Thum v Thum

Under Council Regulation (EC) No 2201/2003, seisin is determined autonomously by lodging the document instituting proceedings, subject to a service proviso.

The proviso concerns specific steps required by domestic procedural law to enable service. Family Procedure Rules 2010 r.7.8 requires service but sets no time limit and does not imply an immediate or prompt-service deadline. Courts should not create one by analogy with Civil Procedure Rules 1998 or by applying uncertain subjective criteria. Where no specific step is prescribed, delay and an unsuccessful address for service do not defeat seisin. Any additional obligation is for the Rule Committee.

The wife issued an English divorce petition on 26 October 2015. She did not attempt service until 19 January 2016, and the first attempt through the German service authority failed because insufficient address details had been supplied. The husband issued German divorce proceedings on 20 January 2016 and sought a stay or dismissal of the English petition.

Mostyn J dismissed the application on 21 October 2016, holding that the English court was first seised under Articles 16 and 19 of Council Regulation (EC) No 2201/2003. The appeal concerned the meaning of the service proviso in Article 16(1)(a) and whether the wife had failed to take any step required by English law to effect service.

The appeal was unanimously dismissed. The English court was first seised.

1. Under Article 16(1)(a) of Council Regulation (EC) No 2201/2003, the time of seisin is determined autonomously. Lodging the document instituting proceedings seises the court, subject to the proviso that the applicant must not subsequently fail to take required steps to effect service. The steps required are determined by the domestic law of the relevant Member State. This approach was supported by Aannemingsbedrijf Aertssen NV v VSB Machineverhuur BV [2016] ILPr 16, 387 and MH v MH [2017] ILPr 23, 503.
2. The proviso requires failure to comply with a specific domestic-law step directed to effecting service. It does not impose a general requirement that service itself must occur promptly, and it excludes delays attributable to the judicial system. The structure has also been described as a condition defeasant in In re I (A Child)(Contact Application: Jurisdiction) [2010] 1 AC 319.
3. Family Procedure Rules 2010 r.7.8 requires a divorce petition to be served but prescribes no period for service. The court rejected attempts to imply terms such as immediately, as soon as possible, as soon as practicable or reasonably promptly. The express time limits in Civil Procedure Rules 1998 r.7.5 could not be imported by analogy. Such an implication would rewrite the rules and create the uncertainty which the European lis pendens mechanism was intended to avoid.
4. Debt Collect London Ltd v SK Slavia Praha-Fotbal AS [2011] 1 WLR 866 was distinguishable. That case concerned a single, specifically required step—the payment of a court fee. Here, no specific step beyond the general obligation to serve was prescribed. The wife’s delay and the insufficient address details therefore did not amount to failure to take a required step.
5. The court did not determine the general law of abuse of process. It acknowledged that prompt service is generally desirable, but invited the Family Procedure Rule Committee to consider whether any additional service obligations should be introduced.

• Court of Appeal (Civil Division) — Appeal dismissed. The English court was held to be first seised under Article 16 of Council Regulation (EC) No 2201/2003: [2018] EWCA Civ 624.
• High Court (Family Division) — Mostyn J dismissed the husband’s application for a stay or dismissal of the English divorce petition on 21 October 2016.