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Home > Judgments > 2010 archive

Weiner v. Weiner [2010] EWHC 1843

Whether it is permissible to serve documents initiating divorce proceedings on a Sunday and the effect, if any, of Sunday service on the court's jurisdiction under Brussels II Revised.

The Applicant husband and Respondent wife were both Swedish nationals. They had (with their two children) been habitually resident in England for about fifteen years. It was common ground that under Article 3 Council Regulation (EC) No. 2201/2003 [Brussels II Revised] both the English and Swedish Courts had jurisdiction to hear the matter. Under Article 19 the court first seised would take priority.

The wife lodged her petition at the Principal Registry of the Family Division on 17 January 2008. This was served on the husband on Sunday, 27 January 2008. The parties reconciled in April 2008. The reconciliation failed and on 12 November 2009 the wife lodged a supplemental petition. This was served on the husband on Sunday, 15 November 2009 and re-served on 18 November 2009. The husband lodged a petition with the Swedish court on 16 November 2009.

The husband claimed that County Court Rules (CCR) O7, r3 provided that no process shall be served on a Sunday and thus the wife's service was fatally defective and the Swedish courts were first seised.  

Holman J held that CCR O7, r3 continued to apply to divorce proceedings and that petitions for divorce cannot be served on a Sunday. Nonetheless he judged that the matter was an 'irregularity' under CCR O37, r5 and declined to set aside the proceedings, stating:

"in my view this was, on both occasions, a minor, unintentional, completely harmless infraction of a now archaic, anomalous, pointless and technical rule which the English court should, and would, overlook for all purposes".

Holman J continued that for the purposes of Article 16.1 the court is seised of the matter when the required documents are lodged, subject to the proviso that there has not been a subsequent failure to take the required steps. In this case there had been no such failure.

Therefore the English courts were the first seised of the matter. The case would be transferred back to the PRFD for the divorce proceedings to continue in the ordinary way.

Summary by Ayeesha Bhutta, barrister, Field Court Chambers

__________________________________

Case No. FD 08D00207
Neutral Citation Number: [2010] EWHC 1843 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Date: Thursday, 15th July 2010
Before:

MR. JUSTICE HOLMAN
_________

B E T W E E N :

DANIEL WEINER Husband

 -  and  - 

CECILIA WEINER Wife


_________


Transcribed by BEVERLEY F. NUNNERY & CO
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_________

MR V. LE GRICE, QC and MRS. R. BAILEY-HARRIS  (instructed by Speechly Bircham LLP)  appeared on behalf of the husband.

MR. L. MARKS, QC and MR. D. NAGPAL  (instructed by Hughes Fowler Carruthers) appeared on behalf of the wife.
__________
J U D G M E N T
 
MR. JUSTICE HOLMAN:
INTRODUCTION, BACKGROUND AND ISSUES

1. I will call Mary Cecilia Weiner "the wife" and Daniel Severin Weiner "the husband".  They are both nationals of Sweden and were both born and brought up there.  As well as their nationality, they retain other links with Sweden and jointly own two properties there; but they have both been habitually resident in England for about fifteen years.  The husband works here and their two children (now aged nine and seven) were born here and go to school here. 

2. Both the United Kingdom and Sweden are member states of the European Union and accordingly Council Regulation (EC) No. 2201/2003 of 27 November, 2003 (commonly known as Brussels II Revised or bis, and to which I will refer simply as "the regulation") is part of the law both here and in Sweden.  It is not in issue that under Article 3 of the regulation jurisdiction to divorce these parties lies with the courts of both England and Wales and Sweden.  If, as has happened, proceedings relating to divorce are brought before the courts of both England and Wales and Sweden, the effect of Article 19 of the regulation, which I need not reproduce, is that the court first seised takes priority and the court second seised shall decline jurisdiction in favour of the court first seised.  The overall issue at this hearing is, accordingly, was the court first seised the Principal Registry of the Family Division here in England and Wales or the Stockholms tingsrätt in Sweden.  I will, for convenience, call them respectively the "English court" and the "Swedish court".

3. Article 16 of the regulation is headed "Seising of a court" and provides as follows:

"1   a court shall be deemed to be seised:

(a) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent; or
(b) ...."

Both England and Wales and Sweden have systems of issue-then-serve so sub-paragraph (b) of paragraph 1 of the article is not directly in point, and it appears that there is no paragraph 2.  There is no doubt, and it is not in issue, that the wife lodged the relevant documents with the English court before the husband did with the Swedish court. So the argument in the present case turns upon application of the proviso in paragraph 1(a) of Article 16.  The husband says that the wife failed to take the steps she was required to take to have service  effected upon him because, although her documents were actually served upon him very promptly, they were, on two occasions, served on a Sunday. This raises the question whether it is permissible to serve a petition for divorce (and/or a later supplemental petition) in England on a Sunday and if not, what are the consequences of doing so.  The question: "can a petition for divorce be validly served on a Sunday?" is the simplest of questions and one might have thought that the answer would be clear-cut and part of the A, B, C of the law. Apparently it is not. 

4. The reason why the issue arises is patently one of tactical manoeuvring by each of these parties in which, as I have been told today, they have now jointly invested around £120,000 to £130,000 in legal fees.  As such, a divorce in either England or Sweden would be just as effective and just as appropriate as a means of dissolving their marriage.  But each patently shares a common belief (whether correct or not) that the wife would receive greater financial provision if the divorce is here than if it is in Sweden.

5. The husband, who works for a bank, has produced a schedule of assets which asserts or admits that the overall wealth of these parties is just under £9 million, of which just over £800,000 is joint and the remainder in his sole name.  So, quite considerably more or less for the wife may be at stake.  Although both parties are each patently engaged in tactical manoeuvring, it is permissible to do so and each is perfectly entitled to seek to take advantage of the legal position as it now is in the events which have happened.

6.  The following issues and questions arise:-

1. Was there in 2008 and 2009 any prohibition or restriction on serving a petition for divorce in England on a Sunday?  If not, that is the end of this whole aspect of this case and the English court is unarguably the first seised. 

2. If there was such a prohibition or restriction, what is the consequence or effect in English law of service on a Sunday?

3. In the light of the answer to 2 above and on all the facts of this case, has the proviso in Article 16 operated so that the English court is deemed to be seised after the Swedish court?

CHRONOLOGY
7. It is first necessary to set out at slightly more length the essential facts and chronology.  The parties began living together in England, where they were both then working, in 1995.  They have lived and been habitually resident in England ever since. They married in Sweden in 1999.  Their two children were born in 2000 and 2002.  Sadly, the marriage became unhappy.  In early 2008 the husband was receiving in-patient treatment at a clinic. While the husband was at the clinic the wife issued a petition for divorce in the Principal Registry of the Family Division on 17th January, 2008.  That petition and the process of issue was in all respects regular. Accordingly, the document instituting the English proceedings was lodged with the English court for the purpose of Article 16 on 17th January, 2008.

8. On 24th January, 2008 the wife's then solicitors wrote a letter addressed to the husband c/o the clinic.  The letter says in part that the wife,

"... is most distressed by recent events and sincerely hopes that you and she will be able to reconcile and rebuild your relationship.  However, I have given [the wife] firm advice that she should take steps to establish her position in the event that it is not possible for you and she to resolve the problems you have been having ..."

The writer continues, somewhat euphemistically,

"... I have advised her that it would be preferable for any divorce to be conducted in England. [The wife] has, therefore, taken my advice and started divorce proceedings here, even though it is not her wish that you and she divorce ... [The wife] does not intend to take any further steps in the divorce proceedings, once you have acknowledged service, without you having had the opportunity to agree the way forward with her once you have completed your stay at [the clinic]."

The letter concludes by recommending to the husband "at the outset" that he consult a solicitor and giving him helpful information as to how to identify a suitable one. The writer of the letter is extremely experienced and renowned in this field, and patently appreciated the significance and importance of the step at that time of service.  It was not intended to "hold the petition in secret and not serve it until it suited the petitioner" as referred to, and deprecated by, Mr. Justice Ewbank in R v R (Divorce: Stay of proceedings) [1994] 2FLR 1036 at p.1038f.

9. On Sunday, 27th January, 2008 the wife, accompanied by a mutual friend, visited the husband at the clinic, and there the friend personally served upon the husband the petition and required accompanying documents and the letter from the solicitors dated 24th January.  It is not in issue that other than it was done on a Sunday, the service was in all respects regular.  It might be questioned whether the device of the friend actually handing over the documents avoided the spirit, or even the letter, of the restriction on service by the petitioner personally in Family Proceedings Rules (FPR) rule 2.9(3), but that is not an objection which has been taken on behalf of the husband. 

10. The wife says that Sunday was the only day upon which visits were allowed to the clinic and that she did not want the petition to be sent impersonally through the post or served there by a process server.  In other words, the service was deliberately done on a visit (which could only happen on a Sunday) in order, as it were, to soften the blow.  The husband fully admits that he was served with all the required documents.  He did not actually return any acknowledgement of service at the time, and a little while after he left the clinic the parties attempted a reconciliation in April 2008. 

11. Neither took any further steps of any kind in relation to the English proceedings during the fourteen months of attempted reconciliation.   The wife says that unfortunately the unhappiness persisted or re-emerged and the parties finally separated in June 2009 when the husband left home. 

12. Clearly at some stage the wife re-consulted her then solicitors.  On Thursday, 12th November, 2009 the solicitors, on her behalf, filed in the Principal Registry of the Family Division a supplemental petition.  This refers to the resumption of cohabitation and to the allegation that the wife had discovered that the unhappiness had persisted or re-emerged and that as a result the wife had asked the husband to leave in June 2009, and he had done so.   The supplemental petition concludes with the words, "The petitioner therefore prays as before".  The wife could, alternatively, have applied under FPR Rule 2.6(4) for leave to present another, fresh petition, but it was entirely appropriate, and indeed the better practice, to update the pleadings and revive the suit after the period of resumed cohabitation by means of the supplemental petition.  To all intents and purposes she started again on Thursday, 12th November, 2009 and it is upon that date that Mr. Lewis Marks, QC, on behalf of the wife, particularly relies, treating the supplemental petition as "an equivalent document" for the purposes of Article 16.1(a) of the regulation - an approach to which Mr. Valentine Le Grice, QC, on behalf of the husband, did not demur. 

13. The wife's solicitors wrote another letter which, interestingly, is itself dated 15th November, 2009 which was a Sunday.  This tends to suggest that the solicitors were positively contemplating that service would be effected, or at any rate attempted, on that Sunday.  The reason was that the wife did not know the address at which the husband was then living, but knew that he would be coming to the family home on the Sunday to see the children.  Indeed, the process server, Kathleen Veronica King, clearly describes in her affidavit of service, dated 27th November, 2009 that she was specifically instructed by the solicitors to attend at the former matrimonial home between 2130 and 2200 hours on that Sunday.  This suggests (although I have no evidence from the solicitors themselves) that the very eminent solicitor who was still acting for, and advising, the wife either positively considered that service on a Sunday was permissible or at any rate did not think or consider that it was impermissible, for otherwise the solicitor could have instructed the process server to follow the husband to his destination and serve him a moment after midnight there. 

14. At 2155 on Sunday, 15th November, 2009, just outside the family home, the process server served upon the husband a further sealed copy of the petition and all other documents which are required to be served with a petition, the supplemental petition and the further letter from the solicitors dated 15th November, 2009.  That letter referred to the alleged reconciliation and the further separation and said,

"... I have again given [the wife] advice that in order to protect her position she should supplement the divorce proceedings filed in January 2008 ... [The wife] intends to talk to you provisionally about matters before taking the next steps in the divorce proceedings and asks through me that you appreciate that this action she has taken is intended to merely preserve her position.  The way forward can be discussed between you."

The solicitor again recommended that the husband consult a solicitor "at the outset" and repeated the helpful information first given in January 2008.

15. It is again not in issue that, save for the fact that 15th November, 2009 was a Sunday, the service was in all respects regular and, indeed, stands as complete service, or re-service, in these proceedings even if the service on 27th January, 2008 is ignored. 

16. On Monday, 16th November, 2009 the husband issued proceedings for divorce in the Swedish court.  On Wednesday, 18th November, 2009 a process server again served upon the husband a further copy of the wife's supplemental petition.  On Saturday, 21st November, 2009 the wife received by post from the Swedish court, and in accordance with Swedish rules as to service, a copy of the husband's Swedish divorce documents.

17. On 24th November, 2009 English solicitors instructed by the husband, Speechly Bircham, wrote to the solicitors then acting for the wife and said, in summary, that the Swedish proceedings had been "fully commenced" for the purpose of the regulation on 16th November, 2009 whereas because the English documents had been served on Sundays the wife "had by that date failed fully to commence proceedings".  Accordingly, the letter continued,

"Although I understand that our clients have not yet fully determined whether there should be a divorce at this time, if there is to be one, clearly it should take place in Sweden ..."

That letter also illuminates why it came about that the supplemental petition was served a second time on Wednesday, 18th November, 2009 for it states,

"On Wednesday, 18th November, 2009, however, (having realised the error made by your  process server following a text message sent by mistake from my client to yours), my client was finally served with the documents accompanying your letter of the same date."

As I understand it, the husband intended to send a text message to his brother referring to the error of service on a Sunday, but inadvertently sent it to the wife, thereby alerting her for the first time to the potential problem.

SERVICE OF A DIVORCE PETITION ON A SUNDAY
18. As I have said, it is hard to envisage a more elementary question and yet two Queen's Counsel of distinction have felt able to argue at considerable length for and against the proposition that service is permissible on a Sunday.  Successive editions of Rayden, and now Rayden and Jackson, on Divorce, have repeatedly stated for many years, and the current, 18th, edition dating from 2005 continues to state (now at paragraph 10.52), that except in case of urgency with leave of the court, the petition may not be served within the jurisdiction on a Sunday, and CCR O7r3, and the corresponding rule of the RSC are referred to.  On the other hand, neither Halsbury's Laws of England, nor the normally extremely reliable and authoritative Family Court Practice (the Red Book), nor Butterworths Family Law Service make any reference at all to the relevant CCR or RSC and make no suggestion that service is impermissible on a Sunday.  So, unless the editors of all those works have overlooked the point, I can only presume that in their opinion (unlike that of the editors of Rayden) there is no longer any rule prohibiting or restricting service of a petition on a Sunday.

19. Section 6 of the Sunday Observance Act 1677 prescribed that no person upon the Lord's Day shall serve or execute ... any writ, process, warrant "but that the service of every such writ, process, warrant ... shall be void to all intents and purposes whatsoever" and that the person or persons so serving shall be liable for damages.  Patently, for so long as it remained in force, nearly three hundred years, this provision rendered service of a petition on a Sunday "void to all intents and purposes whatsoever".  It was repealed in 1969.  At that time new rules were added to the RSC 1965 and between then and the advent of the reforming Civil Procedure Rules in April 1999 both the RSC 1965 and the CCR 1936 and 1981 contained a general prohibition (with an exception in relation to admiralty matters) against the service of "process" on a Sunday, and in the case of the County Court Rules, Good Friday or Christmas Day.  The Matrimonial Causes Rules (MCR) 1977 provided that subject to the provisions of those rules and of any enactment the CCR and the RSC should apply, with the necessary modifications, to matrimonial proceedings.  The MCR 1977 were replaced in 1991 by the FPR 1991.  At that time the later CPR had not come into existence and the general rules in force were still the RSC 1965 and the CCR 1981.  It is the CCR which are directly in point in this case, the petition being issued in the Principal Registry of the Family Division as a county court.   CCR 1981 O7r3 provided (and if and insofar as it is a preserved rule still provides) that:

"Without prejudice to Order 40, rule 5(5) [which relates to admiralty matters], no process shall be served or executed within England and Wales on a Sunday, Good Friday or Christmas Day except, in the case of urgency, with the leave of the court."

RSC O65r10 makes no reference to Good Friday or Christmas Day, but is otherwise substantially to the same effect.  Rule 1.3 of the FPR 1991 is headed "Application of other rules" and, reflecting a similar provision in the MCR 1977, provides as follows:-

"(1)  Subject to the provisions of these rules and of any enactment the CCR 1981 and the RSC 1965 shall [continue to] apply, with the necessary modifications, to family proceedings in a county court and the High Court respectively."

The words "continue to" were added in April 1999 when the CPR came into effect so as to make plain that for the purposes of the FPR it is the former RSC or CCR which continue to apply for the purpose of rule 1.3 and the FPR generally.

20. The short submission of Mr. Le Grice (and clearly the view of the editors of Rayden) is that there is no provision of the FPR which precludes that CCR O7r3 applies, or continues to apply; and that no provision of the FPR makes it necessary to modify that rule of the CCR.    The topic of  "Service of petition etc." is dealt with in rule 2.9 of the FPR and, Mr. Le Grice submits, no part of that rule expressly touches, one way or the other, on service on a Sunday. 

21. The equally short submission of Mr. Marks is that rule 1.3 is intended only as a "gap-filling" rule, enabling resort back to the RSC or CCR in the event that some point or procedural requirement is not provided for in the FPR adequately or at all.  He submits that FPR rule 2.9 is intended to be, and is, a comprehensive code on the topic of service of petitions and that its effect is to exclude reference back to the CCR or RSC on any issue as to service; and specifically on the issue as to service on a Sunday.  He submits, in short, that if the makers of the FPR had intended that service on a Sunday should be prohibited (save in a case of urgency, with leave), they would have said so, either expressly or by an express incorporation of RSC O65r10 and CCR O7r3.  He points to, and relies in particular on, FPR 2.9(10) which does expressly incorporate CCR O7r8 into the FPR by reference, and he says that the rule makers could, and would, have made a similar express reference to CCR O7r3 if they had intended it to apply.  Mr. Marks also relies upon the comments of the editors of the White Book at RSC 65/4/24 as indicating, he submits, their view that service in matrimonial causes is the subject exclusively of the FPR and not at all of the RSC.  More generally, Mr. Marks says that it is an archaic anomaly with no policy or other justification that petitions or other initiating family process still cannot be served on a Sunday when, since 1999, any other civil proceedings can be.

22. As is well-known, the process of drafting completely new Family Procedure Rules is now very advanced and when, or if, those rules are finally brought into force there will be no question of any continuing prohibition or restriction on service on a Sunday (unless, inexplicably, the current draft is changed in this respect) and family procedure will be aligned in this respect with all other civil procedure since the CPR were introduced in April 1999. 

23. It is thus somewhat ironical that in these relatively last moments of the history in relation to rules about service on a Sunday I am having to decide and rule upon this point for, apparently, the first time.  I must do so as a matter of the construction of, and application of, the relevant rules which I have quoted, considered in the context in which they were made.  Save where the rules themselves are deliberately flexible, black letter rules of court do not have the same inherent flexibility as, for instance, the European Convention on Human Rights which has been described as a living instrument whose meaning and effect can evolve to accommodate changing social conditions.  There has been no relevant change in the wording of any of the relevant rules since 1991 and the answer to the question: is service of a petition on a Sunday prohibited (except in a case of urgency, with leave)? must be the same today as it was in 1991.  The fact that in 1999 the position changed for all other civil proceedings cannot change the position for family proceedings, precisely because the FPR continued to apply the former CCR and RSC and not the reforming CPR.  So, the question is: what did the FPR intend and require in 1991?

24. I have been unable to discern, nor have either leading counsel suggested, any policy reason why there should be a different rule as to the service of petitions than as to the service of any other initiating civil process.  In contrast, there are obvious policy reasons for the special rule in divorce that in no case shall the petitioner himself effect personal service.  So, just as Mr. Marks submits that it is archaic, and now anomalous, if family process alone amongst initiating process cannot be served on a Sunday; so also it seems to me that it would have been anomalous if, in 1991, family process was exempted from the then general rule UNLESS the makers of the FPR were deliberately taking the opportunity to modernise the general prohibition or restriction on service on a Sunday.  As it happens, I was, as Mr. Marks has pointed out, one of the makers of, and signatories to, the FPR 1991.   But I make clear that I actually have no personal recollection whatsoever whether there was any discussion at all about service on a Sunday, and in any event I could not judicially rely on any such subjective recollection even if I had one.  I do remember, much more generally, that the pressing task of the committee at that time was to decide the policy for, and to draft, all the many rules necessary to implement the Children Act 1989.  It is my general recollection that the rules in relation to divorce were largely reproduced unchanged from the MCR 1977, there being simply no time to tackle the larger project (still not achieved) of modernisation of procedure in divorce. 

25. Mr. Marks submits that FPR rule 2.9 is a complete code as to service, but if that is so it was not a new code.  If FPR Rule 2.9 is compared with rule 14 of the MCR 1977 it can be seen that the later rule simply reproduces the earlier rule almost verbatim.  There is nothing new about it at all in 1991.  So, one then has to turn back to the position as it was when the MCR were made in 1977.  The general rule then was to prohibit, or restrict, service on a Sunday.  Indeed, the RSC 1965 had only relatively recently been amended to that effect following the repeal in 1969 of section 6 of the Sunday Observance Act 1667.  It seems to me that if the rule makers in 1977 intended to displace that general rule in relation to divorce or matrimonial proceedings generally, they would have done so expressly by an express rule to that effect, or a rule expressly disapplying the then relevant rules of the RSC and CCR.  They did not do so.  It seems to me quite clear, as the editors of Rayden at that time thought, that the prohibition continued to apply between 1977 and 1991.  In 1991 the prohibition was still the general rule in civil proceedings.  It again seems to me that if the rule makers in 1991 thought about the point at all, and if they intended to disapply the general rule, they would have done so expressly.  It is only really in and from 1999, and the advent of the CPR, that the continued application of the rule to family proceedings appears so archaic and anomalous. But, as there has been no relevant change to the relevant rules for family proceedings in or since 1999, that cannot now change the position as it emerged on implementation of the FPR in 1991. 

26. I agree with Mr. Le Grice that there is nothing in those rules to displace or necessarily modify CCR O7r3. I accordingly hold that that rule continued to apply in 2008 and 2009 when the petition and other documents were served as I have described on Sundays 27th January, 2008 and 15th November, 2009.  I consider that the editors of Rayden continue to be right on this topic and that, with very great respect to the many editors of the utmost distinction of the Red Book and Butterworths Family Law Service, they err, and do their readers a dis-service, by not stating in appropriate parts of their texts that until the rules are changed a petition or other process under the Family Proceedings Rules should not be served on a Sunday or (in the county court) on Good Friday or Christmas Day, save in an emergency and with the leave of the court.

WHAT IS THE CONSEQUENCE OR EFFECT IN ENGLISH LAW OF THAT SERVICE ON A SUNDAY?
27. Unlike section 6 of the Sunday Observance Act 1667 the relevant rules of the RSC and CCR contain no sanction and make no statement as to the effect if process is served on a Sunday in breach of the rule. The rules merely say that it shall not be done.  As I have already said, everything that was required to be served was served on both occasions, and in all respects the method of service fully complied with the rules as to service.  Mr. Le Grice nevertheless argues that what happened was a nullity or void and did not amount to service at all.  I reject that argument.  CCR O37r5 provides as follows:

"5(1)  Where there has been a failure to comply with any requirement of these rules, the failure shall be treated as an irregularity and shall not nullify the proceedings, but the court may set aside the proceedings wholly or in part or exercise its powers under these rules to allow any such amendments and to give any such directions as it thinks fit.

(2)  No application to set aside any proceedings for irregularity shall be granted unless made within a reasonable time, nor if the party applying has taken any step in the proceedings after knowledge of the irregularity ...

(3)  ....

(4)  The expression 'proceedings' in paragraph (1), and where it first occurs in paragraph (2), includes any step taken in the proceedings and any document, judgment or order therein."

28. It seems to me, without any need to elaborate, that what happened here should not have happened, but nevertheless falls squarely within both the letter and the spirit of O37r5(1).    Service on a Sunday was indeed merely an irregularity, done in good faith and, on the first occasion, with the good intention of avoiding the documents being sent by post to the clinic or, perhaps even worse, being formally served there by a process server.  On the second occasion - Sunday, 15th November, 2009 - the process server might, and indeed should, have followed the husband to his destination and delayed service until immediately after midnight.  But, to do so would merely have delayed service by two hours and perhaps entailed waking the husband when he had recently gone to bed.   

29. O37r5(1) gives to the court a discretion nevertheless to set aside the proceedings (including any step taken and any document) wholly or in part.  At no time between 27th January, 2008 and the letter from Speechly Bircham, dated 24th November, 2009, has the husband ever complained that he was served on a Sunday, and even to this day he has not made any formal application under O37r5(2) for the proceedings or the step of service to be set aside.   There was absolutely no prejudice or religious offence to him, and none has been suggested on his behalf.

30. In my view this was, on both occasions, a minor, unintentioned, completely harmless infraction of a now archaic, anomalous, pointless and technical rule which the English court should, and would, overlook for all purposes.  It simply has no bearing at all on anything done or yet to be done in these proceedings in reliance upon either occasion of service.   So, I decline to exercise the discretion under CCR O37r5(1) to set aside the proceedings, or that part of them which is the steps of the two acts of service on Sundays. 

31. Mr. Le Grice made a submission that the "international context" should alter the approach to discretion under O37r5(1). He said that if I do not exercise a discretion to set aside the service altogether I would be "overriding" the proviso in Article 16.1 of the regulation.  He submitted that the international context requires that I must exercise the discretion under O37r5(1) and set aside the service even although if this was an all-English case the service on a Sunday might be able to be left as an irregularity and not nullify what followed.

32. With the utmost respect to Mr. Le Grice I barely understand, and certainly do not accept, that submission.  The international context and the contest as to seisin might, in certain circumstances, be an important reason for not exercising a discretion which might otherwise be exercised retrospectively to validate some irregularity.  But I cannot see that it should impel me positively to exercise a discretion that I otherwise would not exercise. 

33. In the different, but not dissimilar, case of Phillips & another v. Symes & others [2008] UKHL 1, [2008] 1WLR 180 it appears that at first instance Peter Smith, J. took some step in apparent exercise of the powers under CPR rule 6.9(1) to dispense with service of a document (but see how this was later described by Lord Brown of Eaton-under-Heywood in the first five sentences of paragraph 35 of his opinion in that case).   But Lord Brown doubted whether even such a step was necessary and said,  at paragraph 31:

"It seems to me at least arguable that even without resort to rule 6.9 the court could simply order under paragraph (b) of [CPR] 3.10 that the second and third defendants are to be regarded as properly served certainly for the purposes of seisin."

At paragraph 34 he said,

"As I have said, therefore, it may not be necessary to invoke rule 6.9 at all in order to declare the service of documents effected on [the date in question] to have been valid and effective."

In that case, however, the defect was the much more significant one that the served documents did not actually include the sealed claim form at all. 

34. In the present case I cannot see the slightest need for me to exercise any power at all under CCR O37r5(1).  I merely hold, as a step in my own reasoning, that the breach of the technical rule in this case is, in England and Wales, of absolutely no consequence, significance or effect.  I add that as one of his arguments (assuming, contrary to his primary submission, that the no service on Sunday rule applies at all) Mr. Marks invited me to give an after-the-event, retrospective leave under the exception to CCR O7r3.  I decline to do so, first, because I consider that would be a pure device; second, because I have seen no evidence that would even retrospectively justify that on or about Friday, 25th January, 2008 or Friday, 13th November, 2009, when, hypothetically, applications for leave might have been made, there was any urgency.  It is, of course, true, with hindsight, that the husband was to issue in Sweden on Monday, 16th November.  But so far as I am aware, that was only triggered by the wife serving on him the previous day.  There was, and is, nothing to indicate that as of the previous week ending Friday, 13th November, 2009 he was about to take any step at all, whether in Sweden or here.

HAS THE PROVISO IN ARTICLE 16 OPERATED SO THAT THE ENGLISH COURT IS DEEMED TO BE SEISED AFTER THE SWEDISH COURT?
35. There is no doubt that the English proceedings were issued first and that the document or documents (if one takes account also of the supplemental petition) instituting the proceedings were lodged with the court in England before any such documents were lodged with the court in Sweden.   As a matter of fact, also, the English documents were, on any possible view, served upon the husband before the Swedish documents were served upon the wife, for even if the two services on Sundays are ignored altogether, the wife's documents were served on the husband with complete regularity on Wednesday, 18th November.  His were only served upon her when she received them on Saturday, 21st November.  But Mr. Le Grice nevertheless submits that by operation of the deeming provision in the Article, the Swedish court is deemed to be the first seised.

36. Mr Le Grice says that under Swedish law it is the court which serves (by post) the documents and that all that was required of the husband was to give a valid address for service which he did on Monday, 16th November, so there was no subsequent failure by him to take any step that he was required to take to have service effected on the wife, and the proviso simply does not operate at all in the case of the Swedish proceedings.  I accept that submission, to which Mr. Marks did not, I think, demur, and I hold that the Swedish court shall be deemed to be seised on Monday, 16th November, 2009. 

37. The question is: was the English court seised before or only after that date?  The essential submission of Mr. Le Grice is that in its application to English law and procedure Article 16.1 requires both issue and the actual taking of the required steps to have service effected, before the court becomes seised.  He argues that as the English rules as to service in divorce proceedings do not  stipulate any time limit for service, effect can only be given to the Article and the proviso if actual service (or required steps to effect service) is made a prerequisite to seisin.  He asks, rhetorically, how else can effect be given to the Article in the case where a solicitor issues a "protective" petition and then keeps it in the safe or, as Ewbank, J. put it, 'in secret' and deliberately makes no attempt to serve it at all?  He says that the 'no service on a Sunday' rule can be read in a positive way as requiring that service must be effected on a Monday to a Saturday and, accordingly, that until Wednesday, 18th November, 2009 (which he submits was too late) the wife simply failed altogether to take any steps which she was required to take to have service effected on the husband and did not serve him at all.  In his closing submissions in reply, Mr. Le Grice went even further and submitted that the proviso was positively and fatally triggered on Sunday, 15th November, 2009 when the wife took a step which she was required by the rules not to take - namely, serving on a Sunday.

38. In support of these submissions Mr. Le Grice relied in particular upon the authority of Dresser UK Ltd. & others v. Falcongate Freight Management Ltd. & others [1992] QB 502, which the majority of the House of Lords did not overrule in Phillips v. Symes although (see Lord Brown at paragraph 35) they could have done so, and Lord Mance, with whom Baroness Hale of Richmond agreed, thought they should do so.

39. In my view, Dresser is simply not in point at all in the present case.  Dresser concerned the application in its then form of the Brussels Convention on Jurisdiction in Civil and Commercial Matters (Brussels, 27th September 1968) which made reference to the court first seised, but did not contain a definition or deeming provision so as to identify which is the court first seised.  The Court of Justice of the European Communities had previously held that for the purpose of that convention the court first seised "is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be determined in accordance with the national law of each of the courts concerned."  In Dresser the Court of Appeal held, and determined, that under English national law the proceedings in question only became "definitively pending" on the date when the defendants were actually served with the writ.  In the present case, however, there is a deeming provision - namely, Article 16 of the regulation - and that uses quite different language to the test of "definitively pending". 

40. Some guidance may, however, be derived from two other authorities.   WPP Holdings Italy & others v. Benatti [2007] EWCA 263, [2007] 1WLR, 2316 was a commercial case concerning Article 30 of Council Regulation (EC) No. 44/2001 which, however, is substantially in the same terms and is to the same effect as Article 16 of Brussels II bis.  At paragraph 65 Toulson, LJ referred to Article 30(1) and continued:

"All that this proviso requires is that the claimant should not have subsequently failed to take the steps he was required to take."

At paragraph 96 Sir Anthony Clarke, M.R. said:

"For my part I see no reason not to give the Article its normal and natural meaning.  Article 30 is concerned with seisin and not with service.   If the draftsman had intended to provide that seisin depended upon actual service he could readily have done so."

He expressly agreed with the reasoning of Toulson, LJ.

41. Re I (A Child)(Contact application: jurisdiction) [2009] UKSC 10, [2010] 1FLR, 361 concerns the Brussels II bis regulation, but not directly Article 16.  The observations of the Justices of the Supreme Court are obiter (see Baroness Hale of Richmond at paragraph [31]), but at paragraph [30] Baroness Hale said that Article 16,

".... contains within itself the possibility that apparent seisin may not mature into actual seisin unless the applicant later effects service or lodges the document with the court ...  The result in the actual decision depends upon what happens later."

Lord Clarke of Stone-Cum-Ebony said at paragraph [80] that Article 16 "is describing a particular moment and not a period of time", and that the proviso is a "condition defeasant". 

42. In my view the argument of Mr. Le Grice fatally requires reading into Article 16.1 words which simply are not there. The Article does not say that a court is seised when the document has been lodged and the applicant has effected (or taken a required step to effect) service.  It says that the court is seised when the document is lodged, subject to the proviso (which may only be assessed from some later perspective of hindsight) that there has not been a subsequent failure to take the required steps.  As Mr. Marks points out, the submission of Mr. Le Grice, that the fact that there is no time limit for service under English rules of procedure requires that in the case of English proceedings a prior requirement of actual service (or steps to service) is read into Article 16.1, would create an odd paradox.  The paradox is that under that argument it is more difficult to satisfy the proviso in a case where there is actually no time limit for service under domestic law than in a case where there is such a time limit. 

43. The problem of a case where a petition is issued, but then kept in a safe or in secret, does not arise on the facts of the present case.  But, as Mr. Marks says, the answer to Mr. Le Grice's rhetorical question is that if the petition is kept in the safe and a period of time passes with no steps being taken at all, the respondent may be able later to demonstrate that the proviso operates.  It would be a question of applying the proviso to the actual facts in the individual case. 

44. In my view I should adopt the simplest of approaches.  Indeed, courts (at any rate of first instance) should be able to apply the Article (the words of which are straightforward and clear) swiftly and without the sort of detailed legal analysis which has been deployed and argued in the present case.  These types of case ought to be a one-hour and not (as was estimated and allowed) a three-day hearing, although a significant part of the time in the present case related to the discrete Sunday service point.  I ask two questions. First: when was the document initiating the proceedings lodged?  Answer: on 17th January, 2008 or, if the revival with the supplemental petition is relied upon, 12th November, 2009.  Second: has the wife subsequently failed to take the steps she was required to take to have service effected on the husband?  Answer: No.  In my opinion she actually took steps fully and effectively to effect service on each of the Sundays - 27th January, 2008 and 15th November, 2009.  But even if that be wrong, she very promptly and timeously effected perfect and wholly regular service on Wednesday, 18th November, 2009, and as and from that date at the very latest it is possible to say that the wife has not subsequently failed to take the required steps. 

45. I thus conclude with no hesitation or doubt at all in my mind that the English court was seised on either 17th January, 2009, when the petition was first issued, or alternatively, and at the very latest, on Thursday, 12th November, 2009, when the supplemental petition was issued and the suit revived after the unsuccessful reconciliation and period of resumed co-habitation.  On each basis the English court is the first seised.  I hold, for the purpose of Article 19.3 of the regulation that the jurisdiction of the Principal Registry of the Family Division in proceedings no. FD08D00207, as the court first seised, is established.  This court is not required to decline jurisdiction under Article 19.3.  I remove the stay which was imposed in paragraph 1 of the order dated 14th December, 2009.  I re-transfer these proceedings to the Principal Registry of the Family Division to continue there in the ordinary way.

46. I have reached all my conclusions in this case without hesitation or doubt, or, frankly, even difficulty, and consider that on another occasion a case such as this could, and should, be much more rapidly and economically resolved.  I nevertheless appreciated and, if I may say so, enjoyed the sustained and attractive arguments of each of Mr. Le Grice, QC and Mr. Marks, QC, most ably supported by their juniors.  I thank them all.