B v B (Maintenance Regulation -Stay)

Under Article 12 of the Maintenance Regulation, a court must stay proceedings where proceedings between the same parties, involving the same cause of action, are pending in different Member States and the foreign court was first seised.

“Same cause of action” has an autonomous meaning. The court must compare the basic facts, claimed rights and obligations, and the object of the claims. Enforcement of maintenance arrears and an application to vary the same maintenance order may be mirror-image proceedings. The second court must not determine whether the first court has jurisdiction. A strong presumption arises that, absent clear irregularity, the court of first issue was first seised.

The Applicant sought enforcement of provisions in a 2011 matrimonial finance order, including maintenance and a Zurich insurance policy. Before the enforcement application was issued in England, the Respondent had applied in Italy to vary the maintenance provisions of the same order.

The parties disputed whether the Italian proceedings involved the same cause of action, whether Italy was first seised, and whether the English court should stay the maintenance enforcement proceedings. The Applicant also pursued enforcement concerning the Zurich policy.

1. Maintenance proceedings. The maintenance enforcement application and the Italian variation application were between the same parties and concerned the same provisions of the same order. Both required consideration of the parties’ financial circumstances and the extent to which the Respondent’s maintenance obligations should continue. Their basic facts, rights and obligations, and objects therefore coincided. They were mirror-image proceedings for Article 12(1) purposes.
2. The Italian court was prima facie the court first seised. The proceedings had been issued five months before the English application, had been served, and there was no clear irregularity. The Respondent was entitled to apply directly to the Italian court without using a Central Authority.
3. Article 12(1) imposed a mandatory duty to stay. The English court could not investigate or anticipate whether the Italian court had jurisdiction. That question was solely for the Italian court. Delay, hardship and the possibility that Italy might decline jurisdiction did not displace the duty to stay, because proceeding in England risked irreconcilable judgments.
4. The maintenance enforcement proceedings were therefore stayed until the Italian court’s jurisdiction was established.
5. Zurich policy. Assignment of the policy appeared impossible, so the alternative obligation to pay its value became operative. However, the order required payment at a time to be agreed between the parties. No date had been agreed, so the Respondent was not yet in default. The enforcement application concerning the policy was adjourned generally with liberty to restore, allowing the parties to agree a payment date.
6. The remaining enforcement claims, which the Applicant no longer pursued, were dismissed. There was no order as to costs.