was an appeal concerning the interpretation of the Civil Jurisdiction and
Judgments (Maintenance) Regulations 2011 (‘CJJMR 2011’) in the context of an
application pursuant to s.27 of the Matrimonial Causes Act 1973 (‘MCA 1973’).
parties married in 1994, moved to live in Scotland thereafter and separated in
2012. Mrs. Villiers (‘W’) moved to London in 2013 and issued a divorce petition
in England. A year later Mr. Villiers (‘H’) contested jurisdiction of the
English court and issued a writ of divorce in Scotland. The writ contained no
prayer for financial remedies [5-8]. Neither party made an application for
financial relief in Scotland (such an application is necessary to engage
financial jurisdiction) [12-14].
English petition was dismissed by consent in January 2015 ,
but a few days prior, W made an application under s.27 MCA 1973 seeking interim
spousal maintenance to include an allowance for legal fees .
H applied for a stay of the MCA 1973 proceedings, challenging the English
court’s jurisdiction to determine W’s application for interim maintenance .
matter came before Parker J at first instance. She refused to stay W’s
application and ordered H to pay interim maintenance. The judge determined the
matter by reference to Article 12 (Lis
Pendens) of Council Regulation (EC) no 4/2009 (‘the EU Maintenance
Regulation’). She concluded that, because H’s issue of a writ in Scotland did
constitute or include an application for maintenance in Scotland, the English
court had jurisdiction to determine W’s application under s. 27 MCA 1973.
was granted permission to appeal. He argued that the English proceedings should
be stayed on the ground that W’s application was a “related action”, allowing a
discretionary stay under Article 13(1) or (2) of the EU Maintenance Regulation.
In the alternative, he contended that the English court retained a residual
discretionary power to stay its proceedings on grounds of forum non conveniens under s.49 of the Civil Jurisdiction and
Judgments Act 1982 (‘the 1982 Act’) .
H’s application for a stay:
two questions before the Court of Appeal were :
i) Was W's application in England under
s.27 of the MCA 1973 a "related action" under Article 13 of the EU
Maintenance Regulation, and if so, should the English proceedings have been
stayed in favour of the Scottish proceedings (which were first seised)?
ii) If not, did the English court have a
residual discretionary power to stay the proceedings on the principle of forum
non conveniens? .
Court of Appeal answered the second question first. It concluded that where the
2011 Maintenance Regulations apply, the court retains no residual discretion to
stay proceedings on grounds of forum non
coveniens of the type historically found in section 49 of the 1982 Act.
2011 Maintenance Regulations are the domestic secondary legislation which
currently operates to determine the allocation of jurisdiction between the
constituent parts of the UK in relation to maintenance obligations – formerly,
such disputes were governed by the 1982 Act .
49 of the 1982 Act (which applied formerly) provided expressly that the English
court retained discretion to stay proceedings on the ground of forum non
conveniens . The 2011 Maintenance Regulations (which now apply) contain no
such provision since intra-UK jurisdictional disputes in this context are
governed by Articles 12 and 13 of the EU Maintenance Regulation .
the English Court retained no residual discretion to stay its proceedings on
grounds of forum non conveniens and
W's application under s.27 of the MCA 1973 was governed exclusively by the 2011
Maintenance Regulations .
Court of Appeal went on to consider whether the Scottish divorce proceedings
and the English MCA 1973 proceedings were “related actions” for the purposes of
the 2011 Maintenance Regulations , which would enable the court to
exercise its discretion to stay the English proceedings under Article. 13.
the Court of Appeal decision of Moore v
Moore  EWCA Civ 361, the court concluded that H’s Scottish writ of
divorce did not relate to maintenance and thus was not a related
action allowing a discretionary stay under Article 13.
Appeal to the Supreme Court
fate of the Court of Appeal’s decision remains to be seen as Mr. Villiers was
granted permission to appeal to the Supreme Court on four grounds:
Court of Appeal was wrong in law to hold that a court in one part of the United
Kingdom has no power to stay proceedings relating to maintenance on the grounds
of forum non conveniens where a court
in another part of the United Kingdom is the more appropriate forum.
- Further and/or in the alternative, the court
was wrong in law to hold that, under the 2011 Maintenance Regulations, an
action for divorce in Scotland could not be and was not a related action to an
application for maintenance under s 27 of the Matrimonial Causes Act 1973.
and/or in the alternative, the Court of Appeal was wrong in law in its
construction of s 27(2), so that the English court had no jurisdiction to make
any order for maintenance at all.
so far as the 2011 Regulations removed the power to stay maintenance
proceedings on the ground of forum non
conveniens, the Regulations were ultra vires s 2(2) of the European
Communities Act 1972.
case is due to be heard by the Supreme Court on the 9th and 10th