Bentinck v Bentinck

For priority under Articles 21 and 22 of the Lugano Convention, the date on which a court is seised is determined by the procedural law of the relevant state. In England, proceedings are seised only on effective service. An order permitting an alternative method of service cannot be used to bypass the Hague Service Convention and obtain priority.

Where the foreign court is already determining, under its own law, whether it was first seised and the scope of its maintenance proceedings, it is wasteful for the English court to prepare a competing expert hearing. The English proceedings should be deferred, subject where necessary to conditions protecting maintenance provision.

The husband and wife brought competing divorce and financial proceedings in Switzerland and England. The husband began Swiss conciliation proceedings and later sought interim maintenance orders. The wife subsequently commenced English divorce and maintenance proceedings. The effective Hague Convention service of the English proceedings occurred on 31 July 2006.

Kirkwood J made case-management directions for a March 2007 hearing of the husband’s application for a stay under the Lugano Convention and for a later hearing. By the time of this appeal, the Swiss court had heard the parties’ competing arguments about priority and seisin under Swiss law. The central issue was whether the English court should continue preparations for the March hearing while that Swiss determination was awaited.

1. Appeal allowed unanimously. Thorpe LJ’s proposed order was agreed by Wall and Lawrence Collins LJJ. All directions leading to and including the March 2007 fixture were set aside. The directions for the October hearing were left in place temporarily.

2. The priority question fell under either mandatory Article 21 or discretionary Article 22 of the Lugano Convention. The Convention contains no autonomous rule fixing the date of seisin. That question must therefore be determined under the procedural law of each state whose court is said to be seised. The English rule, applied from [1992] QB 502 and [1994] 3 All ER 180, is that seisin occurs upon service.

3. Switzerland’s objections to private or postal service meant that direct service there by English solicitors was ineffective. In light of [2006] EWCA Civ 654, an order permitting an alternative method of service could not circumvent the Hague Convention procedure to obtain priority under Article 21. Accordingly, the English proceedings were not effectively served until 31 July 2006.

4. Although Kirkwood J had made no error on the material then available, the later procedural developments required intervention. The Swiss court was about to decide, and subsequently did decide, when it was first seised and the scope of the Swiss maintenance claims. It would have been absurd and wasteful for an English judge to receive conflicting Swiss-law expert evidence on the same cantonal-law questions.

5. The Article 22 characterisation question remained for the English court under the autonomous law of the Convention. However, a Swiss decision defining the Swiss claims could be a necessary prior step. The court could impose conditions on the stay if protection for the wife’s and children’s maintenance was required.

• Court of Appeal (Civil Division): The appeal was allowed and the directions leading to the March 2007 hearing were set aside: [2007] EWCA Civ 175.
• High Court of Justice, Family Division: Kirkwood J made case-management directions on 24 November 2006 for hearings concerning the Lugano Convention stay application and other matters.