The case of O v P was published in July 2014 and is a really interesting case concerning matters of jurisdiction.
Prior to the decision there had been numerous applications about both money and children matters in both England and Australia, and its legal issues caused a messy merging of European commercial rules and European family rules.
The facts are interesting and bizarre but for the purposes of making comment the relevant circumstances were:
the parties were unmarried and had 1 child together;
the relationship broke down shortly after their child was born in 1997;
in February 2000 mother issued a Schedule 1 application against father at a time when the child was habitually resident in England and Wales;
in 2010 father applied to the Child Support Agency in Australia for them to assess what his financial responsibility was towards his child, who at this time was habitually resident in Australia. So there were parallel proceedings in England and Wales, and Australia; and
in 2011 at an interim hearing the English court held that it had jurisdiction to hear the case as father was habitually resident in England and Wales at the time that the Schedule 1 application was issued.
The questions to be determined in the hearing of mother's Schedule 1 application (fourteen and a half years after the proceedings were started) were:
1. whether the court had the ability to grant a stay of the English proceedings in favour of the Australian proceedings in accordance with the ECJ recommendation in Owusu v Jackson (Case C-281/02); and
2. if so, whether the court should in the circumstances grant such a stay.
Mother argued that in accordance with the decision in Owusu the court did not have ability to manoeuvre and decline jurisdiction, which is bestowed on it pursuant to legislation known as “Brussels I” in favour of what may appear a more suitable jurisdiction.
Let me explain.
Owusu v Jackson is a case that no Conflict of Law class would be complete without, and was in fact a case that started locally in Sheffield County Court. It was a case that concerned the interplay between (1) Article 2 of Brussels I which states that a defendant shall be sued in the courts of the Member State in which they are a national, and (2) the English common law concept of forum conveniens, which means finding the right place for the trial of a matter on the facts of the case.
The defendant Jackson was domiciled in England, and the claim related to a serious accident that Owusu had swimming in a private beach in Jamaica rented to him by Jackson. The dispute was about whether, in the agreement between the parties in renting the villa and giving access to the private beach, the defendant implied that the beach was safe. The case had a much stronger connection to Jamaica than it did England – as the accident took place there, five other parties to the proceedings lived in Jamaica, the witnesses and the evidence (the beach) were in Jamaica.
Consequently, it was obvious to the English courts that despite the defendant’s domicile being England, the best place for the case to be heard was Jamaica, and the legal question was: whether the courts were bound by Article 2 of Brussels I to hear the case, or whether they could stay the proceedings and cede the jurisdiction to the Jamaican courts which were better suited.
The role of the English courts in searching for the country to which a case is best suited to be heard, is well embedded within English law, but this is a concept that is not shared by civil jurisdictions in other Member States.
When Owusu came before the English Court of Appeal, the Court sought guidance from the European Court of Justice which confirmed that Article 2 of Brussels I was mandatory and could not be departed from. Therefore, the English Court of Appeal could not decline the jurisdiction given to it pursuant to Brussels I. The ECJ confirmed that the purpose of Brussels I was to harmonise the legal rules of jurisdiction in civil and commercial matters. Furthermore, it confirmed that Brussels I is applicable to determine jurisdiction between European Member States and non- Member States.
There is often legal debate as to what is better: predictable (European) rules that guarantee jurisdictional certainty at the expense of the wrong decision in the odd case (such as Owusu) or bespoke rules which get the right result but at the expense of predictability and harmony. In other words, certainty versus discretion.
Unsurprisingly, there has been criticism of the Owusu decision by the English judiciary (dicta of Thorpe LJ in Cook v Plummer) but also acceptance (eg Catalyst Investment Group v Lewinsohn.)
In O v P the mother invited the English court to follow the Owusu decision strictly and therefore to keep jurisdiction, arguing that Owusu precludes the court from doing anything else.
The father’s case was that Owusu does not apply because Article 2 of Brussels I is not the only basis of jurisdiction as Article 5(2) is also relevant. This article provides that in matters relating to maintenance, the case shall be heard where the maintenance creditor is domiciled. Father also argued that Owusu does not displace the discretionary power of the court to stay proceedings. Further, father argued that Owusu applies to commercial matters and not to maintenance cases. And, applying Owusu to this case, father argued, would breach his right to a fair trial.
After considering the arguments, Baker J held that to strictly apply Owusu to this case – given the alternative bases of jurisdiction (Article 2 and Article 5(2)) would extend the Owusu principle significantly, when it was intended to be a narrow decision. Baker J acknowledged that this, together with the obvious advantages of the common law approach of forum conveniens, was at the root of his finding that Owusu does not apply in proceedings for financial provision for a child where there are parallel proceedings in a non- Member State. Therefore, there was no technical barrier to the English court ceding jurisdiction to a foreign court.
Subsequently, being unrestrained by European regulation, the court took a typical common law approach to determining jurisdiction. Baker J cited the common law authority of Spiliada as to the principles it needed to consider in this judicial exercise. These are:
1. a stay should only be granted when a case may be tried more suitably abroad in the interests of all the parties;
2. if a prima facie case is made that a foreign jurisdiction is more suitable, the burden then passes to the claimant to demonstrate why the case should remain in England and Wales;
3. whether the case has a strong link to England and Wales;
4. if justice can be done in both of the jurisdictions being argued for, the court should not have regard to a particular juridical advantage of one party over another;
5. whether there is an alternative jurisdiction. If not, the English courts should keep the case;
6. if there is any reason which justice requires a stay should be refused; and
7. whether a claimant will obtain justice in a foreign jurisdiction.
The court considered the pros and cons of the Australian courts dealing with the case – such as how it assesses evidence and whether the proceedings would be hindered by the fact that father was in prison. The court also considered mother’s argument that England was the better forum – especially as the Australian court would not grant her any financial provision between 2000 (when she issued proceedings in England) and 2010 (when father issued proceedings in Australia.)
However, for two main reasons Baker J decided that the forum conveniens was England and therefore refused father’s application for a stay of the proceedings for the following reasons: i) because a large part of mother’s claim concerned the period 2000-2010 which the Australian court would not deal with; and ii) father issued his application for a stay late in the day.
Interestingly, father’s conduct was woven into the decision making process, a factor which would never make it into a European jurisdiction regulation. Father’s conduct had made mother’s life extremely difficult over the previous fourteen years. Therefore, his decision to issue proceedings in Australia was considered devious.
The case concluded by mother succeeding in her substantial Schedule 1 application.
Whilst I fully understand why the English courts would wish to retain jurisdiction to ensure that justice is achieved, in my view the ECJ would have decided this particular case differently. I accept that the old English common law approach is in some ways superior to the European law rules on jurisdiction. There is rarely an unfair result: each case is decided on its facts and not on the outcome of the application of civil rules alone. However, I think that it is unrealistic for the English judiciary to try and hold on to the common law approach where it can. The civil law approach now dominates English law concerning jurisdiction matters, and this should be embraced.
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