Giusti v Ferragamo

Under Brussels IIa, the key lis pendens question is whether proceedings relating to divorce, legal separation or marriage annulment remain pending simultaneously in two Member States. Where that question turns on uncertain foreign law, an English court should not decide it on inadequate material if the foreign court is likely to determine the issue and is better placed to do so. The choice is not left to chance. The court should consider the apparently first-seised court, the Regulation’s objectives and which court is better placed. Where the English court defers without deciding priority, adjournment may be preferable to a stay, since a stay may imply that the foreign court has been found first seised.

The parties, both Italian nationals, married in 2004. The husband began judicial separation proceedings in Italy in 2012. The Italian Court of Cassation dismissed the wife’s appeal against the separation order on 14 March 2018. The husband began Italian divorce proceedings the next day, while the wife had issued English divorce petitions in January and March 2018.

Francis J’s order dated 19 November 2018 stayed the English divorce proceedings and dismissed the wife’s application for a single joint expert on Italian law. The appeal concerned whether the Italian proceedings remained pending for the purposes of Article 19 of Brussels IIa, whether expert evidence was required, and whether the English court should defer to the Italian court.

1. Disposition. Lord Justice Moylan, with Lord Justice Baker agreeing, allowed the appeal to the limited extent that the English divorce petition and the husband’s application for a stay or dismissal were to be adjourned pending determination by the Italian court. The Court of Appeal did not decide which court was first seised.
2. Francis J had in substance decided that the Italian court remained first seised for Article 19(1) purposes. His conclusion was based on Italian court declarations and the translated decision of the Court of Cassation. The material before him was insufficient to determine whether, after 14 March 2018, the Italian court remained seised of proceedings within Article 19(1).
3. The critical question was whether proceedings relating to divorce, legal separation or marriage annulment were pending simultaneously in the courts of two Member States: A v B (Case C-489/14) at [37]. The question depended principally on Italian law, including whether the Italian proceedings had lapsed or expired. Expert evidence would have been required before an English court could decide the issue.
4. The Court of Appeal nevertheless concluded that the English court should defer to the Italian court. The observations in Bentinck v Bentinck ([2007] 2 FLR 1) and Chorley v Chorley ([2005] 2 FLR 38) showed the advantages of allowing a Member State court to determine issues concerning its own law and procedure, avoiding conflicting expert evidence and decisions.
5. The choice of court was not a matter of chance. Where priority remained unclear, the court should assess which course best supported the objectives of Brussels IIa and which court was better placed to decide the issue. Here, the Italian court was likely to determine the question in the wife’s Italian application and had the relevant institutional advantages. A stay was inappropriate because it might imply that the English court had decided that Italy was first seised.

• Court of Appeal (Civil Division): In [2019] EWCA Civ 691, the appeal was allowed to the limited extent that the English proceedings and the husband’s stay or dismissal application were adjourned pending the Italian court’s determination.
• High Court, Family Division: Francis J ordered on 19 November 2018 that the wife’s English divorce proceedings be stayed and dismissed the application for a single joint expert on Italian law.