Otobo v Otobo

On an application for permission to appeal a stay of family proceedings, the threshold may be met where the material raises a serious concern that the stay would cause exhaustion or inequality of arms. Relevant considerations include established domestic proceedings, the applicant’s financial exhaustion, and the inability to litigate on comparable terms in the foreign jurisdiction to which the dispute would be transferred. The judgment also emphasised reality and pragmatism in family justice. Where costly disputes obscure the practical issue of financial provision, mediation and an early practical resolution should be seriously considered.

Mrs Otobo sought permission to appeal a stay imposed by Johnson J on 29 March 2001 in English proceedings for dissolution of marriage and financial relief. The stay required the dispute to be litigated anew in Nigeria. The application was opposed on the basis that the decision was discretionary and that the Nigerian court might better understand the family’s Nigerian background and the issues concerning the marriage. Mrs Otobo relied on her established English proceedings, financial exhaustion, loss of legal representation, and lack of comparable resources or influence in Nigeria. The immediate issue was whether she had shown enough to justify consideration of the stay by the full Court of Appeal.

Permission to appeal was granted. The appeal itself was not determined.

1. The stay was a discretionary decision by an experienced judge, and the Nigerian background of the family and the possibility that issues would be differently understood there were relevant considerations.
2. Those considerations were counterbalanced by the fact that Mrs Otobo’s English proceedings were well established before the husband mounted his competing challenge. The history also raised a fundamental concern that the litigation might be used strategically to defeat her reasonable expectation of a civilised judicial determination through exhaustion or inequality of arms.
3. Mrs Otobo had invested and exhausted her funds in the English proceedings. Requiring her to litigate afresh in Nigeria, where she had no home, no funds and no comparable power or influence, was a material factor. Lord Justice Thorpe considered that the judge had not weighed that factor as clearly and specifically as might have been done. On that narrow basis, Mrs Otobo had shown enough to justify a full court’s consideration of the relevant documentation.
4. Directions were made for a supplemental skeleton argument, information about litigation funding and costs, and further costs information from both sides. The proposed appeal hearing was provisional. The parties were invited to submit to the Court of Appeal’s alternative dispute resolution scheme, with the appeal to stand out if both accepted mediation.
5. Lord Justice Thorpe made broader obiter observations that family justice should pursue reality and pragmatism. The parties were urged to consider mediation, the potential harm to their vulnerable youngest child, and whether resources spent on disputes about the character of the marriage and recognition of a London decree would be better directed towards financial provision.

1. Court of Appeal (Civil Division): In [2001] EWCA Civ 1200, Lord Justice Thorpe granted permission to appeal against the stay and directed that the appeal should follow, subject to further directions.
2. Family Division: Johnson J imposed the stay on 29 March 2001 in proceedings brought in England for dissolution and financial relief.