G & G, Re

Where co-owners seek an order for sale of immovable property situated in England, proceedings may concern rights in rem even though the order is directed personally to a co-owner. The key question is the proprietary right which supports the relief sought.

Jointly owned land is held on statutory trusts. A dispute concerning the enforcement and realisation of existing proprietary rights may therefore fall within the jurisdiction conferred for trusts created by statute. Exclusive jurisdiction based on the location of the property cannot be displaced by an agreement to litigate elsewhere. A stay for related proceedings is unavailable where the foreign proceedings do not address the property in question or are not pending first.

The former wife applied under the Trusts of Land and Appointment of Trustees Act 1996 for sale of a London property held in the joint names of the divorced parties and equal division of the proceeds. The former husband sought dismissal or a stay, relying on proceedings in Poland concerning division of the parties’ wider marital estate.

The court considered whether the husband was domiciled in England, whether the wife’s claim concerned rights in rem under Article 22 of Brussels I, whether Article 5(6) applied to the statutory trust, whether jurisdiction had been prorogued to Poland, and whether the proceedings were related actions under Article 28.

1. Jurisdiction under Article 2. The wife bore the burden of proving, on the balance of probabilities, that the husband was domiciled in England when the TOLATA application was issued. The evidence was too equivocal to discharge that burden, so Article 2 did not establish jurisdiction.
2. Rights in rem. The application fell within Article 22. Unlike Webb v Webb 1994 QB 696, where the claimant sought to establish proprietary rights against the registered owner, the wife already owned the London house jointly with the husband. She sought to enforce and give effect to existing ownership rights by obtaining an order for sale. The fact that the order would operate personally against the husband did not alter the proprietary character of the right supporting it.
3. Statutory trust. When the property was acquired, it was held on statutory trusts imposed by the Law of Property Act 1925. Since the enactment of the Trusts of Land and Appointment of Trustees Act 1996, it was held on a statutory trust of land. The parties were trustees and beneficiaries, and the trust was domiciled in England because the property was situated there. Article 5(6) therefore provided an additional jurisdictional basis.
4. Prorogation. The correspondence involving the wife’s debt collector did not establish an agreement binding the wife to litigate concerning the London house in Poland. There was no evidence that the debt collector had actual, implied or ostensible authority to make such an agreement, applying the reasoning in Freeman and Lockyer v Buckhurst Park Properties Ltd (Mangal) Ltd 1964 2 QB 480. In any event, Article 23(5) prevented agreement from displacing exclusive Article 22 jurisdiction.
5. Related actions. The Polish proceedings did not concern the London house as an individual asset. The English court was first seised, and the Polish court had expressly excluded rights in the London property from the matters before it. Article 28 therefore did not apply. Even if a discretion to stay existed, it would not have been exercised.
6. The husband’s application to dismiss or stay the wife’s TOLATA proceedings was dismissed.

Not an appeal. The judgment determined the former husband’s application to dismiss or stay the former wife’s TOLATA proceedings.