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Giusti v Ferragamo [2019] EWCA Civ 691

This is an appeal against a decision of Francis J to stay the wife’s English divorce petition and dismiss her application for a single joint expert to be instructed to provide an opinion on Italian law.

Brief facts
The parties, both Italian nationals, married in 2004. The husband issued judicial separation proceedings in Italy on 4 May 2012, which in Italy and in the circumstances of this case were a necessary first step to a divorce. On 14 March 2018 the Court of Cassation dismissed the wife's appeal from the separation order which had been made by the Italian court on 4 December 2015. The husband then commenced divorce proceedings in Italy on 14 March 2018, by which date the wife had commenced divorce proceedings in England (there were two petitions: 16 January 2018, not served on the husband, and 7 March 2018, served on the husband). The hearing took place on 13 February and judgment was reserved.

The court in Florence gave its decision. No substantive determination in respect of the wife's application was made, the judge appointed himself as the 'investigating judge' and fixed 'the date of the hearing before him for the appearance of the parties and the discussion on 17 December 2019.'

The husband applied for a stay of the wife's English divorce proceedings. Both parties applied for the proceedings to be allocated to a High Court Judge. The wife summarised her case as being that the English divorce petition was first in time. The husband summarised his case as being that the prior judicial separation proceedings 'means that the Italian court has seised jurisdiction for not only the separation proceedings but also the divorce proceedings.' The wife invited the husband to agree the instruction of a single point expert to answer the following question: 'Is Article 5 of Brussels IIa engaged in this case, such that the Italian Court has jurisdiction to convert separation proceedings into those of divorce, or does Italian law treat this differently?' The husband sought for this to be determined by the High Court, the wife therefore made a formal application for the instruction of an expert. The husband's solicitors informed the wife's solicitors that they would be inviting the court to stay the proceedings.

First Instance
Before Francis J, the wife's case was that it was clear that the separation proceedings in Italy were not continuing, having concluded with the Court of Cassation's dismissal of the wife's appeal from the separation order. The wife accepted that financial matters were still being dealt with by the Italian court but submitted that this was not relevant because such matters are not within the scope of BIIa. Alternatively, if the judge was in any doubt as to whether judicial separation proceedings were continuing in Italy, it was submitted that expert evidence should be obtained. It was also submitted that the judge should not stay the English petition because that might give the impression that he had decided that this court was not first seised.

In respect of the husband's case, he submitted that the separation proceedings were continuing such that there should be a "mandatory stay" of the wife's English petition. The Italian court remained seised. It was accepted that a divorce petition could not be issued until there had been a "declaration of separated status" but it was submitted that this did not mean that "the separation proceedings themselves (had) come to an end". It was also submitted that, if the judge had any doubt about whether the separation proceedings had concluded and whether the Italian court remained seised, he should leave this issue to be determined by the Italian court

Francis J's judgment is analysed at paragraphs 39-45. In summary Francis J based his decision on the conclusion that the separation proceedings in Italy are plainly ongoing and that the Italian court is still seised of matters relating to separation. These were, in turn, based on his views as to the effect of the Italian court's declarations or rulings and the decision of the Court of Cassation.

On Appeal
One of the issues which emerged during the appeal is the basis upon which the judge made his decision. Was it because he was satisfied that the provisions of Article 19 of Brussels IIa (Council Regulation (EC) No 2201/2003) ("BIIa") applied, in that there were proceedings relating to legal separation continuing in Italy resulting in the English court being second seised, or was it on some other basis?

The submissions made on behalf of each party on appeal are outlined in the judgment at paragraphs 46-53. In brief:

(A) The wife's primary case was that the judge should have determined that the status aspect of the husband's Italian separation proceedings had been finally determined, leading to the English court being first seised with divorce proceedings because the wife's English petition preceded the husband's Italian divorce proceedings. In the event that this submissions did not succeed the wife advanced a secondary argument that the judge should have directed that expert evidence be obtained for the purposes of deciding which court was first seised.

(B) The husband's case was that the judge did not decide that the Italian court was first seised, but rather that the judge decided simply that it was for the Italian court to determine whether it was first seised and that the English court should defer to that court's discretion.

Legal Framework
The legal framework is set out at paragraphs 23-38 of the judgment, including:

(A) Article 5 of BIIa which deals with: Conversion of legal separation into divorce". It provides that "a court of a Member State that has given a judgment on a legal separation shall also have jurisdiction for converting that judgment into a divorce, if the law of that Member State so provides".

(B) Article 16 of BIIa which deals with 'seising of a court.'

(C) Article 19 which deals with Lis pendent and dependant actions.

(D) The CJECU decision of A v B, the decisions of Wermuth v Wermuth [2003] 1 WLR 942 and E v E [2017] 1 FLR 658, and Bentinck v Bentinck [2007] 2 FLR 1 and Chorley v Chorley [2005] 2 FLR 38, as referred to by the husband

Acknowledging that it is not wholly clear as to the basis of Francis J's decision, Moylan LJ concluded that in response to the way in which the parties' advance their primary cases, Francis J did decide that the Italian court was and remained first seised for the purpose of Article 19(1).  This conclusion led him to stay the proceedings under Article 19, not because he was leaving it to the Italian court to decide whether it remained seised, but because he was satisfied that it remained first seised.

Moylan LJ also concluded that Francis J did not have sufficient evidence to decide whether the Italian court remained first seised. The question before the Appeal Court was therefore: what order should be made having regard to the submissions made in the appeal? The relevant question was: once 14 March 2018 had passed, was the court of England and Wales seised of proceedings within the scope of Article 19(1) ? Another way of expressing the relevant question would be: once 14 March 2018 had passed, did the Italian court remain seised of a dispute falling within Article 19(1) (adopting the words from A v B para 40) or had the proceedings before the Italian court lapsed or expired, leaving only the English court seised of such a dispute? The critical issue was whether there are concurrent proceedings relating to divorce, legal separation or marriage annulment pending simultaneously in the courts of another Member State: A v B (para 37), and Dicey, Morris & Collins on The Conflict of Law (15th Ed para 12-071).

Moylan LJ determined that, in the same way Francis J was not in a position to determine that such proceedings remained pending in Italy, he was not in a position to determine the opposite. Expert evidence would be required before the English court could determine the issue.

In relation to the next question - whether the English court should decide this issue or whether the court should defer to the Italian court - Moylan LJ considered the observations made by Thorpe & Collins LJ in Bentinck. The Appeal Court determined that

(i) the answer to this critical question is a matter of Italian law, and thus if the answer is not clear on the current evidence, expert evidence should be required; and,

(ii) whilst the situation in this case is not the same as Bentinck or Chorley, the Italian court would enjoy the same 'inevitable advantages' referred to in the latter.

Although uncertainties about the proceedings in Italy, the Appeal Court was persuaded that the Court of England & Wales should defer to the Italian court and let that court determine whether it remained seised or whether the proceedings before the Italian court had lapsed, leaving only the English court seised. This conclusion is consistent 'with one of the primary objectives of BIIa which is to avoid, indeed prevent, parties engaging in proceedings within the scope of the Regulation in more than one jurisdiction. The provisions of Articles 3, 16 and 19 are designed to achieve this objective. Although the focus is on irreconcilable judgments, there are other features which support this objective.'

The Appeal Court rejected the submission that if there is a question as to which court is first seised, it can be left chance as to which court first decides whether it is first seised.

Taking the view that an order to stay the English proceedings might well give the impression or result in the other court understanding that the English court had determined that the other court was seised for the purposes of Article 19(1), the Appeal Court adjourned the wife's divorce petition and the husband's application for its stay or dismissal, pending the Italian court's determination of the wife's application for the stay or dismissal of the husband's divorce proceedings.

Summary by Emily Ward, Barrister, Broadway House Chambers.

You can read the full judgment of  Giusti v Ferragamo [2019] EWCA Civ 691 on BAILII