AA v BB (Application To Set Aside Leave: s.13 MFPA 1984)

Leave granted without notice under Matrimonial and Family Proceedings Act 1984, section 13, should be set aside only where the respondent demonstrates a compelling or decisive reason, commonly described as a “knock-out blow”. Material non-disclosure may justify setting aside leave, but the court must retain a sense of proportion. It should not set aside leave where the claim remains substantial and would plainly have succeeded on a properly informed application.

Lis pendens under article 12 of the Maintenance Regulation requires concurrent proceedings in the first Member State when proceedings are commenced in the second. It does not permanently fix maintenance jurisdiction in the first State after proceedings have ended. Related proceedings may justify a stay under article 13, but not where the foreign court cannot determine a substantial part of the parties’ assets.

The wife obtained without-notice leave to apply in England for financial remedy orders under section 13 of the Matrimonial and Family Proceedings Act 1984. The parties had been divorced in Slovenia, where proceedings concerning child maintenance and marital assets had taken place. The Slovenian court had determined the child-maintenance issue and had stopped the wife’s claim for spousal maintenance after its withdrawal. It also lacked jurisdiction over assets situated outside Slovenia.

The husband applied to set aside the leave, or alternatively to stay the English proceedings under articles 12 or 13 of the Maintenance Regulation. He also alleged that the wife had materially misled the court when seeking leave. The central issues were whether the Slovenian proceedings engaged the lis pendens or related-actions provisions, and whether the non-disclosure justified setting aside leave.

1. Jurisdiction. England and Wales had jurisdiction under article 3 of the Maintenance Regulation because the wife was habitually resident here. The Slovenian child-maintenance proceedings had ended, and the wife’s spousal-maintenance claim had been withdrawn and stopped before any decision was made. There was therefore no pending concurrent proceeding and no decision on spousal maintenance within article 2(1).
2. Lis pendens. Article 12 requires proceedings involving the same cause of action and parties to be pending in the first-seised Member State when the proceedings in the second State are commenced. The court followed the authorities addressing concurrent proceedings, including Gubisch Maschinenfabrik v Palumbo [1987] ECR 4861 and Internationale Nederlanden Aviation Lease BP v Civil Aviation Authority [1997] 1 Lloyd’s Rep 80. Article 12 did not permanently fix jurisdiction in Slovenia after the relevant proceedings had ended.
3. Related actions. Although the English and Slovenian proceedings concerned marital wealth, the Slovenian court could not deal with assets outside Slovenia. That was sufficient reason to refuse a stay or declination of jurisdiction under article 13. The proceedings could not be heard and determined together in Slovenia so as to avoid irreconcilable judgments.
4. Setting aside leave. The wife had failed to disclose material information about her appeal in Slovenia and the subsequent order for a rehearing. This was misleading and engaged her duty of full and frank disclosure. However, the governing approach from Agbaje v Agbaje [2010] UKSC 13 and Traversa v Freddi [2011] 2 FLR 272 required a compelling reason or knock-out blow. The claim was plainly substantial because the Slovenian court lacked jurisdiction over substantial non-Slovenian assets. The deficiencies did not establish that leave would not have been granted had the true position been disclosed.
5. The application to set aside leave was dismissed. The husband was directed to file Form E expeditiously, with a further directions hearing to consider whether determination should await the Slovenian proceedings.

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