownership of the flat to the father. The father does not claim that he 
already enjoys rights directly relating to the property which are enforceable 
against the whole world, but seeks only to assert rights as against the son. 
Consequently, his actio n is not an action in rem  within the meaning of article 
16(1) of the Convention but an action in personam ."  
23. The Court was reinforced in its view by the fact that it did not think that 
"considerations relating to the proper administration of justice underl ying 
Article 16(1)" were applicable to the case. It went on, at §17, to refer to those 
considerations in terms which are already familiar from the Reichert  case:  
"17. As the court has held, the conferring of exclusive jurisdiction in the 
matter of rights in rem  in immovable property on the courts of the state in 
which the property is situated is justified because actions concerning rights  in 
rem in immovable property often involve disputes frequently necessitating 
checks, inquiries and expert assessments w hich must be carried out on the 
spot: see Sanders v van der Putte  (Case 73/77) [1977] ECR 2383 , 2390 -2391, 
para.13."  
24. In the Court's view (§18):  
"the immovable nature of the property held in trust and its location are 
irrelevant to the issues to be determined in the main proceedings which would 
have been the same if the dispute had concerned a flat situated in the United 
Kingdom or a y acht"  
25. It therefore concluded:  
"19. The answer to be given to the question submitted to the court must 
therefore be that an action for a declaration that a person holds immovable 
property as a trustee and for an order requiring that person to execute such  
documents as should be required to vest the legal ownership in the plaintiff 
does not constitute an action in rem  within the meaning of article 16(1) of the 
Convention."  
26. I mention next Weber v Weber  (supra ). By the time of this decision in 2014, 
Article 1 6 of the Convention had been replaced by Article 22 of the 
Regulation. The action was between two sisters who were co -owners of a 
German property. A number of questions were referred to the Court, one of 
which related to Article 22. In response, the Court drew upon the 
jurisprudence in relation to Article 16 and its theme was very much a 
continuation of that which I have extracted from the two earlier decisions 
referred to above.  
27. That takes me to the important decision in Komu v Komu (supra) . There, the 
three claimants and the two defendants co -owned a house in Spain, three 
having a 25% share and the other two a 12.5% share. Four of the parties also 
co-owned a Spanish apartment in unequal shares. One of the claimants had, in 
addition, a right of use, regist ered in the Spanish Land Register, over shares 
held by the other two claimants in both properties. The claimants wished to 
realise their interests in both properties and, in the absence of agreement on 
the termination of the relationship of co -ownership, t hey brought an action 
before the Finnish court for an order appointing a lawyer to sell the properties 
and fixing a minimum price for each of them. Jurisdiction was contested but 
the Finnish court held that it had jurisdiction and allowed the claim. The ca se 
made its way up through the appeal courts in Finland, and the Finnish 
Supreme Court referred to the CJEU for a preliminary ruling the question 
whether such an action was within Article 22(1).  
28. Finnish law provided that a co -owner was entitled to receive  his share of the 
property held in common by way of partition or, if partition was impossible or 
would give rise to disproportionately high costs or substantially reduce the 
value of the property, the court had power to order the sale of the property in 
lieu of partition in order to terminate the relationship of co -ownership. Finnish 
law provided also that, where appropriate, the court was to appoint a person to 
have the conduct of the sale and distribute the proceeds. The Finnish action 
was categorised by the CJEU as an action "between co -owners of immovable 
property situated in Spain concerning the termination, by way of sale, of the 
co-ownership in undivided shares in that property" (§2), the sale being by an 
appointed agent (§ 21).  
29. The Court (§23) recal led its previous case law requiring an independent 
definition to be given in EU law to the phrase "in proceedings which have as 
their object rights in rem  in immovable property" and that, being an exception 
to Article 2(1) of the Regulation, "the provision s of Article 22(1) … must not 
be given an interpretation broader than is required by their objective" (§24). It 
reiterated the essential reason for conferring exclusive jurisdiction on the 
courts of the state in which the property is situated, in terms ref lecting §10 of 
Reichert  (supra  at §18). It also reiterated its statement (see §11 of Reichert , 
supra ) that not all actions concerning rights in rem  in immovable property 
come within the Article, but only those:  
"which seek to determine the extent, content , ownership or possession of 
immovable property or the existence of other rights in rem therein and to 
provide the holders of those rights with protection for the powers which attach 
to their interest" (§26)  
30. Drawing on settled case law of the Court, the Co urt then identified the 
difference between a right in rem  and a right in personam  as being that the 
former, existing in corporeal property, has effect erga omnes , whereas the 
latter can be claimed only against the debtor (§27). From §28 onwards, the 
Court applied these principles to the facts of the case before it and, in light of 
the central importance of the case for this appeal, it may be worth quoting the 
rest of the judgment on the substance of the dispute:  
"28. In the present case, as the Member Stat es that submitted written 
observations correctly claim, an action for termination of the co -ownership of 
immovable property, such as that at issue in the main proceedings, constitutes 
proceedings which have as their object rights in rem  in immovable proper ty 
falling within the exclusive jurisdiction of the courts of the Member State in 
which the property is situated.  
29. In that regard, clearly such an action, designed to bring about the transfer 
of a right of ownership in immovable property, concerns right s in rem  which 
have effect erga omnes  and is intended to ensure that the holders of those 
rights can protect the powers attached to their interest.  
30. Similarly, it must be stated that the considerations of sound administration 
of justice which underlie t he first paragraph of Article  22(1) of Regulation 
No 44/2001 also support such exclusive jurisdiction in the case of an action 
intended to terminate the co -ownership of immovable property, as that in the 
main proceedings.  
31. The transfer of the right of o wnership in the properties at issue in the main 
proceedings will entail the taking into account of situations of fact and law 
relating to the linking factor as laid down in the first paragraph of 
Article  22(1) of Regulation No  44/2001, namely the place whe re those 
properties are situated. The same applies, in particular, to the fact that the 
rights of ownership in the properties and the rights of use encumbering those 
rights are the subject of entries in the Spanish Land Register in accordance 
with Spanish law, the fact that rules governing the sale, by auction where 
appropriate, of those properties are those of the Member State in which they 
are situated, and the fact that, in the case of disagreement, the obtaining of 
evidence will be facilitated by proxim ity to the locus rei sitae . The Court has 
already held that disputes concerning rights in rem  in immovable property, in 
particular, must generally be decided by applying the rules of the State in 
which the property is situated, and the disputes which frequ ently arise require 
checks, inquiries and expert assessments which have to be carried out there 
(judgment in ČEZ, C-343/04, EU:C:2006:330, paragraph  29 and the case -law 
cited).  
32. That case -law can be applied to the case in the main proceedings where, 
unlike the case which gave rise to the judgment in Lieber (C-292/93, 
EU:C:1994:241, paragraph  21) relating to compensation for the use of a 
dwelling, the determination of the extent of the legal conditions relating to the 
termination of the relationship of co -ownership, capable of having effect erga 
omnes , falls within the jurisdiction of the courts of the Member State in which 
the properties in the main proceedings are situated, as is clear from the case -
law cited in paragraph  26 above[2]. Consequently, in a case where the rules of 
substantive law applicable to the case in the main proceedings would involve 
an assessment of whether physical partition of the properties is feasible  when 
terminating the relationship of co -ownership, such an assessment would also 
be capable of giving rise to checks, by means of expert reports, which the 
courts of the Member State in which those properties are situated would be 
best placed to order.  
33. Having regard to the above considerations, the answer to the question 
referred is that the first paragraph of Article  22(1) of Regulation No  44/2001 
must be interpreted as meaning that an action for the termination of co -
ownership in undivided shares of immovable property by way of sale, by an 
appointed agent, falls within the category of proceedings 'which have as their 
object rights in rem  in immovable property' within the meaning of that 
provision."  
31. The parties' written submissions concentrated upon Webb v Webb  and did not 
deal with Komu v Komu  as it did not come to light until later. It will be 
immediately apparent, however, from my resumé of the facts of Komu v 
Komu , that it has many similarities to the present case. It is not possible to 
resolve th e appeal without paying very careful attention to it. I will return to it 
in due course in the context of the parties' submissions, but first I need to deal 
with the English authorities upon which Mr Horton placed reliance. I do so 
relatively shortly, howe ver, because he conceded that if there were to be a 
clash between those authorities and the later decision in Komu , the European 
jurisprudence would prevail. That was an inevitable concession, in my view, 
given that Article 22 has to be given an "independe nt definition", see Weber 
and the other authorities cited at §16 supra .  
32. Re Hayward  [1997] 1 Ch 45 concerned a villa in Minorca, owned jointly by 
Mr Hayward and another man. Mr Hayward was made bankrupt and, after his 
death, his widow transferred her husband's half interest in the villa to the other 
joint owner, who became the sole registered proprietor in the Minorcan 
property register. The trustee in bankruptcy applied in the English court for a 
declaration that Mr Hayward's interest formed part of his bankruptcy estate 
and vested in the trustee, leaving Mr Hayward with nothing to pass to his 
widow on his death. He sought to have the purported transfer of Mr Hayward's 
half share to the other owner declared void, and sought an order tha t the other 
owner and the widow take steps to rectify the property register accordingly. 
He also sought an order for sale and division of the proceeds. Rattee J, in the 
Chancery Division, held that the trustee's claim was made in proceedings 
which had as t heir object a right in rem  in immovable property and that, by 
virtue of Article 16 of the Convention, the Spanish courts had exclusive 
jurisdiction. The trustee's claim was, in his view, a claim to the right of legal 
ownership of one half of the villa. The  object of the proceedings was 
accordingly a right in rem in immovable property.  
33. Ashurst v Pollard was also a case involving bankruptcy. A husband and wife 
jointly owned a villa in Portugal. A bankruptcy order was made against the 
husband in England. His interest in the villa vested in the trustee in bankruptcy 
and the trustee obtained an order for the sale of the villa with vacant 
possession. The husband and wife appealed against that, eventually reaching 
the Court of Appeal. They argued that the Portugue se court had exclusive 
jurisdiction under Article 16(1) of the Convention. The Court of Appeal, 
rejected that argument, holding that the issues raised in the proceedings were 
personal issues between the trustee and the spouses as to the beneficial 
interest s in the villa and did not have as their object rights in rem . The court 
was not persuaded by the argument, advanced by counsel for the bankrupt and 
his wife, that Webb v Webb  should be distinguished on the basis that, in 
contrast to the father in Webb , the trustee in bankruptcy already enjoyed rights 
directly relating to the property which were enforceable against the whole 
world as he had an indisputable beneficial interest in the property by virtue of 
the operation of the Insolvency Act 1986,. Important features which led to the 
court's conclusion seem to have included that "the proceedings do not seek to 
assert any property right against third parties/strangers" (§55), and that, in the 
court's view, the rationale underlying Article 16 had no application on the 
facts, "since no issue arises as to the factual situation in Portugal, nor do the 
proceedings involve any question of Portuguese law or practice" (§54).  
34. Re Hayward  was distinguished in Ashurst v Pollard (§59) on the basis that the 
principal subject  matter in the Re Hayward  proceedings was the ownership of 
the Minorcan property or, as Rattee J put it, "an attempt by the trustee to 
establish and protect, and indeed perfect, what he alleged was his entitlement 
as trustee in the bankruptcy of Mr Hayward  to what had been Mr Hayward's 
half share in the villa." The Court of Appeal considered that Rattee J had been 
correct, in those circumstances, to hold that Article 16(1) applied but, in 
contrast, the proceedings before them did not raise any issue as to t itle to land 
and, in the court's view (§60), the trustee was "not seeking to establish or 
protect, let alone perfect, his title to Mr Pollard's interest in the Portuguese 
property."  
35. Finally, in terms of domestic authorities, I turn to Prazic v Prazic  [2006] 
EWCA Civ 497 , [2006] 2 FLR 1128. TLATA proceedings were commenced 
in England, by a wife against a husband, in relation to English property. The 
remedy soug ht by the wife in the proceedings was a declaration that she was 
an equal owner in equity of some London flats, which appear to have been in 
the husband's sole name, and a tracing order in relation to the proceeds of sale 
of another property which had alre ady been sold. There is little to be gained 
from the decision for present purposes, firstly because the Court of Appeal 
simply applied Webb v Webb , with little discussion, holding that the 
proceedings did not fall within Article 22 of Brussels I, and secon dly because 
the facts are significantly different from our case.  
The submissions  
36. Mr Horton took us carefully through the European and the domestic 
authorities, seeking to persuade us that Webb dictated the answer in this case, 
and that Komu  did not change  that. Komu , he pointed out, was concerned with 
an entirely different legal system from the English system and so, in his 
submission, not of assistance to us. In particular, it was material that the 
Finnish system permitted land to be held in undivided sha res without the 
imposition of a trust. In contrast, in this case, a trust arises and, Mr Horton 
would argue, the wife's TLATA application is made under section 14 of the 
Act and is for orders relating to the exercise by the trustees of their functions, 
one of those being to sell. Her claim is therefore, in his submission, a trust 
claim and the proceedings accordingly have as their object rights in personam  
not rights in rem . Drawing on the terms used in the Schlosser Report (of 1978) 
on the Convention, he w ould, I think, characterise the dispute in this case as 
being in connection with the "internal relationships of a trust" rather than in 
connection with "external relationships".  
37. Mr Horton invited us to take the view that the wife's action does not involve , 
and nor is it based upon, the legal title to the London property; it is based upon 
her alleged beneficial entitlement and does not involve the assertion of any 
rights against the world or against any third parties. Nor, he submitted, are 
there any consid erations relating to the proper administration of justice which 
would dictate that jurisdiction should be in the country where the property is 
sited, such as the need for on the spot checks, inquiries and assessments.  
38. Webb establishes, Mr Horton submitted , that a dispute between parties as to 
whether the defendant holds land in trust for the claimant is outside Article 22. 
However, in his submission Webb  goes further than that, as the father's object 
in the proceedings was to gain legal ownership of the pr operty and he was 
seeking an order directing the son to execute documents vesting title in him, 
but his proceedings still did not have as their object rights in rem . That is also 
the case here, Mr Horton said. In his submission, the distinction perceived b y 
Bodey J between the instant case and Webb , at §31 of his judgment, namely 
that the father was seeking to establish and acquire rights in Webb  whereas 
here existence of the trust was not in dispute, was not a tenable one. In 
particular, it was not a disti nction accepted in Ashurst v Pollard , where the 
trustee in bankruptcy already had an indisputable beneficial interest in the 
property and sought an order for sale with vacant possession, but that did not 
bring his action within Article 16 of the Convention .  
39. In dealing with Komu , as well as relying on his submission that it was of 
central importance that the CJEU was dealing with a different system of 
property law, Mr Horton invited particular attention to a number of the 
features which appear to have influ enced the Court in its reasoning and which 
are absent, he submitted, in the present case. He relied particularly upon the 
fact that partition was a possibility in Komu . Initially, he submitted that actions 
for partition were not known in the English system , but subsequently corrected 
this. Under TLATA, the trustees of land normally have power to partition all 
or part of the land (section 7(1) ibid). It is a power which can be exercised 
only with the prior consent of each of the beneficiaries (section 7(3)).  If a 
dispute arises, an application can be made to the court and an order can be 
made under section 14 of the Act. But, Mr Horton submitted, an action for 
partition under the Act is, in fact, an application for an order requiring a 
trustee to exercise one  of his functions as a trustee. I infer that he would argue 
that, in these circumstances, it too is an action having as its object rights in 
personam  not rights in rem . But his point was also that it was very unlikely 
that either party would be seeking par tition in this case. Accordingly, the 
considerations that were taken into account in §32 of Komu  as to the need for 
an assessment of whether physical partition would be possible, were not 
consideration in the present case. In the same way, because the focu s is on the 
trust, there would be no need to get involved with entries on the property 
register (contrast §31 of Komu ).  
40. In so far as Komu  might be thought to represent a move away from Webb  by 
the CJEU, such a change would need to be spelled out expressly , in Mr 
Horton's submission, so Webb  remains good law.  
41. Not surprisingly, Mr Amos QC for the wife submitted that Komu is a complete 
answer to the appeal, dictating that the Article 22 question must be decided in 
her favour. It matters not, in his submissio n, that the system of land law in 
question in Komu  was not precisely the same as the English system, because 
the decision was not "system specific" and nor could it be, given that the 
instrument has to deal with many different land law systems in the diffe rent 
Member States. Like the three claimants in Komu , the wife here is a co -owner 
seeking to sell jointly owned property. Her action is designed to secure 
"protection of the powers which attach to" her interest, and thus within the 
ambit of those actions c lassified in §11 of Reichert  as being within Article 22. 
Furthermore, Mr Amos submitted, as in Komu , there are practical matters 
which might arise on the sale and are better addressed in the place where the 
property is situated.  
42. In Mr Amos's submission, Bodey J was right to distinguish Webb  for the 
reasons that he did, his reasoning anticipating Komu , which would be decided 
six months later, in December 2015.  
Discussion  
43. I must attempt now to set out what I make of the parties' ri val submissions. It 
has to be said immediately that it is not entirely easy to apply the European 
jurisprudence to the English system of co -ownership of real property with its 
heavy reliance upon trusts. On the face of it, ignoring the trust issues for a 
moment, the proceedings in Komu  and the proceedings in the present case are 
strikingly similar. It is important, I think, to look at how the CJEU itself 
characterised the Komu  proceedings. They were introduced, at §2 of the 
decision, as "proceedings between co -owners of immovable property… 
concerning the termination, by way of sale, of the co -ownership in undivided 
shares of that property". The wife's action here could also be described in 
precisely t hat way. Similarly, the Court described the action in Komu  as being 
"designed to bring about the transfer of a right of ownership in immovable 
property" (§28). The wife aims to achieve the transfer of a right of ownership 
in this case too. It might also be  said, perhaps stretching the language a little, 
that the wife's action resembles that in Komu  in being "intended to ensure that 
[she] can protect the powers attached to [her] interest" (§29) as one of two 
joint owners of the property in law and in equity.  In the light of these 
similarities, the natural inclination would therefore be to characterise her 
proceedings in the same way as those in Komu , namely as having as their 
object rights in rem .  
44. Are there, however, features of the English property system o r of this 
particular action which dictate that it should be categorised differently? In 
particular, does the fact that a forced sale of the property would be achieved in 
English law by means of an order relating to the exercise by the trustees of 
their fun ctions dictate a different result?  
45. In considering those questions, it has to be remembered that, as an exception 
to the general rule and as a provision which removes choice of forum, Article 
22 must be narrowly construed. The interpretation must not be br oader than is 
required by the objective of the provisions. It is imperative, therefore, to return 
to examine that objective once more. Given that the provisions of Brussels I 
(and now, although not at the material time, Brussels I recast) must be readily 
applicable in all Member States, it seems to me helpful to do this anyway, in 
an attempt to guard against approaching the question with an unduly domestic 
slant.  
46. The essential reason for giving exclusive jurisdiction to the courts of the state 
where the pr operty is situated is that those courts are best placed to ascertain 
the facts satisfactorily and to apply the "rules and practices ... of the state in 
which the property is situated" where they are apposite, see for example §10 
of Reichert  and §25 of Komu .  
47. The wife's claim in this case is expressed to be for, inter alia, an "order for sale 
of the property" but it seems to me that, in attempting to categorise it for the 
purposes of Article 22, it would be wrong to concentrate overly upon the exact 
wording used in the claim. It might equally have been expressed as, for 
example, a claim for an order that the husband, as the other trustee of the 
property, join with the wife in selling the property or, in the alternative, the 
property be sold by order of the co urt, together with an application for all 
necessary directions.  
48. We were not referred to the provisions of CPR Rules 40.15 to 40.19 but it 
would not be unlikely that a court, faced with such a claim, would have to 
have recourse to them and it is helpful, i n my view, to look at them in 
considering the extent to which, if at all, it can be said that local rules and 
practices may need to be applied in the course of resolving the wife's TLATA 
application.  
49. CPR Rule 40.15 is an introductory provision and defines  "land" as including 
any interest in, or right over, land. Rule 40.16 provides that in any proceedings 
relating to land, the court may order the land, or part of it, to be sold, 
mortgaged, exchanged or partitioned. Rule 40.17 provides that where the court 
has made an order under Rule 40.16, it may order any party to deliver up to 
the purchaser, or any other person: (i) possession of the land, (ii) receipt of 
rents or profits relating to it, or (iii) both. Practice Direction 40D contains 
more detailed provis ions as to the directions that may be given about a sale. 
They include, for example, directions as to the manner of the sale, obtaining 
evidence of the value of the land, fixing a minimum or reserve price, and 
appointing a person to conduct the sale. Shoul d the parties find themselves 
unable to co -operate in any sale that might be ordered of the property in this 
case, these are the provisions to which recourse might be had in order to bring 
the sale about. It seems to me that this would take the court firml y into the 
target territory of Article 22(1). Take the question of the price at which the 
property should be sold, should the parties be unable to agree upon that. 
Evidence from local valuers would be likely to be required and, to put it as it 
was put in Komu at §31, "the obtaining of evidence will be facilitated by 
proximity to the locus rei sitae ". And, should there be disagreement as to the 
price at which the property should be offered for sale/sold following valuation 
evidence being obtained, that too w ould be better addressed in the country 
where the property is situated, by a court with local knowledge. Similarly, 
local knowledge would be vital in considering the manner of sale of the 
property as, again reverting to the language of §31 of Komu , the "ru les 
governing the sale, by auction where appropriate, of [the property] are those of 
the Member State where [it is] situated".  
50. It seems to me that it is also informative to consider section 39 of the Senior 
Courts Act 1981, which is part of the armoury th at can be deployed in cases of 
this kind, in support of an order for sale. It provides that where the High Court 
or a family court has given or made a judgment or order directing a person to 
execute any conveyance, contract or other document, and the perso n neglects 
or refuses to comply, the court may order that the document be executed by a 
person nominated by the court. The person nominated can be a master or 
district judge. There are alternative procedures that can be considered instead, 
but this serves to illustrate the sort of process which might need to be carried 
out following an order for sale, and which the local courts would be best 
placed to put into operation.  
51. Putting it shortly, when it comes to an order for the sale of a property, as 
sought by  the wife, I have little doubt that the "courts of the Member State in 
which [the] properties are situated would be best placed" to deal with matters 
(see not only Komu  itself but also other case law of the court, including ČEZ, 
C-343/04 EU:C:2006:330, ref erred to at §31 of Komu ).  
52. What then of Webb ? As the Court of Appeal noted in Ashurst v Pollard  (§54), 
the Advocate General in Webb  gave the opinion (§11) that the expression 
"which have as their object" in Article 16(1) was synonymous with "which 
have as their principal subject matter". This led the Court of Appeal in A shurst 
v Pollard to look to see what the subject matter of the proceedings there was, 
concluding that the fact that the resolution of the dispute in that case as to 
personal rights may impac t upon property rights enforceable against third 
parties/strangers did not lead to the conclusion that the subject matter of the 
proceedings for the purposes of Article 16 was rights in rem  (§56).  
53. Although not repeating the words of the Advocate General, it may be that the 
CJEC in Webb  had them in mind nonetheless, in that it rejected the argument 
that "the test for applying Article 16(1) is the plaintiff's ultimate purpose" 
(§§12 and 13). According ly, it was not persuaded that, as the father's ultimate 
purpose was to secure ownership of the flat, Article 16 applied. Instead, it 
concentrated upon what it considered to be the aim of the proceedings, namely 
to obtain a declaration that the son held the  flat for the exclusive benefit of the 
father and in that capacity was under a duty to execute the documents 
necessary to convey ownership to the father (§15). It noted specifically, and 
must therefore have attached some significance to, the fact that the father did 
not claim that "he already enjoyed rights directly relating to the property 
which are enforceable against the whole world", but sought only to assert 
rights against the son. And it did not consider that the considerations relating 
to the proper administration of justice which underlay Article 16(1) were 
applicable (§§16 and 17).  
54. Fortified by the decision in Komu , I agree with Bodey J that the present case 
should be distinguished from Webb . The wife is already a joint owner of the 
property here, whereas the father in Webb  was not. If it is appropriate to 
analyse what the "principal subject matter" of the claim is here, it is to achieve 
a sale of the property, as it was in Komu . It would be wrong, in my view, to 
put too much weight on the fact that  the application is technically under 
section 14 of TLATA for an order relating to the exercise by a trustee of his 
functions, when such an application is conventionally coupled with, or 
followed swiftly by, an application for an order for sale by order of  the court. 
The action could be said to involve the external relations of the trust, rather 
than (or at the very least, as well as) the internal relations of the trust. 
Reflecting the language of §29 of Komu , I think it would be fair to describe 
the wife, as one of the two joint owners of the property both in law and in 
equity, as having "rights in rem  which have effect erga omnes ". She is seeking 
to "protect the powers attached to [her] interest" by "bring[ing] about a 
transfer of a right of ownership" in the house by a sale of it. Moreover, 
viewing the matter as a whole, it is clear that "the considerations which 
underlie the first paragraph of Article 22(1)" apply here, as they did in Komu .  
55. In reaching this view of matters, I have by no means ignored Ashurst v 
Pollard . However, I am not convinced that much is to be gained by a close 
analysis designed to see whether or not it can be distinguished from the 
present case. The Court of Appeal in Ashurst v Pollard  did not have the 
advantage of the more recent d ecision in Komu , which has added to the 
understanding of how the CJEU approaches Article 22(1). We have no way of 
knowing whether it would have decided Ashurst v Pollard  in the same way, 
had it had that advantage. Given that Mr Horton properly agreed that if there is 
a clash between Ashurst v Pollard  and Komu , this court would have to follow 
Komu , I do not propose to go further than to say that, applying the European 
jurisprudence and relying particularly upon Komu , I have concluded that the 
wife's proceedi ngs in the present case have as their object rights in rem  in 
immovable property and that Article 22(1) therefore confers exclusive 
jurisdiction upon the courts of this country. I would accordingly uphold the 
decision of Bodey J in this respect and dismiss  the husband's appeal against 
his dismissal of his application to dismiss or stay the wife's English 
proceedings.  
56. Having reached that determination, as I explained in §11 supra , it is 
unnecessary for me to deal with Mr Horton's challenge to the judge's 
conclusion that jurisdiction was alternatively conferred under Article 5(6) or 
with the associated questions of whether there was an operative agreement that 
the Polish courts were to have jurisdiction under Article 23, and whether there 
should be a stay und er Article 28.  
The appeal in relation to Bodey J's costs order  
57. Bodey J's order provided that the husband pay the wife's costs of his failed 
application to dismiss or stay the TLATA application, those costs to be subject 
to a detailed assessment if not ag reed. In §3 of the order, he provided for 
payment on account of costs in the sum of £37,500. He also ordered:  
"4. At the Wife's election, the outstanding costs due to her at any time, 
whether under paragraph 3 above, or following the detailed assessment, may 
be charged on the Husband's share of the property…."  
58. The husband appealed against §4 of the order, on the basis that it was, in 
effect, a charging order and that there was no power to make a charging order 
in respect of a sum not yet due/an unliquidate d sum. He also complained that 
there had been no compliance with the procedural formalities which CPR Rule 
73 prescribes for an application for a charging order.  
59. The costs which Bodey J ordered to be paid on account have been paid by the 
husband. As to th e balance of costs, presently awaiting detailed assessment, 
Mr Amos conceded that the charging order made by the judge should not have 
been made, as demonstrated by the decision of Floyd J (as he then was) in 
Monte Developments Ltd (in administration) v Co urt Management 
Consultants Ltd and others  [2010] EWHC 3071 (Ch) . Mr Amos did not seek 
to distinguish that case, or to persuade this court to take a different view of 
matters from Floyd J's, and nor did he seek to defend the charging order on 
any other grounds. He accepted on the wife's behalf that the appeal against it 
should be allowed and the charging order discharged.  
60. The wife's position was realistic. In m y view, the Monte Developments  case is 
precisely in point. Although chapter and verse was not given, the charging 
order made by Bodey J must have been made under the Charging Order Act 
1979. Section 1(1) of the Act provides:  
"(1) Where, under a judgment o r order of the High Court or the family court or 
the county court, a person (the "debtor") is required to pay a sum of money to 
another person (the "creditor") then, for the purpose of enforcing that 
judgment or order, the appropriate court may make an ord er in accordance 
with the provisions of this Act imposing on any such property of the debtor as 
may be specified in the order a charge for securing the payment of any money 
due or to become due under the judgment or order."  
61. In Monte Developments , an order was made in the claimants' favour against 
the defendant company for costs which were to be assessed if not agreed. The 
claimants obtained a final charging order in relation to the unassessed costs. 
On an application for the discharge of the final charging order, it was held that 
the sum for costs which had not been assessed was not within section 1(1) of 
the Charging Orders Act 1979. It was neither money which the company was 
"required to pay" under an order, nor money "due or to become due" under an 
order,  and nor could it be equated with future instalments which would 
inevitably become due at a later date under an order. The charging order was 
accordingly discharged. The same must happen in this case. I would therefore, 
allow the appeal and discharge §4 of  Bodey J's order.  
Lord Justice Sales:  
62. I agree.  
Lord Justice Irwin:  
63. I also agre e