Magiera v Magiera

The Court of Appeal upheld the High Court's conclusion that proceedings under the Trusts of Land and Appointment of Trustees Act 1996 (TLATA) for the sale and division of proceeds of a London house fall within the exclusive jurisdiction of the courts where the land is situated under Article 22(1) of Council Regulation (EC) No 44/2001 (Brussels I). The court applied the European case law culminating in Komu v Komu and concluded the wife’s claim sought the termination of co-ownership by sale and thereby had as its object rights in rem. Domestic distinctions based on the role of trusts in English land law did not displace the application of Article 22. The appeal was, however, allowed in part in relation to costs: a provision in the judge’s order permitting the wife to charge outstanding, unassessed costs on the husband’s share of the property was discharged because a charging order cannot secure an unliquidated or unassessed sum under the Charging Order Act 1979.

Background and procedural posture. The parties are former spouses who jointly owned a London house. The respondent wife issued TLATA proceedings seeking an order for sale of the house and an equal division of net proceeds. The husband applied to dismiss or stay the English proceedings on grounds of lack of jurisdiction under the Brussels I Regulation and alternatively that the Polish courts had jurisdiction. Bodey J refused to dismiss or stay the proceedings; the husband appealed.

Nature of the claim and issues before the court.

• The principal issue on appeal was whether Article 22(1) of Council Regulation (EC) No 44/2001 conferred exclusive jurisdiction on the courts of England and Wales for the wife’s TLATA application.
• Secondary issues (not finally determinative once Article 22 was upheld) included whether Article 5(6) provided jurisdiction, whether jurisdiction had been prorogated to Poland under Article 23, whether related actions warranted a stay under Article 28, and an appeal against a costs order provision permitting charging of unassessed costs on the husband’s share of the property.

Court’s reasoning. The court reviewed European jurisprudence, in particular Reichert, Webb v Webb, Weber v Weber and the recent CJEU decision in Komu v Komu. It emphasised that Article 22 is an exception to the general rule on jurisdiction and must be given a narrow, autonomous EU-law definition. Applying the tests developed by the Court of Justice, the panel concluded the wife’s application was an action between co-owners to terminate co-ownership by sale and to secure transfer of a right of ownership; accordingly it had as its object rights in rem and fell within Article 22(1). The court rejected the husband’s argument that the English trust-based mechanism (section 14 TLATA) made the proceedings principally a claim in personam, holding that the claim concerned external relations of the trust and practical local matters (sale, valuation, mode of sale, appointment of agents) best addressed where the property lies. The court therefore dismissed the husband’s challenge to jurisdiction. On costs, the court accepted the wife’s concession (and relevant authority) that a charging order cannot be made to secure an unassessed/unliquidated sum and allowed the husband’s appeal on that narrow point, discharging the charging provision.

Wider context. The court acknowledged the tension between English trust-based property concepts and the autonomous EU definition of actions 'having as their object rights in rem' but held that Komu clarifies that applications to terminate co-ownership by sale fall within Article 22 notwithstanding domestic trust labels.

Appeal allowed in part. The court dismissed the husband’s appeal against the High Court’s finding of exclusive jurisdiction under Article 22(1) of Council Regulation (EC) No 44/2001, on the basis that the TLATA application sought termination of co-ownership by sale and therefore had as its object rights in rem; accordingly, the English courts had exclusive jurisdiction. The husband’s appeal against the judge’s provision permitting the outstanding, unassessed costs to be charged on his share of the property was allowed: the charging provision was discharged because a charging order cannot secure an unliquidated/unassessed sum under the Charging Order Act 1979 as explained in Monte Developments Ltd v Court Management Consultants Ltd.

Appeal from the High Court of Justice, Family Division (Bodey J) — proceedings and judgment reported as G v G [2015] EWHC 2101 (Fam).