LORD JUSTICE THORPE:
Introduction
This appeal has been created by the course of an earlier case, the well
known case of Agbaje v. Agbaje [2009] EWCA Civ 1(CA); [2010] UKSC13;
[2010] WLR 709 (SC). In the family division Mrs Agbaje obtained an
award under Part III of the Matrimonial and Family Proceedings Act 1984.
That award was set aside by this court in judgments which raised the
bar against the Part III applicant. The wife’s appeal to the Supreme
Court succeeded and the judgment of Coleridge J at first instance was
reinstated. In the present appeal, the Part III applicant was the husband
whose claim failed at first instance since, at the date of its listing, Bodey
J applied, as he was bound to do, the restrictive approach adopted by this
court in Agbaje. The decision of the Supreme Court in Agbaje prompted
the husband’s application for permission to appeal out of time, which
was granted by Wilson LJ, who recognised that Bodey J’s conscientious
application of the authority of Agbaje in this court could only be seen as
erroneous once the judgments of the Supreme Court were handed down.
However, the outcome of this appeal has not been straightforward, since
we have additionally to apply European family law, given that the foreign
jurisdiction engaged is Italy.
We also have to have regard to the effect of the recent decision of the
Supreme Court in Radmacher since a marital property regime was
incorporated within the Italian civil marriage ceremony. With that brief
introduction, I turn to the history.
The Facts
The parties married in Italy on 14th November 1987. The wife was
pregnant and came from an affluent family in the north of Italy. The
husband came of a modest Calabrian family. Parties marrying in Italy may
elect for community of goods, separation of goods or no regime at all.
Here the election of separation of goods was achieved by the addition
of the briefest of words in the relevant box in the marriage certificate,
endorsed by the Registrar’s signature. The wife’s family did not welcome
the husband’s suit and no doubt wished to protect her fortune, present
and future. The husband received no legal advice. However, in this court
he has made no complaint of unfairness arising out of the circumstances
in which the election was made.
There are two children of the marriage; Jessica born on 3rd May 1988 and
Giuseppe born on 18th September 1991. After the marriage, the parties
divided their time between Italy and England, investing successively
in restaurant businesses, none of which seems to have enjoyed much
success.
In 2001 the wife purchased in her sole name a matrimonial home in
Palmers Green. Shortly thereafter the marriage broke down and in March
2003 the wife issued a petition for separation in the court in Brescia. The
husband took little or no part in the proceedings and on 11th November
2004 a separation order was made including some financial orders.
On 13th February 2008 the wife obtained a decree of divorce in the
Brescia court. It included no further financial orders.
In April 2008 the husband was served with notice to quit the Palmers
Green property which triggered his application of May 2008 under Part III.
The wife’s response of 20th May 2008 was a letter seeking arrears of child
periodical payments in the sum of EUR 67.000.
After various case management orders and an agreed report on Italian
law from an expert, the husband’s application was heard and dismissed by
Bodey J on 30th April 2009.
The Statutory Provisions
Part III of the 1984 Act results from Law Commission Report no. 117 of
1982. The recommendation emerged in sections 12 – 18 of the statute.
Section 12 is headed:
“Applications for Financial Relief after overseas divorce”
Then follows the section upon which this appeal principally focuses
headed:
“Leave of the court required for applications for financial relief.”
I pass over section 14 to arrive at section 15:
“Jurisdiction of the court.”
Then follows section 16:
“Duty of the court to consider whether England and Wales is appropriate
venue for application.”
Section 17 specifies the orders that may be made and section 18 the
matters to which the court is to have regard in exercising its powers
under section 17. The broad effect of section 18 is to guide the exercise
of judicial discretion by importing the section 25 check list from the
Matrimonial Causes Act 1973.
The crucial subsection which we have to consider is section 13(1) as
follows:
“No application for an order for financial relief shall be made under
this Part of this Act unless the leave of the court has been obtained
in accordance with rules of court; and the court shall not grant leave
unless it considers that there is substantial ground for the making of an
application of such an order.”
The relevant rule of court is Family Proceedings Rule 3.17(1) which
provides:
“An application for leave to apply for an order for financial relief under
Part III of the Act of 1984 shall be made ex-parte by originating summons
issued in Form M25 out of the Principal Registry and shall be supported
by an affidavit by the Applicant stating the facts relied on in support of
the application with particular reference to the matters set out in section
16(2) of that Act.”
Case Law
We are fortunate to have so recent a ruling from the Supreme Court on
the interpretation and application of Part III of the 1984 Act.
In paragraph 33 of his judgment Lord Collins gives clear guidance as to
the interpretation of section 13(1):
“In the present context the principal object of the filter mechanism is
to prevent wholly unmeritorious claims being pursued to oppress or
blackmail a former spouse. The threshold is not high, but is higher than
‘serious issue to be tried’ or ‘good arguable case’ found in other contexts.
It is perhaps best expressed by saying that in this context ‘substantial’
means ‘solid’.”
Later in his judgment Lord Collins answers the questions which he had
thus defined in paragraph 40:
“(1) To what issue the matters listed in section 16(2) are directed.
(2) What role (if any) forum non conveniens principles or comity have to
play in the exercise in the discretion.
(3) Whether the applicant must show exceptional circumstances, or
hardship, or serious injustice, before an order can be made.
(4) To what matters the court should have regard in deciding whether,
and in what way, to exercise its powers under section 17, and in particular
whether there is a principle that the court is limited to making an order
which represents the minimum necessary to remedy the hardship or
injustice.”
Lord Collins’ answers to those questions demonstrate, beyond argument,
that Bodey J misdirected himself. First in paragraph 40 he concluded
that Italy was the convenient forum. Then in paragraph 43 he concluded
that the court in Brescia had not treated the husband unjustly. Those
considerations led him to refuse the husband the leave that he required
in order to make a Part III application. The course that Bodey J took was
ordained by the highest authority then available. The judgment of Lord
Collins in the Supreme Court demonstrates that it was the wrong course.
Accordingly we must weigh the husband’s application for leave afresh
applying the law as it now stands.
Submissions on appeal
In an attractive and succinct submission Mr Frank Feehan QC advances his
appeal under three heads. The first is as to the test which we must apply.
Mr Feehan submits that it is a simple test expressed in the first three
sentences of paragraph 33 of the judgment of Lord Collins cited above. He
submits that the test is plainly satisfied given that:
i) The husband has made no application for any form of financial relief in
Italy.
ii) He has been served with eviction proceedings.
iii) The cottage in Calabria he would transfer to the wife in return for the
home in Palmers Green.
Mr Feehan properly draws attention to the recent words of Mostyn J in
the case of CG v. IF. He invites us to ignore this gloss upon Lord Collins’
guidance.
His second heading considers the effect of the election for separation of
goods in the light of the decision of the Supreme Court in Radmacher.
Here he emphasises the factors identified in paragraph 68 to 72 of the
leading judgment and particularly the proposition in paragraph 75:
“The court should give effect to a nuptial agreement that is freely entered
into by each party with a full appreciation of its implications unless in the
circumstances prevailing it would not be fair to hold the parties to their
agreement.”
The third issue addressed by Mr Feehan is the European dimension and
particularly the application of Regulation Brussels I. The relevance of this
regulation to an application under Part III is explained by Lord Collins in
his judgment in Agbaje in the following paragraphs:
“55. But, although the point does not arise on this appeal, a warning note
must be struck about the position with regard to states to which Council
Regulation (EC) No 44/2001 (OJ 2001 L12, p. 1) on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters
(“the Brussels I Regulation”) applies. The effect of sections 15(2) and
28(4) of the 1984 Act is that the jurisdictional provisions of Part III and
Part IV respectively are subject to the Brussels I Regulation (and the
Lugano Convention on Jurisdiction and the Enforcement of Judgments
in Civil and Commercial Matters (1988)). Those sections do not address
the question whether a judgment in a Brussels I Regulation State making
financial provision on divorce (or refusing to make such provision) would
be entitled to recognition so as to prevent an award under Part III or Part
IV.
56. For the purposes of Brussels I Regulation and the Lugano Convention
there is a distinction between ‘maintenance’ which is within the scope of
the Regulation (article 5(2), which confers jurisdiction on the courts of
the maintenance creditor’s domicile, in addition to that of the debtor’s
domicile under article 2); and ‘rights in property arising out of a
matrimonial relationship’ (‘régimes matrimoniaux’) which are expressly
(*725) excluded from the scope of the Regulation. These are autonomous
concepts: de Cavel v. de Cavel (No 1) (Case 143/78) [1979] ECR
1055; de Cavel v. de Cavel (No 2) (Case 120/79) [1980] ECR 731. The
Brussels II Revised Regulation (Council Regulation (EC) No 2201/2003
on jurisdiction and the recognition of judgments in matrimonial matters
and matters of parental responsibility) (OJ 2003 L338, p. 1) does not
apply to the ‘property consequences of the marriage or any other ancillary
measures’ (recital (8)), or to ‘maintenance obligations’: recital (11).
57 It is only necessary to mention that if an award of maintenance had
been made in another member state, the question might arise as to
whether the application in England under Part III would be precluded
on the basis that the issue of maintenance had been determined in the
other jurisdiction and that that determination was entitled to recognition.
That would depend, at least in part, on whether the application was to be
characterised as relating to maintenance or to rights in property arising
out of a matrimonial relationship. Van den Boogaard v. Laumen (Case
C-220/95) [1997] QB 759 shows that a transfer of property may be in the
nature of maintenance if it is intended to ensure the support of a spouse;
but a transfer of property which serves only the purpose of a division
of property is not in the nature of maintenance, and concerns rights in
property arising out of a matrimonial relationship. See also Schlosser
Report on the Accession Convention to the Brussels Convention (OJ 1979
C59, p. 71), paragraph 50; Moore v. Moore [2007] 2 FLR 339. This is an
area which involves difficult questions which do not arise for decision on
this appeal.”
That introduction leads me to the Italian orders, namely those of 11
November 2004 and 13 February 2008. The only financial provisions are
contained in the separation order in the following two paragraphs:
“(4) Assigns the marital home, including furnishings, to Freddi, Carla.
(5) Fixes the contribution to be paid by Traversa Francesco for the
maintenance of the two children at EUR 300 for each of them, to be paid
no later than the tenth day of each month and to be reassessed annually
according to the Istat indices starting from 11.11.2005, as well as 50 %
of the extraordinary, medical and school expenses.”
It is to be noted that there is no spousal order. This is partially explained
by the expert report where we read:
“In a separation proceeding the only financial relief available can be a
maintenance order in favour of the spouse who has a lower income and is
not faulty for the separation.”
Equally the assignment is explained by the later passage:
“Under the regime of separation of properties under Italian law each
spouse maintains his/her own properties regardless of whether they
have been acquired prior, during or after the marriage. There are no
exceptions, not even for the matrimonial home.
Note however that in the separation/divorce proceedings the matrimonial
home is normally assigned to the spouse who has custody of children,
regardless of the fact that the other spouse may be owner or co-owner of
such a property. The assignment will last until the children remain in the
marital home and is however revoked in case or new marriage or stable
cohabitation of the spouse to whom the house has been assigned.”
On those facts, Mr Feehan submits that the Regulation Brussels I is not
engaged. In any event its application is only to maintenance provision.
Here the husband seeks essentially a property transfer order rather than
any maintenance provision.
Mr Warshaw, in an equally able and succinct submission, adopts the same
headings. As to the fundamental test he submits that Bodey J would
equally have refused leave had he had the judgments of the Supreme
Court. The husband’s prospects of obtaining any substantive order are
very slim and accordingly it cannot be said that he has any substantial
ground. Mr Warshaw relies heavily on the judgment of Mostyn J in the
authority cited above. He emphasises paragraphs 4 – 6 where Mostyn J
states that both the section 16 factors and the section 25 check list must
be taken into account when considering the question of leave. He points
to Mostyn J’s gloss in paragraph 8 and to his exposition in paragraphs
26 to 43 of the application of the Regulation Brussels I and the Lugano
Convention. In that passage, Mostyn J expresses the conclusion that
jurisdiction and enforcement rest with the European court first seized in
relation to any financial order that contained a maintenance ingredient.
Since the needs of the parties have to be factored in to the making of
any order it is hard to say that meeting or maintaining those needs is not
inherent in the range of orders to be made under section 17 of Part III.
In relation to the marital property regime Mr Warshaw simply submits
that it is binding on the parties and that paragraph 74 and 108 of
the leading judgment in Radmacher make it inevitable that any claim
advanced by the husband will fail. The application for leave is knocked
out by this one punch. Neither do the circumstances presently prevailing
command a departure from the contract.
As to the Regulation Brussels I, Mr Warshaw submits that the jurisdiction
plainly lies with the Italian court. The order for periodical payments to the
children is still live. Both children are in full time education. An application
in this jurisdiction by the husband falls within the provisions of Article 27
of the Regulation since it would be the same cause of action between the
same parties giving rise to a mandatory stay and a refusal of jurisdiction
in favour of the Italian court.
Alternatively Mr Warshaw submits that an application by the husband
for a property adjustment order is clearly a related action subject to a
discretionary stay under Article 28 of the Regulation.
Conclusions
I express my conclusions under the same three headings adopted by
counsel. As to the interpretation and application of section 13, there
could hardly be clearer guidance than that given by Lord Collins in the
three sentences that open paragraph 33 of his judgment. I see no need
for an instant further gloss as offered by Mostyn J in paragraph 8 of his
judgment where he seems to introduce the test formulated by the House
of Lords in Re B [2008] 2 FCR 339 for the determination of whether or
not a past act or injury to a child has been proved on the balance of
probabilities.
It is clear that the section 13 filter is there to exclude plainly
unmeritorious cases and, although, in the evaluation of substance, regard
must be paid to overall merits, it does not call for a rigorous evaluation of
all the circumstances that would be considered once the application has
passed through the filter.
At the hearing of the Section 13 application the judge will of course be
conscious of the fact that, once through the filter, the applicant will have
to clear a number of fences that the following Sections erect. Unless it
is obvious that the applicant will fall at one or more of the fences, his
performance at each is better left to the evaluation of the trial judge.
In my judgment the considerations upon which Mr Feehan relies indicate a
sufficiently substantial ground for the making of an application.
What then of the marital property regime? This did seem to me to be Mr
Warshaw’s best point. It is a positive, mutually agreed election and there
is no suggestion here of unfairness at the date of marriage. However,
whether or not it is fair in present circumstances to apply it with all its
rigour is a consideration to be weighed, not on the application for leave,
but at the resulting trial.
Nor am I impressed by Mr Warshaw’s reliance on the Regulation Brussels
I. Neither spouse has made any application for any spousal relief in
the divorce court. The child maintenance order has never been varied
under its express provisions, or otherwise, nor has it ever been enforced.
Accordingly, in my judgment an application for a transfer of property
order now issued by the husband is not caught by Article 27. If caught
by Article 28 any decision as to whether or not there should be a
discretionary stay is better left to the trial judge.
In any event, I do not share Mostyn J’s opinion that an order that contains
any element of maintenance fixes jurisdiction in relation to all financial
issues. Regulation Brussels I expressly excludes from its scope the
property consequences of divorce. The Regulation Brussels II revised
expressly excludes from its scope both the property consequences of
divorce and maintenance. To complete the jigsaw another European
regulation is required and the Commission will shortly publish a draft
Regulation on marital property regimes and the property consequences of
divorce.
For the purposes of enforcement it is abundantly plain that, where there
is a single order that provides both maintenance for the payee and a
capital sum as a property consequence of divorce, what I will call a
hybrid order, it is only enforceable under the provisions of Regulation
Brussels I in relation to that part of the order which can be categorised
as maintenance. In other words the hybrid order is severable into the
maintenance ingredient and the property consequences of divorce
ingredient. So much was established by the very clear and practical
judgment of the European Court of Justice in Van den Boogaard v.
Lauman (1997) QB 759.
Thus it follows in my judgment that Regulation Brussels I cannot be
invoked as the basis for the exclusive exercise of jurisdiction in relation to
the property consequences of divorce.
On the principal question before this court, I thus conclude that the
husband has clearly established a substantial ground for the grant of
leave having regard to the overall financial circumstances of the parties
and to the fact that neither of Mr Warshaw’s punches entitles him to
shield his client from a full investigation. Having granted leave we must
give firm directions for the subsequent conduct of the claim, as to which
we will invite agreement or submissions.
Before leaving this case, I wish to express a clear view on what seems to
me to be a highly questionable practice that has apparently developed in
the Family Division.
The statute provides the filter and the rules provide that the application
shall be made ex parte.
Of course any order made ex parte may attract an application for it to be
set aside at a hearing inter partes. This gave rise to wasted costs to which
attention was drawn in reported cases such as Jordan v. Jordan [1999] 2
FLR 1069.
The solution was clearly indicated by Lord Collins in the second half of
paragraph 33 of his judgment. It should be as difficult to set aside leave
granted under S. 13 as it is to set aside permission to appeal granted in
this court. Lord Collins did not suggest that the problem should be tackled
by converting the section 13 application to an inter partes application:
wisely in my view, since that only invites precisely the sort of extensive
arguments better reserved for the trial.
How then was the present case heard by Bodey J on notice? That is
explained in the first paragraph of his judgment when he says:
“It is an ‘inter partes’ application, since it was so fixed prior to the Court
of Appeal’s decision in Agbaje. Nowadays it would have come on as an ex
parte application and would have been dealt with as such.”
He spoke thus on 30th April 2009. However on 12th May 2010 in CG v.
IF Mostyn J also heard an inter partes application. In paragraph 9 he said
this:
“9. I should say a few words about procedure. Here W filed a statement,
submitted a skeleton, and instructed counsel. The reason she was able to
do all this was because she was served with the originating process, even
though there was no requirement to do so. There was some faint protest
raised at the presence of her legal team and I was asked not to read the
skeleton submitted on her behalf. I think that there is a helpful analogy to
be drawn with the appellate process, an analogy that is given legitimacy
by paragraph 33 of Agbaje. Although an application for permission to
appeal is strictly ex parte it is a commonplace for the other party to file
a skeleton in opposition, and such a skeleton is invariably read (in my
experience). Moreover, the Court of Appeal has full power to adjourn the
application for permission to be heard inter partes either with or without
the appeal proper to follow if granted.”
When we asked counsel for some explanation Mr Warshaw suggested
that whatever the rules may prescribe, the practice has grown up of
applicants automatically giving notice of their application for leave with
a resulting inter partes hearing. He suggested that practitioners were
encouraged to this course anticipating that the Family Procedure Rules will
so provide. I would not support such a change and, in any event, it is not
for practitioners to disregard the provisions of a current rule and develop
a practice of their own.
As to the effect of the new Rules coming in to force on 6th April 2011, I
have had the advantage of reading the judgment of Munby LJ and agree
with the view expressed in paragraphs 54 – 57.
Lord Justice Rimer:
I agree.
Lord Justice Munby:
I also agree with Thorpe LJ that, for the reasons he has given, this
appeal should be allowed. There are, however, three matters of general
importance on which I need to add some words of my own. The need
arises in significant part because of certain observations by Mostyn J in
CG v. IF [2010] EWHC 1062 (Fam).
The first relates to the grant of leave in accordance with section 13(1).
As Thorpe LJ has pointed out, the law has very recently been explained
in the most authoritative form by Lord Collins, giving the judgment of
the Supreme Court in Agbaje, in a passage which, although my Lord has
already quoted it, bears repetition:
“In the present context the principal object of the filter mechanism
is to prevent wholly unmeritorious claims being pursued to oppress
or blackmail a former spouse. The threshold is not high, but is higher
than “serious issue to be tried” or “good arguable case” found in other
contexts. It is perhaps best expressed by saying that in this context
“substantial” means “solid.””
In relation to procedure, Lord Collins was equally clear:
“Once a judge has given reasons for deciding at the ex parte stage that
the threshold has been crossed, the approach to setting aside leave
should be the same as the approach to setting aside permission to
appeal in the Civil Procedure Rules, where (by contrast with the Family
Proceedings Rules) there is an express power to set aside, but which may
only be exercised where there is a compelling reason to do so: CPR rule
52.9(2). In practice in the Court of Appeal the power is only exercised
where some decisive authority has been overlooked so that the appeal
is bound to fail, or where the court has been misled: Barings Bank plc v.
Coopers & Lybrand [2002] EWCA Civ 1155; Nathan v. Smilovitch [2007]
EWCA Civ 759. In an application under section 13, unless it is clear that
the respondent can deliver a knock-out blow, the court should use its case
management powers to adjourn an application to set aside to be heard
with the substantive application.”
Nothing, if I may respectfully say so, could be clearer. It is not for this or
any other court to add some gloss. There is no need. It would be wrong to
do so.
Thorpe LJ has referred to what Mostyn J had to say on the topic in CG v.
IF at para [8], where he suggested that “substantial” and “solid” require
the court to be able to say “confidently” that the probability that the
applicant will achieve a substantive order were the matter to be tried is
“greater than or equal to 50 %”. Mostyn J added (para [12]) that where
on an ex parte application “the needle appears to be flickering around
the 50/50 probability mark” the court should be prepared to adjourn the
application for leave to be heard inter partes, presumably in accordance
with the views about procedure which he had set out earlier (para [9]) in
the passage my Lord has already quoted.
With the greatest of respect to him, I have to say that Mostyn J was
doubly wrong. It was not for him to add some gloss; and the gloss he
added was not merely wrong but quite inconsistent with Lord Collins’
authoritative guidance in at least two respects. In the first place, a
“substantial” or “solid” case, contrasted with a case which is “wholly
unmeritorious”, is not a case requiring a 50 % chance of success, and
with all respect to Mostyn J’s view Lord Colllins said nothing to suggest
it is. The second point is that the kind of inter partes hearing apparently
contemplated by Mostyn J is simply outside the scope of what Lord Collins
had in mind. To repeat, unless it is clear that the respondent can deliver
“a knock-out blow” the court “should” adjourn an application to set aside
to be heard with the substantive application.
I add only this. The emergent practice of listing or directing
applications for leave to be listed on notice for hearing inter partes is
compliant neither with the clear requirements of FPR rule 13.7(1) nor,
unsurprisingly, given the terms of the rule, with the authoritative guidance
given by the Supreme Court. The practice should stop. The application for
leave should be listed ex parte for a hearing which can be appropriately
brief, as can the judgment either giving or refusing leave. Those minded
to apply to set aside the grant of leave should be mindful of what Lord
Collins said. Such an application, if nonetheless pursued, should be given
an appropriately short listing to enable the respondent to demonstrate,
if he can – and it will not take all that long, which is why the listing can
be appropriately short – that he has some “knock-out” blow. Unless
the respondent can demonstrate that, his application, if not dismissed
then and there, should be adjourned to be heard with the substantive
application.
Thus far I refer to practice as it should be so long as matters are
regulated by the Family Proceedings Rules 1991. The Family Procedure
Rules 2010 have been made and laid before Parliament for approval
but (assuming approval) will not come into force until 6 April 2011.
Applications for leave under Part III of the 1984 Act are dealt with by
Particle 8, Chapter 6, of the new Rules, FPR 8.23 – 8.28.
FPR 8.24(3) requires the application to be made in accordance with the
Particle 18 procedure. FPR 18.5(1) normally requires an application to
be served on the respondent but this is subject to FPR 18.5(2)(a), which
provides that an application may be made without serving a copy of the
application notice if this is permitted by a rule. FPR 8.25 (which is headed
“Application to be made without notice”) provides as follows:
“(1) The court may grant an application made without notice if it appears
to the court that there are good reasons for not giving notice.
(2) If the applicant makes an application without giving notice, the
applicant must state the reasons why notice has not been given.”
FPR 18.11 provides that a person who was not served with a copy of
the application notice before an order was made may apply to have the
order set aside or varied; such application must be made within 7 days
beginning with the date on which the order was served on the person
making the application. (FPR 18.10(3), it may be noted, requires that any
order made without notice must contain a statement of the right to make
an application to set aside or vary the order under FPR 18.11.)
The wording of FPR 8.25 is slightly odd, for the requirement that the
application for leave is to be made without notice appears only in the
heading and not, at least explicitly, in the rule itself; and the wording
of FPR 8.25(2) – “if the applicant makes an application without giving
notice” (emphasis added) – might suggest that the applicant has a choice.
But reading the rule in the context of both present practice and, more
particularly, what Lord Collins said in Agbaje, it seems that what the new
rules contemplate is an application which is to be made without notice but
where the court has power to decline to make the order except at an inter
partes hearing. This is borne out by FPR 8.26(b) which requires the court
to “give notice of the date of the hearing to the applicant” but not, it may
be noted, to the respondent.
There are, however, two points which I wish to emphasise. The first is
that if the court grants leave at a without notice hearing, any application
to set aside in accordance with FPR 18.11 is to be dealt with as at present
and in accordance with what Lord Collins said in Agbaje. Under the new
rules, as under the old, unless the respondent can demonstrate that
he has some “knock-out” blow, his application to set aside the grant
of permission, if not dismissed then and there, should be adjourned to
be heard with the substantive application. The other is this. Whether
the application for leave is dealt with at a without notice hearing or
inter partes, the hearing should be given an appropriately short listing.
Applications for leave or permission in this court and in the Administrative
Court, even if listed inter partes, are customarily listed for 30 or at most
60 minutes. There is no reason why applications for leave under the 1984
Act cannot be dealt with justly and fairly – I quote the language of the
new FPR 1.1 – within a similar timescale.
The third matter relates to Brussels I. In CG v. IF, Mostyn J appears to
have adopted the view that in a case of this kind – where there has been
a determination of a foreign court which is consequently given exclusive
jurisdiction – the English court cannot give leave under section 13 of the
1984 Act if the claim sought to be brought in this jurisdiction includes any
element of a claim for maintenance. As he said (para [33]):
“So the central question is: does H’s claim have a maintenance element?
If it does then it is clear to me then it cannot proceed”.
This led him into an interesting but irrelevant consideration of whether, as
he put it (paras [37], [43]), it is possible to have an ancillary relief award
that does not contain an ingredient of the meeting of need, whether it is
possible to banish needs from an English ancillary relief exercise. I say
irrelevant because, with all respect to Mostyn J, the entire discussion was
founded on a false premise.
Mostyn J founded his analysis upon his reading of the decision of the ECJ
in Van den Boogard v. Laumen [1997] QB 759, [1997] 2 FLR 399, and of
the subsequent expositions of this court (which included Lawrence Collins
LJ as he then was) in Moore v. Moore [2007] EWCA Civ 361, [2007] 2 FLR
339, para [80], and of the Supreme Court in Agbaje at paras [55] – [57].
His reading, with all respect to him, was wrong.
The crucial passages in the judgment in Van den Boogard v. Laumen are
to be found in paras [21] – [25]. I need not set them out. It suffices to
refer to para [22]:
“It should be possible to deduce [the specific aim of the decision
rendered] from the reasoning of the decision in question. If this shows
that a provision awarded is designed to enable one spouse to provide for
himself or herself or if the needs and resources of each of the spouses are
taken into consideration in the determination of its amount, the decision
will be concerned with maintenance. On the other hand, where the
provision awarded is solely concerned with dividing property between the
spouses, the decision will be concerned with rights in property arising out
of a matrimonial relationship and will not therefore be enforceable under
the Brussels Convention. A decision which does both these things may,
in accordance with article 42 of the Brussels Convention, be enforced in
part if it clearly shows the aims to which the different parts of the judicial
provision correspond.”
Mostyn J drew attention (CG v. IF, para [35]) to the word “solely”, from
which he derived the proposition that “if an ancillary relief award contains
as an ingredient (to any material degree) the satisfaction of needs,
then it will be not be “solely” concerned with the division of property
between spouses.” May be; but so what? Much more important – indeed
determinative in this context – is surely the final sentence of para [22],
to which Mostyn J seems to have paid inadequate attention. As the ECJ
put it, “A decision which does both these things” – that is, both provides
for maintenance and divides property – may, in accordance Brussels I,
be enforced “in part”. Precisely so. Accordingly, as Thorpe LJ has already
explained, merely because an order contains an element of maintenance,
that does not fix jurisdiction in relation to all financial issues. There is
nothing in what the ECJ said in Van den Boogard to suggest that it does,
nor in Moore v. Moore or in Agbaje.
I might add that there is nothing at all novel about this. In Al-Khatib v.
Masry [2002] EWHC 108, [2002] 1 FLR 1053, I awarded the petitioner
a total of some £ 25 million, of which £ 5.5 million (see paras [112] –
[117]) represented the capitalised amount, calculated on a Duxbury basis,
of her needs assessed at the annual figure of £ 225.000. I was invited
by the petitioner’s counsel, Mr Nicholas Mostyn QC as he then was, to
express part of my award as being, albeit in lump sum form, an award
of maintenance, the purpose being (see para [128]) to enable her to
take advantage of the enforcement provisions of the Brussels and Lugano
Conventions. Mr Mostyn relied for this purpose on the decision of the ECJ
in Van den Boogaard which, as he correctly submitted, establishes that a
capital award can be enforced under these Conventions to the extent that
it supplies a commutation of maintenance. Having referred to the relevant
parts of the ECJ’s judgment, I said (para [129]) that the petitioner was
entitled to have the part of my order which was referable to ‘maintenance’
within the meaning of the Conventions expressed as such, since, as I
read the court’s judgment, a Duxbury fund calculated as such constituted
‘maintenance’ for this purpose. That was, as it were, an application of the
Convention “in part” one way round; the present case, like CG v. IF, is
an application of the Convention “in part” the other way round. But the
essential point is the same.