Magiera v Magiera [2016] EWCA Civ 1292

Appeal concerning jurisdiction under Article 22 (Brussels I) relating to the sale of UK-situs property in ToLATA proceedings

Facts

  • The parties divorced in 2013. Despite financial remedy proceedings (or equivalent) having been commenced in France and Poland, there had been no resolution to their finances upon divorce.
  • In 2014 W applied under ToLATA for the sale of the parties’ investment property in London, held jointly by H and W. H contested the jurisdiction of the English court.
  • In the High Court, Bodey J held that there was jurisdiction under Article 22 (Brussels I) for the principal reason that the ToLATA proceedings related to rights in rem in immovable property situated in England.
  • Alternatively, Article 5(6) applied as H was being sued “as settlor, trustee or beneficiary of a trust created by the operation of statute” and “the trust [was] domiciled here”.
  • A costs order was made against H, which was charged on his share of the investment property. H appealed.

Held

  • Appeal dismissed, save for in respect of the charging element of the costs award.
  • Article 22 provides for exclusive jurisdiction, so if H’s challenge were to fail on that point, that would be determinative of the appeal.
  • The Court of Appeal considered European authorities relating to Article 22.
  • Webb v Webb distinguished; the father in that case was not claiming that he already enjoyed rights enforceable against the whole world, but was proceeding against his son personally, seeking the execution of documents transferring the flat into his ownership.
  • Komu v Komu followed; the case involved 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.
  • W aimed to achieve the transfer of a right of ownership. As such, her proceedings had, as their object, rights in rem in immovable property situated in England; Article 22 therefore applied.
  • Article 22 must be construed narrowly. Its interpretation must not be broader than what is required by the objective of the provisions: to give exclusive jurisdiction to the courts of the state where the property is situated, as those courts are best placed to ascertain the facts and apply the relevant practices relating to real property.
  • W accepted that the court at first instance lacked the power to make a charging order in respect of a sum not yet due or an unliquidated sum.

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