Conflict of jurisdiction

Chorley v Chorley CA TLR 18 January

Article 2 of Regulation (EC) No 1347/2000 (known as Brussels II) provides that where proceedings involving the same cause of action and between the same parties are brought before courts of different Member States, where the jurisdiction of the court first seized of the matter is established, the court second seized shall decline jurisdiction in favour of that court. Following the parties’ separation, the first divorce proceedings were instituted by the husband in Nice. The form of divorce proceedings for fault in France requires the initial submission of a requête which triggers a process of automatic conciliation at a hearing before a judge during which the judge could make orders, including for financial support. Thereafter, with the court’s leave, the process can be extended by the filing of an assignation, which is the equivalent to an English divorce petition. Before the husband issued an assignation, the wife commenced divorce proceedings in England. FPR rule 2.27a provides that any application under Brussels II shall be made to a district judge and, if it appears that the court does not have jurisdiction to hear the petition and is required or may be required to stay the proceedings, the court shall stay the proceedings and fix a date for a hearing to determine the questions of jurisdiction and whether there should be a stay or other order. At the hearing before the district judge the husband proposed that the issue of whether proceedings had been commenced in France before the English proceedings should be determined by the French court, but the district judge rejected this proposal. On appeal the judge clearly saw the very great practical advantages of referring the question of the characterisation of the French process to French judges, but he nevertheless took on the task himself. He concluded that the issue of the requête did not trigger article 2 priority. However, in the meantime, the French appellate court had decided in reasoned terms that the divorce proceedings were initiated by the issue of the husband’s requête, with the consequence that the French proceedings were the first in time. The husband appealed against the district judge’s decision, while the wife’s appeal against the decision of the Court of Appeal in France was pending.