On Wednesday 2 December 2015, Ireland’s High Court by its most senior family court judge, Mr Justice Henry Abbott, handed down a decision, just published, in an Anglo-Irish case which dramatically changes expectations of what is needed across the EU to gain priority of proceedings. It is surprising it has taken until almost the 15th anniversary of the Brussels II Regulation for the matter to be argued. It is subject to appeal which will be followed closely by family lawyers across Europe.
If upheld, it will produce a significant change in practice by lawyers and by court administrators and in the running of family court buildings.
The point was a simple one. What has to be done to gain priority, lis pendens
, for divorce and other legal separation proceedings? Is it to be first to issue proceedings, as has been practice in England and elsewhere across Europe, or simply to deliver papers to the court and/or to be received by the court? The Irish decision was the latter. Issuing itself was not needed. Only receipt or possibly delivery is paramount.
It is well-known law that where there are proceedings relating to divorce etc. between the same parties brought in the courts of different EU member states, the court second seized shall stay its own proceedings until such time as the jurisdiction of the court first seized is established, Art 19.1 Brussels II. The court is deemed to be seized when the originating documents are “lodged with the court”, Art 16.1.1. There are surrounding features about steps for service but this is the essential element. Lis pendens
appears in other EU legislation e.g. EU Maintenance Regulation so it has wide application.
Over the almost 15 years, since March 2001 when Brussels II originally came into force, practitioners have proceeded to make sure their proceedings were 'issued' first to gain priority. But from this Irish decision it would seem this was not needed and that receipt by the court alone was sufficient.
The case is reported as MH v MH
(2015) IEHC 771 and can be found here
The essential facts of the Anglo-Irish case are straightforward. On a particular Friday in early September 2015 the wife’s English lawyers sent, by document exchange, divorce papers to the Bury St Edmunds Divorce Centre. The document exchange post was apparently received at about 8:00am on the Monday and the invariable practice, although nothing could be confirmed for the particular day and the particular papers, was for envelopes to be opened over the next couple of hours, sorted and put into categorised piles by date of receipt. The divorce proceedings were not issued then. At about 2:30pm Monday, the same day, the husband issued matrimonial papers in Ireland. The wife’s Petition in England was then issued on the Friday. Which had priority?
There was no doubt in which jurisdiction proceedings had been issued first. It was in Ireland. But was priority of proceedings either the sending by the lawyers on the Friday afternoon or the receipt in the document exchange in the court building on the early Monday morning or the opening of the envelopes and placing in piles for future action, any of which would be sufficient to give priority to England? The High Court in Ireland said these steps were sufficient for priority. It stayed its own proceedings to allow England to go ahead on the basis that an English court first received the papers and so was seized first.
The precise word in the Brussels Regulation is 'lodged'. The husband’s case in law is in part set out in the reported judgment. His case on the practice was that since 2001 'lodged' had been understood to mean 'issued' by the court, not just received. It was further argued by the husband’s Irish lawyers that the intention of the word ‘lodged’ in the Regulation was specifically to cater for differences between jurisdictions in which issuing precedes service e.g. England and Ireland, and those countries in which service of proceedings precedes issue. They argued that in Ireland and England the meaning of 'lodged' has, for the last 15 years, meant 'issued'. This is why not only the date but also the actual time of issue is vital. This is the good practice guidance given by English family law organisations and in many other places i.e. actually issue first and don’t just deliver papers to the court office. It is why lawyers make sure that the petition is issued by the court even if there are outstanding difficulties with lack of marriage certificates and other elements. It is arguably why the court system has made specific arrangements for the localised urgent issue of divorce petitions following the centralisation of the administration to regional divorce centres. Whilst the time of issue of a divorce petition is shown on the first page of a divorce document, only the date of receipt is shown, indicating timing is not of importance on receipt rather than issue. There are many other elements in practice.
Simply delivering it to the court office has been understood as inadequate and insufficient to gain priority under lis pendens
The wife’s case was that delivery to the Court building and/or the opening of the envelope containing the Petition was sufficient for the document to be 'lodged' for the purpose of Article 16 and thereby gain priority.
The husband is now appealing in Ireland and it should be heard by the Irish Court of Appeal in Spring 2016. It is a family law case but as lis pendens
transcends civil and family litigation, it has ramifications beyond Brussels II, to include for example Brussels I Recast, and affects civil litigation lawyers.
We act for the husband in England, having been instructed after the above events in September occurred. Our leader is Stephen Trowell QC. The husband is represented in Ireland by solicitor Justin Spain, Dervla Browne SC and Linda Coughlan, Junior Counsel. The wife also has solicitors, Leading and Junior Counsel in London and Dublin who are experienced in international matters.
Subject to a successful appeal, the decision has significant implications in practice.