Tan Sri Dr Khoo Peng v Pauline Siew Phin Chai

A foreign judgment on forum conveniens creates an issue estoppel only if it decided the same issue. Different legal tests may mean that the issues were different. A finding that a forum was not so inappropriate that proceedings would be oppressive and vexatious did not establish that it was the more appropriate forum. Abuse of process is a separate jurisdiction, but concurrent proceedings do not by themselves make continuation in another valid jurisdiction manifestly unfair. Under the Domicile and Matrimonial Proceedings Act 1973, section 5(6) and Schedule 1, paragraph 9, a stay requires foreign matrimonial proceedings and a balance of fairness, including convenience, favouring their disposal first. Appellate intervention in that discretionary assessment is limited.

The husband appealed from Bodey J’s refusal on 17 October 2014 to stay the wife’s English divorce petition. The parties were Malaysian nationals with matrimonial proceedings in England and Malaysia.

The Malaysian Court of Appeal had rejected the wife’s application for a stay of the Malaysian proceedings, while setting aside findings concerning domicile and jurisdiction and remitting the husband’s application. Appeals to the Malaysian Federal Court were refused. In England, Bodey J gave judgments reported at [2014] EWHC 3518 and [2014] EWHC 3519 (Fam).

The appeal raised issue estoppel, abuse of process, and the proper exercise of the statutory discretion to stay matrimonial proceedings under the Domicile and Matrimonial Proceedings Act 1973.

Appeal dismissed. Macur LJ gave the leading judgment. Burnett LJ and Hallett LJ agreed.

1. Issue estoppel. The court accepted the principle in Carl Zeiss Stiftung v Rayner and Keeler (No 2) [1967] 1 AC 853 that the precise issue determined by a foreign court must be identified, without treating differences in evidence or procedure as decisive. The Malaysian Court of Appeal had applied the Voth test, asking whether Malaysia was so inappropriate that continuation would be oppressive and vexatious. The English court had to apply the Spiliada approach, asking whether Malaysia was the more appropriate forum. Those were materially different issues. The Malaysian decision therefore created no issue estoppel on forum conveniens.
2. Abuse of process. The abuse argument was distinct from issue estoppel and had to be assessed on its own merits. Manifest unfairness had to be evaluated overall, from both parties’ perspectives. The concurrent proceedings, additional expense, and comparative advantages of Malaysia did not establish that continuation of the English proceedings was abusive. The court observed that success would be difficult to envisage except in circumstances such as fraud, blatant disregard for due process, or similar proceedings already well advanced elsewhere.
3. Statutory stay. The approach under the Domicile and Matrimonial Proceedings Act 1973, section 5(6) and Schedule 1, paragraph 9, remained that stated in de Dampierre v de Dampierre [1988] 1 AC 92 and consistently re-expressed by the majority in Butler v Butler (Nos 1 and 2) [1997] 2 FLR 311. The court must first identify whether foreign matrimonial proceedings exist and whether the balance of fairness, including convenience, makes it appropriate for those proceedings to be disposed of first. Only if both conditions are met may a stay be ordered. The appellate review principles summarised in Tan v Choy [2014] EWCA Civ 251 imposed a high hurdle.
4. Application. Bodey J had surveyed the evidence broadly and considered the relevant factors. The connecting factors were broadly equal, with a small advantage to the wife. The husband therefore failed to show that Malaysia had the most real and substantial connection, and the burden did not shift to the wife to establish why a stay should be refused. Even on a stricter forum test, the result was the same. It was unnecessary to assess the wife’s prospects of obtaining financial relief after an overseas divorce.

• Court of Appeal (Civil Division) — The appeal was dismissed on 18 December 2015.
• Family Division of the High Court — Bodey J refused the husband’s application for a stay on 17 October 2014. His judgments were reported at [2014] EWHC 3518 and [2014] EWHC 3519 (Fam).