Miss J v Dr P

Under Brussels I, where proceedings in different member states concern the same cause of action and the same parties, the court second seized must stay its proceedings until the court first seized determines its jurisdiction. The second court cannot decide that jurisdiction for itself. Related maintenance proceedings may also justify a stay to avoid irreconcilable judgments. An agreement conferring jurisdiction on the second court does not displace that obligation. The English court cannot apply forum conveniens considerations where the Regulation governs. Questions concerning the scope of the first court’s jurisdiction, including the effect of related claims, must be determined by that court.

The mother, living in England with the child, applied under Schedule 1 of the Children Act 1989 for financial provision from the father. The father had previously begun proceedings in Italy concerning the child’s status, parental arrangements and maintenance. The father applied for a stay of the English proceedings under Brussels I.

The mother argued that the Italian proceedings concerned status only, that the claims were not between the same parties, that property-related claims fell within exclusive English jurisdiction, and that the parties had agreed to English jurisdiction. The central issues were whether the Italian petition included a maintenance claim, whether the proceedings were the same or related actions, and whether the English court could retain the case on forum conveniens grounds.

1. The stay. The application for a stay was granted pending the Italian court’s decision on its jurisdiction. The question of costs was reserved.
2. Maintenance and the court first seized. The Italian petition did not merely record a voluntary maintenance payment. It asked the Italian court to determine the fairness of the contribution and therefore raised maintenance as well as status, name, custody and access. Even if there had been doubt, the Italian court was better placed to determine the scope of its own jurisdiction.
3. Same cause and same parties. The child was not thereby made a party to the English proceedings. The mother’s Schedule 1 application remained proceedings between the parents for the purposes of the stay question.
4. Related actions. The financial-support issues were closely related. A second court must defer to the first court on jurisdiction, and the related-actions discretion is directed to improving coordination and avoiding conflicting or irreconcilable decisions.
5. Other jurisdictional arguments. The proposed tenancy did not presently create proceedings concerning rights in rem. Any claim concerning rent was a claim between the parties and could amount to maintenance. The court deferred any wider question about whether a tenancy had to exist when proceedings were issued.
6. Agreement and forum conveniens. The father’s acceptance that the English application would proceed amounted, in context, to an agreement conferring English jurisdiction. Nevertheless, under Erich Gasser Gmg H v Misat SM, the English court still had to stay the proceedings so that the Italian court could determine its jurisdiction. Forum conveniens considerations could not override that rule.