Court of Appeal

Published April 25, 2007

Moore v Moore

Before Lord Justice Thorpe, Lord Justice Lawrence Collins and Mr Justice Munby

Reasons April 20, 2007

In cases involving overlapping proceedings in different jurisdictions there should be someone on each team who was able to inform both courts of the progress of the case in the other jurusdiction.

The Court of Appeal so held in giving its reasons for dismissing on March 20 an appeal brought by the husband, James Bernard Moore, against the decision of Mr Justice McFarlane on February 1, 2007, to confirm the permission granted to the wife, Kim Marie Moore, by Mrs Justice Baron at a hearing without notice on July 11, 2006 to apply to the English court under Part III of the Matrimonial and Family Proceedings Act 1984 for orders for financial relief after an overseas divorce.

Mr Barry Singleton, QC, Ms Deborah Eaton and Mrs Rebecca Bailey-Harris for the husband; Mr Lewis Marks, QC and Mr Stewart Leech for the wife.

LORD JUSTICE THORPE, delivering the judgment of the court, said that the parties were in their mid-forties and seemingly very rich. Their relationship lasted over some 15 years although they married only on October 22, 1998. They had three children aged 16, 10 and seven.

In September 2003 the family emigrated to Spain, apparently to avoid United Kingdom tax. The marriage did not long survive the move. They separated in December 2003.

An extraordinary feature of the case was that the parties had spent about £1.5 million in legal fees, most of it in proceedings concerning the question whether the financial consequences of the divorce should be determined in Spain, as the husband contended, or in England, as the wife contended.

Yet it was common ground that if the Spanish court were to take jurisdiction to determine those issues, it would apply English law.

Their Lordships did not know whether the lamentable and grotesque waste of family resources was the result of the intransigence of one or other of the parties or because the husband hoped that the Spanish court, if seised, would misapply English law to his benefit.

There was another feature of the case which was disturbing and not uncommon, since something similar occurred in Bentinck v Bentinck ( The Times April 12, 2007).

Despite the enormous financial and human resources put into the present litigation, the English lawyers were not able to give the court an up-to-date assessment of the likely progress in the foreign proceedings.

Their Lordships thought it elementary that in cases involving overlapping proceedings in different jurisdictions there should be someone on each team who was coordinating the proceedings and understood what was going on, and was able to inform both courts of the progress in the other jurisdiction.

The effect of an appeal from a decision by the court first seised that it had no jurisdiction did not appear to be settled by authority.

The object of article 27 of Council Regulation (EC) 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels I) (OJ January 16, 2001, L12/1) was to prevent irreconcilable judgments.

Accordingly, as a matter of policy it would be very odd if proceedings in the court second seised of the matter could continue even if on appeal the jurisdiction of the court first seised was established.

Consequently, their Lordships considered, contrary to the view of the judge, that article 27 applied until the proceedings in the court first seised were finally determined in relation to its jurisdiction.

That would mean that the expression in article 27.1 “until such time as the jurisdiction of the court first seised is established” should be interpreted to include the case where the court first seised had declared that it had no jurisdiction, but an appeal was pending against that decision.

It would be unsatisfactory for the matter to be dealt with through a discretionary stay in the court seised second.

Solicitors: Withers LLP; Charles Russell LLP.

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