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Tan v Choy [2014] EWCA Civ 251

Date:24 MAR 2014
Law Reporter
(Court of Appeal, Sir Brian Leveson P, Macur, Aikens LJJ, 19 March 2014)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 1 FLR 492]

Jurisdiction - Habitual residence - Financial remedies
The full judgment is available below.
When the marriage broke down the husband initiated proceedings in England and a judge at first instance found him to be habitually resident there. The wife's assertion that the case required a ruling from the CJEU was rejected. The wife appealed.
In applying the test of Re B (Care Proceedings: Appeal) [2013] UKSC 33, [2013] 2 FLR 1075 the judge's evaluation of the facts could not be categorised as wrong and the determination of habitual residence could not be overturned.
The decision not to refer the case to the CJEU for a preliminary ruling could also not be interfered with. The refusal had appropriately been a measure of self restraint as a referral had not been necessary to make a determination.
The first instance court had found in accordance with Mittal v Mittal [2013] EWCA Civ 1255 that the court retained a power to stay matrimonial proceedings under the DMPA 1973 notwithstanding the introduction of BIIR and applied the guidance from De Dampierre v De Dampierre [1988] AC 92 to the facts of the case.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.
Case No: B6/2013/0682
Neutral Citation Number: [2014] EWCA Civ 251
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/03/2014
Before :

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Between :

Wai Foon TAN

- and -

Weng Kean CHOY

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Mr James TURNER QC & Mrs Rebecca BAILEY-HARRIS (instructed by The International Law Group LLP) for the Appellant
Mr Timothy BISHOP QC & Mr Stephen TROWELL (instructed by Dmh Stallard LLP) for the Respondent

Hearing dates : 28 January 2014
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Lady Justice Macur DBE :
[1] Council regulation (EC) No 2201/2003 (Brussels II) concerns "jurisdiction ... in matrimonial matters". This appeal concerns the fifth indent of Article 3(1) (a) which provides that "[i]n matters relating to divorce... jurisdiction shall lie with the courts of the Member State (a) in whose territory ... the applicant is habitually resident if he or she has resided there for at least a year immediately before the application was made".
[2] The plethora of documents filed in the several bundles, an extraneous application to admit "new" evidence, the length of the skeleton arguments produced (even when reduced in compliance with the direction of the President of the Queen's Bench Division to accord with PD 52C para 31(1)(a) which is reflected in the views of Moore Bick and Aikens LJJ in Standard Bank v Via Mat International [2013] EWCA Civ 490) and the time estimate given would suggest a far greater ambit to this appeal than is actually the case. As it was the hearing was disposed of within half a day.
[3] In short, the husband wishes to litigate matrimonial matters arising from the impending dissolution of his marriage in England; the wife wishes to litigate in Malaysia.
[4] The wife appeals against the order of HHJ Horowitz QC, sitting as a High Court Judge , sealed on 12 March 2013 which dismissed her application for (i) a reference to the Court of Justice of the European Union ("CJEU"); (ii) dismissal of the husband's petition; alternatively, (iii) a stay of the husband's petition. She also appeals the order that she shall make a payment of £100, 000 on account of costs.
[5] The order arises from the judge's affirmative decision as to the husband's habitual residence and his determination of forum conveniens being in England and Wales. He did not consider that the law and/or facts of the case required clarification by ruling of the CJEU.
[6] The "outline history" of the parties and the marriage recorded in paragraphs 74 to 100 of the judgment at first instance in fact contains extensive domestic detail. (This is not a critical comment; rather I consider it reflects the great care taken by the judge to assimilate the background which necessarily forms the context of the husband's claim of habitual residence in England and Wales.) It is a redundant exercise to repeat it here. Cases involving disputed claim to jurisdiction are fact specific.
[7] Where there were issues of fact the judge's adjudications are clearly articulated in paragraphs 101 to 139 of the judgment. It is not surprising that the majority of disagreement centred upon the relevant period of the twelve months preceding the filing of the husband's ‘divorce' petition in London, namely January 2011 to January 2012. However, significantly, the judge found "of the two competing narratives, on the balance of probabilities, ... [the husband's] account that he had elected divorce and was contemplating an end to the marriage consistently since September 2010 (emphasis added) more likely to be true."
[8] There can be little doubt that the husband and wife each seek juridical advantage in relation to financial resolution proceedings which arise at the end of their marriage. This feature is commonplace in relation to matrimonial breakdown involving parties with several international property bases. The judge was obviously aware of this feature (see paragraph 154) and undoubtedly would have borne it in mind when assessing the evidence of the parties that formed the basis of his decision relating to the husband's habitual residence.
[9] Paragraphs 24 and 25 of the appellant's replacement skeleton argument in support of the ten grounds of appeal contain the nub of the wife's appeal in respect of jurisdiction in these terms:
"24. In the domestic jurisprudence of England and Wales there has been a dispute as to whether the expression "resided", as used in the fifth indent (and in indents 2 and 6) is intended to encompass a different (and lesser) quality of residence than the concept of "habitual resident" that has already been used in the indent.
25. The judge in the present case sided with the view that the two expressions do mean something different, but nevertheless concluded that the husband had been "habitually resident" in England not only at the date of the institution of the divorce proceedings but throughout the whole of the preceding 12 months. Therefore, the dispute as to the possible difference in meaning between the two expressions is only relevant if (i) the judge misconstrued the meaning of the expression "habitually resident" itself: and/or (ii) erred in his conclusion that habitual residence during the whole of the relevant 12 months was made out on the evidence."
[10] As to the first point, James Turner QC, on behalf of the wife, was specifically invited to specify what he divined to be the necessary features of "habitual residence" from the authorities. He did so in terms that there must be demonstrated in the subject matter's living arrangements in the location under consideration : (i) a permanence or stability, not temporary or intermittent; (ii) the centre of his/her interest; (iii) exclusivity of such circumstances; that is to possess but one habitual residence.
[11] This accords entirely with the judge's identification of "the common core of interpretation of the term habitual residence ... broadly the centre of interests test" as ‘distilled' from Marinos [2007] 2 FLR 1018 at paragraphs 21 to 25 which the judge considered "persuasive and authoritative" and as applied previously and subsequently in respective relevant context by the authorities. I agree.
[12] Consequently, I struggle to find any point in Mr Turner's written or oral submissions which demonstrates that the judge at first instance did "misconstrue" the meaning of habitual residence for the purposes of Article 3(1) (a). His reference to jurisprudence dealing with the concept in other fields and jurisdictions and to the academic debate on the topic is discursive. He postulates hypothetical factual scenarios to test the concept but fails to undermine or to challenge the judgment in this regard.
[13] As to the second point, Mr Turner recognised the difficulty inherent in challenging the primary findings of fact made. Patently, he does challenge the evaluation/interpretation of those findings of fact, albeit he seemed disinclined to acknowledge the same during his oral submissions. However, he did so by reference to factors which he contended had been inadequately or inaccurately appraised.
[14] I found his arguments on this score to be undermined by a conspicuous failure to cross reference them to and balance them against the findings actually made by the judge in his appraisal of the relevance of issues to the question to be determined. Further, I considered the facts that he submitted had been left out of account were obviously those which had been interpreted by the judge below in a different way to that which he, Mr Turner, had contended for on behalf of the wife.
[15] In accordance with the judgments in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33, it is necessary for this court to ask itself whether the judge's evaluation of the facts is wrong (see paragraphs 44, Lord Wilson JSC and 110, Lord Kerr JSC). In doing so I would regard the value judgment to be made by a first instance judge in determining habitual residence to be entirely dependent upon the primary facts and his impression of the reliability of the spouse seeking to establish habitual residence in expressing his/her sense of exclusive and stable centre of interests. That is, the benefit of "hearing the witnesses and watching the evidence unfold will result in the trial judge having a particular advantage over an appellate tribunal..." (see paragraph 60, Lord Neuberger PSC).
[16] Mr Bishop QC, whom we did not call upon, in his written skeleton argument emphasises "the unrivalled vantage point" of the judge at first instance to adjudicate upon the evidence. I agree that he had such an advantage and clearly demonstrates the same in his observations of the demeanour of the husband and wife both when giving evidence and listening to the other do so.
[17] The judge found the primary facts and was entitled to assess relevance and weight in informing his decision as to the husband's habitual residence. That he chose one interpretation of those facts over another does not make it wrong in the absence of a verifiable misconstruction of the evidence whether by factual mistake or omission to take into account material information that indisputably undermines the essential premise. Mr Turner's arguments are simply incapable of displacing the findings made.
[18] Mr Turner, in his efforts to persuade this court and the court below to refer a question to the JEU, concentrates on the conflicting obiter dicta at first instance garnering academic debate and opinion, the inability to transpose the decisions of the Supreme Court and CJEU relating to habitual residence of children involved in cases of international wrongful removal or retention and the ambiguity of the definition of "resided" absent adverb within the Regulation. Such arguments may well be compelling in specific factual scenarios - but not that presented by this case.
[19] The test for making a reference is set out in Article 267 of the Treaty on the Functioning of the European Union 2008. It provides that: "The [CJEU] shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties ... Where such a question is raised before any court ... of a Member State, that court may if it considers that a decision on the question is necessary to enable it to give judgment request the Court to give a ruling thereon..."(emphasis added).
[20] A more timid judge than HHJ Horowitz QC may well have seized the opportunity to adjourn the wife's applications to avoid the apparent legal complexities foretold in the skeleton arguments. However, in my view, he correctly and clear-sightedly "determined at the outset that [he] would not make a referral to the CJEU without hearing the evidence to enable [him] to make findings". In this respect he applied the "measure of self restraint" which in Trinity Mirror Plc v Commissioners of Customs & Excise [2001] EWCA Civ 65 at paragraphs 51 to 53 the Court of Appeal noted had been urged upon referring courts by the CJEU.
[21] The judge's exercise of his discretionary power to stay the English proceedings is conducted in paragraphs 145 to 157 of the judgment, and paragraph 72 inserted to deal with a point raised by Mr Turner upon receipt of the draft judgment. The judge correctly identifies the authoritative guidance to be that of De Dampierre v De Dampierre [1988] AC 92 and conscientiously applies the same. In paragraph 72 of the judgment he refers to calibration of the balance to be struck. It is an entirely apt phrase to describe the basis of his review of the competing relevant arguments of the husband and wife.
[22] Mr Turner fails to illustrate any error in the balancing exercise, other than effectively to assert it to be flawed because the outcome did not favour the wife. I find no substance whatsoever in his argument that the judge was "hoodwinked" by the prospect of a jurisdictional argument abroad. This does not feature in the judge's articulated balance. He had no need to consider the same in view of the "very issues [of jurisdiction] involved in this judgment". It is impossible to conclude that the judge's determination was outside "the generous ambit of reasonable disagreement or wrong". To the contrary, I consider him to have been right.
[23] The wife's liability to pay the costs of the hearing below is not disputed. Mr Turner's argument in this respect is directed against the order that £100,000 on account of the costs be paid from the proceeds of sale of the parties' wine as provided for by previous order on 10 December 2012. The wife seeks to preserve her liquid assets to meet family expenses. She argues that delay in payment of the costs will not disadvantage the husband who achieved a significant lump sum from the sale of the wine representing his half share. He has sufficient security over other assets and will be entitled to interest on unpaid costs.
[24] The judgment under review does not address the issue of costs. The award of costs and consequent directions are a matter of the judge's discretion and followed upon his judgment in favour of the husband in all respects. Mr Turner's skeleton argument indicates that the points deployed before this court were apparently deployed below - to no effect. Other judges may have taken a different stance but I see no legitimate basis for this Court to overturn this part of the order. It is not demonstrably wrong.
[25] I would dismiss the appeal, lift the stay of paragraphs 1 - 7 of the order of 12 March 2013 and direct written submissions on the question of costs.
Aikens LJ:
[26] I agree that the appeal should be dismissed on all the issues raised by the appellant. These issues are: (i) was the judge wrong to conclude that the husband could found jurisdiction in England and Wales to bring divorce (and associated) proceedings in these courts based on indent five of Article 3(1)(a) of Council Regulation (EC) 2201/2003, known as Brussels II Revised; (ii) was the judge wrong to refuse to refer a question on the construction of Article 3(1)(a) indent five to the Court of Justice of the European Union ("CJEU"); (iii) was the judge wrong to refuse to stay those proceedings pursuant to section 5(6) and Schedule 1 paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973 ("DMPA 1973"); and (iv) was the judge wrong to order that the wife pay £100,000 on account of costs out of sums already realised from the sale of wine, the property of both parties, as opposed to being paid from other assets which might be realised in the future or from other possible sources.
[27] The principal dispute between the husband and wife on the appeal is a "jurisdictional spat" to use the words of Mummery LJ in Pacific International Sports Clubs Limited v Igor Surks [2010] EWCA Civ 753 at [23]. The husband wishes to bring divorce and ancillary relief proceedings in England and Wales. His wife wishes to bring them in Malaysia. Each presumably thinks that there are juridical advantages in proceedings in their preferred jurisdiction and so each has started proceedings there.
[28] The husband says that he is entitled to found jurisdiction in England and Wales by virtue of the provisions of Article 3(1)(a) of Brussels II Revised. Under Article 3(1)(a) there are six possible bases on which a person wishing to bring proceedings "relating to divorce, legal separation or marriage annulment" may found jurisdiction in the courts of a Member State of the EU. The fifth indent of Article 3(1)(a) provides that jurisdiction for such proceedings shall lie with the courts of a Member State in whose territory "-the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made".
[29] The precise meaning of the wording of this fifth indent has been debated in a number of decisions at first instance in England and Wales. The latest decision (prior to the decision under appeal) to which we were referred is the decision of Peter Jackson J in V v V (Divorce) [2011] 2 FLR 778. Brussels II does not define "habitually resident", although in European law the concept of "habitual residence" is well recognised and means the place where a person has established on a fixed basis the permanent or habitual centre of his interests, with all the relevant factors being taken into account. It is also established, in European law, that one cannot habitually reside in two places at once. There is no definition of "residence" or "resides" in either Article 2 or 3 of Brussels II Revised.
[30] In these circumstances I would accept that there could be legitimate debate as to what is the precise construction of Article 3(1)(a) indent five. It seems to me that there are (at least) three possible constructions. First, it could mean that the person seeking to found jurisdiction has to be "habitually resident" in the territory concerned at the date the proceedings are started and he also has to have "resided" there for at least a year before the relevant proceedings are started. Secondly, it could mean that the person seeking to found jurisdiction has simply to have been "habitually resident" for one year prior to the start of the proceedings. Thirdly, it could mean that the person seeking to found jurisdiction has to establish that he/she is "habitually resident" at the time the proceedings are started and that this fact is proved by establishing that he/she has "resided" in that territory for at least a year immediately before the proceedings were started ("...application was made").
[31] But this doctrinal dispute is irrelevant in the present case because of two facts. First, Mr Turner for the appellant accepted that, on the authorities, a person was "habitually resident" for the purposes of indent five of Article 3(1)(a) if three tests were satisfied: (i) that there was "a permanence or stability" in the residence of the person concerned in the relevant territory; (ii) that this location was the centre of the person's interests; and (iii) the person had, at that time, no other "habitual residence", because, as he put it, you have to lose one "habitual residence" before you can obtain another one.
[32] Secondly, Mr Turner accepted that in this case the judge had therefore to focus on where the husband's "habitual residence" was during the period January 2011 to January 2012, the latter date being that of the start of the present proceedings. This means that if it is demonstrated that the husband was "habitually resident" in England and Wales during that period, then any one of the three possible constructions of indent five of Article 3(1)(a) I have outlined would be established.
[33] Mr Turner stated at the outset of his submissions to us that he did not challenge the underlying facts as found by the judge. He said that he only challenged the judge's evaluation of those facts. Mr Turner characterised the judge's evaluation as "perverse".
[34] The judge set out his factual conclusions on the issues of "habitual residence" and "residence" at [140] to [142]. Given Mr Turner's submissions on the meaning of "habitual residence" and his acceptance of the underlying facts as found by the judge, it is in my view impossible for him successfully to challenge the judge's evaluation of them, for all the reasons that Macur LJ has set out at [13]-[17] above.
[35] Therefore the appeal is bound to fail on the first issue.
[36] For the reasons that Macur LJ gives in [18] and [19] above, the appeal on the refusal of the judge to make a reference to the CJEU must also fail. On the findings of fact that the judge has made it is simply not necessary for the CJEU to give a decision on the question of the correct construction of indent five of Article 3(1)(a) to enable either the judge at first instance or this court to give judgment on this issue.
[37] On the third issue, this court has very recently concluded, in Mittal v Mittal [2013] EWCA Civ 1255, that the courts of England and Wales still have the power to stay matrimonial proceedings pursuant to section 5(6) and paragraph 9 of Schedule 1 of the DMPA 1973 despite the advent of Brussels II Revised. This is in contrast to the position under the Judgments Regulation relating to commercial and civil matters, Regulation (EC) 44/2001, although that too may change under the new Judgments Regulation, Regulation (EC) 1215/2012, due to come into force in 2015.
[38] The approach on whether or not to grant a stay of matrimonial proceedings in England and Wales under those provisions has been established since the House of Lords' decision in De Dampierre v De Dampierre [1988] 1 AC 92, where Lord Templeman and Lord Goff of Chieveley applied the principles of forum non conveniens laid down in Lord Goff's seminal speech in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460. Many cases in this court (including Pacific International Sports Clubs Limited v Surkis at [23] and [60]) have emphasised the limited grounds on which a judge's conclusion on whether or not to grant a stay in jurisdictional cases can be challenged. Effectively, it can only be challenged if the judge has erred in applying the law, failed to take account of a relevant factor, taken an irrelevant factor into account or has reached a conclusion that is irrational or plainly wrong.
[39] As Lord Goff of Chieveley pointed out in the De Dampierre case at 107 C-D, there are two conditions that have to be fulfilled before a court can grant a stay pursuant to section 5(6) and paragraph 9 of Schedule 1 of the DMPA 1973. First there have to be proceedings in respect of the marriage that exist in another jurisdiction, although it does not matter whether they were started before or after the English proceedings. Secondly, the balance of fairness (including convenience) has to be such that it is appropriate for the proceedings in the foreign jurisdiction to be first disposed of, which means that there must be an assessment by the English court of that balance. Only if both those pre-requisites are fulfilled will the English court, if it thinks fit, order a stay of the English proceedings.
[40] As Lord Goff goes on to point out, at page 108 A to 109D as part of the latter exercise the English court has to investigate the issue of whether there is "another available forum which, prima facie, is clearly more appropriate for the trial of the action". It must follow that if there are doubts about another available forum then that will be an important factor in deciding whether it is "fair" to stay the English proceedings.
[41] In argument before us Mr Turner complained about the way those acting for the husband had first agreed to a joint expert on Malaysian law on the issue whether the Malaysian courts would have jurisdiction in respect of divorce proceedings between the parties and had then instructed their own expert. However, Mr Turner expressly accepted the judge's findings at [147] of his judgment. The judge said:
"There is a serious question whether [the husband] has abandoned his Malaysian domicile of origin notwithstanding the presumption of continuance referred to in the expert advice. That of itself raises an initial hurdle to be considered before substantial progress can be made in the Malaysian proceedings".
[42] The judge took that factor into account as he had to because it goes to the fundamental issue of whether there is another "available forum" for these divorce proceedings. The judge took account of the other relevant factors, including the connection of the parties with Malaysia now and the issue of possible inconvenience to the wife in having to travel to England if the proceedings continued here.
[43] In my judgment Mr Turner cannot establish that the judge misdirected himself on the law; or that he failed to take account of what mattered or that he took account of what did not matter. As Mummery LJ emphasised in the Pacific International Sports Club Ltd case at [60], it is for the judge at first instance to weigh the various relevant matters, both individually and collectively, in making his decision. The judge's decision not to grant a stay cannot be characterised as either irrational or plainly wrong. Therefore the appeal on this issue must also fail.
[44] On the last issue, Mr Turner would have to demonstrate that the judge's decision (an exercise of his judicial discretion) to order that the payment of £100,000 on account of costs come from the sale of some of the parties' vintage wine cellar was irrational or plainly wrong. That is an impossible task, so the appeal on that issue must fail also.
Sir Brian Leveson P:
[45] I agree with both judgments.