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Mittal v. Mittal: English Family Courts Still Open for Business in the Wider World

Tim Amos QC and Duncan Brooks of Queen Elizabeth Building, counsel for the respondent, consider the issues and implications of the Court of Appeal's important judgment in Mittal v Mittal.

Tim Amos QC of Queen Elizabeth BuildingDuncan Brooks, barrister, Queen Elizabeth Building

Tim Amos QC and Duncan Brooks, both of Queen Elizabeth Building 

Last week the Court of Appeal (Rimer, Jackson and Lewison LJJ) handed down judgment in the case of Mittal v. Mittal [2013] EWCA Civ 1255.  This was an appeal from a decision of Bodey J in the Family Division which was reported at first instance as AB v CB (Divorce and Maintenance: Discretion to Stay) [2012] EWHC 3841; [2013] 2 FLR 29.  It concerns the jurisdiction of the English High Court to grant a discretionary stay of English divorce proceedings where there are rival proceedings in a more appropriate forum (forum conveniens).  The Court of Appeal unanimously dismissed the appeal and upheld the judgment of Bodey J: there is jurisdiction to grant such a stay and the case of Owusu below is inapplicable. 

Factual background
The facts can be summarised briefly as follows.  Both parties are Indian nationals.  They married in India in 2003.  Their daughter was born in India in 2004.  They lived in India until Mr Mittal obtained a job in England.  He relocated to England in October 2006.  Mrs Mittal and the parties' daughter followed in February 2007.  The parties separated in September 2009.  Mrs Mittal left England in August 2010, following an unsuccessful immigration appeal.  Mr Mittal returned to India permanently in April 2012.

On 31 August 2009, Mr Mittal issued divorce proceedings in Uttar Pradesh, India.  Mrs Mittal was aware of these proceedings by, at the latest, October 2009.  On 1 February 2010, Mrs Mittal began proceedings against Mr Mittal in England, not for divorce but pursuant to s.27 of the Matrimonial Causes Act 1973 (based upon his alleged failure to maintain her). She subsequently issued a divorce petition in London on 21 December 2011, more than 2 years after Mr Mittal issued the petition in India.

The lead application before Bodey J at first instance was Mr Mittal's application to stay the English divorce proceedings pursuant to the Domicile and Matrimonial Proceedings Act 1973 ("DMPA"), on the grounds that proceedings were pending in India and that India was a more appropriate forum for the divorce.  Mrs Mittal contended that by virtue of the case of Owusu v. Jackson ECJ Case C-281/02 [2005] QB 801 [2005] 2 All ER (Comm) 577, which she contended applied to divorce cases under Brussels II Revised (Council Regulation (EC) No 2201/2003 ("BIIR")), the English court had no jurisdiction to stay the English proceedings. 

Bodey J granted H's application and stayed the English divorce proceedings.  He held that Owusu v Jackson did not apply to BIIR, and only applied to civil cases decided under the Brussels I Regulation (Council Regulation (EC) No 44/2001 ("Brussels I")).  In so doing, he followed the judgment of Lucy Theis QC (now Theis J) in JKN v. JCN (Divorce: Forum) [2010] EWHC 843 (Fam) [2011] 1 FLR 826 and the commercial case of Ferrexpo AG v Gilson Investments Ltd. [2012] EWHC 721; [2012] 1 Lloyds Law Reports 588.

Mrs Mittal was granted permission to appeal by Black LJ on the papers. In the Court of Appeal all counsel and instructing solicitors acted on a pro bono basis.

Argument before the Court of Appeal
In the Court of Appeal, Mrs Mittal argued that:

(a) The aims and interpretation of Brussels I and BIIR are similar.

(b) Accordingly, the rule in Owusu v. Jackson (decided under the Brussels Convention, which preceded Brussels I) – namely that the courts of an EU member state have no power to stay their proceedings on the basis that another forum outside of the EU would be the more appropriate forum for the dispute – applies to BIIR.

(c) The relevant passage of the DMPA provides that English courts have power to stay an English divorce suit where there are related proceedings in another jurisdiction except for cases "governed by" BIIR.  "Governed by" should be interpreted as meaning cases where jurisdiction is conferred by BIIR.

(d) In this case, the English court was properly seised of the divorce proceedings because Mr Mittal was habitually resident here.  Therefore, jurisdiction had been conferred by BIIR, the proceedings were "governed by" BIIR, and there was no jurisdiction for Bodey J to stay the English divorce suit.

Mrs Mittal was also given permission to argue that Bodey J had no jurisdiction to stay her section 27 application or alternatively was wrong to do so.  That argument was abandoned in her oral submissions.

Mrs Mittal's primary position in oral argument was that the question of whether or not Owusu applies to BIIR should be referred to the European Court of Justice ("CJEU") in Luxembourg.  She asked the Court of Appeal to allow her appeal, but submitted that it would still be necessary for the question to be referred to the CJEU.

Mr Mittal argued that:

(a) Brussels I and BIIR are very different.  Article 2 of Brussels I states that "a defendant shall be sued" in the state of his domicile, subject to various specific exceptions. Article 3 of BIIR provides that "jurisdiction shall lie with" a member state if one of seven possible grounds for jurisdiction is satisfied.  The relevant wording in Brussels I is mandatory, transitive and prescriptive.  That in BIIR is intransitive and facilitative.

(b) The policy behind Brussels I is very different from the policy behind BIIR.  The former governs commercial claims, where it is easy to identify which party will be the claimant and which the defendant and a high degree of certainty is desirable.  By contrast, in divorce proceedings either party may issue proceedings and BIIR provides an applicant with a menu of possible jurisdictions.  The idea of staying proceedings in favour of another country is not unknown to BIIR – Article 15 expressly allows for even transfers-out in children act cases.

(c) Owusu should not be applied to BIIR by analogy. Mr Mittal's argument was consistent with the prospective revision to Brussels I by Brussels I Recast (Council Regulation (EC) No 1215/2012). Articles 33 and 34 of that Regulation (effective from 10 January 2015) provide that a court may stay proceedings if there is an action involving the same (Art 33) or a related (Art 34) cause of action pending in a non-Member State at the time that the court is seised. This is a new provision and, if it had applied to this case, the English court would have had the power to stay the divorce proceedings.

(d) Mr Mittal's argument was also consistent with the way in which BIIR has been interpreted by the French Cour de Cassation – the 3rd-instance French court of appeal. In Appeal No 08-12456 of 17 June 2009, the French court stayed a French divorce suit where a prior divorce suit had been properly issued in Iceland (not a BIIR signatory).

(e) The question decided by Owusu was whether or not the English court had power to stay a contractual claim in favour of Jamaica when no proceedings had been issued in Jamaica. The CJEU expressly refused to answer the question about whether the court would have had power to stay its proceedings if there had been live proceedings in Jamaica.  Owusu should be distinguished on this ground.

(f) The wording of the DMPA should be interpreted narrowly, namely to provide that the English court has power to stay its proceedings unless the other proceedings were issued in another EU Member State (excluding Denmark, which is not a signatory to BIIR), in which case BIIR prevents England granting a stay if it is the court second seised.  The words "governed by" BIIR must mean where a stay is prohibited by BIIR, and not just any case where jurisdiction is conferred by BIIR, because otherwise all cases would fall within that definition and the DMPA provision would be rendered nugatory.

The Court of Appeal's decision
The Court of Appeal unanimously dismissed Mrs Mittal's appeal and refused to refer the case to the CJEU.  Lewison LJ gave the leading judgment.  His reasoning was that Owusu does not apply to BIIR for the following six reasons:

(1) Owusu has very little to do with this case.  Owusu was decided in the context of a convention regulating activity in the commercial field.  Almost by definition, BIIR is concerned with matters that are not commercial.

(2) The legislative language in BIIR is very different from that in Brussels I (accepting Mr Mittal's argument).

(3) The Advocate-General and CJEU in Owusu had declined to answer the question about whether or not the courts of a Member State can stay proceedings if there are equivalent or related proceedings pending in a non-Member State.

(4) The policy objectives of Brussels I are different to those of BIIR.

(5) BIIR itself recognises diversity in different legal systems (for example, Article 3 expressly distinguishes between the test of nationality applied in most Member States and the test of domicile applied in England and Wales and in Ireland).  Diversity in different legal systems was something that Owusu held was contrary to Brussels I.

(6) The policy underlying Brussels I has changed as a result of Articles 33 and 34 of Brussels I Recast, which allows the courts of a Member State to stay proceedings where equivalent or related proceedings are pending in a non-Member State.  This is a discretionary power.  If Brussels I Recast had applied to this case, the court would have had power to stay the divorce suit.  This change has occurred "side by side" with the mandatory language of Article 4, which replicates Article 2 of Brussels I.

Separately Lewison LJ said in relation to the DMPA construction point ("governed by"), that the DMPA had only been amended in order to give effect to BIIR, and therefore should not be interpreted so as to restrict the English court's power to stay proceedings, except where proceedings had been issued in another Member State prior to those issued in England, in which case Article 19 of BIIR would require the English court to stay its proceedings automatically.  Even if the wording of the DMPA were to be interpreted as Mrs Mittal sought, the court retained an inherent jurisdiction to stay the suit pursuant to section 49(2) of the Senior Courts Act 1981, which would have been exercised in the same way.

This is an important case not just for England but for other jurisdictions around the world, in particular for any non-European jurisdiction. It is the first occasion where the Court of Appeal has considered the applicability of Owusu to divorce proceedings.  There had previously been a vocal academic debate in England and in Europe about the relevance of the Owusu decision to BIIR.  That debate has now been authoritatively answered at Court of Appeal level, at least for now, and at least in relation to BIIR.  It is right to emphasise that The Court of Appeal was careful not to give any judgment on the decision/position taken in Ferrexpo in relation to Brussels I.

The importance of the present decision for BIIR is quickly demonstrated.  If Mrs Mittal had been successful, the English courts would have had no power to stay their proceedings even if divorce proceedings had been commenced in another non-European country (eg. Australia, Hong Kong, USA) before the English proceedings were commenced.  There would simply have been a continuing divorce-race (unless the non-English jurisdiction stayed its own proceedings).  This situation would pertain even if the non-European divorce proceedings were very far advanced.  The Court of Appeal's decision is therefore a very welcome endorsement of the common-sense approach adopted by Theis J in JKN and by Bodey J at first instance in this case.  The new decision confirms that the EU does not purport to legislate for the rest of the world beyond Europe, nor to appoint European courts as quasi-world tribunals even where the connections with the court in Europe (here England) are tenuous.  The decision is therefore genuinely a victory for international family justice.

Mrs Mittal has signalled an intention to seek to appeal to the Supreme Court. It remains to be seen whether or not she will obtain that permission.

Tim Amos QC and Duncan Brooks (instructed by The International Family Law Group LLP) acted for Mr Mittal in the Court of Appeal.