T v T

An interim Hemain injunction restraining foreign proceedings or arbitration is exceptional and must be granted cautiously. The applicant must show that the respondent’s conduct is vexatious, oppressive or unconscionable, even where the order sought is temporary and designed to preserve equality between parallel proceedings. An arbitration clause providing for determination of disputes about the validity and enforceability of a prenuptial agreement may itself be separable from the agreement. It is not necessarily a maintenance agreement or an unlawful ouster of the court’s jurisdiction. Where the agreement provides a proper forum for challenging its validity, invoking that forum will not ordinarily be oppressive.

The wife applied for an interim Hemain injunction restraining the husband from pursuing divorce-related proceedings and arbitration in State A, United States. The parties were American citizens living in England and had entered into a prenuptial agreement governed by State A law. The agreement included a clause requiring disputes about its validity, interpretation and enforceability to be resolved by arbitration in State A.

The husband had sought a stay of the English proceedings while pursuing arbitration-related relief in State A. The wife argued that the agreement was unenforceable because of pressure surrounding its execution and that the arbitration clause unlawfully restricted access to the English court. The issues were whether the husband’s conduct was vexatious, oppressive or unconscionable and whether the arbitration clause was invalid under section 34 of the Matrimonial Causes Act 1973 or the rule in Hyman v Hyman.

1. The application was dismissed. The court had jurisdiction to restrain foreign arbitration, but the power was exceptional and had to be exercised with caution.

2. The relevant question was whether the husband was conducting the English and State A proceedings for his own forensic advantage in a manner properly characterised as vexatious, oppressive or unconscionable. The wife did not establish this. The temporary nature of the injunction did not remove that requirement.

3. The husband was invoking an arbitration clause in a prenuptial agreement entered into after legal advice. The wife’s evidence gave her an arguable case that she should not be bound by the agreement, but the agreement itself provided a forum in which that issue could be determined. Pursuing that contractual process was not, on the facts, oppressive or vexatious.

4. The wife had not shown, on the balance of probabilities, that England was the natural forum for determination of the financial issues. The express arbitration provision and the parties’ connection with State A were material, although the court did not finally determine the agreement’s validity or the ultimate forum.

5. Following Fiona Trust and Holding Corp v Privalov [2007] UKHL 40, [2007] Bus. L.R. 1719, the arbitration clause was to be considered independently from the rest of the prenuptial agreement. Article 8 was not itself a maintenance agreement and therefore was not contrary to section 34 of the Matrimonial Causes Act 1973. The rule in Hyman v Hyman [1929] AC 601 did not invalidate the clause, although the court noted the possible effect of Radmacher v Granatino.

First-instance decision. No prior appellate decision is stated in the judgment.