Villiers v. Villiers 2018 EWCA Civ 1120

Facts:

  • This
    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’).
  • The
    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].
  • W’s
    English petition was dismissed by consent in January 2015 [9],
    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 [10].
    H applied for a stay of the MCA 1973 proceedings, challenging the English
    court’s jurisdiction to determine W’s application for interim maintenance [16].
  • The
    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.
  • H
    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’) [22].

Held, dismissing
H’s application for a stay:

  • The
    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? [23].

  • The
    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.
  • The
    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 [25].
  • Section
    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 [39]. 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 [44].
  • Accordingly,
    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 [63].
  • The
    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 [64], which would enable the court to
    exercise its discretion to stay the English proceedings under Article. 13.
  • Following
    the Court of Appeal decision of Moore v
    Moore     [2007] 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

  • The
    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:

    • The
      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.
    • Further
      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.
    • In
      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.

  • The
    case is due to be heard by the Supreme Court on the 9th and 10th
    December 2019.