SBX v ABX

Where proceedings in different countries concern the same maintenance obligation, a mandatory stay may be required under Article 12 of the European Maintenance Regulation. The court considering the stay should not determine whether the court first seised has jurisdiction. Proceedings for variation and enforcement may involve the same object and cause where they concern the same order, parties and underlying maintenance obligations, even though they are brought by different parties and seek different immediate remedies. The stay prevents inconsistent decisions concerning the same factual and financial circumstances. A discretionary stay under Article 13 should be determined separately and only after the parties have had an opportunity to make submissions. A stay does not determine the merits of the underlying maintenance claims.

The judgment concerned enforcement and variation applications arising from earlier financial remedy proceedings. The husband had applied in Country A to vary maintenance obligations under an English order. The wife had issued applications in England to enforce maintenance, school-fee, mortgage and child-maintenance obligations. The husband sought a stay under Articles 12 and 13 of the European Maintenance Regulation.

The central issue was whether the proceedings involved the same object and cause, and whether Article 12 required the English proceedings to be stayed despite the different forms of relief sought.

1. Mandatory stay under Article 12. The court followed MacDonald J’s approach in B v B (Maintenance Regulation – Stay) [2017] EWHC 1029 (Fam), which concerned materially identical circumstances. Article 12 required the court second seised to stay proceedings involving the same parties and the same object and cause.
2. The expressions in Article 12 were to be understood in an ordinary and common-sense way rather than by applying a narrow domestic conception of cause of action. An application to reduce maintenance and applications to enforce the same maintenance obligation were uniquely intertwined. Both required consideration of whether the existing maintenance order should continue, be reduced or be extinguished.
3. The court rejected the restrictive interpretation advanced from Villiers. The Supreme Court’s discussion of maintenance claims did not address the precise issue before the court and was not inconsistent with the approach in B v B. Article 12 was directed at preventing inconsistent decisions by courts in different countries concerning the same factual matrix.
4. Article 12 therefore compelled a stay of the school-fee, mortgage, spousal-maintenance and child-maintenance applications. The stay did not amount to a decision that the husband had succeeded on the merits.
5. The court declined to make an alternative determination under Article 13 because the issue had not been argued. It retained the Business R and former matrimonial-home issues, considering that they were either outside maintenance or, alternatively, appropriate for determination in England under the discretionary power.
6. The husband was awarded £28,000, representing half of his costs. The sum was to be offset against monies ultimately found due from him and was not payable without leave of the court.