Magiera v Magiera

Under Article 22(1) of Brussels I, proceedings by a co-owner seeking sale of jointly owned immovable property have as their object rights in rem. The court must apply an autonomous and narrowly confined EU-law test, looking beyond the procedural form of a trust application to the principal subject matter, the claimant’s existing proprietary interest and the need for local evidence, rules and practices. The courts where the property is situated therefore have exclusive jurisdiction.

Once that jurisdiction exists, questions of prorogation, related-action stays and alternative jurisdictional grounds fall away. A charging order cannot secure unassessed costs where the sum is not yet required to be paid or due under the order.

The parties, formerly married, jointly owned a house in London. The wife applied under the Trusts of Land and Appointment of Trustees Act 1996 for an order for sale and equal division of the net proceeds. The husband challenged the jurisdiction of the English court and sought dismissal or a stay.

Bodey J held that jurisdiction arose under Article 22 of Brussels I, alternatively under Article 5(6), and rejected arguments based on prorogation and related proceedings in Poland. He also ordered the husband to pay the wife’s costs and permitted outstanding costs to be charged on his share of the house.

The appeal concerned whether the sale proceedings were within Article 22(1), and whether an unassessed costs liability could support the charging provision.

The appeal was allowed in part. Lady Justice Black gave the leading judgment, with Lord Justice Sales and Lord Justice Irwin agreeing.

1. Jurisdiction. Article 22(1) of Brussels I required an autonomous EU-law interpretation. As an exception to the general jurisdictional rule and a provision removing choice of forum, it had to be construed no more broadly than its objective required. Its essential objective was to confer exclusive jurisdiction on the courts best placed, by proximity, to ascertain the facts and apply the rules and practices of the state where the property was situated.
2. Rights in rem. The wife’s proceedings were properly characterised as proceedings between co-owners seeking termination of co-ownership by sale. The court had to look beyond the technical form of an application under section 14 of the Trusts of Land and Appointment of Trustees Act 1996. The wife already had proprietary rights as a joint owner and sought to realise those rights by sale. The claim therefore had as its object rights in rem.
3. Application of the authorities. Webb v Webb [1994] QB 696 was distinguishable because the claimant there sought to establish rights against the son personally and did not already enjoy rights enforceable against the whole world. The reasoning in Komu v Komu [2016] 4 WLR 26 was materially analogous and applied. The practical need for local valuation evidence, local knowledge and directions governing sale reinforced the conclusion. The court noted the possible tension with Ashurst v Pollard [2001] Ch 595, but did not pursue it because the later European jurisprudence governed.
4. Because Article 22(1) conferred exclusive jurisdiction, it was unnecessary to decide the arguments concerning prorogation under Article 23, a stay for related actions under Article 28, or the alternative jurisdictional ground under Article 5(6). The jurisdiction appeal was dismissed.
5. Charging order. Under section 1(1) of the Charging Orders Act 1979, a charge could secure only money required to be paid under a judgment or order, or money due or to become due under it. Unassessed costs were neither. Following Monte Developments Ltd (in administration) v Court Management Consultants Ltd and others [2010] EWHC 3071 (Ch), the charging provision was discharged.

1. Court of Appeal (Civil Division): Allowed the appeal concerning the charging provision and discharged it, but dismissed the challenge to the English court’s jurisdiction.
2. High Court of Justice, Family Division: In G v G [2015] EWHC 2101 (Fam), Bodey J held that the English court had jurisdiction under Article 22 of Brussels I, alternatively under Article 5(6), and ordered that outstanding costs could be charged on the husband’s share of the property.