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The Race to Court under EU Brussels II: A New Approach?

Stuart Clark, an Associate at The International Family Law Group LLP, reports on a recent Irish case which could have important implications for the priority of divorce proceedings in international cases.

Stuart Clark, solicitor, The International Family Law Group LLP














Stuart Clark, Associate Solicitor, The International Family Law Group LLP

The High Court in the Republic of Ireland has passed down a judgment which may importantly alter the practices of international divorce lawyers in Ireland, England and across Europe. In a judgment delivered by Mr Justice Henry Abbott on 2 December 2015 it was decided that "lodged" for the purposes of Article 16.1(a) of Brussels II Revised (Regulation (EC) No. 2201/2003) meant delivery to the court and not issue, as had previously been understood by practitioners in England and Wales. The judgment is reported as MH v MH [2015] IEHC 771 and can be found here.

It has been the long-held belief of English and other practitioners that in order to obtain priority of divorce proceedings intra-EU for the purposes of Article 19 Brussels II (lis pendens), one has to issue a divorce petition first in time and before a corresponding foreign (intra-EU) initiating document has been issued.

For many years as a junior lawyer I would be called upon to don the running shoes and make the quick trek to High Holborn to issue a petition first in time if there was a chance that the other spouse might issue elsewhere and unfavourably in the EU. I, like many others, have spent many hours pleading with counter staff to deal with our petition as a priority to get it issued there and then (or in 4 hours as was often the standard response). Back when the service existed this meant applications to the district judge of the day. Undertakings to lodge marriage certificates were par for the course. A colleague spent much of Christmas 2014 trekking across Hampshire to get a petition issued urgently after various rejections from the counter staff of county courts which shall remain nameless.

All of these practical efforts were premised on the common underlying understanding: in order to secure priority, in order to be first in time intra-EU, one had to ensure that the petition was issued first in time. Delivery was not enough, the petition had to be issued otherwise the other spouse could steal in somewhere else within the Union and claim priority under Article 19. Service provisions thereafter applied but the key time was that of issue.

Through discussions with the Court User Panel at the Central Family Court other practitioners and I have placed a great weight in ensuring that petitions could still be issued urgently on a 'while-you-wait' basis following the centralisation of divorce centres. The CFC has obliged and continues to issue petitions on an urgent basis without the need to send them to Bury St. Edmunds.

The standard form divorce petition continues to display not only date of receipt at the court but also date and time of issue; why the distinction if issue was not of paramount importance? It is Resolution good practice is to issue urgently where the other spouse may issue abroad and particularly intra-EU.

The background to MH v MH is brief. At 2.30pm on 7 September 2015 the husband attended the Court Office in Dublin and issued the relevant initiating document for a judicial separation in Ireland. Earlier that day the Bury St. Edmunds Divorce Centre received (in the DX) the wife's English petition. The judge found that on the balance of probabilities the relevant envelope was opened, date stamped and placed in the cupboard for processing before 10.30am that day. The petition was issued on 11 September 2015 (i.e. after the Irish Petition was issued).

On that basis Abbott J found that the wife's English petition had been "lodged" first in time and that the English court was first seised for the purposes of Brussels II. The husband has appealed the decision and the appeal will be heard by the Court of Appeal in Ireland in the Spring.

The ramifications of the judgment, if upheld, are widespread. It will fundamentally change the practice by which we seek to gain priority of jurisdiction on behalf of our clients where there is a risk that the other spouse will issue elsewhere intra-EU. We will need to ensure the court has received our client's petition first in time. This may include efforts after hours to ensure the court has taken receipt of the documents. We will need to show evidence of delivery and/or receipt.

The courts may need to adapt. There is no after-hours drop-box at the CFC. It is the writer's understanding that there is no front desk or delivery mechanism at the London and South East Divorce Centre building at Bury St. Edmunds and that to actually get a document in the building, seen and processed, one has to post or DX it. Even if you are standing outside you will not be able to "lodge" until the next morning's post or DX arrives. As with issue, any practitioner anxious to ensure priority will want a time and date stamp from the court proving delivery – "lodgement."

We keep a watchful eye on the developments as the Court of Appeal in Ireland will be determining, at appellate level for the first as far as is known, whether issue or delivery is sufficient for priority. The decision will potentially reverse 15 years of common practice.

If you would like any further information about this case, please contact the author, Stuart Clark (stuart.clark@iflg.uk.com) or David Hodson OBE (david.hodson@iflg.uk.com)  who represent the husband in the English proceedings.

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