(Family Division, Holman J, 6 May 2016)
Financial remedies – Consent order – Enforcement – Lugano Convention – Application for declarations clarifying terms of order
The husband’s application for declarations in respect of a consent order was refused.
When the husband and wife divorced agreement was reached in relation to their financial affairs and a consent order was made. The order provided for a house to be transferred to the wife and for a lump sum of £800,000 to be paid to her. Due to liquidity problems payment of the lump sum was due 2 years later. Until then the husband was required to pay £50,000pa in maintenance. In the event of default in the maintenance payments a property in Switzerland would be placed on the market for sale and the proceeds would be paid in part satisfaction of the lump sum order. The order made reference to the Lugano Convention.
The husband had so far failed to meet the terms of the order and was in arrears for over 2 years to the extent of £585,000 plus interest thereon. The wife's application for a judgment summons in 2014 was unsuccessful. Thereafter she sought to enforce the order in Switzerland. The husband claimed that he was asset rich but had so far been unsuccessful in selling other properties to raise funds to pay the lump sum. He now sought declarations from the English court in respect of the consent order including that it represented a capitalised maintenance order and not a division of matrimonial property for the purposes of the Lugano Convention.
The husband's application for declarations was refused on the basis that they were unnecessary, otiose and merely repeated the language of the consent order.
Case No. FD11D00002
Neutral Citation Number:  EWHC 1171 (Fam)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Friday, 6th May 2016
MR JUSTICE HOLMAN
(sitting throughout in public)
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B E T W E E N :
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Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers25 Southampton Buildings, London WC2A 1ALTel: 020 7831 5627 Fax: 020 7831 firstname.lastname@example.org
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MRS R. BAILEY-HARRIS (instructed by DWFM Beckman Solicitors) appeared on behalf of the applicant
MR J. WARSHAW QC (instructed by Bircham Dyson Bell LLP) appeared on behalf of the respondent
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J U D G M E N T (As approved by the judge)
MR JUSTICE HOLMAN
This is an application by a former husband, whom I will for convenience call ‘the husband’, for certain declarations as to the meaning or effect of an order which was made by consent as long ago as 2nd March 2012. An application for declarations of that kind is, at any rate in my experience, a somewhat unusual one. If issues arise as to the construction, scope or effect of an order, they are usually resolved simply by judgment and decision within the four corners of the proceedings, without any formal declaration being made as such.
In the present case, however, the wife is seeking to enforce the order by steps taken by her in an altogether different jurisdiction, namely Switzerland, and this has led the husband to seeking more formal declarations of this court, which he would wish then to utilise in the proceedings in Switzerland. Although unusual, I stress from the outset that I do not for one moment question or doubt the power and capacity of this court to make declarations as to the meaning or effect of some order previously made by it, and nor does Mr Justin Warshaw QC, who appears on behalf of the wife today, suggest otherwise.
It is, I think, relevant that the husband is himself a lawyer, qualified in several jurisdictions, who specialises in areas of law on an international stage, though not, I stress, family law as such. He describes himself as being an English solicitor and a member of the Law Society of England and Wales, a Hong Kong solicitor and a member of the Law Society of Hong Kong, and a member of the Bermuda Bar Association. He says in material online that he specialises in international wealth structuring for ultra high net worth clients and privately held businesses, succession planning for individuals and businesses, tax planning, and company/commercial advice. He has an LLB from the London School of Economics and is a Master of European Laws from a university in Brussels. He says that he has been in professional practice for over 30 years as a solicitor and tax consultant, and legal counsel and director for leading international banking and trust groups around the world, and that he is also the author of numerous textbooks. So, although he is not in any sense a family lawyer, he is clearly a gentleman well trained and very well experienced in what I will loosely call the international operation of law.
I regret to have to say that it is patent to me that the present application is part of procedural or tactical manoeuvring to defeat, or at any rate further delay, payment to the wife of the balance of a lump sum which is now already long overdue. I have not found today an edifying experience. The context is that on 2nd March 2012 there was a family dispute resolution, or FDR, hearing here at the Royal Courts of Justice before Mr Justice Charles. On that occasion, the husband was represented by extremely renowned and experienced leading counsel, Mr Richard Todd QC, and the wife was represented by equally renowned and experienced leading counsel, Mr Nigel Dyer QC.
The purpose of an FDR is to explore the possibility of settlement of claims for financial remedies, and the FDR in this case was successful in that purpose. As I understand it, during the course of that day complete agreement was reached between the parties as to the final overall resolution of financial issues between them. 
That agreement was then fully drafted into a detailed formal order of the court. I do not know the extent, if any, to which Charles J. personally contributed to the drafting, but it is likely that the detailed language and provisions of the order were substantially, if not wholly, drafted and agreed between the two very distinguished leading counsel whom I have mentioned.
The order extends to some four fairly closely typed pages, and I can, I hope, summarise its terms and effect for the purposes of this judgment, and will need only to recite verbatim some very small parts of it. It began by reciting that:“The terms of this order are in full and final satisfaction of all claims of an income and capital nature arising out of their marriage”.
The order provided that a house in Oxford would be transferred to the wife. It provided that the husband was to pay to the wife a lump sum of £800,000. There were clearly liquidity problems about making any immediate payment of that lump sum, and so the due date of payment was expressed to be 2nd March 2014, that is, exactly two years later. There was provision for payment of interest by reference to the London Interbank sterling rate between 2nd March 2012, when the order was made, and the time of payment.
The order provided that, with effect from the date of the order and until the house in Oxford had been transferred to her (which was done long ago) and the lump sum paid in full, the husband should pay maintenance to the wife at the rate of £50,000 per annum. There was a formula in recital (e) to the order to the effect that, if the husband made a payment or payments towards the lump sum before the due date, then those payments should be in tranches of not less than £10,000 and that any such tranche would result in a pro rata reduction in the level of maintenance.
Upon satisfaction of that order in full, all the remaining claims of the wife for financial remedies were to stand dismissed; and, in any event, all the husband’s claims for financial remedies were dismissed.
The parties clearly contemplated the possibility of some defaults by the husband, and there was an express recital at paragraph (f), repeated in paragraph 2.1 of the order itself, that in the event of the husband defaulting on making monthly payments of maintenance and the default was not remedied within 21 days, then a property owned by the husband in Switzerland called Chalet Gentiana was to be placed on the market on the joint instructions of the parties and sold forthwith, and the net proceeds first applied in reducing or satisfying the outstanding lump sum. Of course, if the lump sum had already been paid in full, then the maintenance payments would have terminated and that mechanism could not be triggered.
The parties and their advisors clearly foresaw the possibility of enforcement proceedings outside England and Wales and in a country or countries which are contracting parties to the Lugano Convention (2007/712/EC Counsel Decision of 15 October 2007). That Convention operates in the European Union, but also, amongst other states, in Switzerland. There was accordingly the following declaration recited within the order itself:“And upon the basis that the court declares that the lump sum order provided for paragraph 1 below represents capitalised maintenance for the [wife] within the meaning of the Lugano Convention …”.
At this point, I pause to say that it is, to my mind, crystal clear that, although this order gave to the husband two years in which to liquidate assets and raise and pay the lump sum, it was quite clearly an order designed to make a clean break between these parties. It obliges the husband to pay the lump sum. It is true that the order contains the provision that I have mentioned for maintenance to continue (with pro rata reductions) unless and until the lump sum has been paid in full. But, to my mind, there is no question of this being simply an order for the payment of maintenance, with a unilateral option in the husband at his election to bring the maintenance payments to an end by payment of a lump sum. He was under a positive duty to pay the whole of the £800,000 not later than 2nd March 2014. I regret to say that he is now in prolonged breach of that duty. He has to date paid in total £215,000. He has now been in arrears for over two years to the extent of £585,000 plus interest thereon. 
I mention, although it is not relevant to anything I have to decide today, that calculation of the interest may be a difficult and possibly contentious matter, since it is not completely clear on the face of the order whether the rate of interest after 2nd March 2014 should be at the lower London Interbank sterling rate, or at the higher rate of interest on a judgment debt. But that particular problem need not detain us today.
The first method by which the wife sought to enforce payment, once that balance of the lump sum was overdue, was by issue of a judgment summons, which came before Sir Peter Singer on 19th May 2014. A judgment summons is, of course, an application for the committal of the judgment debtor to prison, and requires to be proved to the criminal standard of proof. Sir Peter Singer gave that application short shrift. The husband was not, in fact, present or represented; but it is quite clear that the wife had not produced up to date evidence to the court which would satisfy it to the criminal standard that the husband had had the means to pay and was in contumacious default.
I mention a concerning feature which has arisen during the course of today, but which it has not been possible more fully to investigate at this hearing. The husband himself no longer currently lives in Switzerland, but appears to live in Vietnam. However, his counsel today, Mrs. Rebecca Bailey-Harris, was able to speak to him at some length on the telephone. Acting upon his instructions (including instructions to inform me of the following matters in open court, sitting publicly as I am), she said that his situation remains as it was in 2012, namely that he is “income poor, but asset rich” and that he has tried to realise assets, but so far without success.
I was told that there is a property in Zimbabwe which he hopes to have sold by about December 2016 to realise the equivalent of about US$415,000; a villa in Koh Samui in Thailand which he also hopes to have sold by about December 2016 to realise the equivalent of about US$450,000; and still the Chalet Gentiana in Switzerland. In relation to that, I was told that it is subdivided into several flats or units. The husband believes that the value of the whole is about CHF1.5 million or the equivalent of about £1 million. He is apparently a Swiss citizen and would wish to retain one two-bedroom unit within the chalet, which he regards as his home. There is another apartment within the chalet which is currently worth about CHF900,000, but which he considers could be sold for about CHF1.2 million if works of improvement were done to it over the period of six months. This led to an open offer to resolve the husband’s outstanding indebtedness over a protracted period, extending perhaps even as far as June or July 2017 after the alleged works of improvement were done to the apartment in the chalet.
What was alarming about this open information and offer (which, of course, Mrs. Bailey-Harris told me with absolute personal integrity) was that Mr Warshaw was then able to indicate that, at any rate at the time of the husband’s Form E at an early stage of these proceedings, he had disclosed several more properties in both Zimbabwe and Koh Samui, and also in Mauritius. None of us are in a position further to investigate that today, but, at any rate, a concern has been raised that, over the last several years, other properties may have been sold and the proceeds not applied in satisfaction of the balance of this lump sum.
Having failed on her judgment summons, the wife appears to have taken a decision to seek to enforce her order directly in Switzerland. This led to proceedings there, which have so far fructified in a hearing before a Justice of the Peace whose judgment is dated 31st March 2016. At that hearing, as I understand it, the wife was represented by a local Swiss lawyer, but the husband appeared in person and placed before the court, or at any rate deployed, a written skeleton argument prepared by himself and now in the present bundle at page 42.
Some indication of the husband’s lines of argument is to be found from some of the numbered short points on the first page of that document. He made reference to the language of the order of Charles J. and said:“Therefore, as a matter of law, the English court only has power to order sale in the limited circumstances of [the husband] missing his monthly payment.”He asserted that there is no evidence of his having missed any monthly maintenance payments. He referred to the decision of Sir Peter Singer on the judgment summons, and continued:“The arguments demonstrate clearly that enforcement was not an available remedy in the English courts.”
I have to say that I profoundly disagree with both the propositions I have just quoted. It is perfectly true that, within the four corners of the current order of Charles J. as drafted and made, the only trigger for the sale of Chalet Gentiana which that order already makes provision for in recital (f) and paragraph 2.1 is default for more than 21 days in making the monthly payments. However, it does not follow from that that that is the only circumstance in which the English court has power to order sale. 
Indeed, Mrs. Bailey-Harris, whose expertise in the field of family law is without equal, readily conceded today that the powers under section 24A of the Matrimonial Causes Act 1973 are still available to this court to make an order for sale upon application to it. As she readily accepted, the power under section 24A(1) applies “… on making that order or at any time thereafter …”. I expressly asked her whether it was any part of her submission or case that the express provision on a certain contingency for the property to be sold, contained within recital (f) and paragraph 2.1, had in some way now exhausted the power of this court to make an order for sale under section 24A; and she expressly said that that is not her case or submission. 
So, to put it bluntly, when the husband wrote “as a matter of law, the English court only has power to order sale in the limited circumstance of [the husband] missing his monthly payment”, he was plain wrong. Further, when he said that the comments of Sir Peter Singer in argument at the hearing of the judgment summons “demonstrate clearly that enforcement was not an available remedy in the English courts”, he was equally plain wrong. All that Sir Peter Singer commented and determined was that the evidence that was presented to the court, on that particular hearing of a judgment summons, was insufficient to enable the court to reach the conclusion that the husband had had the means to pay to the required criminal standard.
In fact, a whole range of methods of enforcement remain as available remedies to the English court, although I acknowledge that most of them would lack efficacy on the facts and in the circumstances of this case. But, in different circumstances, this court could make a garnishee order. It can certainly still make an order for the sale of any property or properties anywhere worldwide. It could indeed still make a committal order on a judgment summons if the required facts were proved to the required standard. Further, the wife could present a petition for bankruptcy to the English bankruptcy courts. So nothing in the order of Chares J. has in any way whatsoever closed down the whole range of enforcement remedies available to this wife.
The outcome of the hearing in the Swiss court appears to have been a somewhat unexpected one, for integral to the reasoning of the Justice of the Peace is the following, which I read from the English translation, and recognising that some imperfections may have emerged during translation. But the Justice said:
“[The ruling of Mr Justice Charles] appears to have been acknowledged and declared enforceable in Switzerland under Articles 25 to 30 of the Federal Law on Private International Law, applicable since the [Lugano] Convention … is not (exclusion of marital systems under Article 1(2)(a)).”
It is next necessary to turn to Article 1(2)(a) of the Lugano Convention. That provides as follows:
“2. The Convention shall not apply to:(a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship …”.
As I understand it, the phrase used by the translator of the Swiss order “exclusion of marital systems” should be read as “exclusion of rights in property arising out of a matrimonial relationship”.
Mrs. Bailey-Harris says, with all due respect to the Justice of the Peace, that she was simply wrong in that conclusion that the Lugano Convention was excluded; and she was wrong because this case does not involve “rights in property arising out of a matrimonial relationship”, but, rather, it involves “maintenance”, which is expressly included within the scope of the Lugano Convention, as can be seen from the provisions of Article 5(2), which refers to “matters relating to maintenance”.
So Mrs Bailey-Harris submits that the whole purpose of the declaration that is expressly contained in the order of Charles J. “that the lump sum order … represents capitalised maintenance for the [wife] within the meaning of the Lugano Convention” was that that lump sum should not be regarded as “rights in property arising out of a matrimonial relationship”, which are excluded from the scope of the Convention, but, rather, as “maintenance”, which is included. With that, as I understand it, Mr Warshaw fully agrees.
It appears to be the case that actually both these parties, or at any rate their very distinguished English advocates today, agree that that part of the decision or ruling of the Justice of the Peace in Switzerland is mistaken, although obviously it is ultimately a matter for the court to which an application is made under, or purporting to be under, the Lugano Convention to make its own decision as to whether the subject matter falls within, or is excluded from, the scope of the Convention.
As I understand it, the husband, who wishes to establish that this is an application which properly falls to be considered under the Lugano Convention, has now appealed to a higher court in Switzerland from that decision, and specifically that part of it. No one present today knows when that appeal will, or may, be heard. It seems to be in support of that appeal that the husband now makes his application for further declarations by me as to the scope and effect of the order of Mr Justice Charles.
Mrs. Bailey-Harris, whose expertise in the field of international law and instruments such as the Lugano Convention is renowned, has said that this is a somewhat typical example of a difficulty which arises of fitting the particular approach and language of English courts and English court orders for financial remedies into the language and structure of conventions, including, but not limited to, the Lugano Convention. In illustration of that point, she has drawn my attention, in particular, to the case of Moore v. Moore
 EWCA Civ 361  2FLR 339, and the judgment of the court delivered by Thorpe L.J., but apparently principally drafted by Lawrence Collins L.J.
It is, I think, sufficient for the purposes of my judgment and decision today to cite from paragraph (3) of the holding and paragraph 80 of the judgment. The holding states as follows:
“Maintenance is not limited to periodic payments but can include lump sum payments. The purpose of a lump sum must be considered so as to decide whether it is payment by way of maintenance or a division of assets. A payment intended to ensure support of the spouse or children is maintenance. Where both parties are earning well a lump sum will be a division of assets and concern ‘rights in property arising out of matrimonial property’”.
At paragraph 80, the Court of Appeal referred to, and summarised the effect of, the ruling of the European court in a case called Van den Boogaard v. Laumen
. They say:
“The ruling by the European Court was that a lump sum payment was to be regarded as maintenance if its purpose was to ensure the former spouse's maintenance. … The following propositions may be derived from this decision: first, whether a claim is for maintenance depends upon an autonomous interpretation of the term, and the label given to the claim by national law is not decisive; secondly, payment of a lump sum or transfer of property may be in the nature of maintenance if it is intended to ensure the support of a spouse; thirdly, payment of a lump sum or transfer of property which serves only the purpose of a division of property or compensation for non-material damage is not in the nature of maintenance; fourthly, a payment or transfer of property intended as a division of assets will concern ‘rights in property arising out of a matrimonial relationship’; fifthly, whether a claim relates to maintenance will depend on its purpose, and in particular whether it is designed to enable one spouse to provide for himself or herself or if the needs and resources of each of the spouses are taken into consideration in the determination of its amount, or where the capital sum set is designed to ensure a predetermined level of income; sixthly, where the provision is solely concerned with dividing property between the spouses, the decision will be concerned with rights in property arising out of a matrimonial relationship …”.
It seems to me in the present case that, by the express terms used in the order of Charles J., the lump sum in this case was not in any way ordered for the purpose of “a division of property” or “dividing property”. The division of property in this case came with the transfer to the wife of the house in Oxford. Rather, the lump sum in this case is exclusively “in the nature of maintenance”, being intended to ensure the support of the wife, who does not work, once the periodical payments were fully capitalised and came to an end.
Notwithstanding the agreement between the parties that the Justice of the Peace fell into that error, Mrs. Bailey-Harris in effect seeks to reinforce the case and position of the husband by seeking further declarations from this court. To some extent, the declarations that she seeks are no, or little, more than truisms, but Mr Warshaw submits that I should not make them. He submits that to the extent that they are truisms, they are unnecessary; and he identifies that the husband in effect has some ulterior motive or purpose in seeking these declarations.
Upon the instructions of her client, Mrs. Bailey-Harris said this afternoon that “The husband is not trying to obstruct enforcement, but to ensure that cross-jurisdictional issues are dealt with in accordance with the Lugano Convention and international law.” She said that the husband considers that “It is of importance when an international instrument such as this is being litigated that it should be done in accordance with the Convention.”
Mr Warshaw, in effect, says that that seemingly altruistic position of this international lawyer seeking to uphold the purity of international law is but a mask for a tactical attempt to frustrate, or at any rate delay, enforcement of this long outstanding lump sum, and to delay, if not avoid altogether, sale of any part of the Chalet Gentiana.
It was indeed clear from the open offer that Mrs. Bailey-Harris made on instructions, after speaking to her client on the telephone, that his preferred route to discharging the lump sum is by sales to be completed as late even as December 2016 of the properties which he admits to owning in Zimbabwe and/or Koh Samui, and he would see sale of any part of Chalet Gentiana as very much a longstop outcome, to be avoided if he can.
With that very long account of the background to, and context of, this curious application, I now turn to the precise declarations sought. They are three in number. The first is as follows:
“Paragraph 1 of the order … dated 2nd March 2012 represents capitalised maintenance within the meaning of the Lugano Convention 2007 (as declared by the court in that order) and does not represent a division of property under a matrimonial property regime within the meaning of Article 1.2(a) of the Convention. Paragraph 1 of the order falls within the scope of the Lugano Convention.”
That proposed declaration is in two parts. The first part ends with the words “… in that order”, and the second part begins with the words “and does not represent …”. The final sentence that “Paragraph 1 of the order falls within the scope of the Lugano Convention” is, in reality, merely repetitive of the first limb or part of the first proposed declaration.
So far as the first limb or part of that declaration is concerned, it seems to me to be completely otiose and unnecessary, for, as the proposed wording itself says within the brackets, this court has already made a declaration precisely to that effect, and substantially in that language. It does not seem to me to be necessary, or frankly even desirable, for this court simply to declare a second time that which it has already declared and which is available for all to see and read.
The second part of that proposed declaration, namely that the order “does not represent a division of property under a matrimonial property regime”, is, frankly, no more than the flipside or obverse of that which has already been declared. As I put it metaphorically during the hearing, an apple is not an orange. If, as has already been declared, paragraph 1 of the order “represents capitalised maintenance”, it necessarily follows that it “does not represent a division of property”. Mr Warshaw does not disagree with any of that, but submits that any such declaration is unnecessary and otiose, and that the very fact that the husband seeks it alerts one to some purpose designed to delay or defeat payment of his long outstanding debt.
The second declaration sought by the husband is as follows:
“The order … dated 2nd March 2012 contains no provision for enforcement of the lump sum for capitalised maintenance other than the continuation of periodical payments for joint lives or until remarriage as provided in paragraph 2. … The order contains no provision for sale of property in the event of failure to pay the lump sum in full.”
This beguiling proposed declaration is again, strictly speaking, no more than a truism. It is quite correct that there is nowhere on the face of, or within the four corners of, the order of 2nd March 2012 which “contains provision for enforcement of the lump sum”, other than the provision that the periodical payments shall continue until the lump sum has been paid in full (or until the earlier remarriage of the wife). 
Further, it is correct that, within the four corners of the order itself, there is currently no provision for sale of the property in the event of failure to pay the lump sum in full. The only express provision for sale of the property is that within recital (f) and paragraph 2.1 of the order, which is triggered if both the lump sum has not been paid in full and there is default in making the maintenance payments. But Mr Warshaw submits that the husband must have some interest and purpose in seeking that declaration, and a declaration in those proposed terms would potentially be highly misleading to a foreign court.
Although the order “contains no provision for enforcement …” and “contains no provision for sale of the property …”, there is no particular reason why it should have done. It is, in fact, not routine that a range of methods of enforcement are expressly provided for, or referred to, in financial provision orders. The risk is that, if a declaration was made in those terms, it might be misused to mislead the Swiss court into thinking that the power of this court now to enforce the lump sum is spent, and that there is nothing this court could do by way of enforcement, provided the husband continues to make the maintenance payments.
Mrs. Bailey-Harris did acknowledge that her declaration, as originally drafted, might be fleshed out to contain additional words to that effect. But Mr Warshaw homed in, first, on what the husband himself, who, it is to be remembered, is a highly trained and experienced international lawyer, had said in his skeleton argument for the hearing before the Swiss court; and secondly, on what Mrs. Bailey-Harris had gone on to say in paragraphs 17 and 18 of her skeleton argument for this hearing. She said there:
“In the Swiss appeal, the husband will argue that an order by the Swiss court for the sale of Chalet Gentiana would violate Article 45.2 of the Lugano Convention, which provides:
‘In no circumstances may the foreign judgment be reviewed as to its substance’.
In essence, the husband’s argument is that the Swiss court cannot do what the English court has no power to do under the 2012 order, i.e. order sale of Chalet Gentiana where the lump sum has not been paid in full.This court is not requested to pronounce upon the merits of the husband’s Article 45.2 argument in the Swiss appeal. All it is asked to do in the declaratory relief sought above is to state its interpretation of the words of the order of 2012.”
I stress that Mrs. Bailey-Harris is there setting out that which her client proposes, or wishes to argue in the Swiss appeal. It is not set out as an argument advanced by Mrs. Bailey-Harris herself as being a sustainable argument.
In my view, the argument borders on, if not actually being, nonsense. In the first place, it is founded on the proposition “that the Swiss court cannot do what the English court has no power to do under the 2012 order, i.e. order sale of Chalet Gentiana where the lump sum has not been paid in full.”
It is perfectly true that the language within the four corners of the 2012 order does not make provision for an order for sale of Chalet Gentiana where the lump sum has not been paid in full, provided always that the monthly maintenance payments are kept up. But that would be gravely to obfuscate the point that, although it is not currently within the express terms of the 2012 order itself, this court has ample power, as Mrs. Bailey-Harris herself has frankly conceded, under section 24A of the Matrimonial Causes Act 1973 to make an order for the sale of Chalet Gentiana and/or indeed other properties anywhere abroad.
Further, although I myself at once accept that it would be a matter for the Swiss court to decide whether or not a proposed step violated Article 45.2 of the Lugano Convention, it is, to my mind, absurd to suggest that for any court now to consider ordering a sale of Chalet Gentiana, in enforcement of the long outstanding lump sum, would involve reviewing the order of 2012 as to its substance.
Suppose this case were an all English case and the question now arose of an order for sale of a property owned by the husband, not in Switzerland, but in London, this court could, as I have said, exercise its powers under section 24A of the Matrimonial Causes Act 1973; and in doing so, it would not in any sense whatsoever be reviewing its earlier order of 2012 “as to its substance”. Rather, it would simply be giving effect, by one of a range of methods of enforcement, to the substance of that order which has already been ordered.
Similarly, although I repeat that it would be a matter for the Swiss court ultimately to determine this, it does not seem to me for one moment that, if the Swiss court decided to exercise some local, freestanding power to order a sale of Chalet Gentiana in aid of enforcement of the order made by this court in 2012, it would thereby be reviewing the order of 2012 as to its substance.
Frankly, those arguments that the husband, as we are told by Mrs. Bailey-Harris, wishes to advance in the Swiss court are a repetition and variant of his arguments in his earlier skeleton argument that are plain wrong. Mr Warshaw accordingly submits that, although a declaration in the terms of the proposed second declaration would be literally true and correct, we are alerted, both by the skeleton argument of the husband in Switzerland, and by paragraphs 17 and 18 of the skeleton argument of Mrs. Bailey-Harris in this application, to the confusing and frankly mistaken purpose for which that declaration is sought.
The third declaration that is sought is in the following terms:“In the circumstances where the lump sum provided for in paragraph 1 of the order has not been paid in full and periodical payments continue to be paid pursuant to paragraph 2 of the order, this court [viz the English court] remains seised of proceedings in respect of spousal maintenance and Article 27 of the Lugano Convention is engaged.”
Article 27 of the Lugano Convention is headed “Lis Pendens - Related Actions”. Article 27 provides as follows:
“1.Where proceedings involving the same cause of action and between the same parties are brought in the courts of different states bound by this Convention, 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.”
One only has to read Article 27 to realise the purpose to which this proposed declaration is directed. Mrs. Bailey-Harris submits that, “given the structure of the 2012 order where, in default of payment of the lump sum, maintenance payments continue on an ongoing basis under paragraph 2, there are ongoing spousal maintenance payments being made, as was agreed, and the order is not fully executed.” She accordingly submits that this court remains seised of maintenance. 
That is not a proposition with which I disagree. The fact of the matter is that there is an extant order for periodical payments, which terminates only on the first death of either of these parties, or the remarriage of the wife, or payment in full of the lump sum. So, meantime, there is an extant order for periodical payments which is, amongst other matters, capable of being varied from time to time under the provisions of section 31 of the Matrimonial Causes Act 1973. So I do not myself disagree with the proposition that this court remains seised of the maintenance aspect of these proceedings.
Whether that means that the proceedings directed to enforcement in Lugano “involve the same cause of action” is a more difficult and moot point. It provisionally seems to me that there is a difference between this court continuing to be seised with regard to maintenance, and indeed continuing to be seised with regard to enforcement, and the Swiss court being able to be seised with regard to enforcement. 
It is, frankly, when one gets to this proposed third declaration and the “lis pendens” argument, that one sees the trap into which the husband, by this application, is trying to lure this court. It is frankly obvious that he seeks to obtain a declaration in the language of the proposed third declaration in order to enable him to submit in Switzerland that the English court remains the court first seised, and that accordingly, pursuant to Article 27, the Swiss court must decline jurisdiction altogether.
As far as I am concerned, the question of whether or not the Swiss court is required, pursuant to Article 27, to decline jurisdiction altogether is a matter squarely for decision by that court. But I am not prepared, on the facts and in the circumstances of this case, to make some declaration by this court to the effect that “Article 27 of the Lugano Convention is engaged”. It is not self-evident to me that Article 27 of the Lugano Convention is engaged. It is, as I have just said, a more difficult and moot point.
The upshot is that I am not prepared on this application today to make any of the declarations sought. In part, that is because they merely repeat the language used in the order of 2012 and are, therefore, otiose and unnecessary; and, in part, it is because, although the proposed declarations seem beguilingly simple and true, this is, in reality, an attempt by a husband, who is already gravely in default, to lure this court, which should be doing all it can to assist enforcement, into the trap of making enforcement in Switzerland more difficult, if not impossible. So, for those reasons, I decline to exercise a discretion to make any of the declarations sought.
Before I conclude this judgment and leave this case, I now refer to one aspect which has frankly baffled me throughout today, and continues to baffle me, and which may baffle any subsequent reader of this judgment, if ever it is transcribed. That is the question of why the wife herself did not long ago apply to this court for an order under section 24A for the sale of one or more of the properties, whether in Switzerland, Zimbabwe, Thailand or anywhere else.
Mr Warshaw’s only answer to that appears to be that it is unnecessary for her to do so. His position seems to be that she can go directly to the Swiss court and obtain an order or orders for sale in enforcement of the English 2012 order. He says that that was the very purpose for which the existing declaration was included in the 2012 order. He says that the wife has not needed, and should not have needed, to go to the trouble or expense of first obtaining an order for sale here.
If that be right, I can only say that it seems to me that the tactical decision-making of the wife has spectacularly backfired. As emerges from the above narrative, she has already had to engage in proceedings in Switzerland which have now got bogged down, and she faces the prospect of an appeal there on an uncertain future date. I was told that she had already spent £12,000, or the equivalent of £12,000, on litigation in Switzerland. I was told that her costs simply of being here today are £15,000. Frankly, she is little further on as a result of all this litigation.
I appreciate, of course, that an order for sale here might still require the taking of proceedings in Switzerland before a sale of Chalet Gentiana could actually be achieved. Speaking for myself, I would have thought it could only have been helpful to the wife’s case if, at any rate, this court, which is the court that had made the order in 2012, had itself first determined whether or not the circumstances were now such that there should be a sale of the property in Switzerland. If there is to be any dispute between these parties as to whether or not that property should be sold, the courts of England and Wales are surely more appropriate than the courts of Switzerland to make that decision, this being the court whose order is being disobeyed. That, however, is entirely a matter for the wife and her advisors. However bizarre it seems to me and may strike any reader of this judgment, her stated position, even at the end of today, is that she does not wish, or intend, to make any application to the English court for an order for sale of any property anywhere.