Ahmed & Anor v Mustafa

An anti-suit injunction may restrain foreign re-litigation where it would be unconscionable, although follow-on financial provision in another connected jurisdiction is not inherently objectionable. A party who fully contested comprehensive financial-remedy proceedings may act vexatiously and oppressively by seeking to re-open the same issues abroad without justification.

The avoidance jurisdiction in Matrimonial Causes Act 1973, section 37 does not apply to a disposition made after final financial-remedy proceedings have concluded. Enforcement of an unpaid lump sum remains discretionary. A court cannot deem an absent party to have applied to set aside a final order and dismiss that supposed application without a formal, evidenced application.

Following a 44-year marriage, the wife obtained a final financial-remedy order in England on 13 December 2011. The order distributed property in England and the Turkish Republic of Northern Cyprus. The wife later began divorce and financial-provision proceedings in the Turkish Republic of Northern Cyprus, seeking greater provision.

On the husband’s applications, HHJ Horowitz QC granted an anti-suit injunction, stayed the wife’s enforcement of an unpaid lump sum, set aside her transfer of English property to her daughter under section 37 of the Matrimonial Causes Act 1973, restrained further dealings with that property, and dismissed deemed applications to re-open the final order. The wife appealed each measure. The central issue was the English court’s jurisdiction to prevent foreign re-litigation after a comprehensive English financial determination.

Disposition

1. The appeal was allowed in part. The anti-suit injunction and the stay of enforcement of the lump sum were upheld. The orders setting aside the transfer of 21 Quested Court, restraining dealings with it, and dismissing the wife’s deemed applications to re-open the final order were set aside.

2. The court had jurisdiction under section 37(1) of the Senior Courts Act 1981 to restrain a litigant in personam from re-litigating abroad where that would be unconscionable. [1987] AC 24 and [1987] AC 871 showed that a mere preference for England as the appropriate forum was insufficient. The foreign proceedings had to be vexatious or oppressive.

   The availability of additional financial relief under Part III of the Matrimonial and Family Proceedings Act 1984, recognised as internationally acceptable in [2010] UKSC 13, did not prevent a finding of unconscionability on particular facts. The wife had initiated and fully contested the English proceedings, given an undertaking pending finality, and sought to re-determine the same financial issues abroad without justification. The injunction was proportionate, necessary and within the judge’s discretion.

3. The injunction could be varied if clear and cogent evidence showed that the English divorce would not be recognised in the Turkish Republic of Northern Cyprus. No such evidence had been produced.

4. Section 37 of the Matrimonial Causes Act 1973 did not permit the setting aside of the wife’s later gift of Quested Court to her daughter. The financial-remedy proceedings had ended and the property had been transferred to the wife pursuant to the final order. Her subsequent disposition could not defeat an extant claim for financial relief. The associated restraint on dealing with the property consequently fell away.

5. The judge could, in his discretion, stay enforcement of the unpaid lump sum while the wife maintained the foreign proceedings. His adverse assessment of her conduct justified withholding enforcement until there was clarity and resolution of those proceedings.

6. The judge could not deem the wife to have applied to re-open or set aside the final order, then dismiss that supposed application in her absence and without evidence. Any application based on material non-disclosure had to be made formally and supported by evidence. Costs were left for written submissions.

1. Court of Appeal (Civil Division): Allowed the wife’s appeal in part. It upheld the anti-suit injunction and the stay of lump-sum enforcement, but set aside the section 37 orders and the dismissal of deemed applications. [2014] EWCA Civ 277.

2. Principal Registry of the Family Division: HHJ Horowitz QC made a final financial-remedy order on 13 December 2011. On 18 February 2013, he granted the challenged anti-suit, property, enforcement and procedural orders.