Chai v Peng

A court may dismiss an existing matrimonial petition without deciding its merits so that a fresh petition can be issued, where that course advances the overriding objective and avoids duplicated jurisdictional disputes. The decision is fact-specific. It does not endorse forum shopping or establish a general practice of issuing premature holding petitions. Relevant considerations include good faith, whether any jurisdictional defect has been established, whether the earlier proceedings produced a collateral advantage, and the likely saving in costs and issues. A party’s personal attendance at a hearing is ordinarily required under the Family Procedure Rules unless excused by the court. Attendance under protest does not, without more, amount to submission to jurisdiction. Interim maintenance and legal funding may be ordered conditionally upon the prompt issue of fresh proceedings.

The petitioner sought dismissal of her existing divorce petition, issued in February 2013, so that she could issue a fresh petition relying on her more recent period of residence and alleged jurisdictional facts. The respondent opposed unconditional dismissal, arguing that it would encourage forum shopping, prejudice foreign proceedings, preserve advantages obtained through the existing petition, and waste substantial legal costs. The court also considered the petitioner’s applications for further maintenance pending suit and legal funding.

The proceedings had previously been considered at a hearing on 13 March 2014, resulting in [2014] EWHC 750 (Fam). The central issues were whether the existing petition should be dismissed without adjudication, whether any fresh petition should be stayed, and what interim financial provision should be made.

1. Dismissal of petition. The court dismissed the petition issued on 14 February 2013, unconditionally and without adjudicating any issue of jurisdiction, alleged unreasonable behaviour or other merits. The dismissal enabled the petitioner to issue a fresh petition immediately, subject to payment of a fresh fee.
2. Rule 7.7 and the overriding objective. Rule 7.7 of the Family Procedure Rules 2010 prevented the petitioner from maintaining two concurrent matrimonial petitions unless the first had been dismissed or permission was granted. The court refused permission for concurrent petitions because that would create parallel factual and legal inquiries and leave the respondent uncertain about the case to be met. Dismissal of the existing petition was appropriate under the overriding objective in the particular circumstances.
3. Abuse and forum shopping. The court rejected the submission that dismissal should be conditional on an indefinite stay of any fresh petition. The case disclosed no evidence of bad faith or an established jurisdictional defect. The payments previously made were expressly on account of claims arising from the marriage and did not constitute an unjust collateral advantage. The argument based on estoppel and abuse of process, including Amalgamated Investment and Property Company Ltd (in Liquidation) v Texas Commerce International Bank Ltd and Castanho v Brown & Root (UK) Ltd, did not justify a stay. The decision was expressly fact-specific.
4. Attendance. Rule 27.3 required a party to attend a hearing unless the court directed otherwise. Attendance through legal representatives did not satisfy that requirement. Attendance under protest, particularly where required by a court rule, would not by itself amount to submission to the court’s jurisdiction.
5. Financial provision. Further orders were made only on the petitioner’s undertaking to issue a fresh petition forthwith. The court ordered maintenance pending suit at £35,000 per month for May to September 2014, £60,000 for further negotiations, and legal funding of £60,000 per month for May to September 2014. The requested payment of £115,000 towards existing solicitors’ arrears was refused.

The judgment records an earlier hearing in the same proceedings on 13 March 2014, resulting in [2014] EWHC 750 (Fam). The present decision was a first-instance determination of subsequent applications.