Chorley v Chorley

Where proceedings involving the same parties and cause of action are pending in different Member States, the court second seised need not determine for itself which court was first seised. Article 11 of Council Regulation (EC) No 1347/2000 permits a stay pending determination by the court in the other Member State. Rule 2.27A(2) of the Family Proceedings Rules 1991 must be read consistently with that discretion.

The court should consider the practical advantages of allowing a court to determine its own law and procedure, the risk of conflicting decisions, any imminent hearing abroad, delay and expense. A successful appeal on that case-management issue need not involve determination of the underlying seisin question.

The husband commenced divorce proceedings in Nice by filing a Requête. The wife later presented a divorce petition in London. Under the French procedure, an Assignation followed an initial conciliation process.

The wife challenged an interim French order, but the Cour d’Appel d’Aix en Provence held that the proceedings had begun with the Requête. In England, District Judge Bradley stayed the London petition and directed that the issue of which court was first seised under Article 11 of Council Regulation (EC) No 1347/2000 be determined by a Family Division judge. Wood J dismissed the husband’s appeal and held that the English court should determine the issue. The husband appealed to the Court of Appeal.

Appeal allowed unanimously. Lord Justice Thorpe delivered the judgment, with Lord Justices Tuckey and Dyson agreeing. The order below was set aside, save for the stay imposed on the wife’s London petition.

1. Article 11 of Council Regulation (EC) No 1347/2000 does not require the court second seised to determine itself which court was first seised. The court has the additional discretion to stay its proceedings pending determination of that issue by the court of another Member State.
2. Rule 2.27A(2) of the Family Proceedings Rules 1991 must not be construed as requiring the English court to fix a hearing and determine the jurisdictional issue itself. The rule provides a procedural framework, but the court may defer to the more appropriate foreign court.
3. In exercising that discretion, the court should give weight to the practical advantages of allowing the French court to determine questions of French law and procedure. The imminent hearing before the French court was significant. Deferral would avoid the risk of conflicting decisions on the characterisation of the French process and would promote expedition and economy.
4. Wood J had recognised the advantages of determination in France, but wrongly treated the wife’s formulation of the issue as requiring him to decide it in England. He also failed to give proper significance to the imminent French hearing. The Court of Appeal therefore allowed the appeal without deciding whether the Requête or the Assignation initiated the French divorce proceedings. The pending appeal to the Cour de Cassation did not justify an adjournment of the English appeal.
5. Thorpe LJ made further observations that, to achieve the Regulation’s objectives, the first manifest step in the French process should count as initiation, even if it began a conciliation process. He also emphasised the potential value of direct judicial communication through the European Judicial Network. Those observations were not necessary to the decision.

Costs before the District Judge were costs in the suit. The wife was ordered to pay the husband’s costs before Wood J and of the appeal up to 29 December, subject to detailed assessment on the standard basis if not agreed. Costs after that date were subject to assessment by the costs judge.

1. Court of Appeal (Civil Division) — In [2005] EWCA Civ 68, the appeals were allowed. The order below was set aside, save for the stay of the London petition, and the underlying seisin question was left undetermined.
2. High Court Family Division — Wood J dismissed the husband’s appeal from District Judge Bradley’s directions, held that the English court was required to determine which court was first seised, and concluded that the wife’s English petition had priority over the later French Assignation.