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Villiers - the Anglo/Scottish perspective

Date:14 MAY 2021

Heard by the Supreme Court in December 2019, with its judgment last July, this case attracted much interest (or “lurid publicity” as per Mr Justice Mostyn in his judgement this week) as it unfolded.  Mr Villiers, acting in person applied to the Court of Appeal for permission to appeal the order made by Parker J on 8 July 2016 [2016 EWHC 668 (Fam, [2017]) 1 FLR 1083].  The Bar Pro Bono Unit assigned to him the services of Michael Horton and Alexander Laing who represented him for free  in his appeals to both the Court of Appeal (Villers v Villers [2018] EWCA Civ 1120) and Supreme Court.  Lord Wilson rightly commended them for the work undertaken on Mr Villiers’ behalf.  Not only was the ‘access to justice for all’ appealing to altruistic members of the profession, those technical, constitutional colleagues amongst us focused the fact that the Lord Chancellor was given permission to intervene.

Emma Villiers’ legal team need no introduction ~ Pennington Manches Cooper LLP, instructing Tim Scott QC, Alexis Campbell QC and Gayatri Sarathy south of the boarder and, as you will all know, Rachael Kelsey and John West of SKO on all matters Scots-law related.

An obvious concern in this case – as highlighted by Mostyn J in his judgment this week, was that this “terrible litigation has endured for nearly six years” with the parties having been separated for as long as they were married.

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It also highlighted some of the key differences between English and Scottish family law despite our close proximity such as:

  • One decree north of the border and two down south; 
  • In Scotland financial claims must be made within the divorce (yet in England can be made years after the marriage has been dissolved);  
  • Unlike in England, Mr Villiers could not issue a financial claim ‘against himself’ to seize Scottish jurisdiction and claims against party holding only interests in discretionary assets or trusts would be doomed to fail; and
  • English Part III claims can’t be used as any award in Scotland is, of course, not ‘overseas’ for the purpose of the 1984 Act.

The case also demonstrates the need to make careful, strategic and practical decisions in all jurisdictions, not only at the outset of a case but on an ongoing basis, as Mrs Villiers’ success in the Supreme Court has ended up being somewhat of a pyrrhic victory.

Mrs Viller’s section 27 claims have now been dismissed on the basis that she didn’t satisfy the “condition precedent” to bring them in the first place and that Mr Villiers was not able to make payments at the time of the original application or indeed now.

Background

Charles and Emma Villiers married in 1994, moved to Scotland the following year and lived there throughout their married life.  Following their separation in 2012, the wife returned to England.  Mr Villiers, who remained in Scotland, issued a Scottish writ (seeking divorce and costs only) as that was where they last lived before they separated but due to a delay in service, Mrs Villiers had, by then, issued an English divorce petition on the basis of her habitual residence. In England we do not need to have corroborating evidence to support our facts for divorce.

The first (and proved to be fatal) difference between our two jurisdictions was that Mr Villiers did not apply for any maintenance in his Scottish Divorce Writ as it is not possible in Scotland (unlike England) for parties to ask the court to make orders (or not to make orders) against themselves.  Our nations were at one however, with complimentary rules, based on where they last lived together, determining which of two competing divorce cases should proceed.  Under those rules Mrs Villiers was obliged to accept that her English petition would be stayed and that they would get divorced in Scotland.

In January 2015 Mrs Villiers devised what she thought was a cunning plan and applied, in England, for a rarely used and importantly free-standing maintenance order under section 27 Matrimonial Causes Act 1973 ‘failure to maintain claim’ which (provided the applicant, at the time of the application, was still married) allowed the Family Court to make a maintenance order (or a lump sum order directed to satisfy maintenance provision) if one spouse has failed to provide reasonable maintenance to the other.  She sought £3.15M plus an indemnity for some debts. This was the issue Mostyn J had to grapple with recently; not only did such an application neatly circumvent the jurisdiction issue, but it would also deliver (or at least Mrs V thought) a better outcome.

Following the appeals, the final determination of the wife’s s.27 application was heard at the start of March 2021 by which time Mr Villiers had applied to set aside/stay the original order made by Parker J for payment of interim periodical payments (£2,500 p/m and £3,000 p/m for legal fees). Mostyn J has heavily criticised both parties for their antics both north and south of the border.

The issues in the original appeals - a reminder

The million dollar question in this case was would there be a change in the law away from the assumption that the finances would be dealt with in the same location as the divorce?  As far as I am aware, it was the first intra-UK Maintenance Regulation case to be heard by the Supreme Court.  Many commentators described Mrs Villiers as having found a “loop hole” as to the applicability of the EU Maintenance Regulation - if there was an arrow slit through which she took aim, she hit the target.

Mr Villiers applied to stay the wife’s claims, challenging the jurisdiction of the English Court on the basis of Articles 12 (Lis Pendens) and 13 (Related Actions) of the Council Regulation (EC) No. 4/2009 (incorporated into our domestic legislation via the Civil Jurisdiction and Judgment (Maintenance) Regulations 2011) “The Maintenance Regulation”.

His appeal had several grounds. His core argument was that if a couple is divorcing in one part of the UK it was wrong for maintenance and finances between them to be decided in a different part of the UK and that, if one party wished to seek maintenance from a court in one part of the UK with a divorce taking place in another, the court dealing with the maintenance application should be able to suspend or stay its proceedings on the basis it would be more appropriate for the other court, dealing with the divorce, to deal with maintenance as well.

Whilst the EU Maintenance Regulation prevented a court, dealing with maintenance, from deciding not to deal with the case on the ground it was the less appropriate forum ‘forum non conveniens’ in comparison with a court in another non-UK country, the question was whether EU law required the UK to take the same approach to jurisdiction disputes within the UK and/or whether the “first past the post” regime applied intra-state.

Mr Villiers argued that when domestic law was changed in 2011 (when the Maintenance Regulation came into force) the Courts retained a residual power to stay proceedings in favour of those in another part of the UK.  If he failed on that ground, he argued that the 2011 Regulations were ultra vires and that the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (in particular Schedule 6) was/were unlawfully made.

Specifically to the facts of this case, he also argued:

  • The 2011 Regulations had amended section 27 of the Matrimonial Causes Act so the English Family Court had no ability under this section to make maintenance orders in a purely domestic case where both parties lived within the UK.
  • Even if the Family Court did not have the power to stay its proceedings (on forum non conveniens grounds) it could decide not to deal with the case on the basis that the English maintenance case and Scottish divorce case were ‘related actions’ for the purposes of Article 13 of the maintenance regulation.
  • Finally, that the English court should stay their proceedings in favour of the Scottish action on the basis that there was a risk of ‘irreconcilable judgments’ if both actions were to be determined by the court.

By a bare majority the Supreme Court dismissed Mr Villiers’ appeal Villiers v Villiers [2020] UKSC 30.

The essential components of the majority decision are as follows:

  • The 2011 Regulations, dealing with maintenance disputes within the UK, mirrored the scheme under the EU Maintenance Regulation for deciding which Court had jurisdiction and thus the wording of section 27(2) Matrimonial Causes Act does not preclude an English court from making an Order for maintenance in a “purely internal” case.  
  •  The decision to include, within the 2011 Regulations, the “first in time” rule meant that there was no longer any power to stay maintenance proceedings on the non conveniens basis.  The English court therefore had no power to defer the maintenance issue to Scotland.
  • The removal by Schedule 6 of the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 which imported the EU Maintenance Regulation into domestic law was not ultra vires.
    •  The Supreme Court fundamentally disagreed that Mr Villiers’ Scottish divorce proceedings and the English maintenance claim were “related actions” as one was just dissolving the marriage and the other dealing with financial claims.
    • And thus, there was no risk of conflicting judgments as there was no ‘relevant or real connection’ between them. Any risk of conflicting judgments had to be “direct, real and present, not a speculative possibility.” Interestingly, we now know that in October 2020 Mrs V also applied for a lump sum of £1M in the Scottish proceedings - meaning that (post-appeal at least) the risk of “duplicative, irreconcilable judgments was now significant” per Mostyn J.

    It was in respect of the ‘related action’ point that Lord Wilson and Lady Hale in the Supreme Court disagreed. Lord Wilson’s concern was that the majority decision would result in an “untrammelled license [being] given to a wife to go forum-shopping, in other words, to put her husband at an initial disadvantage unrelated to the merits of the case.” He also felt that this case would open up the prospect of the court in one part of the UK dealing with maintenance, but a court in another part of the UK dealing with, for example, jointly owned property. This would only serve to increase fees and add to delay. In fact, Lord Wilson thought it logical that the applications should be heard together and that it was practically possible to do so by consolidating the proceedings in the court first seized.

    Impact of 2021: Mr Justice Mostyn’s judgment and Brexit

    As confirmed in the recent judgement, the outcome intended by Lord Wilson has been achieved by Brexit.  Under Article 67 of the Withdrawal Agreement, Brussels IIa and the Maintenance Regulation no longer apply in the UK and the  forum (non) conveniens rule has returned and subject to any effect of joining the Lugano Convention, the licence to Mrs Villiers et al to ‘forum shop’ will be curtailed.  The English court will have discretion to impose a stay, if there are other proceedings concerning the marriage in another country, if it considers it is in the balance of fairness to do so.  In a 2021 version of Villiers the fact that proceedings were taking place in Scotland, may well have meant that Mr Villiers would have secured his stay.

    In order to bring an application under Section 27 now, either party needs to be domiciled in England, the applicant needs to have been habitually resident in England for one year preceding the application or the respondent needs to be English resident.  This change will restrict the availability of Section 27 for those who have only just alighted the train from Glasgow to London (that is even if there were allowed to travel in lockdown) and one would be subject to what many English consider to be a ‘less generous’ regime on divorce in Scotland under which for example gifts and inheritances (a “chimera” or otherwise) are not up to be shared. 

    Mr Justice Mostyn is of the opinion that, with the benefit of hindsight, Mrs Villiers was always destined to fail and the Sheriff Court of Dumbarton could have (and should have) been allowed to with financial matters.


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