Bidaki, R (On the Application of) v Najafabadi

In an application for permission to appeal, the refusal to stay matrimonial proceedings in favour of foreign proceedings is a discretionary case-management decision. The court must assess whether the foreign forum is appropriate overall, having regard to the statutory scheme and the circumstances of the litigation. Delay, the parties’ connection with England, the progress of the domestic proceedings and the absence of an identified factor favouring the foreign forum may justify refusing a stay. An adjournment is likewise discretionary. The court may consider medical evidence, procedural history, delay and whether the applicant has a realistic defence. Article 6 requires a fair hearing for all parties, but self-representation or unequal legal resources does not automatically establish unfairness.

A wife presented a divorce petition in the County Court in 2011. The husband, who was habitually resident in the United Kingdom with the wife and had participated in lengthy proceedings, sought permission to appeal against the decree nisi pronounced after the trial concluded on 30 November 2012.

He argued that the Recorder should have stayed the English proceedings under section 5(6) and paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 in favour of divorce proceedings later instituted in Iran. He also challenged refusals to adjourn, relied on alleged procedural unfairness under Article 6, and sought belatedly to rely on a later Iranian order. The central questions were whether any proposed ground of appeal was realistically arguable and whether the Recorder had erred in exercising her discretions.

1. Application refused. The proposed appeal disclosed no realistically arguable ground. The later Iranian order was raised too late, was withdrawn as an additional ground, and could not affect an appeal against the order made on 30 November 2012.
2. The power under section 5(6) and paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 is discretionary. The relevant question was whether the English proceedings should be stayed in favour of Iran in the overall circumstances, illustrated by Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and De Dampierre v De Dampierre [1988] AC 92. England was plainly the proper forum: the parties had lived there for many years, the husband accepted habitual residence there, the matrimonial home and children were in England, and the proceedings were well advanced. No factor favouring a stay was identified. The Recorder’s use of the word convenient did not disclose an error, since that word also appeared in the statutory Schedule.
3. The Recorder was entitled to refuse both applications to adjourn. Her decision took account of the lengthy history, the uncertain medical evidence, the absence of hospital evidence, the circumstances of the alleged hospital attendance, and the risk that illness was being used to delay the proceedings. She could also form a preliminary view that the husband had no realistic defence after the wife’s extensive cross-examination.
4. The Article 6 complaint was unarguable. The Recorder was entitled to consider the interests of all parties, the existing delays and the fact that the husband’s McKenzie friend was able to present his case at length. The husband could also retain legal representation, subject to his financial constraints.
5. The application was refused in all respects.

• Court of Appeal (Civil Division): Permission to appeal from the County Court’s decree nisi and related discretionary decisions was refused in all respects. The lower court’s citation was not stated in the judgment.