An untrammelled licence to go forum-shopping? Villiers v Villiers [2020] UKSC 30

Background

The parties had married in England in 1994, but had lived together in Scotland between 1995 and 2012, when they separated. Upon separation, the wife (“W”) returned to England and had lived in England since then. W issued a divorce petition in England in 2013, and the husband (“H”) issued a writ for divorce in Scotland in 2014. Because the parties had last lived together in Scotland, under paragraph 8 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 the application for divorce had to be assigned to the court in Scotland, and so W consented to an order dismissing her petition in England. However, on the same day as she consented to this, she issued an application in England under s27 of the Matrimonial Causes Act 1973. s27 allows either party to a marriage to apply for an order for maintenance where the other party has failed to provide reasonable maintenance. It is not tied to the grant of a decree of divorce, and so an order for maintenance can be sought in separate proceedings.

The issue the Supreme Court had to resolve was whether the English court had jurisdiction to make a maintenance order in favour of W under s27, even though the divorce proceedings were being conducted in the Scottish court. W sought both periodical payments and a lump sum. Issuing maintenance proceedings in England was more convenient for W, because it was where she lived, but it was also likely to result in a more generous maintenance award.

H applied for an order to stay or dismiss W’s application under s27 on the basis that the English court either did not have or should not exercise jurisdiction to hear the application, and alternatively on the basis that her application should be rejected on the merits. Parker J, sitting in the High Court, rejected H’s challenge to the English court’s jurisdiction and made an order for interim periodical payments of maintenance by H. H appealed to the Court of Appeal, who dismissed his appeal. H then appealed to the Supreme Court, in relation to the jurisdiction issues. Lord Sales gave the leading judgment, with which Lord Kerr agreed, and Lady Black gave a concurring judgment. Lord Wilson gave a dissenting judgment, with which Lady Hale agreed.

Issues

There were four issues according to Lord Sales, and five according to Lady Black and Lord Wilson. They were:

• Can an application for financial provision be made under s27 in a purely domestic case, or is s27 only concerned with cases where another jurisdiction outside the UK is also involved?
• Can a UK court stay maintenance proceedings which are before it, in favour of proceedings in another part of the UK, on the basis that it is a less appropriate forum (“forum non conveniens”) than the court in the other part of the UK?
• If Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (“the 2011 Regulations”) should be construed as preventing a stay of maintenance proceedings in one part of the UK in favour of proceedings in another part of it on a forum non conveniens basis, was it within the powers of the Secretary of State under s2(2) of the European Communities Act 1972 (“ECA 1972”) to make regulations to that effect?
• Are the Scottish and English proceedings in this case ‘related actions’ within article 13 of Schedule 6? If so, should the English court stay/dismiss its proceedings on that basis?
• (Per Lady Black and Lord Wilson) Does the Council Regulation (EC) No 4/2009 (“the Maintenance Regulation”) itself regulate the allocation of jurisdiction to hear maintenance applications as between various parts of the UK?

Can an application for financial provision be made under s27 in a purely domestic case, or is s27 only concerned with cases where another jurisdiction outside the UK is also involved?

H submitted that s27(2) can only apply if a case falls to be governed by both the Maintenance Regulation and by Schedule 6, so that it only applies in inter-state cases.

Lord Sales said this submission ‘must be rejected’ [26]. s27(2), which says ‘The court may not entertain an application under this section unless it has jurisdiction to do so by virtue of the Maintenance Regulation and Schedule 6…’ was intended to cover both inter-state and intra-state proceedings, and there was no scope for both the Maintenance Regulation and Schedule 6 to apply, because they dealt with different types of case. This meant H’s proposed construction would deprive s27(2) of any practical effect. The jurisdiction of an English court to make an order under s27 ‘is to be determined by application of the Maintenance Regulation and Schedule 6 taken together, in the sense that together they cover the whole field of inter-state cases and intra-state cases’ [26]. Lady Black and Lord Wilson agreed.

Can a UK court stay maintenance proceedings which are before it, in favour of proceedings in another part of the UK, on the basis that it is a less appropriate forum (“forum non conveniens”) than the court in the other part of the UK?

Lord Sales thought that the English court clearly did not have a discretion which had survived the promulgation of Schedule 6 to stay maintenance proceedings before it on the ground of forum non conveniens. He thought that it was ‘clear that Schedule 6 is intended to be a comprehensive code to govern questions of jurisdiction in relation to maintenance claims with a cross-jurisdictional dimension within the United Kingdom, just as the Maintenance Regulation provides such a code in relation to such claims with an inter-state cross-jurisdictional dimension' [36]. There was ‘no scope whatever for the operation of a forum non conveniens discretion in the context of the legislative scheme in Schedule 6’ [36]. This was especially so because the Maintenance Regulation aims to afford special protection to a maintenance creditor by giving them the right to choose jurisdiction, and Schedule 6 replicates the scheme of the Maintenance Regulation in domestic law. Lady Black agreed, as did Lord Wilson, although reluctantly.

If Schedule 6 to the 2011 Regulations should be construed as preventing a stay of maintenance proceedings in one part of the UK in favour of proceedings in another part of it on a forum non conveniens basis, was it within the powers of the Secretary of State under s2(2) of the ECA 1972 to make regulations to that effect?

Lord Sales thought that the making of Schedule 6 and the 2011 Regulations was authorised by s2(2)(b) of the ECA 1972, which conferred ‘a wide power to make subordinate legislation for the purpose of dealing with matters (i) arising out of or (ii) related to the obligations of the United Kingdom under the Maintenance Regulation, or for dealing with matters (iii) arising out of the operation of section 2(1) of the ECA 1972…or (iv) related to such operation’ [38]. He considered that the purpose and effect of Schedule 6 was to ensure there was one coherent, certain and predictable set of rules which applied to all maintenance claims with a cross-jurisdictional dimension, whether inter- or intra-state, so the courts could apply one set of clear rules to resolve jurisdictional issues. Lady Black and Lord Wilson agreed, and Lord Wilson said that the Secretary of State’s ‘power to provide for the resolution of issues of rivalry must have included power to disapply the less appropriate forum principle and to assign the resolution of such issues entirely to other provisions’ [145].

Does the Maintenance Regulation itself regulate the allocation of jurisdiction to hear maintenance applications as between various parts of the UK?

Lord Sales did not consider this issue, but Lady Black and Lord Wilson agreed that the Maintenance Regulation does not itself determine questions of jurisdiction between the various parts of the UK. Lord Wilson concluded that ‘in conferring jurisdiction on the different parts of the UK as “places”, the Maintenance Regulation…did not identify which of them should prevail in the event of rivalry; and that, irrespective of whether it entirely succeeded in filling that gap, Schedule 6 to the 2011 Regulations is not redundant’ [134].

Are the Scottish and English proceedings in this case ‘related actions’ within article 13 of Schedule 6? If so, should the English court stay/dismiss its proceedings on that basis?

In its amended form applicable to intra-UK cases, article 13 says:

‘1. Where related actions are pending in the courts of different member states or different parts of the United Kingdom, 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.’

Lord Sales, Lord Kerr and Lady Black considered that H’s divorce proceedings in Scotland were not ‘related actions’ to W’s maintenance claim within article 13, but Lord Wilson and Lady Hale thought that the proceedings were ‘related actions’. Consequently, by a bare majority, H’s appeal was dismissed.

Lord Sales’ reasoning revolved around W’s status as a maintenance creditor. He thought it was a fundamental objective of the Maintenance Regulation to give the maintenance creditor the right to choose the jurisdiction in which to bring her claim, and that because Schedule 6 to the 2011 Regulations replaced the Maintenance Regulation scheme, Schedule 6 therefore has to be interpreted in the light of that objective. Interpreting article 13 in that light, he thought it should be narrowly confined so that ‘actions’ refers primarily to maintenance claims of the kind to which the Maintenance Regulation regime applies. He said that any extension of the concept of ‘related action’ beyond this needs to be confined to cases in which the risk of conflicting judgments is very clearly made out.

However, he concluded that the risk was not made out here because ‘there is no relevant connection in the present case between the wife’s maintenance claim under section 27 and proceedings concerned with determining marriage status, which is the subject of the Scottish proceedings brought by the husband’ [46]. He thought that the Court of Appeal’s decision in Moore v Moore [2007] EWCA Civ 361, where they held the husband’s petition for divorce and his application for financial relief were not ‘related actions’ in respect of the wife’s claim for maintenance, was correct. It ‘reflects the different nature of the claims and the different jurisdictional regimes which govern issues of marital status and division of family property, on the one hand, and issues of maintenance on the other. A fortiori in the present case, where the only application the husband has made in the Scottish court is for a decree of divorce, the Scottish proceedings do not constitute a “related action” in respect of the wife’s claim for maintenance in the English court’ [50].

Under the definition in article 13(3), the divorce proceeding was not related to the maintenance claim because the ‘subject matters of the two sets of proceedings are not connected at all’. Furthermore, ‘[t]he wife’s claim is not predicated on the result of the proceeding in Scotland, so there is no requirement that the two proceedings be heard and determined together to avoid the risk of irreconcilable judgments. An award of maintenance to the wife is in no way incapable of being reconciled with an order for divorce issued by the Scottish court’ [53].

Lady Black found the interpretation of article 13 ‘extremely difficult’ [79]. She said that the ‘natural response of a family lawyer might be to say that obviously one court should resolve all the financial issues that arise upon the ending of a marriage. Indeed, an initial response might be to go further and say that one court should resolve all the issues, of whatever sort, arising upon the ending of a marriage’ [79]. She gave two examples where there could be a risk of two courts giving irreconcilable judgments: where one ex-spouse is being pursued for maintenance by their first and second ex-spouse at the same time, and where there are child maintenance proceedings in one court, and spousal maintenance proceedings in another (presuming they were two separate causes of action). She considered that the present case was ‘materially different from these examples’, and that the Court of Appeal ‘was right to decide that here, where one action deals with status and the other with maintenance, there can be no risk of irreconcilable judgments’ [90]. She agreed that ‘[a] judgment in the wife’s maintenance claim would not be irreconcilable with a divorce decree in Scotland, as provision made under section 27 can survive divorce’ [90]. Ultimately, she therefore agreed with Lord Sales that the English and Scottish proceedings were not related actions.

However, Lady Black did say that ‘[t]he frustration that a UK family lawyer might feel, when contemplating the potential fragmentation of the proceedings required to resolve the financial affairs of the husband and wife upon the ending of their marriage, is understandable’ [91]. She later added ‘I entirely understand how frustrating the result might be for those who become involved, in whatever capacity, in litigation within the United Kingdom concerning family finance’ [92].

Lord Wilson referred to Sarrio SA v Kuwait Investment Authority [1999] 1 AC 32, in which Lord Saville said that matters did not need to be virtually identical for the actions to be related; rather, it sufficed that the connection between them was close enough to make it expedient for them to be determined together in order to avoid the risk of irreconcilable judgments resulting from the two sets of proceedings. Lord Wilson noted that ‘[o]n any view article 13 of the Maintenance Regulation is poorly drafted’, and said that ‘[c]alled upon to construe it, the court is presented with a conundrum. Should it give effect to the clear meaning of article 13(2) at the expense of attributing a normal meaning to the reference in article 13(3) of the phrase “irreconcilable judgments”? Or should it attribute a normal meaning to the phrase and deprive article 13(2) of effect?’. He concluded that ‘we should follow the decision of our predecessors in the Sarrio case and adopt a broad, common sense approach to resolution of the conundrum. Our more important function is to give effect to article 13(2). That is the dog. The reference to “irreconcilable judgments” is no more than the tail’ [162].

He therefore considered that in the light of the pendency of the Scottish proceedings, the English court had power under paragraph 13 of Schedule 6 to stay, and to decline jurisdiction to entertain, W’s application under s27. He thought that H’s appeal should be allowed and that his application should be remitted to a judge of the Family Division for determination of whether the power should be exercised.

Lord Wilson’s postscript

Lord Wilson asked six questions in a postscript to his judgment. The last of these focused on the two adverse consequences he thought would arise as a result of the majority’s decision. The first was the ‘untrammelled licence given to a wife to go forum-shopping, in other words to put her husband at an initial disadvantage unrelated to the merits of her case’ [180]. The second was ‘the inability of a court in one part of the UK to decline to determine a wife’s maintenance claim even when a court in another part alone has power to determine a claim by one spouse or the other for transfer of property or for some other adjustment…or for a pension sharing order. As Lady Black says in para 79 above, the prospect is “not very palatable”’ [180].

Consequences

Currently, once the Brexit transition period ends on 31 December 2020, the 2011 Regulations will no longer apply in the UK. It may turn out, then, that this judgment has a short-lived effect within the UK, in which case the fact that its consequences are ‘not very palatable’ may be easier to bear for family lawyers. Nonetheless, while the Regulations still apply it will be interesting to see whether there really is a flurry of untrammelled forum-shopping over the rest of 2020.

Henrietta Boyle, Pupil at One Hare Court