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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> AA v BB (Application To Set Aside Leave: s.13 MFPA 1984)  EWHC 4210 (Fam) (04 November 2014)
Cite as:  EWHC 4210 (Fam)
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MR. P MARSHALL QC and MR. P NEWMAN (instructed by Hughes Fowler Carruthers) appeared on behalf of the Respondent.
Crown Copyright ©
MR JUSTICE MOYLAN:
(i) The issue of child maintenance in respect of CC has been determined in Slovenia, by the order of 6th February 2013, and the Slovenian court remains seised of the issue of child maintenance. Accordingly, leave should not have been granted and/or a mandatory stay must be ordered under article 12 in respect of the wife's claims for orders for the benefit of CC.
(ii)(a) The issue of spousal maintenance has been determined in Slovenia in that the wife's claim was stopped. This determination is entitled to recognition under the Maintenance Regulation.
(b) Alternatively, Slovenia remains seised of the issue of spousal maintenance and, accordingly, article 12 applies.
(c) Alternatively, the wife's claim for spousal maintenance in England is a related action and a stay should be ordered under article 13 so that all related matters can be determined holistically in Slovenia.
(iii) The financial proceedings which remain outstanding in Slovenia should be determined before the wife's claim under Part III of the 1984 Act is considered. Accordingly, her application should be adjourned until after the final determination in Slovenia.
(iv) The wife materially misled the court when making her application for leave, both as to the applicability and relevance of the Maintenance Regulation, in that it was not referred to at all, and as to the position in respect of the proceedings pending in Slovenia and the wife's involvement in them. Accordingly, the grant of leave should be set aside on the basis that the wife can reapply for leave after the proceedings in Slovenia have been finally determined.
"If an application or part of an application relates to a matter where jurisdiction falls to be determined by reference to the jurisdictional requirements of the Maintenance Regulation … those requirements are to determine whether the court has jurisdiction to entertain the application or that part of it."
"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 (Brussels I) applies. The effect of ss 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). 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."
"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 ..."
Lord Collins concludes by saying: "This is an area which involves difficult questions which do not arise for decision on this appeal."
"In matters relating to maintenance obligations in Member States jurisdiction shall lie with:
(a) the court for the place where the defendant is habitually resident, or
(b) the court for the place where the creditor is habitually resident, or
(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or
(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties."
Lis Pendens/Related Actions
" (1) Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.
(2) Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court."
Article 13, which is headed "Related actions" provides:
"(1) Where related actions are pending in the courts of different Member States, any court other than the court first seised may stay its proceedings.
(2) Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.
(3) For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."
"Article 27 of the Regulation and of the Lugano Convention requires that the action be still pending in the court first seised when the proceedings are commenced in the court second seised. So, if the proceedings in the first court had terminated by judgment and are no longer pending or if they have been discontinued or if they have been struck out on forum conveniens grounds on the relevant date, article 27 will be inapplicable."
"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.' 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 1998, 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 r 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 (In Liquidation] v Coopers & Lybrand  EWCA Civ 1155.  All ER (D) 278; Nathan v Smilovitch and Another  EWCA Civ 759  All ER (D) 575. 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."
"The solution was clearly indicated by Lord Collins of Mapesbury 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 ..."
"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."
"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 … 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."
"This tempting provision should not lure advocates into tactical skirmishing or into manoeuvres designed to wear down the opposition. Save in exceptional circumstances, it is a misuse of the court's resources and a waste of costs for the court to consider the substance of an appeal on some intermediate date between the permission hearing and the full hearing. This paragraph of commentary was cited by the Court of Appeal, apparently with approval, in Nathan -v- Smilovitch …
Rule 52.9(2) provides that the power will only be exercised where there is "a compelling reason". There would be a compelling reason, if the materials previously before the court were so inaccurate or incomplete that the judge had granted permission when otherwise they would not have done: see Hertsmere Borough Council -v- Harty  EWCA Civ 1238 at ; Angel Airlines SA -v- Dean & Dean  EWCA Civ 1505. In Nathan -v- Smilovitch … Longmore LJ said:
'For my part, unless the nature of the application shows that some decisive authority or decisive statutory provision has been overlooked by the lord justice granting permission to appeal, an applicant would normally have to show that the single lord justice had actually been misled in the course of the presentation of the application'."
"An applicant for permission to appeal made without notice is under a duty to make full and frank disclosure to the court, and where that duty is not discharged the applicant runs the risk that any permission granted may be set aside on the respondent's application under Section 52.9(1)(c): see Obsession Hair and Day Spa Ltd -v- Hi-Lite Electrical Ltd  EWCA Civ 1148 … where the authorities on setting aside permission were examined) …"
"At the heart of this jurisprudence lies the notion of abuse of the process of the court. The obligation of full and frank disclosure which falls on any applicant seeking relief without notice to the other side is an obligation to the court itself. To fail to disclose material information is to abuse the due process of the court and as a consequence to run the risk that the court will deprive the applicant of the fruits of the advantage wrongfully obtained. This condign sanction is also exacted in order to act as a deterrent to others. But there is no inexorable rule that the order granted without knowledge of the full facts must be set aside. A sense of proportion must always be observed. Too mechanistic a strike out will be an instrument of injustice."
"The power to set aside a grant of permission to appeal is given by Rule 52.9(2) of the Civil Procedure Rules and requires a compelling reason for so doing. I would remind those thinking of making such applications, as the note in the White Book reminds them, that this is not an opportunity to have an early shot at knocking out a weak appeal or an appeal which is now thought to be weaker than it once was. But it must be the case that if a respondent can show the court that the judge was misled by an appellant, not necessarily deliberately, into giving permission to appeal, that may well be a compelling reason within the rule. It must, however, it seems to me, involve showing (a) that the materials put before the judge were inaccurate or incomplete; (b) that these deficiencies had a bearing upon the grounds on which permission to appeal was given; and (c) very importantly, that but for them permission to appeal would not have been given."