Villiers (Appellant) v Villiers (Respondent)

Trinity Term

[2020] UKSC 30
On appeal from: [2018] EWCA Civ 1120

Appellant	Respondent
Michael Horton Alexander Laing	Timothy Scott QC

Alexis Campbell QC
Gayatri Sarathy

Cornwell)

Manches Cooper LLP

(Oxford))

Intervener
(Secretary of State for Justice)
Sir James Eadie QC
Deepak Nagpal
Jason Pobjoy

(Instructed by The Government Legal

Department)

LORD SALES: (with whom Lord Kerr agrees)

1. This case concerns the jurisdiction of a court in England to make a maintenance order in favour of a party to a marriage (here, the wife) pursuant to section 27 of the Matrimonial Causes Act 1973 (as amended - “section 27”) in circumstances in which for most of the marriage the parties lived in Scotland and where the relevant divorce proceedings (those issued by the husband) were conducted in Scotland. After marriage in England in 1994, the parties lived together in Scotland between 1995 and 2012, when they separated. The wife returned to England in 2012 and has lived in England since then. On 13 January 2015 she issued her application under section 27 in England for an order requiring the husband to make maintenance payments. Under section 27, an order can be made for periodic payments or payment of a lump sum directed to satisfying an obligation in the nature of provision of maintenance.

2. The wife issued a divorce petition in England in July 2013, which included a prayer for financial orders. The husband issued a writ for divorce in Scotland in October 2014. The writ sought relief only in the form of an order to dissolve the marriage and included no prayer for orders in relation to financial matters. The effect of the relevant statutory provision (paragraph 8 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973) was that the application for divorce had to be assigned to the court in Scotland, since the parties had last lived together there. The wife accepted this and on 13 January 2015 she consented to an order dismissing her petition in England, which order was made on 16 January 2015. The husband’s writ for divorce could then proceed in Scotland.

3. Relief in the form of an order for maintenance under section 27 is not tied to the grant of a decree of divorce and such an order can be sought in separate proceedings. Therefore, subject to questions of jurisdiction, the wife was free to issue her application under section 27 in England, as she did on the same day on which she consented to the dismissal of her petition for divorce. By her application, she seeks an order for payment of periodical payments and a lump sum. She has also applied for interim periodical payments under section 27(5). Issuing proceedings for maintenance in England was both more convenient for her, since she lives in England, and offered the prospect of more generous maintenance provision than would be available to her if she sought orders in Scotland.

4. The husband applied for an order to stay or dismiss the wife’s application under section 27 on the basis that the court in England either did not have or should not exercise jurisdiction to hear the application, alternatively on the basis that her application should be rejected on the merits. These matters were considered at a hearing before Parker J in the High Court. She rejected the husband’s challenge to the jurisdiction of the English court and made an order for, among other things, interim periodical payments of maintenance by the husband: [2016] EWHC 668 (Fam); [2017] 1 FLR 1083.

5. The husband appealed to the Court of Appeal. The Court of Appeal (King, David Richards and Moylan LJJ) dismissed the appeal: [2018] EWCA Civ 1120; [2019] Fam 138. King LJ gave the sole substantive judgment, with which the other members of the court agreed. The husband now appeals to this court, with permission granted by this court, in relation to the jurisdictional issues. These are concerned with the interpretation and effect of Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (SI 2011/1484) (“Schedule 6” and “the 2011 Regulations”, respectively) and the interpretation and effect of Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (“the Maintenance Regulation”). The 2011 Regulations were promulgated by the Secretary of State for Justice pursuant to section 2(2) of the European Communities Act 1972 (“the ECA 1972”), and on the appeal to this court the husband has been given permission to raise a new point as to whether Schedule 6 to those Regulations, or any part of it, is ultra vires the Secretary of State’s powers under section 2(2).

6. The final determination of the wife’s application for financial orders under section 27 was adjourned pending the appeal to the Court of Appeal and then adjourned again pending the appeal to this court. The order by Parker J for payment of interim periodical payments has not been stayed, but the husband has failed to comply with it.

7. Four issues arise on the appeal, as follows (in the order in which they were presented by Mr Horton, counsel for the appellant):

(1) On the proper interpretation of section 27(2), does an English court have jurisdiction to make any order for maintenance in a case with no international dimension at all?

(2) If the answer to (1) is “yes”, does the English court have a discretion which has survived the promulgation of Schedule 6, to stay maintenance proceedings before it on the general ground of forum non conveniens (and if so, should it exercise that discretion so as to give priority to the Scottish courts to deal with financial issues between the parties)?

(3) If the answer to (2) is “no”, was the purported removal by Schedule 6 of a general discretion to stay proceedings on the ground of forum non conveniens ultra vires the Secretary of State’s powers in section 2(2) of the ECA 1972? and

(4) If the answer to (3) is “no”, with the result that the jurisdictional position is governed by the express terms of the Maintenance Regulation, as adopted into domestic law by Schedule 6, is the husband’s divorce proceeding in Scotland a “related action” for the purposes of article 13 of the Maintenance Regulation (as so adopted) and, pursuant to that provision, should the English court decline jurisdiction in respect of the wife’s claim for a maintenance order under section 27?

Legislative background

8. The national legislation governing jurisdiction in cross-border cases is primarily contained in the Civil Jurisdiction and Judgments Act 1982 (“the CJJA 1982”). That Act gave effect in domestic law to the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 1968 (“the Brussels Convention”). The Brussels Convention was amended on the association of Denmark, Ireland and the United Kingdom in 1978. It was replaced as the principal instrument governing jurisdiction in cross-border cases between member states of the European Union by Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Brussels Regulation” or, as it is sometimes called, “the Judgments Regulation”), which in large part replicated the provisions of the Brussels Convention. The CJJA 1982 was amended to refer to and give effect in domestic law to the Brussels Regulation. The Brussels Regulation has been replaced by Regulation (EU) No 1215/2012 (“the Brussels Recast Regulation”).

9. The Brussels Convention did not apply to issues of the status of natural persons, including marriage, nor to rights in property arising out of a matrimonial relationship (article 1(1)), but it did apply in respect of claims for maintenance. The Convention set out a general principle that a person should be sued in his state of domicile (article 2), but this was subject to certain special rules of jurisdiction. One such rule was that in matters relating to maintenance, the person owing an obligation to pay maintenance (the maintenance debtor) could be sued by the person to whom that obligation was owed (the maintenance creditor) in the courts for the place where the maintenance creditor was domiciled or habitually resident (article 5(2)). This was specifically designed to make it easier for a maintenance creditor to enforce his or her rights, by giving them the right to choose where to sue the maintenance debtor.

10. The rationale for this was explained by Mr Jenard in his report on the Brussels Convention (OJ 1979 C59, pp 24-25, excluding footnotes):

“The Convention is in a sense an extension of the Hague Convention of 15 April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations in respect of children, since it ensures the recognition and enforcement of judgments granting maintenance to creditors other than children, and also of the New York Convention of 20 June 1956 on the recovery abroad of maintenance. The Committee decided that jurisdiction should be conferred on the forum of the creditor, for the same reasons as the draftsmen of the Hague Convention. For one thing, a convention which did not recognize the forum of the maintenance creditor would be of only limited value, since the creditor would be obliged to bring the claim before the court having jurisdiction over the defendant.

If the Convention did not confer jurisdiction on the forum of the maintenance creditor, it would apply only in those situations where the defendant against whom an order had been made subsequently changed residence, or where the defendant possessed property in a country other than that in which the order was made.

Moreover the court for the place of domicile of the maintenance creditor is in the best position to know whether the creditor is in need and to determine the extent of such need.

However, in order to align the Convention with the Hague Convention, article 5(2) also confers jurisdiction on the courts for the place of habitual residence of the maintenance creditor. This alternative is justified in relation to maintenance obligations since it enables in particular a wife deserted by her husband to sue him for payment of maintenance in the courts for the place where she herself is habitually resident, rather than the place of her legal domicile.”

11. Article 5(2) of the Brussels Convention was amended in 1978 so as to expand this special rule of jurisdiction, so that in matters relating to maintenance the maintenance debtor could be sued “in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”. The object of this provision remained the protection of the maintenance creditor, who was regarded as the weaker party: see the judgments of the European Court of Justice (“the ECJ”) in Farrell v Long (Case C-295/95) EU:C:1997:168, [1997] QB 842, para 19, and Freistaat Bayern v Blijdenstein (Case C-433/01) EU:C:2004:21, [2004] All ER (EC) 591, paras 29 and 30.

12. The Brussels Convention set out rules governing cases of lis pendens and related actions at articles 21 and 22, respectively, in terms closely similar to what later became articles 27 and 28 of the Brussels Regulation, articles 12 and 13 of the Maintenance Regulation and articles 29 and 30 of the Brussels Recast Regulation. The effect of articles 12 and 13 of the Maintenance Regulation is discussed below.

13. Section 16(1) of the CJJA 1982 stated that the provisions in Schedule 4 to the Act (which contained a modified version of Title II of the Brussels Convention) should have effect for determining, in each part of the United Kingdom, whether the courts of that part had jurisdiction in proceedings where the subject matter of the proceedings was within the scope of the Brussels Convention as determined by article 1 (therefore, maintenance proceedings were covered) and the defendant was domiciled in the United Kingdom. As Lord Wilson explains, the Brussels Convention had nothing to say about determination of jurisdiction of courts in different parts of a single state and the CJJA 1982 did not adopt articles 21 and 22 of the Brussels Convention as part of the scheme for allocation of jurisdiction as between different jurisdictions in the United Kingdom (ie in an intra-state case with a cross-jurisdiction dimension). The position in such cases remained governed by ordinary domestic discretionary rules, according to the principles relating to the forum non conveniens doctrine. Section 49 of the CJJA 1982 provided:

“Nothing in this Act shall prevent any court in the United Kingdom from staying, sisting, striking out or dismissing any proceedings before it, on the ground of forum non conveniens or otherwise, where to do so is not inconsistent with the [Brussels Convention].”

14. The Brussels Regulation followed the structure of the Brussels Convention. Like the Convention, the Regulation did not apply to issues of status of natural persons, nor to rights in property arising out of a matrimonial relationship (article 1.2(a)). Like the Convention, the Regulation included provisions governing jurisdiction in respect of claims for maintenance payments. Article 2 repeated the general rule that a defendant should be sued in the courts of his domicile. Article 5(2) of the Brussels Convention (as amended) was repeated. The object remained, as before, that the maintenance creditor, who is regarded as the weaker party, should have options regarding where to sue, so that he or she could proceed in the place most convenient or advantageous for him or her.

15. As with the Brussels Convention before it, the Brussels Regulation did not harmonise the law of maintenance. The substantive law to be applied was therefore a matter for the national law of the forum in which the maintenance claim was brought. This meant that by giving the maintenance creditor a choice regarding the forum in which to bring their claim, the maintenance creditor was also afforded a choice regarding the substantive law to be applied.

16. The CJJA 1982 was amended so as to refer to the Brussels Regulation in relevant provisions. As explained below, the domestic doctrine of forum non conveniens is excluded by the Brussels Regulation, as it was by the Brussels Convention before it. However, as the Brussels Regulation was (unlike the Convention) directly applicable in the United Kingdom as a matter of EU law, it was not necessary for section 49 of the CJJA 1982 to be amended to refer to it in order for the Regulation to have effect to govern the allocation of jurisdiction in inter-state cases. As regards the effect of the Brussels Regulation, it is not the CJJA 1982 which prevents a court in the United Kingdom from staying proceedings before it on the ground of forum non conveniens, but the directly applicable Regulation itself. The final clause of section 49 now refers to inconsistency with the Brussels Convention (as this still has application in a small number of cases), “or, as the case may be, the Lugano Convention or the 2005 Hague Convention”. The reason for these references is that, since these instruments only have the status of treaties, they do not have direct effect in domestic law and so have to be given effect by a legislative provision in order to achieve the intended result that they, too, should exclude the operation of the forum non conveniens doctrine.

17. Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition of and enforcement of judgments in matrimonial matters and matters of parental responsibility (“the Matrimonial Regulation”, or the Brussels II Revised Regulation as it is often called) excluded maintenance obligations from its scope. In due course, maintenance obligations were covered by their own jurisdictional regime as set out in the Maintenance Regulation. Accordingly, EU legislation has continued the original scheme of the Brussels Convention, by treating maintenance obligations and questions of marital status, including divorce, as separate matters for the purposes of jurisdiction.

18. Recital (9) to the Maintenance Regulation states that a maintenance creditor should be able to obtain easily, in a member state, a decision which will automatically be enforceable in another member state. Recital (11) makes it clear that the Maintenance Regulation covers all maintenance obligations arising from, among other things, marriage. Recitals (21) and (25) make it clear that the Maintenance Regulation is not concerned with questions affecting the existence of family relationships, such as marriage. Recitals (15) and (45) (in material part) are as follows:

“(15) In order to preserve the interests of maintenance creditors and to promote the proper administration of justice within the European Union, the rules on jurisdiction as they result from [the Brussels Regulation] should be adapted. The circumstance that the defendant is habitually resident in a third State should no longer entail the non-application of Community rules on jurisdiction, and there should no longer be any referral to national law. This Regulation should therefore determine the cases in which a court in a member state may exercise subsidiary jurisdiction.

…

(45) Since the objectives of this Regulation, namely the introduction of a series of measures to ensure the effective recovery of maintenance claims in cross-border situations and thus to facilitate the free movement of persons within the European Union, cannot be sufficiently achieved by the member states and can therefore, by reason of the scale and effects of this Regulation, be better achieved at Community level, the Community may adopt measures …”

19.       Article 3 of the Maintenance Regulation provides:

“In matters relating to maintenance obligations in member
states, jurisdiction shall lie with:

(a) the court for the place where the defendant is habitually resident, or

(b) the court for the place where the creditor is habitually resident, or

(c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or

(d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.”

20.       Articles 12 and 13 of the Maintenance Regulation provide as follows:

“Article 12

Lis pendens

1. Where proceedings involving the same cause of action and between the same parties are brought in the courts of different member states, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.

2. Where the jurisdiction of the court first seised is

established, any court other than the court first seised shall
decline jurisdiction in favour of that court.

Article 13

Related actions

1. Where related actions are pending in the courts of

different member states, any court other than the court first
seised may stay its proceedings.

2. Where these actions are pending at first instance, any court other than the court first seised may also, on the application of one of the parties, decline jurisdiction if the court first seised has jurisdiction over the actions in question and its law permits the consolidation thereof.

3. For the purposes of this article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”

21. As is made clear by recital (15), the Maintenance Regulation is intended to preserve and enhance the rights of maintenance creditors as they had been set out previously in the Brussels Convention and the Brussels Regulation. Therefore, article 3 of the Maintenance Regulation is concerned with defining the set of jurisdictions where the maintenance creditor has the right to bring her claim. This is in line with the fundamental object of the Maintenance Regulation to protect the interests of the maintenance creditor as the weaker party and is also indicated by the text of the article itself. The contrast between sub-paragraphs (a) and (b) is between the place of habitual residence of “the creditor” (a term defined in article 2(10) to mean “any individual to whom maintenance is owed or is alleged to be owed”) and the place of habitual residence of “the defendant” (which is not a defined term; in context, it means the person against whom a claim is asserted that he owes maintenance). This language reflects the fact that the jurisdiction provisions in relation to maintenance claims have been removed from the Brussels Regulation (where the special rule of jurisdiction set out in article 5(2) was in addition to the general right under article 2 to sue a defendant in the state of his domicile) and placed in a separate Regulation dedicated to maintenance claims. The text of article 3 does not use the word “debtor”, which is a term defined in article 2(11) of the Maintenance Regulation to mean “any individual who owes or who is alleged to owe maintenance”. Thus article 3 does not create a right for a maintenance debtor to pick a jurisdiction from those set out in that provision and commence proceedings seeking declaratory relief regarding the extent of any maintenance obligation he might have.

22. Although, as an EU Regulation, the Maintenance Regulation is directly applicable in domestic law as regards inter-state cases, it required some degree of implementation in national law as at the date it came into effect in 2011 in relation to matters such as the designation of relevant central authorities and relevant courts for particular applications. Such implementation and other associated legal changes were effected by the 2011 Regulations. First, jurisdiction in relation to maintenance claims was removed from the CJJA 1982 by the amendments to that Act effected by regulation 6 of and Schedule 4 to the 2011 Regulations. Therefore, section 49 of the CJJA 1982 has no application in relation to maintenance claims. Secondly, regulation 3 of the 2011 Regulations gives effect to Schedule 1 to the 2011 Regulations which contains provisions relating to the enforcement of maintenance decisions pursuant to the Maintenance Regulation to the extent that national law is required to specify certain matters for the purposes of the Maintenance Regulation. Thirdly, regulation 8 of and Schedule 6 to the 2011 Regulations provide the relevant rules for the allocation of jurisdiction for intra-state cases within the United Kingdom in relation to maintenance.

23.       Schedule 6 to the 2011 Regulations includes the following provisions, so far

as material:

“1. The provisions of this Schedule have effect for determining, as between the parts of the United Kingdom, whether the courts of a particular part of the United Kingdom, or any particular court in that part, have or has jurisdiction in proceedings where the subject-matter of the proceedings is within the scope of the Maintenance Regulation as determined by article 1 of that Regulation.

2. In this Schedule, a reference to an article by number

alone is a reference to the article so numbered in the
Maintenance Regulation.

3. The provisions of Chapter II of the Maintenance Regulation apply to the determination of jurisdiction in the circumstances mentioned in paragraph 1, subject to the modifications specified in the following provisions of this Schedule.

4.         Article 3 applies as if -

(a) the references in article 3(a) and (b) to the court for the place where the defendant or the creditor is habitually resident were references to the court for the part of the United Kingdom in which the defendant, or the creditor, as the case may be, is habitually resident;

(b) the references to a person’s nationality were references to a person’s domicile.

…

12. Article 12 applies as if after ‘different member states’ there were inserted ‘or different parts of the United Kingdom’.

13. Article 13 applies as if after ‘different member states’ there were inserted ‘or different parts of the United Kingdom’.

…”

24. As part of the suite of legislative amendments made by the 2011 Regulations to give effect to the Maintenance Regulation to govern allocation of jurisdiction relating to maintenance between member states and in parallel with the promulgation of the jurisdiction code in Schedule 6 governing allocation of jurisdiction relating to maintenance between jurisdictions within the United Kingdom, section 27 was amended (by paragraph 6 of Schedule 7 to the 2011 Regulations) by the insertion of a new subsection (2). This provides:

“The court may not entertain an application under this section unless it has jurisdiction to do so by virtue of the Maintenance Regulation and Schedule 6 to [the 2011 Regulations].”

Analysis

25. Although Lord Wilson says that the resolution of the question of jurisdiction in this case is absurdly complicated, in my respectful opinion it is not. Schedule 6 was intended to introduce for intra-state cases the same clear and certain jurisdictional rules which have been adopted for inter-state cases in the Maintenance Regulation, and it has achieved that result. This means that on proper analysis the resolution of the question of jurisdiction is straightforward, as it is intended to be.

order for maintenance in a case with no international dimension at all?

26. The submission of Mr Horton for the appellant on this issue is that section 27(2) can only apply if a case falls to be governed both by the Maintenance Regulation and by Schedule 6, so that it only applies in inter-state cases. On this issue I agree with Lord Wilson that Mr Horton’s submission must be rejected. Section 27(2) is intended to cover two classes of case: (i) inter-state proceedings, in relation to which jurisdiction is governed by the Maintenance Regulation, and (ii) intra-state proceedings, in relation to which jurisdiction is governed by Schedule 6. In this context, it might perhaps be said that the use of the word “and” is infelicitous; but the meaning is abundantly clear. There is no scope for the Maintenance Regulation and Schedule 6 both to apply, because they deal with different types of case. Therefore, Mr Horton’s proposed construction of section 27(2) would deprive it of any practical effect. Rather, the drafter has used the formula referring to “the Maintenance Regulation and Schedule 6” to indicate that the jurisdiction of an English court to make an order under section 27 is to be determined by application of the Maintenance Regulation and Schedule 6 taken together, in the sense that together they cover the whole possible field of inter-state cases and intra-state cases. This interpretation is also borne out by the elaborate provisions in Schedule 6 which provide for the provisions of the Maintenance Regulation to apply with appropriate modifications to give them equivalent effect in intra-state cases. The intended effect of those provisions, as modified, would be defeated in a significant class of maintenance proceedings if section 27(2) were given the construction for which Mr Horton contends. There is no rational basis for thinking that they were to be deprived of effect in this way.

promulgation of Schedule 6, to stay maintenance proceedings before it on the
general ground of forum non conveniens?

27. In my judgment, the answer to this question is clearly “no”. The Court of Appeal was right so to hold.

28. The jurisdictional scheme of the Maintenance Regulation is modelled on the similar schemes in the Brussels Convention and the Brussels Regulation (and is in line with the scheme of what is now the Brussels Recast Regulation). The basic scheme of all these jurisdiction-governing instruments is to provide clear guidance where proceedings may or must be brought. The Grand Chamber of the ECJ authoritatively ruled in Owusu v Jackson (Case C-281/02) [2005] QB 801, a case concerning the interpretation of the Brussels Convention, that the scheme of this form of EU legislation is inconsistent with courts in a Member State retaining any discretionary power to stay proceedings on the grounds of forum non conveniens. The case concerned an accident which occurred in Jamaica, but involving a defendant who was domiciled in England. As the ECJ pointed out, a national court cannot retain a power to refuse to accept jurisdiction on forum non conveniens grounds, since to do so would allow it to defeat the mandatory provision in article 2 of the Brussels Convention which required that a defendant be sued in the courts of his state of domicile. The relevant part of the judgment is at paras 37-46, as follows:

“37. It must be observed, first, that article 2 of the Brussels Convention is mandatory in nature and that, according to its terms, there can be no derogation from the principle it lays down except in the cases expressly provided for by the Convention: see, as regards the compulsory system of jurisdiction set up by the Convention, Erich Gasser GmbH v MISAT Srl (Case C-116/02) [2005] 1 QB 1, 35, para 72, and Turner v Grovit (Case C-159/02) [2005] 1 AC 101, 113, para 24. It is common ground that no exception on the basis of the forum non conveniens doctrine was provided for by the authors of the Convention, although the question was discussed when the Convention of 9 October 1978 on the Accession of Denmark, Ireland and the United Kingdom was drawn up, as is apparent from the report on that Convention by Professor Schlosser, OJ 1979 C59, p 71, at pp 97-98, paras 77 and 78.

38. Respect for the principle of legal certainty, which is one of the objectives of the Brussels Convention (see, inter alia, GIE Groupe Concorde v Master of the vessel Suhadiwarno Panjan (Case C-440/97) [1999] ECR I-6307, 6350, para 23, and Besix SA v Wasserreinigungsbau Alfred Kretzschmar GmbH & Co KG (Wabag) (Case C-256/00) [2003] 1 WLR 1113, 1130, para 24), would not be fully guaranteed if the court having jurisdiction under the Convention had to be allowed to apply the forum non conveniens doctrine.

39. According to its Preamble, the Brussels Convention is intended to strengthen in the Community the legal protection of persons established therein, by laying down common rules on jurisdiction to guarantee certainty as to the allocation of jurisdiction among the various national courts before which proceedings in a particular case may be brought: Besix, para 25.

40. The court has thus held that the principle of legal certainty requires, in particular, that the jurisdictional rules which derogate from the general rule laid down in article 2 should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the state in which he is domiciled, he may be sued: the GIE Groupe Concorde case [1999] ECR I-6307, 6350-6351, para 24, and the Besix case [2003] 1 WLR 1113, 1130, para 26.

41. Application of the forum non conveniens doctrine, which allows the court seised a wide discretion as regards the question whether a foreign court would be a more appropriate forum for the trial of an action, is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention, in particular that of article 2, and consequently to undermine the principle of legal certainty, which is the basis of the Convention.

42. The legal protection of persons established in the Community would also be undermined. First, a defendant, who is generally better placed to conduct his defence before the courts of his domicile, would not be able, in circumstances such as those of the main proceedings, reasonably to foresee before which other court he could be sued. Second, where a plea is raised on the basis that a foreign court is a more appropriate forum to try the action, it is for the claimant to establish that he will not be able to obtain justice before that foreign court or, if the court seised decides to allow the plea, that the foreign court has in fact no jurisdiction to try the action or that the claimant does not, in practice, have access to effective justice before that court, irrespective of the cost entailed by the bringing of a fresh action before a court of another state and the prolongation of the procedural time limits.

43. Moreover, allowing forum non conveniens in the context of the Brussels Convention would be likely to affect the uniform application of the rules of jurisdiction contained therein in so far as that doctrine is recognised only in a limited number of contracting states, whereas the objective of the Brussels Convention is precisely to lay down common rules to the exclusion of derogating national rules.

44. The defendants in the main proceedings emphasise the negative consequences which would result in practice from the obligation the English courts would then be under to try this case, inter alia as regards the expense of the proceedings, the possibility of recovering their costs in England if the claimant’s action is dismissed, the logistical difficulties resulting from the geographical distance, the need to assess the merits of the case according to Jamaican standards, the enforceability in Jamaica of a default judgment and the impossibility of enforcing cross- claims against the other defendants.

45. In that regard, genuine as those difficulties may be, suffice it to observe that such considerations, which are precisely those which may be taken into account when forum non conveniens is considered, are not such as to call into question the mandatory nature of the fundamental rule of jurisdiction contained in article 2 of the Brussels Convention, for the reasons set out above.

46. In the light of all the foregoing considerations, the answer to the first question must be that the Brussels Convention precludes a court of a contracting state from declining the jurisdiction conferred on it by article 2 of that Convention on the ground that a court of a non-contracting state would be a more appropriate forum for the trial of the action, even if the jurisdiction of no other contracting state is in issue or the proceedings have no connecting factors to any other contracting state.”

29. In this respect there is no material difference between the Brussels Convention, as interpreted in Owusu, and the Maintenance Regulation. Article 3 of the Maintenance Regulation establishes a mandatory rule regarding jurisdiction (“… jurisdiction shall lie with …”) of the same force as that in article 2 of the Brussels Convention. Like the Brussels Convention, the Maintenance Regulation is intended to lay down clear and predictable common rules of jurisdiction and the principle of legal certainty applies with equal force. In the context of the Maintenance Regulation, the objective of protection of the rights of the maintenance creditor has special force, as appears from the derivation of the Regulation from the special rule of jurisdiction in the Brussels Convention (as explained in the Jenard report), via the Brussels Regulation and as explained in recitals (9), (15) and (45) to the Maintenance Regulation. The object of the mandatory rule of jurisdiction in article 3 of the Maintenance Regulation is to afford special protection for a maintenance creditor by giving him or her the right to choose the jurisdiction most beneficial for them out of the range of options specified in that article.

30. This has been confirmed by the caselaw of the Court of Justice of the European Union (“the CJEU”) on the Maintenance Regulation, most recently in R v P (Case C-468/18) ECLI:EU:C:2019:666; [2020] 4 WLR 8. That case concerned a wife and husband who were both Romanian nationals, who lived in the United Kingdom and had a child there before separating. The husband returned to Romania; the wife and child remained in the United Kingdom. The wife issued proceedings in Romania seeking the dissolution of the marriage, an order that the child should reside with her and that she should have sole parental responsibility and an order that the husband pay maintenance for the child. The husband contested the jurisdiction of the Romanian court. The court held that it had jurisdiction under the Matrimonial Regulation to hear the divorce petition, but that by virtue of that Regulation it had no jurisdiction in relation to the issues of residence and parental responsibility, as the child was habitually resident in the United Kingdom and it was the courts there which had jurisdiction in relation to those matters. The court was unsure whether it had jurisdiction under article 3 of the Maintenance Regulation in respect of the claim for maintenance, on the basis that the husband was habitually resident in Romania, or whether jurisdiction for such a claim lay with the courts of the United Kingdom; accordingly, it referred that question to the CJEU.

31. The CJEU ruled that article 3 of the Maintenance Regulation established a right for the maintenance creditor to choose the jurisdiction in which to sue the maintenance debtor, out of the range of options set out in that article, so that the Romanian court had jurisdiction in respect of the maintenance claim brought by the wife. At paras 28-31 of its judgment, the CJEU said:

“28. By its three questions, which must be examined together, the referring court asks, in essence, whether article 3(a) and (d) and article 5 of [the Maintenance Regulation] must be interpreted as meaning that where there are three joined claims before a court of a member state concerning, respectively, the divorce of the parents of a minor child, parental responsibility in respect of that child and the maintenance obligation with regard to that child, the court ruling on the divorce, which has declared that it has no jurisdiction to rule on the claim concerning parental responsibility, nevertheless has jurisdiction to rule on the claim concerning the maintenance obligation with regard to that child since it is also the court for the place where the defendant is habitually resident and the court before which the defendant has entered an appearance, or if solely the court with jurisdiction to hear the claim concerning parental responsibility in respect of the child may rule on the claim concerning the maintenance obligation with regard to that child.

29. It is apparent from the wording of article 3 of [the Maintenance Regulation], entitled ‘General provisions’, that that article lays down general criteria for attributing jurisdiction for the purposes of the courts of the member states ruling on maintenance obligations. Those criteria are alternative, as is attested to by the use of the co-ordinating conjunction ‘or’ after each of them: see A v B [(Case C-184/14) EU:C:2015:479], para 34).

30. In this connection, since the objective of [the Maintenance Regulation], as is apparent from recital (15) thereof, consists in preserving the interest of the maintenance creditor, who is regarded as the weaker party in an action relating to maintenance obligations, article 3 of that regulation offers that party, when he acts as the applicant, the possibility of bringing his claim under bases of jurisdiction other than that provided for in article 3(a) of that regulation: see Freistaat Bayern v Blijdenstein (Case C-433/01) EU:C:2004:21; [2004] ECR I-981; [2004] All ER (EC) 591, para 29 and Sanders v Verhaegen (Joined Cases C-400/13 and C-408/13) EU:C:2014:2461; [2015] 2 FLR 1229, paras 27-28).

31. The maintenance creditor can thus bring his application either before the court for the place where the defendant is habitually resident, in accordance with point (a) of article 3, or before the court for the place where the creditor is habitually resident, in accordance with point (b) of that article, or further, in accordance with points (c) and (d) of that article, if the maintenance application is ancillary to a main action, relating to the status of a person, such as a divorce petition (under point (c)), or to an action concerning parental responsibility (under point (d)), before the court with jurisdiction to entertain either the former or the latter proceedings respectively.”

32. The CJEU held that the fact that the Romanian court had declared that it had no jurisdiction to rule on an action in relation to the exercise of parental responsibility for a child made no difference to the availability of jurisdiction under the Maintenance Regulation, which set out mandatory rules of jurisdiction for maintenance claims. This was so even though the courts in the United Kingdom might be better placed to assess the claim for maintenance for the child. The maintenance creditor had a right to choose the jurisdiction for her claim from the list of options in article 3. The CJEU said this at paras 41-51:

“41. That finding is supported by the scheme and the
objectives of [the Maintenance Regulation].

42. So far as the scheme of [the Maintenance Regulation] is concerned, that regulation sets out, in Chapter II thereof, entitled ‘Jurisdiction’, all of the applicable rules to designate the court having jurisdiction with respect to maintenance obligations. Recital (15) of that regulation stipulates in that regard that there should no longer be any referral to the rules on jurisdiction in national law, since the rules resulting from that regulation must be considered to be exhaustive.

43. Thus, if a court seised of an application concerning maintenance obligations with regard to a child does not have jurisdiction to entertain proceedings in relation to an action concerning the parental responsibility for that child, it is first of all necessary to ascertain whether that court has jurisdiction to entertain proceedings on another basis under that regulation: orders of 16 January 2018, PM v AH (Case C-604/17) EU:C:2018:10, para 33, and of 10 April 2018, CV v DU (Case C-85/18PPU) EU:C:2018:220; [2018] IL Pr 21, para 55.

44. It must also be noted that [the Maintenance Regulation] does not provide for the option, for a court with jurisdiction under one of the provisions of that regulation before which an application has legitimately been brought, to decline jurisdiction with regard to that application in favour of a court which, in its view, would be better placed to hear the case, as article 15 of Regulation No 2201/2003 permits in the matter of parental responsibility.

45. Such an interpretation also corresponds to the objective of [the Maintenance Regulation] recalled in para 30 above. As Advocate General Szpunar observed in his opinion EU:C:2019:649, points 59 and 61, that regulation provides for alternative and non-hierarchised criteria for jurisdiction which give priority to the applicant’s choice.

46. The importance of that choice given the aim of protecting the maintenance creditor reflects the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations, approved on behalf of the European Community by Council Decision 2009/941/EC of 30 November 2009 (OJ 2009 L331, p 17), the Court having observed that that protocol has close links with [the Maintenance Regulation]: KP v LO (Case C-83/17) EU:C:2018:408, para 49. The court has thus ruled that that protocol enables the maintenance creditor, de facto, to choose the law applicable to his application concerning maintenance obligations by providing that the law of the forum, rather than the law of the State of the habitual residence of the creditor, may be applied as a matter of priority when the creditor introduces his application before the competent authority of the State where the debtor has his habitual residence: see Mölk v Mölk (Case C-214/17) EU:C:2018:744; [2019] IL Pr 2, paras 31 and 32.

47. An interpretation of Regulation No 4/2009 according to which only the court with jurisdiction in respect of parental responsibility has jurisdiction to rule on an application concerning maintenance obligations is liable to limit that option for the maintenance creditor applicant to choose not only the court with jurisdiction, but also, as a result, the law applicable to his application.

48. In a situation such as that at issue in the main proceedings, the initial choice of the parent representing the minor maintenance-creditor child to regroup all his heads of claim before the same court is rendered inadmissible by the plea raised by the defendant alleging lack of jurisdiction of that court and a decision of that court declaring that it has no jurisdiction, under article 12 of Regulation No 2201/2003, in respect of the head of claim in relation to parental responsibility.

49. In the light of the risk of having to bring his applications concerning maintenance obligations and concerning parental responsibility before two separate courts, that parent may wish, in the child’s best interests, to withdraw his initial application concerning maintenance obligations brought before the court ruling on the divorce petition so that the court with jurisdiction in matters of parental responsibility also has jurisdiction to rule on that application concerning maintenance obligations.

50. Nevertheless, that parent may also wish, in the child’s best interests, to retain his initial application concerning maintenance obligations with respect to the child before the court ruling on the divorce petition, where that court is also the court of the place in which the defendant has his habitual residence.

51. Many reasons, like those mentioned by Advocate General Szpunar in his opinion EU:C:2019:649, points 65 to 71, may be behind such a choice by the maintenance creditor, in particular the possibility of ensuring that the law of the forum is applied, that being Romanian law in the present case, the ability to express himself in his native language, the possibility of lower costs in the proceedings, the knowledge by the court seised of the defendant’s ability to pay and exemption from the requirement to seek leave to enforce decisions.”

33. The importance of the object of the Maintenance Regulation of protecting the interests of the maintenance creditor was also emphasised by the CJEU in its judgment in Sanders v Verhaegan; Huber v Huber (Joined Cases C-400/13 and C- 408/13) EU:C:2014: 2461; [2015] 2 FLR 1229. The issue in that case was whether Germany’s system of providing centralised courts with jurisdiction for cases involving maintenance claims against debtors resident outside the country was compatible with article 3(b) of the Maintenance Regulation. The centralised courts were at a greater distance from where the maintenance creditors in these cases lived than their local courts. Article 3(b) sets out a right for the maintenance creditor to sue in “the court for the place where she is habitually resident”, not the courts of the member state where she is habitually resident. The CJEU held that article 3(b) would be incompatible with the German system, unless it could be shown that it sufficiently protected the interests of maintenance creditors while assisting in the effective recovery of their claims - a matter which the referring courts were required to verify. At paras 23-25 of the judgment the CJEU said:

“23. A preliminary point to note is that, as the Advocate General has observed at point 33 of his opinion, insofar as the provisions of the Maintenance Regulation relating to the rules on jurisdiction replaced those in [the Brussels Regulation], the court’s case law concerning the provisions on jurisdiction in matters relating to maintenance obligations in the [Brussels Convention] and in [the Brussels Regulation], which follows on from the Brussels Convention, remains relevant for the purposes of analysing the corresponding provisions of the Maintenance Regulation.

24. It should also be recalled that it is settled case law that the provisions relating to the rules on jurisdiction must be interpreted independently, by reference, first, to the objectives and scheme of the regulation under consideration and, secondly, to the general principles which stem from the corpus of the national legal systems (see, by analogy, judgments in CartierParfums-Lunettes SAS and Axa Corporate Solutions Assurances SA v Ziegler France SA and Others (Case C-1/13) EU:C:2014:109, [2014] 1 LPR 25, at para 32 and the case law cited, and flyLAL-Lithuanian Airlines AS, in Liquidation v Starptantiska lidosta Riga VAS and Another Company (Case C-302/13) EU:C:2014:2319, [2014] All ER (D) 324 (Oct), at para 24 and the case law cited).

25. Against that background, article 3(b) of the Maintenance Regulation must be interpreted in the light of its aims, wording and the scheme of which it forms part.”

At paras 26-27 the CJEU referred to recitals (9), (15) and (45) to the Maintenance
Regulation. At paras 28-30 and 32 the CJEU continued as follows:

“28. As regards the rules on jurisdiction in cross-border disputes concerning maintenance obligations, the court has stated, in the context of article 5(2) of the Brussels Convention, that the derogation relating to the rules on jurisdiction in matters relating to maintenance obligations is intended to offer special protection to the maintenance creditor, who is regarded as the weaker party in such proceedings (see, to that effect, judgments in Farrell v Long (Case C-295/95) EU:C:1997:168, [1997] All ER (EC) 449, at para 19, and Freistaat Bayern v Blijdenstein (Case C-433/01) EU:C:2004:21, [2004] All ER (EC) 591, at paras 29 and 30). The rules on jurisdiction provided for in the Maintenance Regulation, like the rule set out in article 5(2) of the Brussels Convention, are intended to ensure proximity between the creditor and the competent court, as indeed the Advocate General has observed at point 49 of his Opinion.

29. It should also be pointed out that the objective of the proper administration of justice must be seen not only from the point of view of optimising the organisation of courts, but also, as the Advocate General has observed at point 69 of his Opinion, from that of the interests of the litigant, whether claimant or defendant, who must be able to benefit, inter alia, from easier access to justice and predictable rules on jurisdiction.

30. Article 3(b) of the Maintenance Regulation specifies the criterion for identifying the court which has jurisdiction to rule on cross-border disputes concerning maintenance obligations, namely, ‘the place where the creditor is habitually resident’. That provision, which determines both international and territorial jurisdiction, seeks to unify the rules of conflict of jurisdiction (see, to that effect, judgment in Color Drack GmbH v Lexx International Vertriebs GmbH (Case C-386/05) EU:C:2007:262, [2007] ECR 1-3699, [2010] 1 WLR 1909, at para 30).

…

32. In this connection, it should be stated that, although the rules of conflict of jurisdiction have been harmonised by the determination of common connecting factors, the identification of the competent court remains a matter for the member states (see, to that effect, judgments in Mulox IBC v Geels (Case C- 125/92) EU:C:1993:306, [1993] ECR 1-4075, at para 25, and GIE Groupe Concorde and Others v Master of the Vessel Suhadiwarno Panjan and Others (Case C-440/97) EU:C:1999:456, [2000] All ER (EC) 865, at para 31), provided that the national legislation does not undermine the objectives of the Maintenance Regulation or render it ineffective (see, inter alia, to that effect, judgment in Zuid-Chemie BV v Phillipo’s Mineralenfabriek NV/SA (Case C-189/08) EU:C:2009:475, [2010] 2 All ER (Comm) 265, at para 30, and, by analogy, judgment in Health Service Executive v SC and AC (Case C-92/12PPU) EU:C:2012:255, [2012] 2 FLR 1040, at para 79).”

34. For intra-state maintenance claims within the United Kingdom, Schedule 6 to the 2011 Regulations applies the provisions of the Maintenance Regulation with relevant modifications (to take account of the fact that the Schedule is concerned to set out the jurisdiction of courts in different parts of the United Kingdom rather than courts in different member states): see, in particular, paragraphs 1, 3 and 4 of Schedule 6, set out above. The scheme of the Maintenance Regulation is replicated in domestic law for the purposes of intra-state cases. The mandatory rule regarding jurisdiction in article 3 of the Maintenance Regulation is repeated in the intra-state context, adapted only so far as necessary to take account of that context: paragraph 4 of Schedule 6. The effect of this transposition of the Maintenance Regulation into domestic law is that, for the same reasons as have been explained by the ECJ in Owusu and by the CJEU in R v P, a maintenance creditor has the right to choose from the menu of options in article 3 (as adapted by paragraph 4 of Schedule 6) the jurisdiction in which to bring her maintenance claim and the doctrine of forum non conveniens is excluded. In saying this, I should also make it clear that I agree with what Lady Black says at para 73 of her judgment about case management powers.

35. Mr Horton submitted that section 49 of the CJJA 1982 preserves the jurisdiction of the English Court to stay proceedings on forum non conveniens grounds. I cannot accept this submission. As explained above, Schedule 6 is part of a legislative regime which has been established outside and separate from the CJJA 1982. Therefore section 49 has no application. Put another way, it is not anything in the CJJA 1982 which purports to prevent the English court in this case from staying the proceedings before it on forum non conveniens grounds; it is the separate legislative regime in Schedule 6, as promulgated by the 2011 Regulations, which does that. The position in relation to section 49 is basically the same as for the operation of the Brussels Regulation (see para 16 above) and other current EU Regulations governing jurisdiction, such as the Brussels Recast Regulation and the Maintenance Regulation itself: where a legal instrument separate from the CJJA 1982 governs jurisdiction and excludes the operation of the forum non conveniens doctrine, section 49 has nothing to say about that.

36. In my view, it is clear that Schedule 6 is intended to be a comprehensive code to govern questions of jurisdiction in relation to maintenance claims with a cross- jurisdictional dimension within the United Kingdom, just as the Maintenance Regulation provides such a code in relation to such claims with an inter-state cross- jurisdictional dimension. As with the statutory code at issue in R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54; [2011] 2 AC 15, there is no basis for “reading down” or modifying the plain terms of Schedule 6 by reference to fundamental human rights or the principle of legality: see para 31 per Sir John Dyson JSC. There is no scope whatever for the operation of a forum non conveniens discretion in the context of the legislative scheme in Schedule 6.

(3) Was the purported removal by Schedule 6 of a general discretion to stay proceedings on the ground of forum non conveniens ultra vires the Secretary of State’s powers in section 2(2) of the ECA 1972?

37.       Section 2(1) and (2) of the ECA 1972 provide in relevant part as follows:

“(1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the [EU] Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly …

(2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision -

(a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or

(b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; …”

38. In my view, the answer to the question posed above is “no”. The Secretary of State submits that the making of the 2011 Regulations, including in particular Schedule 6 thereto, was authorised by section 2(2)(b) of the ECA 1972. This submission is clearly correct for the reasons given by Lord Wilson at paras 141-145. Section 2(2)(b) confers a wide power to make subordinate legislation for the purpose of dealing with matters (i) arising out of or (ii) related to the obligations of the United Kingdom under the Maintenance Regulation, or for dealing with matters (iii) arising out of the operation of section 2(1) of the ECA 1972 (relevant here, because the Maintenance Regulation creates rights and obligations under the EU Treaties which are recognised and available in law in the United Kingdom without further enactment) or (iv) related to such operation. In my view, the promulgation of Schedule 6 was authorised under each of limbs (i) to (iv) of section 2(2)(b). The purpose and effect of Schedule 6 is to ensure that there is one coherent, certain and predictable set of rules which apply to all maintenance claims with a cross- jurisdictional dimension, whether the crossing of jurisdictions occurs on an inter- state basis or on an intra-state basis. To have one set of rules which applies in both types of case makes obvious sense in a world where people are highly mobile, and liable to move between jurisdictions internationally and within the United Kingdom. It enables everyone to know clearly where they stand and what their rights are, without having to worry about (and obtain expensive legal advice regarding) possible differences in the position which might apply if the applicable intra-state jurisdictional rules are different from the applicable inter-state rules. Further, by reason of the different grounds of jurisdiction allowed for in article 3 of the Maintenance Regulation it is readily possible to envisage a case where, say, maintenance proceedings are commenced in each of Spain, England and Scotland. Schedule 6 ensures that there is a single set of clear and coherent rules which the domestic courts can apply in order to resolve the jurisdictional issues which would arise in such a situation.

purposes of article 13 of the Maintenance Regulation (as applied by Schedule 6)
and, pursuant to that provision, should the English court decline jurisdiction in
respect of the wife’s maintenance claim under section 27?

39. As stated by the CJEU in its judgment in the Sanders/Huber case at paras 23- 25 (see para 33 above), the proper interpretation of the Maintenance Regulation requires consideration of its specific objects and adjustment of the more general rules applicable under the Brussels Convention in the light of those objects.

40. In my judgment, the husband’s divorce proceeding in Scotland is not a “related action” within article 13 of the Maintenance Regulation. Therefore, neither article 13(1) nor article 13(2) has any application in this case to permit the English court to decline jurisdiction in relation to the wife’s maintenance claim based on section 27.

169. The wife does not dispute that, in determining an issue of jurisdictional rivalry with a court in another part of the UK in relation to all proceedings other than for maintenance, a UK court has power to stay proceedings before it by reference to the less appropriate forum principle. So the question becomes: have the 2011 Regulations rendered the power no longer available in relation to maintenance proceedings? The fact that there is no inclusion of the power in the regulations does not answer the question. The power does not need to be conferred: it already exists in the common law of all parts of the UK. As the wording of section 49 of the 1982 Act recognises in confirming that the Act does not “prevent” exercise of the power, the question is not whether the 2011 Regulations include the power but whether they exclude it; and, more particularly, whether, in the absence of any express exclusion of it, they exclude it by necessary implication.

170. In R (Child Poverty Action Group) v Secretary of State for Work and Pensions [2010] UKSC 54, [2011] 2 AC 15, the issue concerned the Secretary of State’s right to recover overpayments of social security benefits. He claimed that he had a right to recover them at common law and that statutory provisions for recovery had not displaced it. This court held that no such right of recovery existed at common law but that if, alternatively, it had existed, the statutory provisions had displaced it by necessary implication. Sir John Dyson JSC, as he was during the first months of his service in this court, said in para 34:

“The question is whether, looked at as a whole, a common law remedy would be incompatible with the statutory scheme and therefore could not have been intended [to] coexist with it.”

171. A question whether something could have been intended is often illumined by inquiry into what was intended. But not in this case. Neither in the consultation paper which preceded the making of the 2011 Regulations nor in the Explanatory Memorandum which accompanied them when laid before Parliament was there reference to the power to stay by reference to the less appropriate forum principle which had hitherto existed in relation to jurisdictional rivalry within the UK. In that regard the amended provisions of the 1982 Act had not aligned the jurisdictional rules for the allocation of maintenance applications within the UK with those in the Judgments Regulation; and the memorandum was wrong to state otherwise. It is impossible to avoid the conclusion that, in their hasty production of the 2011 Regulations, its drafters overlooked the applicability up to that point of the common law power to stay.

172. A substantial change made in Schedule 6 to the 2011 Regulations was to import into the rules for allocation of jurisdiction in relation to maintenance applications within the UK the two articles in the Maintenance Regulation entitled “Lis pendens” and “Related actions”. So the question becomes more focussed: is the common law power to stay incompatible with their importation? Under the Maintenance Regulation the two articles represent an exhaustive code for the determination of issues of jurisdictional rivalry between member states. Should they therefore be regarded as an exhaustive code under the 2011 Regulations? Would it be a necessary consequence of their importation that a UK court which regards itself as the less appropriate forum should be disabled from staying a maintenance application in favour of another UK court otherwise than in accordance with their terms?

173. On balance, in answer to Sir John Dyson’s question, I am reluctantly driven to the conclusion that the less appropriate forum principle is incompatible with, and so cannot be deemed to have been intended to co-exist with, articles 12 and 13 which, once imported, have covered much, albeit not all, of the same ground. I stress, however, that I regard my conclusion as correct only if article 13 requires to be construed with reasonable width as suggested above. Were I, by contrast, to have felt obliged to give it so narrow a construction as not to extend to most of the more likely cases of jurisdictional rivalry within the UK, it would have been clear to me that the articles were not incompatible with the common law principle and that their importation had not excluded it.

Postscript

174. I drafted almost all of the above before the judgments of Lord Sales and Lady Black became available to me. In the light of their judgments, and of Lord Kerr’s agreement with that of Lord Sales, my judgment becomes a dissenting judgment and is rightly placed last. In this postscript I raise six questions which reflect my concerns about the court’s decision today in relation to article 13. My respect for each of my three colleagues applies to all that follows. The framing of my concerns as no more than questions reflects my respect for them; and there will be no need to reiterate it.

175. First question: was it optimum for Lord Sales and Lady Black to consider whether the less appropriate forum principle continues to apply prior to considering whether article 13 applies to the present case? In paras 67 and 68 of her judgment Lady Black concludes that the importation of articles 12 and 13 into Schedule 6 to the 2011 Regulations cannot co-exist with the survival of the common law principle. But that conclusion depends on the meaning of the articles. I reach that same conclusion but only in the light of my understanding of the meaning of them, in particular of article 13. If, however, as the majority later proceeds to hold, the articles require the narrowest possible construction, the strength of Lady Black’s conclusion falls away.

176. Second question: how credible are the examples given by the majority of the circumstances in which, on its construction, article 13 applies? In para 44 above Lord Sales states that “a core object” of the article is to address a situation in which “by cross-maintenance claims, each of a husband and wife might seek to claim that the other owes maintenance”. In para 89 above, Lady Black joins Lord Sales in presenting this situation as exemplifying the reach of the article. Her background, like mine, is in family law, and, in the light of her experience, she clearly considers that the situation which he identifies is realistic. In my experience, by contrast, it is entirely unrealistic. I cannot recall having encountered a situation in which each spouse claims maintenance from the other; but, even if a cross-claim is conceivable, probably as an ill-considered tactic, what is for me inconceivable is that it would be made in a different jurisdiction. Not even in the Moore case was the husband claiming maintenance from the wife. Some lawyers, although clearly not all, would regard it as preposterous that article 13 should be construed by reference to that perception of its core object. In para 89 above Lady Black mines a few other examples, all very rare, of situations which might fall within the majority’s construction of the article, although, she adds, some of them might instead fall within her construction of article 12. Even if one adds her examples to the situation identified by Lord Sales, the second question remains: how credible is their analysis of the circumstances in which article 13 applies?

177. Third question: was it correct for the majority’s analysis of article 13 to be dominated by an understanding that, at every stage, priority must be given to the choice of jurisdiction made by the maintenance creditor (for convenience, “the wife”)? In 16 paragraphs of his judgment Lord Sales refers, as does Lady Black in seven paragraphs of her judgment, to the objective behind the successive European instruments of giving priority to the choice made by the wife. In para 67 of her judgment Lady Black summarises their conclusion that the objective “could not be overridden by the selected court declining to entertain the proceedings”. It is clear that, since 1968, the objective to which they refer has been reflected in the wider choice of jurisdiction given to the wife for the issue of her claim. But should it follow - and is there authority to suggest - that, when a rival action is already pending in another state, resolution of the rivalry pursuant to what are now articles 12 and 13 is in effect foreclosed by reference to that objective? Might it have been forgotten that article 13 confers only a power and that, if for whatever reason the wife’s choice deserves continuing priority at that stage, the power to stay or dismiss her action will not be exercised? Indeed is not the law relating to the resolution of rivalry between the three UK jurisdictions clearer still? When in 1987 the provisions of the 1968 Convention, including the wider provisions for the issue of maintenance claims, were extended so as to operate within those jurisdictions, Parliament confirmed that the resolution of rivalry between them was to be governed by an objective not of giving priority to the wife’s choice but of identifying the less appropriate forum pursuant to the common law principle. When in 2011 its resolution came instead to be governed by articles 12 and 13, was not the legislative intention that the articles would broadly cover the ground which the common law principle had governed? Why would the legislator have intended to emasculate the jurisdiction to stay by reference to a different objective, namely of giving continuing priority to the wife’s choice? Can any such intention be collected from anything then said or done?

178. Fourth question: did the majority afford sufficient significance to article 3(c) of the Maintenance Regulation brought within the UK by paragraph 4 of Schedule 6 to the 2011 Regulations? As part of the priority given to the wife’s choice of jurisdiction for the issue of her claim, article 3(c) confers jurisdiction upon

“the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings …”

The article thus expressly contemplates that a maintenance claim can be ancillary to divorce proceedings and that, if so, it is appropriate for it to be determined in the divorce court. So the fourth question becomes refined: if a claim for maintenance can be ancillary to divorce proceedings and appropriately issued in that court for the purpose of article 3(c), how can it be other than related to divorce proceedings for the purpose of article 13? Is it convincing for Lord Sales to respond in para 46 above that to reason from article 3(c) to article 13 would be to defeat the priority given to the wife, particularly in circumstances in which article 3(c) itself reflects that priority?

179. Fifth question: did the majority sufficiently address the significance of the decision of the House of Lords in the Sarrio case, analysed by me at para 155 above? In para 83 above Lady Black notes only that Lord Saville there observed that an inquiry into whether actions are related should be approached with broad common sense. But, for present purposes, the real significance of the case lies in the application of broad common sense on the part of the House of Lords to the inquiry before it. For its unanimous decision was that the claimant’s English action for damages in tort was related to its Spanish action for payment due under a contract within the meaning of what is now article 13 and should be dismissed under what is now paragraph 2 of it. So the question, also prompted by the treatment given by Lord Sales to the decision in para 47 above, is whether further recourse to the mantra of giving priority to the wife justifies the attribution to the word “related” of a meaning in the context of maintenance claims entirely different from its meaning in the context of other civil claims.

180. Sixth and final question: did the majority check its construction of article 13 in the light of its adverse consequences? When lawyers conclude that the construction of an instrument is clear, they will not shrink from their conclusion by reference to its adverse consequences. If, however, their provisional conclusion has adverse consequences, they will check it before making it their concluded view. There will be two adverse consequences of today’s decision, one expressly noticed only by Lord Sales, and the other only by Lady Black. The first will be the untrammelled licence given to a wife to go forum-shopping, in other words to put her husband at an initial disadvantage unrelated to the merits of her case. Having observed that in the N case the judge considered that the wife had engaged in illegitimate forum-shopping, Lord Sales comments in para 56 above that she had been entitled to choose the forum for her claim by reference to tactical reasons and that, under the Maintenance Regulation, there had been nothing illegitimate in her doing so. The second will be the inability of a court in one part of the UK to decline to determine a wife’s maintenance claim even when a court in another part alone has power to determine a claim by one spouse or the other for transfer of property or for some other adjustment (such as would, for example, disentangle them from joint ownership of property) or for a pension sharing order. As Lady Black says in para 79 above, the prospect is “not very palatable”. So the final question can be refined: did the adverse consequences of today’s decision oblige the majority to undertake a rigorous examination of its provisional conclusion about the meaning of article 13 and, if so and in the light of all the questions posed above, can its provisional conclusion have received rigorous examination?

Villiers (Appellant) v Villiers (Respondent)

before

Lady Hale Lord Kerr

Lord Wilson Lady Black Lord Sales

JUDGMENT GIVEN ON

1 July 2020

Heard on 9 and 10 December 2019