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Court of Appeal determines issue of effective service of proceedings under Brussels IIa

Court invites Rule Committee to consider inclusion of additional obligations in FPR

In Thum v Thum [2018] EWCA Civ 624 the Court of Appeal has held that no time-limit for service can be read into r7.8 of the Family Procedure Rules 2010, rejecting the husband's argument that service of a divorce petition should be effected "as soon as possible" or "as soon as practicable".

The wife had issued her divorce petition in England on 26 October 2015, while the husband had issued his petition in Germany on 20 January 2016. However, the husband was not served with the English petition until 27 February 2016, ie just over four months after the date of issue. Whether the wife had taken all necessary steps for effective service would determine whether the English or German Court was first seised for the purposes of Article 19 of BIIa.

At first instance, Mostyn J had dismissed the husband's application for a stay or dismissal of the wife's petition on the basis that the English court was second seised.

The husband appealed, arguing that Mostyn J's interpretation of the effect of the provision in Article 16(1)(a) was wrong, and that Mostyn J was wrong to conclude that the wife had not failed to take the steps necessary to have service effected. The husband relied on the wife's delay in effecting service and argued that service had been ineffective by virtue of the husband initially being served at his business address in Germany, rather than his home address. The husband sought that a time limit be implied into FPR r7.8, namely that service be effected "as soon as possible" or "as soon as practicable".

The wife submissions in reply were that she had not failed to take any required steps. FPR r7.8 specifies no time by which service must be effected and the question of what steps are required under the Article 16(1)(a) proviso is to be determined by domestic law. The issue of whether any additional obligations, as to time limits, should be imposed was, she argued, a matter for the Family Procedure Rule Committee, not the Court.

The Court of Appeal agreed with the wife's submissions and ultimately dismissed the husband's appeal. The Court of Appeal was persuaded that the wife had not failed to take any required step for effective service, nor could a time-limit for service be read into FPR r7.8. Moylan LJ giving the lead judgment commented at paragraph [60] that:

"Service is a critical part in the conduct of proceedings and parties need to know easily and clearly what they must do in order to comply with the rules as to service.  It might be sensible or even appropriate for some additional specific obligation to be included but I can see no principled basis on which such can be implied.  What period would be selected and why would that period be appropriate?  In this context, what would "as soon as possible" or "as soon as practicable" mean?"  

However, the Court of Appeal judges were agreed that the outcome of the appeal was "not entirely satisfactory" and acknowledged that it could be "undesirable for a party to seise the court without the respondent being served reasonably promptly" [paragraph 77]. As such, the Court invited the Rule Committee to consider whether any additional obligations as to service should be included in the FPR 2010.

For the judgment, prefaced by a summary by Patrick Paisley of 1 Garden Court Family Law Chambers (from which this item is derived), click here.

15/7/18