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CONFLICT OF LAWS/JURISDICTION: Bentinck v Bentinck [2007] EWCA Civ 175

Date:13 MAR 2007

(Court of Appeal; Thorpe, Wall and Lawrence Collins LJJ; 6 March 2007)

Notwithstanding that there was no error in the judge's rejection of the husband's application for a stay of the wife's English divorce proceedings, the court allowed the husband's appeal and granted a stay, on the basis that the issue of which jurisdiction was first seised according to Swiss law was determinable in Switzerland. It made no sense to have conflicting expert evidence from Swiss lawyers upon which a London judge would have to determine seisin according to Swiss law,when a Swiss judge was there to determine the very issue. That consideration became even more powerful when the issue had been argued out in Switzerland already, and all that was awaited was the judgment of the court. The English court would abandon common sense and responsibility if it permitted the parties to continue to incur costs in this jurisdiction in preparation for a London fixture on the premise that it might precede in time the delivery of the Swiss judgment. Once the Lugano Convention issue had been squarely raised in both jurisdictions, there had been an obvious opportunity and need for direct communication between the responsible judge in London and the responsible judge in Switzerland. Such an exchange would have established when the Swiss court would be listing the case and when its decision was likely to be known; if that information had been obtained and factored into case management in England, the appeal would probably not have been necessary.