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Home > Judgments > 2011 archive

Traversa v Freddi [2011] EWCA Civ 81

Husband’s appeal against refusal of leave to pursue an application under the Matrimonial and Family Proceedings Act 1984 after Italian divorce. Appeal successful.

The parties had married in Italy in 1987. In 2001, the wife had purchased in her sole name a matrimonial home in Palmers Green. In November 2004, a separation order was made and in February 2008, the wife obtained a decree of divorce, both orders being made in Italy. In April 2008, the husband was served with notice to quit the Palmers Green property, triggering an application from him under Part III of the Matrimonial and Family Proceedings Act 1984. On 30th April 2009, the application was heard and dismissed at the leave stage by Bodey J, following the judgment of the Court of Appeal in Agbaje v Agbaje. When this was overruled by the Supreme Court, the husband obtained leave to appeal out of time.

The court considered s.13(1) of the Act which states that the court should only grant leave for an application to be made if there is substantial ground for the making of the application. The interpretation of this had been clarified by the Supreme Court, which stated that the threshold was not high but was higher than, for example, "serious issue to be tried" or "good arguable case", and that "substantial" meant "solid". The gloss provided by Mostyn J in CG v IF that this required the court to be confident that the applicant had a 50% or higher probability of achieving a substantive order were the matter to be tried, was firmly rejected.

Thorpe LJ ruled that Bodey J, in refusing leave, had followed the highest authority which had been available at the time, but that, given the Supreme Court ruling, it could no longer be said that the husband, who had been served with eviction proceedings, did not have a sufficiently substantial ground for making the application.

The respondent raised two further reasons why the husband's application should not be allowed, neither of which altered the court's judgment. The first was that the provisions of Brussels I meant that jurisdiction still lay with the Italian court. This assertion was rejected by the court on the basis that there was no spousal maintenance element to the claim, and the property consequences of divorce were expressly excluded from the scope of Brussels I. Even if there had been a spousal maintenance element to the claim, the court noted that, following Van den Boogard v Laumen, this did not fix jurisdiction in relation to all financial issues.

The second was over whether the parties' agreement at the commencement of their marriage that their property should be held separately rather than communally meant that, in the light of Radmacher, the husband's case would fail. Thorpe LJ decided that this was a consideration to be weighed, not at the leave stage, but at the resulting trial.

In obiter comments, Munby LJ also confirmed the guidance of the Supreme Court on the appropriate procedure where a respondent sought to set aside leave granted at the hearing of the ex parte application (applications for leave under the Act being required by FPR 1991, 3.17(1) to be ex parte). In such a situation, unless it was clear that the respondent could swiftly deliver "a knock-out blow" (e.g. failure to consider a decisive authority or misleading of the court), the court should adjourn an application to set aside to be heard with the substantive application, rather than set it down for an inter partes hearing.

Summary by Gillon Cameron, Barrister, 14 Gray's Inn Square

___________________________

Case No: B4/2009/1826
Neutral Citation Number: [2011] EWCA Civ 81
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE FAMILY DIVISION
The Honourable Mr Justice Bodey
FD08F00667
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/02/2011
Before :
THE RIGHT HONOURABLE LORD JUSTICE THORPE
THE RIGHT HONOURABLE LORD JUSTICE RIMER
and
THE RIGHT HONOURABLE LORD JUSTICE MUNBY
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Between :

FRANCESCO TRAVERSA Appellant

- and - 

CARLA FREDDI Respondent

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- - - - - - - - - - - - - - - - - - - - -

Frank Feehan QC and Maria-Amália Walker (instructed by Adams Moore Solicitors) for the Appellant

Justin Warshaw and Madhavi Kabra (instructed by Callaghan & Co) for the Respondent

Hearing dates: Thursday 11th November 2010
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Judgment
LORD JUSTICE THORPE:
Introduction
1. This appeal has been created by the course of an earlier case, the well known case of Agbaje v Agbaje [2009] EWCA Civ 1(CA); [2010] UKSC13; [2010] WLR 709 (SC).  In the family division Mrs Agbaje obtained an award under Part III of the Matrimonial and Family Proceedings Act 1984.  That award was set aside by this court in judgments which raised the bar against the Part III applicant.  The wife's appeal to the Supreme Court succeeded and the judgment of Coleridge J at first instance was reinstated.  In the present appeal, the Part III applicant was the husband whose claim failed at first instance since, at the date of its listing, Bodey J applied, as he was bound to do, the restrictive approach adopted by this court in Agbaje.  The decision of the Supreme Court in Agbaje prompted the husband's application for permission to appeal out of time, which was granted by Wilson LJ, who recognised that Bodey J's conscientious application of the authority of Agbaje in this court could only be seen as erroneous once the judgments of the Supreme Court were handed down.

2. However, the outcome of this appeal has not been straightforward, since we have additionally to apply European family law, given that the foreign jurisdiction engaged is Italy.

3. We also have to have regard to the effect of the recent decision of the Supreme Court in Radmacher since a marital property regime was incorporated within the Italian civil marriage ceremony.  With that brief introduction, I turn to the history.

The Facts
4. The parties married in Italy on 14th November 1987.  The wife was pregnant and came from an affluent family in the north of Italy.  The husband came of a modest Calabrian family.  Parties marrying in Italy may elect for community of goods, separation of goods or no regime at all.  Here the election of separation of goods was achieved by the addition of the briefest of words in the relevant box in the marriage certificate, endorsed by the Registrar's signature.  The wife's family did not welcome the husband's suit and no doubt wished to protect her fortune, present and future.  The husband received no legal advice. However, in this court he has made no complaint of unfairness arising out of the circumstances in which the election was made. 

5. There are two children of the marriage; Jessica born on 3rd May 1988 and Giuseppe born on 18th September 1991.  After the marriage, the parties divided their time between Italy and England, investing successively in restaurant businesses, none of which seems to have enjoyed much success. 

6. In 2001 the wife purchased in her sole name a matrimonial home in Palmers Green.  Shortly thereafter the marriage broke down and in March 2003 the wife issued a petition for separation in the court in Brescia.  The husband took little or no part in the proceedings and on 11th November 2004 a separation order was made including some financial orders. 

7. On 13th February 2008 the wife obtained a decree of divorce in the Brescia court.  It included no further financial orders. 

8. In April 2008 the husband was served with notice to quit the Palmers Green property which triggered his application of May 2008 under Part III.  The wife's response of 20th May 2008 was a letter seeking arrears of child periodical payments in the sum of €67,000. 

9. After various case management orders and an agreed report on Italian law from an expert, the husband's application was heard and dismissed by Bodey J on 30th April 2009.

The Statutory Provisions
10. Part III of the 1984 Act results from Law Commission Report no. 117 of 1982.  The recommendation emerged in sections 12-18 of the statute.  Section 12 is headed:

"Applications for Financial Relief after overseas divorce"

Then follows the section upon which this appeal principally focuses headed:

"Leave of the court required for applications for financial relief."

I pass over section 14 to arrive at section 15:

"Jurisdiction of the court."

Then follows section 16:

"Duty of the court to consider whether England and Wales is appropriate venue for application."

Section 17 specifies the orders that may be made and section 18 the matters to which the court is to have regard in exercising its powers under section 17.  The broad effect of section 18 is to guide the exercise of judicial discretion by importing the section 25 check list from the Matrimonial Causes Act 1973.

11. The crucial subsection which we have to consider is section 13(1) as follows:

"No application for an order for financial relief shall be made under this Part of this Act unless the leave of the court has been obtained in accordance with rules of court; and the court shall not grant leave unless it considers that there is substantial ground for the making of an application of such an order."

12. The relevant rule of court is Family Proceedings Rule 3.17(1) which provides:

"An application for leave to apply for an order for financial relief under Part III of the Act of 1984 shall be made ex-parte by originating summons issued in Form M25 out of the Principal Registry and shall be supported by an affidavit by the Applicant stating the facts relied on in support of the application with particular reference to the matters set out in section 16(2) of that Act."

Case Law
13. We are fortunate to have so recent a ruling from the Supreme Court on the interpretation and application of Part III of the 1984 Act. 

14. In paragraph 33 of his judgment Lord Collins gives clear guidance as to the interpretation of section 13(1):

"In the present context the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse.  The threshold is not high, but is higher than 'serious issue to be tried' or 'good arguable case' found in other contexts.  It is perhaps best expressed by saying that in this context 'substantial' means 'solid'."

15. Later in his judgment Lord Collins answers the questions which he had thus defined in paragraph 40:

"(1) To what issue the matters listed in section 16(2) are directed.
(2) What role (if any) forum non conveniens principles or comity have to play in the exercise in the discretion.
(3) Whether the applicant must show exceptional circumstances, or hardship, or serious injustice, before an order can be made.
(4)  To what matters the court should have regard in deciding whether, and in what way, to exercise its powers under section 17, and in particular whether there is a principle that the court is limited to making an order which represents the minimum necessary to remedy the hardship or injustice."

16. Lord Collins' answers to those questions demonstrate, beyond argument, that Bodey J misdirected himself.  First in paragraph 40 he concluded that Italy was the convenient forum.  Then in paragraph 43 he concluded that the court in Brescia had not treated the husband unjustly.  Those considerations led him to refuse the husband the leave that he required in order to make a Part III application.  The course that Bodey J took was ordained by the highest authority then available.  The judgment of Lord Collins in the Supreme Court demonstrates that it was the wrong course.  Accordingly we must weigh the husband's application for leave afresh applying the law as it now stands.

Submissions on appeal
17. In an attractive and succinct submission Mr Frank Feehan QC advances his appeal under three heads.  The first is as to the test which we must apply.  Mr Feehan submits that it is a simple test expressed in the first three sentences of paragraph 33 of the judgment of Lord Collins cited above.  He submits that the test is plainly satisfied given that:

i) The husband has made no application for any form of financial relief in Italy.
ii) He has been served with eviction proceedings.
iii) The cottage in Calabria he would transfer to the wife in return for the home in Palmers Green.

18. Mr Feehan properly draws attention to the recent words of Mostyn J in the case of CG v IF.  He invites us to ignore this gloss upon Lord Collins' guidance.

19. His second heading considers the effect of the election for separation of goods in the light of the decision of the Supreme Court in Radmacher.  Here he emphasises the factors identified in paragraph 68 to 72 of the leading judgment and particularly the proposition in paragraph 75:

"The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."

20. The third issue addressed by Mr Feehan is the European dimension and particularly the application of Regulation Brussels I.  The relevance of this regulation to an application under Part III is explained by Lord Collins in his judgment in Agbaje in the following paragraphs:

"55. But, although the point does not arise on this appeal, a warning note must be struck about the position with regard to states to which Council Regulation (EC) No 44/2001 (OJ 2001 L12, p1) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("the Brussels I Regulation") applies.  The effect of sections 15(2) and 28(4) of the 1984 Act is that the jurisdictional provisions of Part III and Part IV respectively are subject to the Brussels I Regulation (and the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1988)). Those sections do not address the question whether a judgment in a Brussels I Regulation State making financial provision on divorce (or refusing to make such provision) would be entitled to recognition so as to prevent an award under Part III or Part IV.

56. For the purposes of Brussels I Regulation and the Lugano Convention there is a distinction between 'maintenance' which is within the scope of the Regulation (article 5(2), which confers jurisdiction on the courts of the maintenance creditor's domicile, in addition to that of the debtor's domicile under article 2); and 'rights in property arising out of a matrimonial relationship' ('régimes matrimoniaux') which are expressly *725 excluded from the scope of the Regulation.  These are autonomous concepts: de Cavel v de Cavel (No 1) (Case 143/78) [1979] ECR 1055; de Cavel v de Cavel (No 2) (Case 120/79) [1980] ECR 731.  The Brussels II Revised Regulation (Council Regulation (EC) No 2201/2003 on jurisdiction and the recognition of judgments in matrimonial matters and matters of parental responsibility) (OJ 2003 L338, p 1) does not apply to the 'property consequences of the marriage or any other ancillary measures' (recital (8)), or to 'maintenance obligations': recital (11).

57 It is only necessary to mention that if an award of maintenance had been made in another member state, the question might arise as to whether the application in England under Part III would be precluded on the basis that the issue of maintenance had been determined in the other jurisdiction and that that determination was entitled to recognition.  That would depend, at least in part, on whether the application was to be characterised as relating to maintenance or to rights in property arising out of a matrimonial relationship.  Van den Boogaard v Laumen (Case C-220/95) [1997] QB 759 shows that a transfer of property may be in the nature of maintenance if it is intended to ensure the support of a spouse; but a transfer of property which serves only the purpose of a division of property is not in the nature of maintenance, and concerns rights in property arising out of a matrimonial relationship.  See also Schlosser Report on the Accession Convention to the Brussels Convention (OJ 1979 C59, p71), para 50; Moore v Moore [2007] 2 FLR 339.  This is an area which involves difficult questions which do not arise for decision on this appeal."

21. That introduction leads me to the Italian orders, namely those of 11 November 2004 and 13 February 2008.  The only financial provisions are contained in the separation order in the following two paragraphs:

"(4) Assigns the marital home, including furnishings, to Freddi, Carla.
(5) Fixes the contribution to be paid by Traversa Francesco for the maintenance of the two children at €300 for each of them, to be paid no later than the tenth day of each month and to be reassessed annually according to the Istat indices starting from 11.11.2005, as well as 50% of the extraordinary, medical and school expenses."

22. It is to be noted that there is no spousal order.  This is partially explained by the expert report where we read:

"In a separation proceeding the only financial relief available can be a maintenance order in favour of the spouse who has a lower income and is not faulty for the separation."

23. Equally the assignment is explained by the later passage:

"Under the regime of separation of properties under Italian law each spouse maintains his/her own properties regardless of whether they have been acquired prior, during or after the marriage.  There are no exceptions, not even for the matrimonial home.

Note however that in the separation/divorce proceedings the matrimonial home is normally assigned to the spouse who has custody of children, regardless of the fact that the other spouse may be owner or co-owner of such a property.  The assignment will last until the children remain in the marital home and is however revoked in case or new marriage or stable cohabitation of the spouse to whom the house has been assigned."

24. On those facts, Mr Feehan submits that the Regulation Brussels I is not engaged.  In any event its application is only to maintenance provision.  Here the husband seeks essentially a property transfer order rather than any maintenance provision.

25. Mr Warshaw, in an equally able and succinct submission, adopts the same headings.  As to the fundamental test he submits that Bodey J would equally have refused leave had he had the judgments of the Supreme Court.  The husband's prospects of obtaining any substantive order are very slim and accordingly it cannot be said that he has any substantial ground.  Mr Warshaw relies heavily on the judgment of Mostyn J in the authority cited above.  He emphasises paragraphs 4-6 where Mostyn J states that both the section 16 factors and the section 25 check list must be taken into account when considering the question of leave.  He points to Mostyn J's gloss in paragraph 8 and to his exposition in paragraphs 26 to 43 of the application of the Regulation Brussels I and the Lugano Convention.  In that passage, Mostyn J expresses the conclusion that jurisdiction and enforcement rest with the European court first seized in relation to any financial order that contained a maintenance ingredient.  Since the needs of the parties have to be factored in to the making of any order it is hard to say that meeting or maintaining those needs is not inherent in the range of orders to be made under section 17 of Part III.

26. In relation to the marital property regime Mr Warshaw simply submits that it is binding on the parties and that paragraph 74 and 108 of the leading judgment in Radmacher make it inevitable that any claim advanced by the husband will fail.  The application for leave is knocked out by this one punch.  Neither do the circumstances presently prevailing command a departure from the contract.

27. As to the Regulation Brussels I, Mr Warshaw submits that the jurisdiction plainly lies with the Italian court.  The order for periodical payments to the children is still live.  Both children are in full time education.  An application in this jurisdiction by the husband falls within the provisions of Article 27 of the Regulation since it would be the same cause of action between the same parties giving rise to a mandatory stay and a refusal of jurisdiction in favour of the Italian court.

28. Alternatively Mr Warshaw submits that an application by the husband for a property adjustment order is clearly a related action subject to a discretionary stay under Article 28 of the Regulation.

Conclusions
29.  I express my conclusions under the same three headings adopted by counsel.  As to the interpretation and application of section 13, there could hardly be clearer guidance than that given by Lord Collins in the three sentences that open paragraph 33 of his judgment.  I see no need for an instant further gloss as offered by Mostyn J in paragraph 8 of his judgment where he seems to introduce the test formulated by the House of Lords in Re B [2008] 2 FCR 339 for the determination of whether or not a past act or injury to a child has been proved on the balance of probabilities.

30. It is clear that the section 13 filter is there to exclude plainly unmeritorious cases and, although, in the evaluation of substance, regard must be paid to overall merits, it does not call for a rigorous evaluation of all the circumstances that would be considered once the application has passed through the filter. 

31. At the hearing of the Section 13 application the judge will of course be conscious of the fact that, once through the filter, the applicant will have to clear a number of fences that the following Sections erect.  Unless it is obvious that the applicant will fall at one or more of the fences, his performance at each is better left to the evaluation of the trial judge.

32. In my judgment the considerations upon which Mr Feehan relies indicate a sufficiently substantial ground for the making of an application.

33. What then of the marital property regime?  This did seem to me to be Mr Warshaw's best point.  It is a positive, mutually agreed election and there is no suggestion here of unfairness at the date of marriage.  However, whether or not it is fair in present circumstances to apply it with all its rigour is a consideration to be weighed, not on the application for leave, but at the resulting trial.

34. Nor am I impressed by Mr Warshaw's reliance on the Regulation Brussels I.  Neither spouse has made any application for any spousal relief in the divorce court.  The child maintenance order has never been varied under its express provisions, or otherwise, nor has it ever been enforced.  Accordingly, in my judgment an application for a transfer of property order now issued by the husband is not caught by Article 27.  If caught by Article 28 any decision as to whether or not there should be a discretionary stay is better left to the trial judge.

35. In any event, I do not share Mostyn J's opinion that an order that contains any element of maintenance fixes jurisdiction in relation to all financial issues.  Regulation Brussels I expressly excludes from its scope the property consequences of divorce.  The Regulation Brussels II revised expressly excludes from its scope both the property consequences of divorce and maintenance.  To complete the jigsaw another European regulation is required and the Commission will shortly publish a draft Regulation on marital property regimes and the property consequences of divorce. 

36. For the purposes of enforcement it is abundantly plain that, where there is a single order that provides both maintenance for the payee and a capital sum as a property consequence of divorce, what I will call a hybrid order, it is only enforceable under the provisions of Regulation Brussels I in relation to that part of the order which can be categorised as maintenance.  In other words the hybrid order is severable into the maintenance ingredient and the property consequences of divorce ingredient.  So much was established by the very clear and practical judgment of the European Court of Justice in Van den Boogaard v Lauman (1997) QB 759. 

37. Thus it follows in my judgment that Regulation Brussels I cannot be invoked as the basis for the exclusive exercise of jurisdiction in relation to the property consequences of divorce. 

38. On the principal question before this court, I thus conclude that the husband has clearly established a substantial ground for the grant of leave having regard to the overall financial circumstances of the parties and to the fact that neither of Mr Warshaw's punches entitles him to shield his client from a full investigation.   Having granted leave we must give firm directions for the subsequent conduct of the claim, as to which we will invite agreement or submissions. 

39. Before leaving this case, I wish to express a clear view on what seems to me to be a highly questionable practice that has apparently developed in the Family Division.

40. The statute provides the filter and the rules provide that the application shall be made ex parte.

41. Of course any order made ex parte may attract an application for it to be set aside at a hearing inter partes.  This gave rise to wasted costs to which attention was drawn in reported cases such as Jordan v Jordan [1999] 2 FLR 1069. 

42. The solution was clearly indicated by Lord Collins in the second half of paragraph 33 of his judgment.  It should be as difficult to set aside leave granted under S.13 as it is to set aside permission to appeal granted in this court.  Lord Collins did not suggest that the problem should be tackled by converting the section 13 application to an inter partes application: wisely in my view, since that only invites precisely the sort of extensive arguments better reserved for the trial.

43. How then was the present case heard by Bodey J on notice?  That is explained in the first paragraph of his judgment when he says:

"It is an 'inter partes' application, since it was so fixed prior to the Court of Appeal's decision in Agbaje.  Nowadays it would have come on as an ex parte application and would have been dealt with as such."

44. He spoke thus on 30th April 2009. However on 12th May 2010 in CG v IF Mostyn J also heard an inter partes application.  In paragraph 9 he said this:

"9. I should say a few words about procedure.  Here W filed a statement, submitted a skeleton, and instructed counsel.  The reason she was able to do all this was because she was served with the originating process, even though there was no requirement to do so.  There was some faint protest raised at the presence of her legal team and I was asked not to read the skeleton submitted on her behalf.  I think that there is a helpful analogy to be drawn with the appellate process, an analogy that is given legitimacy by para 33 of Agbaje. Although an application for permission to appeal is strictly ex parte it is a commonplace for the other party to file a skeleton in opposition, and such a skeleton is invariably read (in my experience).  Moreover, the Court of Appeal has full power to adjourn the application for permission to be heard inter partes either with or without the appeal proper to follow if granted."

45. When we asked counsel for some explanation Mr Warshaw suggested that whatever the rules may prescribe, the practice has grown up of applicants automatically giving notice of their application for leave with a resulting inter partes hearing.  He suggested that practitioners were encouraged to this course anticipating that the Family Procedure Rules will so provide.  I would not support such a change and, in any event, it is not for practitioners to disregard the provisions of a current rule and develop a practice of their own. 

46. As to the effect of the new Rules coming in to force on 6th April 2011, I have had the advantage of reading the judgment of Munby LJ and agree with the view expressed in paragraphs 54-57.

Lord Justice Rimer:
47.  I agree.

Lord Justice Munby:
48. I also agree with Thorpe LJ that, for the reasons he has given, this appeal should be allowed. There are, however, three matters of general importance on which I need to add some words of my own. The need arises in significant part because of certain observations by Mostyn J in CG v IF [2010] EWHC 1062 (Fam).

49. The first relates to the grant of leave in accordance with section 13(1). As Thorpe LJ has pointed out, the law has very recently been explained in the most authoritative form by Lord Collins, giving the judgment of the Supreme Court in Agbaje, in a passage which, although my Lord has already quoted it, bears repetition:

"In the present context the principal object of the filter mechanism is to prevent wholly unmeritorious claims being pursued to oppress or blackmail a former spouse. The threshold is not high, but is higher than "serious issue to be tried" or "good arguable case" found in other contexts. It is perhaps best expressed by saying that in this context "substantial" means "solid.""

50. In relation to procedure, Lord Collins was equally clear:

"Once a judge has given reasons for deciding at the ex parte stage that the threshold has been crossed, the approach to setting aside leave should be the same as the approach to setting aside permission to appeal in the Civil Procedure Rules, where (by contrast with the Family Proceedings Rules) there is an express power to set aside, but which may only be exercised where there is a compelling reason to do so: CPR r 52.9(2). In practice in the Court of Appeal the power is only exercised where some decisive authority has been overlooked so that the appeal is bound to fail, or where the court has been misled: Barings Bank plc v Coopers & Lybrand [2002] EWCA Civ 1155; Nathan v Smilovitch [2007] EWCA Civ 759. In an application under section 13, unless it is clear that the respondent can deliver a knock-out blow, the court should use its case management powers to adjourn an application to set aside to be heard with the substantive application."

51. Nothing, if I may respectfully say so, could be clearer. It is not for this or any other court to add some gloss. There is no need. It would be wrong to do so.

52. Thorpe LJ has referred to what Mostyn J had to say on the topic in CG v IF at para [8], where he suggested that "substantial" and "solid" require the court to be able to say "confidently" that the probability that the applicant will achieve a substantive order were the matter to be tried is "greater than or equal to 50%". Mostyn J added (para [12]) that where on an ex parte application "the needle appears to be flickering around the 50/50 probability mark" the court should be prepared to adjourn the application for leave to be heard inter partes, presumably in accordance with the views about procedure which he had set out earlier (para [9]) in the passage my Lord has already quoted.

53. With the greatest of respect to him, I have to say that Mostyn J was doubly wrong. It was not for him to add some gloss; and the gloss he added was not merely wrong but quite inconsistent with Lord Collins' authoritative guidance in at least two respects. In the first place, a "substantial" or "solid" case, contrasted with a case which is "wholly unmeritorious", is not a case requiring a 50% chance of success, and with all respect to Mostyn J's view Lord Colllins said nothing to suggest it is. The second point is that the kind of inter partes hearing apparently contemplated by Mostyn J is simply outside the scope of what Lord Collins had in mind. To repeat, unless it is clear that the respondent can deliver "a knock-out blow" the court "should" adjourn an application to set aside to be heard with the substantive application.

54. I add only this. The emergent practice of listing or directing applications for leave to be listed on notice for hearing inter partes is compliant neither with the clear requirements of FPR rule 13.7(1) nor, unsurprisingly, given the terms of the rule, with the authoritative guidance given by the Supreme Court. The practice should stop. The application for leave should be listed ex parte for a hearing which can be appropriately brief, as can the judgment either giving or refusing leave. Those minded to apply to set aside the grant of leave should be mindful of what Lord Collins said. Such an application, if nonetheless pursued, should be given an appropriately short listing to enable the respondent to demonstrate, if he can – and it will not take all that long, which is why the listing can be appropriately short – that he has some "knock-out" blow. Unless the respondent can demonstrate that, his application, if not dismissed then and there, should be adjourned to be heard with the substantive application.

55. Thus far I refer to practice as it should be so long as matters are regulated by the Family Proceedings Rules 1991. The Family Procedure Rules 2010 have been made and laid before Parliament for approval but (assuming approval) will not come into force until 6 April 2011. Applications for leave under Part III of the 1984 Act are dealt with by Part 8, Chapter 6, of the new Rules, FPR 8.23-8.28.

56. FPR 8.24(3) requires the application to be made in accordance with the Part 18 procedure. FPR 18.5(1) normally requires an application to be served on the respondent but this is subject to FPR 18.5(2)(a), which provides that an application may be made without serving a copy of the application notice if this is permitted by a rule. FPR 8.25 (which is headed "Application to be made without notice") provides as follows:

"(1) The court may grant an application made without notice if it appears to the court that there are good reasons for not giving notice.
(2) If the applicant makes an application without giving notice, the applicant must state the reasons why notice has not been given."

FPR 18.11 provides that a person who was not served with a copy of the application notice before an order was made may apply to have the order set aside or varied; such application must be made within 7 days beginning with the date on which the order was served on the person making the application. (FPR 18.10(3), it may be noted, requires that any order made without notice must contain a statement of the right to make an application to set aside or vary the order under FPR 18.11.)

57. The wording of FPR 8.25 is slightly odd, for the requirement that the application for leave is to be made without notice appears only in the heading and not, at least explicitly, in the rule itself; and the wording of FPR 8.25(2) – "if the applicant makes an application without giving notice" (emphasis added) – might suggest that the applicant has a choice. But reading the rule in the context of both present practice and, more particularly, what Lord Collins said in Agbaje, it seems that what the new rules contemplate is an application which is to be made without notice but where the court has power to decline to make the order except at an inter partes hearing. This is borne out by FPR 8.26(b) which requires the court to "give notice of the date of the hearing to the applicant" but not, it may be noted, to the respondent.

58. There are, however, two points which I wish to emphasise. The first is that if the court grants leave at a without notice hearing, any application to set aside in accordance with FPR 18.11 is to be dealt with as at present and in accordance with what Lord Collins said in Agbaje. Under the new rules, as under the old, unless the respondent can demonstrate that he has some "knock-out" blow, his application to set aside the grant of permission, if not dismissed then and there, should be adjourned to be heard with the substantive application. The other is this. Whether the application for leave is dealt with at a without notice hearing or inter partes, the hearing should be given an appropriately short listing. Applications for leave or permission in this court and in the Administrative Court, even if listed inter partes, are customarily listed for 30 or at most 60 minutes.  There is no reason why applications for leave under the 1984 Act cannot be dealt with justly and fairly – I quote the language of the new FPR 1.1 – within a similar timescale.

59. The third matter relates to Brussels I. In CG v IF, Mostyn J appears to have adopted the view that in a case of this kind – where there has been a determination of a foreign court which is consequently given exclusive jurisdiction – the English court cannot give leave under section 13 of the 1984 Act if the claim sought to be brought in this jurisdiction includes any element of a claim for maintenance. As he said (para [33]):

"So the central question is: does H's claim have a maintenance element? If it does then it is clear to me then it cannot proceed".

60. This led him into an interesting but irrelevant consideration of whether, as he put it (paras [37], [43]), it is possible to have an ancillary relief award that does not contain an ingredient of the meeting of need, whether it is possible to banish needs from an English ancillary relief exercise. I say irrelevant because, with all respect to Mostyn J, the entire discussion was founded on a false premise.

61. Mostyn J founded his analysis upon his reading of the decision of the ECJ in Van den Boogard v Laumen [1997] QB 759, [1997] 2 FLR 399, and of the subsequent expositions of this court (which included Lawrence Collins LJ as he then was) in Moore v Moore [2007] EWCA Civ 361, [2007] 2 FLR 339, para [80], and of the Supreme Court in Agbaje at paras [55]-[57]. His reading, with all respect to him, was wrong.

62. The crucial passages in the judgment in Van den Boogard v Laumen are to be found in paras [21]-[25]. I need not set them out. It suffices to refer to para [22]:

"It should be possible to deduce [the specific aim of the decision rendered] from the reasoning of the decision in question. If this shows that a provision awarded is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, the decision will be concerned with maintenance. On the other hand, where the provision awarded is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship and will not therefore be enforceable under the Brussels Convention. A decision which does both these things may, in accordance with article 42 of the Brussels Convention, be enforced in part if it clearly shows the aims to which the different parts of the judicial provision correspond."

63. Mostyn J drew attention (CG v IF, para [35]) to the word "solely", from which he derived the proposition that "if an ancillary relief award contains as an ingredient (to any material degree) the satisfaction of needs, then it will be not be "solely" concerned with the division of property between spouses." May be; but so what? Much more important – indeed determinative in this context – is surely the final sentence of para [22], to which Mostyn J seems to have paid inadequate attention. As the ECJ put it, "A decision which does both these things" – that is, both provides for maintenance and divides property – may, in accordance Brussels I, be enforced "in part". Precisely so. Accordingly, as Thorpe LJ has already explained, merely because an order contains an element of maintenance, that does not fix jurisdiction in relation to all financial issues. There is nothing in what the ECJ said in Van den Boogard to suggest that it does, nor in Moore v Moore or in Agbaje.

64. I might add that there is nothing at all novel about this. In Al-Khatib v Masry [2002] EWHC 108, [2002] 1 FLR 1053, I awarded the petitioner a total of some £25 million, of which £5.5 million (see paras [112]-[117]) represented the capitalised amount, calculated on a Duxbury basis, of her needs assessed at the annual figure of £225,000. I was invited by the petitioner's counsel, Mr Nicholas Mostyn QC as he then was, to express part of my award as being, albeit in lump sum form, an award of maintenance, the purpose being (see para [128]) to enable her to take advantage of the enforcement provisions of the Brussels and Lugano Conventions. Mr Mostyn relied for this purpose on the decision of the ECJ in Van den Boogaard which, as he correctly submitted, establishes that a capital award can be enforced under these Conventions to the extent that it supplies a commutation of maintenance. Having referred to the relevant parts of the ECJ's judgment, I said (para [129]) that the petitioner was entitled to have the part of my order which was referable to 'maintenance' within the meaning of the Conventions expressed as such, since, as I read the court's judgment, a Duxbury fund calculated as such constituted 'maintenance' for this purpose. That was, as it were, an application of the Convention "in part" one way round; the present case, like CG v IF, is an application of the Convention "in part" the other way round. But the essential point is the same.