On 13 January 2006 I heard a full day of submissions in relation to a
claim for maintenance pending suit made by Mrs L-K (W) which was
founded upon her divorce petition issued in London on 24 March 2005.
I give leave for this judgment to be publicised in this anonymised form,
and suggest that it should be cited as LK v K (Brussels II Revised:
maintenance pending suit).
W contends that this country's courts have jurisdiction to hear the suit
and should award her maintenance pending its conclusion on the basis
that both she and Mr K (H) were habitually resident here on that date,
a jurisdictional foundation which he disputes. That issue is set to be
determined by one of my colleagues at a three day hearing to commence
on 1 March 2006.
If the only issue in the case were the court's power to award maintenance
pending suit in advance of the resolution of that jurisdictional issue then
there could now be no contest. For the Court of Appeal has recently
decided that the courts do have that power, in the as yet unreported case
of Moses-Taiga v Taiga [2005] EWCA Civ 1013: see [18] to [21], and
[34].
However these parties are most unfortunately driven into deep waters
of legal turbulence by the quirk of fate that on that very same day H
instituted divorce proceedings in Paris, relying on the undoubted fact that
both spouses are French nationals.
The brief background to the maintenance pending suit application is
as follows. W was born in Singapore and is 39. H was born in France
and will shortly be 36. His work as an investment banker took him to
Singapore where the parties met in 1994. In July 1996 they married
in France, adopting the matrimonial régime of 'séparation de biens'. W
subsequently applied for and was granted French nationality. The couple
then lived between London and Tokyo for varying periods dictated by H's
employment. Most recently, they would have moved to live together in
London at the beginning of January 2005 if the marriage had not broken
down in circumstances which are irrelevant for present purposes. There is
one child of the family, their son now aged 21 months who lives with W in
rented accommodation in London.
I do not have to consider the habitual residence issue and therefore need
not detail the events which led to W moving to her current home, a flat
at a rent of £2,000 per week selected with H's involvement and approved
by him at the time she moved in on a six-month tenancy. But I must
set out as succinctly as possible the history of the two sets of divorce
proceedings, here and in Paris.
They were commenced (or purportedly commenced, in deference to
H's argument that irregularity strikes at the very existence of effective
proceedings here) on 24 March 2005. At the same time W issued a Notice
in Form A to initiate ancillary relief proceedings. On 13 April 2005 H
issued an application to dismiss her ancillary relief application, and asked
that meanwhile the obligation on the parties to take the steps which
would ordinarily lead to the First Appointment should be suspended.
On 22 April 2005 District Judge White, recognising that there was an
argument over jurisdiction, ordered a stay of the English proceedings
'pending a hearing to determine jurisdiction pursuant to FPR rule 2.27A'.
He appears to have done so of his own motion, fixing 29 April 2005 for a
directions hearing on that issue.
On that day District Judge Million made a consent order based on letters
from the parties' solicitors. He set a timetable for evidence to be filed
which will culminate in the three-day fixture listed for 1 March 2006 to
which I have referred. Pending that hearing, his order provides, District
Judge White's stay on proceedings was to remain in force, and the First
Appointment hearing date was vacated. It was this order which directed
that 'the issue of jurisdiction as a whole' be listed for (as it transpired) 1
March 2006.
Next, on 19 September 2005 Judge Marchais at the Tribunal de Grande
Instance of Paris gave judgment in relation to a hearing which had taken
place before her on 6 September 2005. She decided that the French court
was seised second and stayed the proceedings in her court 'until such
time as the English court has ruled on its jurisdiction', which in context
must allude to the habitual residence issue.
On 21st September 2005 W issued the application for maintenance
pending suit which has been argued before me. It was first listed to be
heard by a District Judge at the Principal Registry of the Family Division
on 13 December 2005, but on 17 November 2005 McFarlane J made
provision for evidence to be filed and transferred the application for
hearing by a judge of the Family Division with a one day estimate for its
duration. Inferentially McFarlane J thereby lifted the stay to the extent
that he provided for W's application to proceed.
Meanwhile, in France on 3 October 2005 H lodged notice of appeal against
the decision of Judge Marchais. The competence of that appeal has been
confirmed after an interlocutory hearing in the Cour d'Appel, and the
appeal hearing is awaited.
So as things currently stand a judge in France has determined that the
English court became seised of the divorce proceedings earlier on the
same day than the French court. That French judge has accordingly
stayed the French proceedings pursuant to the provisions of Council
Regulation (EC) No. 2201/2003 of 27 November 2003 concerning
jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and in matters of parental responsibility, repealing
Regulation (EC) No. 1347/2000, commonly referred to as Brussels II
Revised and to which I shall for brevity refer as BIIR. That Regulation
came into force on 1 March 2005 and, subject to the dispute concerning
habitual residence, it is clear from Article 3 that each country has
jurisdiction to try divorce proceedings such as have been commenced in
each territory.
Where there are concurrent proceedings in more than one Member State,
then Article 19(1) of BIIR applies, which is in these terms:
'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.'
Article 16 defines the circumstances in which a court shall be deemed
to be seised of proceedings of the relevant nature. It is essentially a
definition provision. For present purposes it is sufficient to note that
the issue which arises here appears to depend upon 'the time when
the document instituting the proceedings or an equivalent document
is lodged with the court', and that no question arises in relation to the
proviso concerning the steps required to be taken to effect service on the
other party: see Article 16(1)(a). It was drawn to my attention that the
equivalent French-language text of BIIR refers to 'la date à laquelle' – the
date rather than the time - such documents are lodged with the court,
but it would be beyond the scope of this judgment, in my view, to embark
upon any analysis of the potential effect of that linguistic nuance.
The French judge's decision is subject to appeal in France, the date for
the hearing of which is scheduled to be after 1 March 2006. If the appeal
is successful then (subject to any further appeal, if such be practicable,
to the Cour de Cassation) the stay will be lifted, as a consequence of the
appeal decision will be to establish France as the jurisdiction of the court
first seised. In that event an equivalent obligation to stay proceedings
here will arise for the English court pursuant to Article 19(3) read with
Article 16. For these provisions govern both the English and the French
courts. Meanwhile, however, if W fails here to establish that both spouses
were habitually resident here at the date of presentation of the petition,
then (subject again to any appeal for which leave would be required) the
English proceedings will be dismissed for want of jurisdiction. Thereupon
the French proceedings would no doubt be revived: for the timing issue
leading to their current stay would have become irrelevant. Equally, if the
French Cour d'Appel reverses the extant decision that the English court
was first seised, then (subject always to any further appeal in France) the
way will be cleared for proceedings there.
Mr Charles Howard QC and Mr Philip Marshall, who appear for H, invite
me to predict the outcome of the French appeal and to conclude that
his appeal challenging the decision ceding priority to this court will, or
is very likely to, succeed. That appears to me to be a speculation too
far. Whatever the evidence to support a contrary conclusion which H can
muster, how can it be right (I ask myself) for a judge of one EC country
to sit in judgment upon a judge of equivalent (or indeed any) jurisdiction
in another Member State. Moreover it cannot be right that a judge here
should second-guess what the decision of a foreign appellate court
applying its own domestic law and procedure will be. I decline, therefore,
to follow that course. The French judge has stayed the proceedings in
France: here the English proceedings remain alive, although at risk of
termination in the ways and for the reasons I have indicated.
It is a basic premise of my approach to the conundrum which this
application presents that as the French court has for the time being
stayed its hand, the only courts in a position to deal are England's. Article
19(1) has in the circumstances presently prevailing spent its force.
There is no room in my judgment for an English judge to say that he
does not agree with the decisions taken and findings made by his or her
colleague in France; to arrive at a contrary conclusion; and then to stay
the English proceedings upon what to me would seem a misapplication
of Article 19(1). Otherwise the resultant situation would or could be
that the position of the English court was that the English proceedings
should be stayed, whereas the decision in France is that the English
proceedings should proceed. This would lead to an absurd 'after you,
Claud(e)' situation which would reflect a lamentable lack of comity.
I draw support for that approach from the similar view taken by Mrs
Justice Bracewell in Wermuth v Wermuth (No 1) [2002] EWHC 3049
(Fam), [2003] 1 FLR 1022. I need only quote from the head-note:
'Quite apart from Brussels II, comity of legal systems demanded that
courts of competent jurisdiction should be respected in their decision-
making and their orders should stand until varied by that court or on
appeal. The German court was a competent court of jurisdiction which had
to determine questions of fact after hearing evidence from both parties.
It was not for an English court to seek to dictate to a German court how
it should find on a disputed issue, nor on the legal basis for a decision in
German law, and the court declined to act, in effect, as an appellate court,
and to review their decision. The decision of the German court to approve
substituted service was a judicial and not an administrative decision,
and was based on whatever evidence the German court considered was
necessary.'
Mr Howard sought to strengthen his argument that I should anticipate
what he says is the likely success of the appeal in France by suggesting
that I would be doing no more than an English judge will be doing on
1 March. For he expects that the question which court was first seised
will be decided, for English purposes, on that occasion. True it is that
District Judge Million's order envisages trial of the issue of jurisdiction as
a whole but it will be for the judge in March to decide for him or herself
whether that is a legitimate and, even if so, a desirable enquiry to be
conducted here, in the light of whatever may then have happened or be
forecast to happen in terms of the French court proceedings. That will
be a matter for that judge. The possibility, as it seems to me, that the
court will then decline to express its own view on a topic, the subject of
full ventilation and litigation in France, simply goes to add to the dangers
which would arise were I to act on what could only be my gut-feeling
about what the outcome on this mixed question of fact and law might be
in France, or might be here come 1 March if indeed it is embarked upon in
this jurisdiction on that occasion.
In their preliminary 'Note on Jurisdiction' counsel for H define the
jurisdictional issue I have to decide as whether the court can make an
order for maintenance pending suit 'when there is a live issue still finally
to be determined as to which court is first seised.' Mr Howard suggested
in argument that an English court should not order maintenance pending
suit where it may not be the court first seised, and indeed that until that
question is decided there is no jurisdiction to order maintenance pending
suit (or its equivalent) in either court. A spouse in such circumstances
would be deprived of remedy in either court. That strikes me as an
unlikely consequence of a Regulation aimed to prevent complex and
prolonged arguments when there are competing jurisdictions within
the European Community. I would therefore instinctively approach the
operation of BIIR on the basis that once a competent court of another
jurisdiction has grasped the nettle of seisin and has concluded whether
to stay or to proceed, then so long as that order remains in force and
undisturbed that the courts of both countries should operate on the same
basis.
Similarly it must be a consideration, when one approaches the argument
advanced for H that there is no power to award maintenance pending
suit in these circumstances, that an equivalent embargo would prevent
the courts of the other Member State from awarding whatever interim
financial provision is available in that domestic system. A spouse in such
circumstances would be deprived of remedy in either court.
Mr Howard relied upon a passage from the judgment of Thorpe LJ in the
case usually known as Wermuth v Wermuth (No 2) [2002] EWCA Civ 50,
[2003] 4 All ER 531, [2003] 1 WLR 942, [2003] 1 FLR 1029, CA, at [34].
But I read it rather as supportive of Mr Scott's case. The material parts of
the paragraph read:
'… First we must espouse the Regulation 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 disproved
or declined. Second one of the primary objectives of the Convention 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.' [My emphasis]
Exactly the same considerations as are set out in the first two sentences
of that paragraph in my judgment apply where the other jurisdiction has
deferred to this upon concluding that this is the court first seised.
That case is authority for the proposition, not disputed in this case, that
Article 20 of BIIR (of which the equivalent and identical provision of
BII was Article 12) does not empower a second-seised court to order
maintenance pending suit as a protective measure.
Next, Mr Howard is driven to submit that the English petition should
be treated as an ineffectual nullity; that it commenced no proceedings
of which this court should be regarded as seised; and thus by logical
extension that all which has happened since March last year in these
courts was merely air-beating and of no effect. If there were and are no
proceedings relating to divorce, legal separation or marriage annulment
brought between these parties in England, then there is of course no
room for Article 19 to operate; no question whether either court was
first or second seised but only France uniquely seised; and no need nor
indeed justification for the French judge to stay proceedings there as has
been done expressly pursuant to Article 19(1). Put at its most succinct,
the submission is that there were and are no validly constituted English
proceedings of which the English court could be seised.
This somewhat startling proposition depends on what is said to be (and
what for present purposes I treat as having been) Ws failure to comply
with a requirement imposed when a petition is presented for issue by
Family Proceedings Rules 1991, Rule 2.6(2). This Rule so far as material
provides:
2.6 Presentation of petition
…
(2) Unless otherwise directed on an application made ex parte, a
certificate of the marriage to which the cause relates shall be filed with
the petition.
It appears from the evidence filed on this issue that W's petition was
accepted for filing at the Principal Registry of the Family Division without
a marriage certificate, and that permission for that omission was not
obtained pursuant to Rule 2.6(2). What apparently did happen was that
when Mr Bennett, a legal executive with W's solicitors, attended at the
appropriate counter at First Avenue House he was advised that he should,
and he did, apply to the District Judge of the Day, not however in relation
to the absence of a marriage certificate but for a direction to hasten the
processing of the paperwork as W wished to be able to serve the petition
on H as soon as possible. The District Judge endorsed her agreement
to that course. Mr Bennett then paid the issue fee at one counter on
one floor and then travelled down to the floor below to another where
petitions are issued. Here he was asked for and gave an undertaking
on behalf of W's solicitors to file the marriage certificate before any
application for directions for trial of the suit was made.
The solicitors for both parties present at the hearing before me confirmed
that a practice has developed at the PRFD in London of seeking such an
undertaking where no marriage certificate is filed with the petition. I have
not thought it desirable nor necessary to make enquiries whether this
departure from the requirements of Rule 2.6(2) has any more or less
official and more or less effective sanction. What I am, however, clear
about in my own mind is that a minor procedural irregularity such as
this would not strike at the roots of the validity of all the steps thereafter
taken, notwithstanding the mandatory terms of the Rule.
I suggested in argument that this Rule was administrative rather than
substantive, and that if a transgression were brought to the court's
attention then it could as effectively dispense with the requirement
retrospectively as in advance. Indeed, the terms of the provision do not
necessarily imply that the application must be made before or at the time
of presentation of the petition, rather than at some later stage.
Furthermore, there can be no doubt but that the District Judge would
have given permission if informal application had been made to her when
expedition was sought. That permission might well have been subject
to assurance or undertaking that the certificate would be filed before
application for directions for trial was made.
Mr Howard suggests that W's solicitors failure to comply with the
requirements of Rule 2.6(2) should also be regarded in the context of
BIIR where, as here, an issue may arise in a competing jurisdiction
case as to which court was first seised. W, he says, obtained an unfair
advantage as a result of the London court's departure from the strict
letter of the Rule, and issues of comity arise. But I remind myself that,
whatever the practical reality, BIIR was intended (as was its predecessor,
the repealed BII) to introduce recognisable simplicity in promulgating
Community-wide Rules regulating (amongst other things) the forum
where divorce proceedings should be heard. The Regulation must be
operated by the judges of the enlarged Community, none of whom can be
expected to have, or to acquire, the detailed knowledge of the intricacies
of even one of the twenty-five other Member States' domestic procedure
requirements relative to the institution of proceedings. If Mr Howard's
point has validity it will mean that similar arguments as to the effect of
Rule 2.6(2) (for example) could be raised before judges from Scandinavia
(excluding Denmark) to Slovenia who would be invited to hold that the
steps taken in another country gave birth to no seisable proceedings
notwithstanding their apparent acceptability to that country's courts.
For the steps normally following the effective issue of a petition were all
taken in this case, and a number of applications have been made to and
considered by the courts, without demur.
I therefore conclude that the consideration that BIIR's operation may be
affected by W's failure to comply with this procedural requirement should
not lead me to treat her petition as invalid ab initio, which is where H's
argument necessarily takes us.
For these reasons I determine that this court has power to award
maintenance pending this suit at this stage. The petition may founder in
less than a month's time if W fails to succeed on the habitual residence
point. And it may run aground and be stranded if it emerges and is
found to be the case that the French proceedings were launched first.
Until then I have the power and should exercise it to enable W to have
'such periodical payments for … her maintenance … as the court thinks
reasonable'.
In Moses-Taiga the Court of Appeal decided that the concept of
maintenance now stretches to include provision for the legal costs of a
party without the resources otherwise to meet them, or who would face
other problems in funding them and thus in obtaining or continuing to
receive legal advice and representation: see the judgment of Thorpe LJ at
[23] to [26].
In the earlier passage in his judgment to be found at [18] Thorpe LJ
commented on the exercise of the power to award maintenance in a suit
which might be struck down for some fundamental reason, that’[t]here
is manifestly a risk of unjustified and irrecoverable payments, but that
has to be balanced against the risk of denial of access to justice for the
petitioner, if she has not the means to sustain herself and the litigation
pending its determination.' In relation to legal costs he observed at [25]:
'So if the applicant has no assets, can give no security for borrowings,
cannot guarantee an outcome that will enable her to enter into an
arrangement such as that which was upheld in Sears Tooth v Payne Hicks
Beach, then there is no source of funding of the litigation other than the
approach to the court for maintenance pending suit that will include a
substantial element to fund the cost of litigation. Obviously in all these
cases the dominant safeguard against injustice is the discretion of the trial
judge, and it will only be in cases that are demonstrated to be exceptional
that the court will consider exercising the jurisdiction. But I am in no
doubt that in such exceptional cases section 22 can in modern times be
construed to extend that far.'
I am satisfied that W in this case falls within that category, and that this
case is exceptional when one considers her need to meet ongoing cost
liabilities if she is to be able to bring her case before the court.
H is the only available source from whom can come the costs W needs
to continue this litigation to the March hearing. Her solicitor Mr David
Thompson set out the position clearly in an affidavit sworn by him on 5
January 2006. W's monthly costs bill over the nine-month period to that
date was of the order of £7,750 on average, and her unpaid costs to the
end of 2005 totalled £69,500. But he anticipated (and provided estimates
to demonstrate) that £65,000 would be likely to be billed for the first
three months of this year because of this hearing and that commencing
next month.
It was made very clear to me that W's solicitors would be unable to
continue to represent her to the point where total outstanding fees of
£135,000 would be owed by W, who has no funds of her own nor any
income with which to meet such a liability.
Of course I recognise, as did Thorpe LJ, the potential injustice to H if he
is ordered to fund W's litigation against him, and then proves his asserted
case with the result that, for whichever reason claimed or for both, the
English courts do not deal with this divorce and all that it entails. But the
balance of unfairness would in this case fall more heavily upon W than
on H if I decline to make any order, as H suggests I should. She cannot
and should not be expected to continue this litigation in person, as I am
satisfied would be the only likely outcome if no order is made.
The order I propose to make is one which I have no doubt H can meet
without undue difficulty. He gives but an outline of his financial position
in his affidavit sworn on 3 January 2006. He claims that during each year
of the marriage he has eaten into his pre-marital savings (the residue,
disposition and income-product of which he does not quantify or describe
in even general terms) as the family's expenditure exceeded his available
income. He uses the phrase 'shortfall in expenditure over income' to
describe this, by which to make sense he must mean his income from all
sources including any bonus, rather than just the £16,500 he currently
receives each month as it were on account.
In 2004 his salary was $600,000. He does not state what bonus (paid
only as to about 70% in cash, the rest in stock which is not immediately
realisable) he was additionally paid in January 2005. He says that his
salary for 2006 was the same as for 2005, which I assume to be still
$600,000 as for 2004, as he would no doubt otherwise have made the
position clearer. He believed that his 2005 bonus (payable I assume in
January 2006) 'is likely to be no more than $2 million'. There may be
some doubt whether the rate of his basic salary may reduce for 2006, but
clearly the scale of expenditure and the standard of living in this marriage
has been prodigious.
W's application for maintenance pending suit was resuscitated on 21
September, 2005. I shall make an order in the usual terms for a costs
order that H pay maintenance pending suit referable to W's legal costs
in the sum of £20,000 per month, back-dated to 21 September 2005
and payable monthly in advance from that date. That by the time of the
March 2006 hearing will provide W with £120,000 towards her costs
liabilities. £120,000 is the amount which it seems to me H should pay W
for that purpose by that date, and in arriving at it I have borne in mind
that something approaching £10,000 of the estimate relates to costs of
advice from and representation by French lawyers who look to W's English
solicitors for payment. For simplicity I have spread the total evenly over
the six payment dates in the period. From 21 March 2006 onwards the
costs component of the order will reduce to £7,500 per month, but that
will be expressly subject to review should either party wish to invite the
March judge to reassess in the light of the conclusions then reached, and
if he or she has the time available to do so.
As for her own and the child's subsistence, W's case is that H has
latterly kept her on comparatively short commons whereas his is that
he only applied the brake after she started to abuse the voluntary
arrangements then in place. He has been anxious that she should move to
less expensive accommodation and offered to pay her any saving in rent
to boost her other available income from him. I do not believe that it is
reasonable that W should be in effect made to move at this stage from
accommodation which to him seemed appropriate when he approved the
tenancy. Unless H is prepared to undertake to continue direct payments of
rent the equivalent amount will be added to the 'living expenses' element
of order, to which I now turn.
H has been paying W £3,000 per month. She says that is insufficient
and wholly out of kilter with the level of expenditure during cohabitation.
£36,000 per annum is a very small proportion of what H earns and
has historically spent, by his own account of it. But I am dealing with
a situation where so far as I know W has not accumulated debt to
supplement this imbalance and so I do not propose to back-date my
award for living expenses as far back as September, but only to 21
December 2005.
W puts in a budget for day-to-day expenditure of £8,000 per month, to
which she suggests should be added £1,000 as the cost of a recently-
employed nanny. But for the period (which I hope will not become too
prolonged) during which the survival the English proceedings hangs, one
way or the other, in the balance there are elements of this budget which
I can and in my view should simply disregard or seriously dilute. If, for
instance, W has what she describes as an 'interim income need' to expend
£1,150 on clothes and shoes and £500 on jewellery each month, then
that level is presumably suggested because it is claimed as consistent
with regular expenditure over a period. If that be the case, W will sustain
no significant hardship if she relies on what she has accumulated already
and suspends or curtails her expenditure under these categories for a
limited period. In much the same way budgeted expenditure of £1,250
per month for holiday and weekend breaks for herself and their child
could very reasonably be curtailed if not eliminated over this short period.
£1,250 per month for clothes and shoes, toys, and 'clubs / brownies /
Scouts / Guides: subscriptions, hobbies, etc' seems high for a 21-month
old, as does an estimated £225 per month on birthday parties and
presents for others.
I do however agree that £3,000 per month is inappropriately low in
these parties' circumstances. For the time being H should pay at the
rate of £5,500 per month, that being what in my judgment it would be
reasonable for W to have at this stage of the proceedings. As indicated,
this order will run from 21 December 2005, and similarly be payable
monthly in advance.
That then is my decision, and I invite counsel to agree a draft and to
lodge it with the associate. Unless either party wishes to address any
argument to the contrary, I propose to reserve the costs of and incidental
to the maintenance pending suit application to the judge hearing the
March application, of course upon the basis that he or she should not
feel inhibited from further reserving the costs issue to another judge on
another occasion.