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(Court of Appeal, Black, Sales, Irwin LJJ, 15 December 2016)
Property – Jurisdiction – BIIA, Art 22
The husband’s appeal as to jurisdiction was dismissed.
The husband and wife owned a number of properties in Europe including a house in London. When they moved to Poland in 1991 that property was rented out. They separated in 2001 and the wife initiated divorce proceedings in France.
In 2014 the wife applied to the English court for an order for sale of the London property pursuant to the Trusts of Land and Appointment of Trustees Act 1996 and for the proceeds of sale to be distributed between her and the husband in equal shares. The husband contested the jurisdiction of the English court and applied for the proceedings to be stayed or dismissed.
The judge rejected the husband’s case and held that under Art 22 of Brussels IIA the court had jurisdiction on the basis that the proceedings had, as their object, rights in rem in immovable property situation in England or under Art 5(6) as the husband was being sued as a settlor, trustee or beneficiary of a trust created by the operation of the statute and that the trust was domiciled there. The judge further held that there had been no prorogation of jurisdiction in favour of the Polish courts. The husband was ordered to pay the wife’s costs and those costs would be charged on the husband’s share of the property. The husband appealed.
The appeal as to jurisdiction was dismissed but the charging order would be discharged.
The judge had been correct to distinguish the case from Webb v Webb (C-294/92) since the wife was already a joint owner of the property. The purpose of the claim was to achieve a sale of the property and it would be wrong to put too much weight on the fact that the wife’s application was under s 14 of the Act for an order relating to the exercise by a trustee of his functions. The wife was seeking to protect the powers attached to her interest by bringing about a transfer of a right of ownership in the house via sale. When viewing the matter as a whole it was clear that the considerations set out in Art 22 (1) applied here. The wife’s application had, as their object, rights in rem in immovable property and, therefore, Art 22(1) conferred jurisdiction on the English court.The wife conceded that the charging order should not have been made.