Leman-Klammers v Klammers

Whether to defer a decree absolute pending an outstanding foreign jurisdiction appeal is a matter of judicial discretion. There is no automatic requirement to await completion of the foreign process. The court may attach substantial weight to the conduct of the party seeking a stay, particularly where that party has failed to pursue the foreign appeal diligently and has breached assurances given to the court. The applicant should provide evidence of the foreign appeal’s realistic prospects and of the legal consequences that the English decree would have abroad. Mere speculation is insufficient. Exercising the discretion does not determine, preclude or influence the foreign court’s eventual decision.

The parties’ divorce proceedings were issued in England and France. The French courts had decided that the English court was first seised, but the husband pursued a further appeal to the Cour de Cassation. In the English proceedings, Singer J had directed that any decree absolute should await determination of that appeal, subject to further order. Baron J later granted the wife a decree absolute and refused the husband’s application for a further stay, principally because the French appeal had not been pursued promptly and the husband had failed to honour assurances given to the English court. The husband sought permission to appeal and appealed against that decision. The central issue was whether Baron J had properly exercised her discretion despite the continuing French proceedings and uncertainty about the effect of an English decree in France.

Lord Justice Thorpe delivered the principal judgment. Lord Justice May and Mr Justice Bennett agreed.

1. Disposition. Permission to appeal was granted, but the appeal was dismissed. Assuming that the English proceedings were properly constituted jurisdictionally, Baron J had an undoubted discretion whether to grant the decree absolute or defer it.
2. The existence of a live appeal in France did not require an automatic stay. The issue was an unusual discretionary question requiring the competing risks and interests to be evaluated.
3. Baron J was entitled to give great weight to the husband’s conduct. He had failed to prosecute the French appeal expeditiously and had acted in breach of assurances given on his instructions to Singer J. The delay was therefore a proper and determinative consideration in the exercise of discretion.
4. The husband had also failed to provide adequate evidence. His affidavit was brief, there was no properly supported opinion on the realistic prospects of success in France, and there was no evidence establishing the consequences in French law of granting the decree absolute. The possibility of an adverse effect was speculative and insufficient to resist the exercise of the English court’s discretion.
5. The court recognised that the French courts might recognise the English decree, treat the English proceedings as ineffective, or retain some discretion concerning the consequences. Those matters remained for the French court. The English decision was based on the husband’s conduct in the English litigation and was not intended to preclude or influence the French appeal.

The formal order was: application allowed; appeal dismissed.

• Court of Appeal (Civil Division): Permission to appeal granted, but the appeal dismissed on 12 July 2007.
• High Court of Justice, Family Division: Baron J granted the wife a decree absolute and refused the husband’s application to defer the change of status pending his appeal in France.