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Family Law

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12 NOV 2014

Chai v Peng [2014] EWHC 3519 (Fam)

Chai v Peng [2014] EWHC 3519 (Fam)
(Family Division, Bodey J, 17 October 2014)

[The judicially approved judgment and accompanying headnote has now published in the Family Law Reports [2015] 2 FLR 412]

Jurisdiction – Divorce – Forum conveniens – Determination by Malaysian court that it was the forum conveniens – Whether the wife was estopped from pursuing her English divorce petition

The full judgment is available below.


The husband’s case that the wife was estopped from pursuing English proceedings by virtue of the determination of the Malaysian court that it was the forum conveniens was rejected and both parties were able to pursue proceedings in their respective jurisdictions of choice.

When the 42-year marriage broke down the wife petitioned for divorce in England where she had been living for 4 months. She asserted that the parties had combined assets of £440m. The husband had returned to Malaysia where the family had previously lived. The wife obtained an ex parte non-molestation order and an occupation order in respect of the 15-bedroom house the wife was currently residing in.

The husband applied to the Malaysian court for permission to issue a divorce petition without the prerequisite conciliation appointment. The wife applied to the Malaysian court seeking a stay on the husband’s application on forum conveniens grounds. The High Court judge dismissed the wife’s application, found that Malaysia was the forum conveniens and allowed the husband’s application. The Court of Appeal upheld the decision on forum conveniens but set aside findings about domicile and jurisdiction and the dispensation of the requirement for a conciliation appointment. Those issues were remitted to the court of first instance for rehearing.

The husband now asserted that the wife was estopped by the Malaysian court’s decision on forum conveniens from pursuing her case in England and that the English proceedings should be stayed.

The judge found that the wife was not estopped by the Malaysian court’s decision from pursuing her case. The Malaysian and English courts applied different tests for forum conveniens. Whereas the Malaysian court applied the test set out in the Australian case of Voth v Manildra Flour Mills Pty Ltd [1992] 1 LPR 205 the English court would apply the test in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 on the balance of fairness and convenience. The test applied in the Malaysian court effectively determined that it was not the inappropriate forum leaving it open to the English court to determine whether it was appropriate. As the Malaysian judgment was on a different issue the two decisions would not be incompatible.

The wife had clearly established her habitual residence here for 12 months prior to the issue of her second petition in May 2014. The English court therefore had jurisdiction to determine divorce and financial matters under s 5 of the Domicile and Matrimonial Proceedings Act 1973 and BIIR.

After considering s 5(6) and Sch 1, para 9 to the Domicile and Matrimonial Proceedings Act 1973 the judge determined that the English proceedings should not be stayed on the basis that the Malaysian court was the preferable jurisdiction. The husband had not satisfied the court that on balance Malaysia was the preferable jurisdiction. Therefore, neither party was prevented from pursuing proceedings in their respective jurisdictions of choice.

The combined costs so far of proceedings were £2.72m and the parties were urged to reach a financial agreement in order to limit further expenditure.


Case No: FD 13 D00747D
Neutral Citation Number: [2014] EWHC 3519 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand
London
WC2A 2LL

Date: Friday, 17th October 2014

Before:

MR. JUSTICE BODEY

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Between:

PAULINE SIEW PHIN CHAI
Petitioner

- and -

TAN SRI KHOO KAY PENG
Respondent

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Digital Transcription by Marten Walsh Cherer Ltd., 1st Floor, Quality House, 6-9 Quality Court Chancery Lane, London WC2A 1HP. Tele No: 020 7067 2900, Fax No: 020 7831 6864, DX: 410 LDE Email: info@martenwalshcherer.com Website: www.martenwalshcherer.com

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MR. RICHARD TODD QC, MR. NICHOLAS YATES and MR. THOMAS HARVEY (instructed by Messrs. Vardags) appeared for the Petitioner
MR. TIMOTHY SCOTT QC, MR. PETER DUCKWORTH and MR. JAMES PULLEN (instructed by Shakespears LLP) appeared for the Respondent

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JUDGMENT

MR. JUSTICE BODEY
:

(A) Introductory

[1] These proceedings raise issues between the parties about

(i) jurisdiction;

(ii) 'forum conveniens' (i.e. in which jurisdiction a case can be more appropriately dealt with) and

(iii) estoppel by foreign judgment (where a party may be stopped from re litigating a point here which has already been determined by a foreign court as between the same parties).

The first two such issues have been bitterly, tenaciously and hugely expensively fought across two jurisdictions, Malaysia and England. Nominally the case centres on the parties' mutual desire for a divorce, but in reality the question is as to where the financial proceedings between them should be heard. Each thinks that his/her desired jurisdiction will produce for him/her a better financial outcome. The wife has issued a divorce petition in this jurisdiction, whilst the husband has issued one in Malaysia. For jurisdictional and procedural reasons, however, he is presently unable to progress it pending a hearing in that jurisdiction next month.

[2] Currently before me is a contested hearing as to whether Pauline Siew Phin Chai (whom I will call for convenience "the wife") is able to show jurisdiction here under Article 3 of Brussels II revised, put shortly (as the issue has emerged) on the basis of her habitual residence here for twelve months before her petition. It has raised very many disputes of fact. If I am satisfied as to jurisdiction then there is an application by Tan Sri Dr. Khoo Kay Peng (whom, for convenience, I will call "the husband") for a stay of the wife's divorce petition here on the basis that this jurisdiction is not the 'forum conveniens', thereby enabling him to proceed exclusively in Malaysia.

[3] The husband also raises a preliminary issue based on the fact that the courts in Malaysia (the High Court and Court of Appeal) have already ruled that Malaysia is the forum conveniens. It is asserted on his behalf that this creates an issue estoppel such that the Malaysian decision should be recognised and given effect to here, with the result that the wife's petition should be stayed, pending a hearing in the Malaysian court. Such a hearing is, as I have said, fixed for early November 2014 for about six days.

[4] It is counter argued on behalf of the wife that the husband is himself estopped from raising this argument, having raised it earlier this year and having not pursued it at that time.

[5] After hearing detailed legal arguments about estoppel I said I would proceed to hear the evidence about jurisdiction and forum conveniens and would give my judgment about estoppel later. This I now do.

[6] At this hearing the wife was been represented by Mr. Todd QC, Mr. Yates, and Mr. Harvey. The husband by Mr. Scott QC, Mr. Duckworth and Mr. Pullen. I am grateful to them all for their respective contributions.

(B) Brief Factual Background

[7] For the full details of the factual background I adopt the agreed chronology placed before me. I merely set out the key details here so as to make this judgment free standing and so as better to explain the decisions which need to be taken. The husband is 75 and lives in Malaysia. He is clearly of Malaysian domicile. He is a wealthy businessman asserted by the wife to be worth at least £440 million, which he denies, and he is asserted to have an income of around £5.5 million per annum. Amongst very many other business interests he describes himself as 'non executive chairman' of Laura Ashley Holdings Plc and of Corus Hotels Limited. I stress that the wife's assertions are at present no more than that, the husband having declined at this stage to give any information as to his means. I make no findings about the accuracy or otherwise of the wife's case regarding the husband's wealth.

[8] The wife is aged 67 and lives on the parties’ magnificent 800 or so acre estate in Hertfordshire, Rossway Park Estate, which she values at around £30 million. Although I say 'the parties' estate', the property is vested in a British Virgin Island company in which the husband accepts that he is the only significant shareholder. He denied in cross examination that he has any beneficial interest in that property. He accepted in evidence that the purchase price, when it was bought for some £6.7 million in 2000, came from him. The wife does not work. Whilst her domicile of origin is Malaysian, it is her case that she now has a domicile of choice in this jurisdiction. However, she has limited her case on jurisdiction at this hearing to the sole ground that she has been habitually resident here for twelve months before the issue of her petition in May 2014. If she can establish that case, then this court would have jurisdiction under section 5 of the Domicile and Matrimonial Proceedings Act 1973 and Council Regulation EC2201/2003 to deal with the divorce and finances.

[9] The parties have five children, all adult. I do not propose to identify them by name, however, I do need to refer to four of them in this judgment and so will do so by initials: A, a man aged 43, lives in Canada; B a man aged 42, who is married with two children, lives in Singapore; C a woman aged 33, lives in Argentina; D a woman aged 31, who is married with no children, lives in London and E a man aged 28, lives at Rossway with the wife. He has done so effectively since September 2012.

[10] In 1970 the parties married in Malaysia. The marriage lasted about 42 years although it is common ground that there were serious tensions between the parties for much of this time. Until 1980 the family lived in Malaysia but in that year the wife, together with the three eldest children who were still small, moved to Australia. This was not emotionally a separation between the husband and wife. It was based on pragmatic reasons at the time, including feared kidnapping risks and the children's education. The same applied in 1989 when the wife and the children moved from Australia to Canada.

[11] In 1995, 19 years ago, the husband purchased, I assume in the name of some entity, a property in England at Wentworth Park. In 1999 he became a director of Laura Ashley Holdings Plc. In 2000 the Rossway Park Estate was purchased and Wentworth Park was presumably disposed of. In December 2008 the husband had a stroke in Malaysia. The wife travelled there from Canada, where she was living, to care for him. From then on, following his recovery, she says she used to accompany him in his very extensive world wide travels on business, being at his side and supporting him. He puts the emphasis more on her shopping. From October 2012 it is effectively accepted by the husband that the wife has lived in England, her home having become Rossway Park Estate. This occurred when she remained here after the couple had been at Rossway, the husband returning to Malaysia expecting, as he says, that she would subsequently follow on.

[12] On 14th February 2013 the wife issued a petition for divorce in this jurisdiction. The husband was quite taken by surprise. On 18th February 2013 the wife obtained an ‘ex parte’ non molestation and occupation order. It gave her occupation of the 15 bedroom big house at Rossway and relegated the husband to the smaller five bedroom house called old Rossway. (Those ‘ex parte’ orders were later extended ‘inter parties’ on 5th March 2013 and currently remain in force without admission by the husband as to the need for them.)

[13] On 27th February 2013, thirteen days after the wife's petition was issued here, the husband made application to the court in Malaysia for permission to issue a petition there without a conciliation appointment. A conciliation appointment is an essential pre-condition in Malaysian law to the issue of a petition. On 3rd May 2013 the wife issued a summons in Malaysia to stay the husband's application in those Malaysian proceedings on forum conveniens grounds. She did so expressly "without submission to the jurisdiction" of the Malaysian court.

[14] On 4th July 2013 the case was before Coleridge J in respect of the wife's application to issue a fresh petition. When it went part heard, application was made on behalf of the wife for a so called Hemain injunction to restrain the husband from progressing his divorce proceedings in Malaysia. Coleridge J refused that application but he made a request "without seeking to fetter the discretion of the court in Malaysia" that that court should "consider not taking any steps which might prejudice the wife's application in the English proceedings".

[15] However, on 11th December 2013 (and Mr. Todd makes complaint about this) a High Court judge in Malaysia heard the two applications which were before her. They were: (1) The husband's application to dispense with the requirement of a conciliation appointment so as to enable him to issue a petition for divorce in that jurisdiction and (2) the wife's application of 3rd May 2013 above to stay that very application of the husband's. That application of the wife's was made on forum conveniens grounds. Both parties were represented by counsel. The learned judge found in the husband’s favour and made orders:

(1) dismissing the wife's stay application, finding Malaysia to be 'overwhelmingly’ the forum conveniens;

(2) finding that the Malaysian court had jurisdiction in respect of the husband's application based on the domicile of both parties in Malaysia (both need to be domiciled there for jurisdiction) and applying the domicile of dependence rule; and

(3) allowing the husband's application for a dispensation of the requirement of a conciliation appointment.

[16] The wife appealed those orders to the Malaysian Court of Appeal. That same day, 11th December 2013, the husband issued a petition for divorce in Malaysia. On 8th January 2014 the husband issued a summons in this jurisdiction to strike out or stay the wife's English petition of February 2013. Shortly thereafter, the wife issued a summons in England for a Hemain injunction restraining him from progressing his divorce petition in Malaysia.

[17] On 22nd April 2014, having heard counsel for both parties on the wife’s appeal, the Malaysian Court of Appeal made the following orders:

(1) It dismissed her appeal against the High Court's refusing her a stay of the Malaysian proceedings.

(2) It set aside the High Court's findings about domicile and jurisdiction saying that such decisions should not have been made on affidavit, i.e. without cross examination, and stating that the concept of ‘domicile of dependence’ (whereby a wife has to take her husband's domicile) needed more profound argument. It remitted those issues of domicile and jurisdiction for a re hearing by a different High Court judge, which is the hearing coming up next month.

(3) It set aside and also remitted for re hearing the High Court judge's dispensation of the requirement for a conciliation appointment.

(4) It did not however, set aside the High Court judge's finding that Malaysia is the forum conveniens. It is on this latter basis that the preliminary point is taken by the husband at this hearing that the wife is therefore estopped from progressing her case in this jurisdiction.

[18] Following the Malaysian Court of Appeal's decision both parties applied to the Federal Court of Malaysia, the highest court in the land, for permission to appeal but on the 4th August 2014 that court dismissed both party's applications.

[19] In April 2014 discussions took place between the parties’ English lawyers about the husband's pending application dated 8th January 2014 in England to stay the wife's English petition. The husband's solicitors proposed that such application be adjourned on the basis that it would not be appropriate to pursue it, given that in Malaysia at that point in time there were mutual pending applications to the Federal Court. Such adjournment of the husband's application for a stay was agreed between counsel and solicitors. This was touched upon but not argued at a hearing before Holman J on 30th April 2014 and 1st May 2014.

[20] On 1st May 2014 Holman J made a number of orders.

(1) He dismissed the wife's February 2013 petition at her request on the basis that she would then issue a fresh petition. The rationale was that more than twelve months had by then elapsed from October 2012, the date from which the husband appeared to be accepting that the wife has lived in England;

(2) he declined to impose a condition on that dismissal that the wife's intended fresh petition be stayed and

(3) he dealt with maintenance pending suit and the wife's legal funding until the end of this hearing. A few days later on 7th May 2014 the wife issued her fresh petition, which is her current petition in this jurisdiction.

[21] On 1st July 2014 the husband issued a summons to stay the wife's 7th May 2014 petition on the basis that the wife is estopped from pursuing it by virtue of the Malaysian court's decision that it, the Malaysian court, is the forum conveniens.

(C) The wife's case that the husband is estopped from applying again for a stay of her English divorce petition

[22] Mr. Todd argues for the wife that the agreement between the lawyers in April 2014, whereby the husband's summons dated 8th January 2014 for a stay was to be adjourned, constituted an agreement that such a stay application would not be resurrected nor made afresh prior to the jurisdiction issue being heard by me at this hearing. He says that the husband should not, having changed his legal team (as he did at about the end of June 2014) be permitted to go back on the agreement and make another stay application. He maintains that adjourning sine die is 'the nearest thing to a dismissal'. Alternatively his case is that this application for a stay of the wife's petition is simply to re-make an application unsuccessfully made on the husband's behalf by his then leading counsel to Holman J on 1st May 2014, namely that if Holman J were prepared to dismiss the wife's first petition then it should be on terms that any fresh petition by her should be stayed as soon as it was issued.

[23] I do not accept these arguments. I cannot perceive any 'consideration' given by the wife for the husband's agreeing to adjourn his January 2014 stay application. She gave nothing in return and she did not, to my mind, suffer any detriment. It was simply agreed that the husband's application would be adjourned. Whilst it may be, as Mr. Todd submits from the Bar, that the agreement between counsel was for it not to be resurrected or re-made at or before this hearing, that was never recorded in writing (whether in attendance note or exchange of solicitors’ correspondence) and there is no proper evidential base for such a finding. It was simply an adjournment without any conditions or end date. On general principles, the husband’s January 2014 stay application could on the face it have been restored, particularly when the context changed with the Malaysian Federal Court's ruling over the summer, or a fresh application made (which is what in fact happened). Nor do I consider on reflection that Holman J's refusal to make his dismissal of the wife's first petition conditional on a stay being imposed on her second petition amounted to a stay of the second petition. Technically he could not in any event have stayed the second petition before it was issued.

[24] Mr. Todd relies further on the "could have, should have" principle referred to in Henderson v Henderson [1843] 3 HARE 100 whereby a party may be estopped from litigating a point which should have been brought forward previously. He says that the husband should have pursued his January 2014 stay application in this jurisdiction instead of agreeing for it to be adjourned. So the husband cannot now re-raise it. In my judgment the rationale of Henderson is not apposite here. The judgment there was in terms of there having been a previous adjudication by the court. It speaks of the court's 'earlier adjudication on the contest' and of the court having been '... actually required by the parties to form an opinion and pronounce a judgment'. That did not happen here. All that happened was that the husband decided not to pursue his stay application at that time. I do not consider that the "could have should have" type of estoppel is applicable. I therefore find that the husband is not himself estopped from advancing his case on estoppel, which I consider next.

(D) The husband's case that the wife is estopped from progressing her case in this jurisdiction by virtue of the Malaysian court's finding that it is the forum conveniens

[25] I have been taken to many authorities, indeed, a total of four lever arch files of them have been provided to me for this hearing. That said, I do not perceive that the basic principles of issue estoppel, whether by previous decision in this jurisdiction or in a foreign jurisdiction, are in dispute. It is essentially how those principles are to be applied to this particular case. The basic common law rules on forum conveniens in this jurisdiction (which are relevant when considering the Malaysian court's forum conveniens decision) are as follows.

(i) A stay will only be granted where the court is satisfied that there is some other available forum having competent jurisdiction which is the appropriate forum; that is to say where the case may be tried more suitably for the interests of all parties and the ends of justice. It is for the party seeking the stay to prove the existence of some other available forum which is clearly or distinctly [ see further below] more appropriate.

(ii) If the court decides that there is no other available forum which is clearly [see below] more appropriate, then a stay will (almost certainly) be refused.

(iii) If, however, the court concludes that there is some other available forum which is clearly [see below] more appropriate, then a stay will ordinarily be granted unless the applicant who resists the stay can show that a stay would deprive him or her of some legitimate personal or juridical advantage, or can show some other special circumstances by virtue of which justice requires that the trial should nevertheless take place here. If the applicant succeeds in showing this then the court must carry out a balancing exercise considering all the broad circumstances of the case, in order to determine the stay application, i.e. to decide where the case should be tried in the interests of the parties and the ends of justice.

(iv) A stay should not be refused simply because the applicant will be deprived of some personal or juridical advantage if the court is satisfied that substantial justice will be done in the available appropriate forum.

[26] I paraphrase these principles from Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460, particularly at 475B to 478 E; from de Dampierre v de Dampierre (1988) 1 AC 92 and from SPH v SA FACV 22 of 2013 Court of Final Appeal Hong Kong, the judgment being dated 9th June 2014. Subject to one disputed point between counsel, these are also the forum conveniens principles and guidelines which are applicable in this jurisdiction as part and parcel of applying the statutory rule for discretionary stays in proceedings about marriage as per the Domicile and Matrimonial Proceedings Act 1973 Schedule 1, paragraph 9 (the 'balance of fairness and convenience' etc) which I deal with in Judgment 2: de Dampierre v de Dampierre. The disputed point arises from Butler v Butler Nos 1 and 2 [1977] 2 FLR 311 and is, as to whether the words "clearly or distinctly" in subparagraphs (i) above and the word "clearly" subparagraphs (ii) and (iii) above are applicable when applying the 1973 Act. I will revert to that in Judgment 2.

[27] As to the status and effect here of foreign judgments, it is well established that they can give rise to 'cause of action' estoppel and/or to issue estoppel in this jurisdiction: Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] AC 853. At 967 A Lord Wilberforce there pointed out that in the nature of things an assessment of a foreign judgment may necessitate caution arising, among other things, from the possible difficulty of ascertaining the precise issue decided there and/or from the fact that the substantive law may not be the same as that applied in this jurisdiction. In Rule 42, 14 032, Dicey analyses the requirements for an issue estoppel by foreign judgment as follows:

" ... first the judgment of the foreign court must be:

(a) of a court of competent jurisdiction in relation to the party who is to be estopped

(b) final and conclusive and

(c) on the merits; secondly, the parties to the English litigation must be the same parties as in the foreign litigation; and, thirdly, the issues raised must be identical. A decision on the issue must have been necessary for the decision of the foreign court and not merely collateral."

[28] Many arguments have been addressed to me in skeleton argument and orally as to the proper application of these various rules to the particular facts of this case. With no disrespect to counsel I pass over many of the points raised although I have them well in mind and concentrate on the four which strike me as the most significant.

[29] First, Mr. Todd relies on the fact that in most of the paperwork supporting the wife's summons dated 3rd May 2013 in Malaysia (which sought a stay in Malaysia of the husband's Malaysian process) there was an express reservation that she was not submitting to the jurisdiction of the Malaysian court. Further, the Malaysian Court of Appeal expressly rejected a submission by the husband's counsel to the effect that the wife had submitted to the jurisdiction of that court. So maintains Mr. Todd, the Malaysian judgment said to create an estoppel against the wife in this jurisdiction is not of a court of competent jurisdiction vis à vis the wife. Reference was made to section 33 of the Civil Jurisdiction and Judgments Act 1982 by which:

"... For the purposes of determining whether a judgment given by a court of an overseas country should be recognised or enforced in England ... the person against whom the judgment was given shall not be regarded as having submitted to the jurisdiction of the court by reason only of the fact that he appeared (conditionally or otherwise) in the proceedings for all or any one or more of the following purposes, namely —

(a) to contest the jurisdiction of the court;

(b) to ask the court to dismiss or stay the proceedings on the ground that the dispute in question should be submitted ... to the determination of the courts of another country ..." etc.

[30] Mr. Scott says that the crucial words in Dicey's paragraph 14 032 above are "... court of competent jurisdiction in relation to the party who is to be estopped". It would be absurd and unfair on the husband, he says, for the wife to be able to challenge the Malaysian court's decision on forum conveniens by re-litigating the same issue here, especially when that decision was given on her own application. It would offend both the rationale lying behind 'cause of action' and issue estoppel and would amount in effect to an appeal against the Malaysian court's ruling. What would happen, Mr. Scott asks, if the wife had succeeded in Malaysia and then the husband had tried to say in this country that he was not bound by that decision because Malaysia had not been a court of competent jurisdiction? Obviously he says such an argument would fail.

[31] It is necessary in my judgment to draw a distinction as between a general submission to the jurisdiction of a foreign court and a submission to its jurisdiction merely for the limited purpose of invoking that jurisdiction to seek some specific relief; here a stay as per the wife's summons of 8th January 2014. I am with Mr. Scott, that the wife cannot be heard to run the argument in Malaysia and fail and then claim not to be bound by that decision (even though her participation in the Malaysian proceedings did not amount to a general submission to the jurisdiction of that court). I consider that when the Malaysian Court of Appeal held that the wife had not submitted, it was addressing the question of its general jurisdiction. I cannot conceive that it was intending to imply that the wife was not bound by its own decision on the very issue of forum conveniens which she herself had asked it to determine.

[32] The second point is Mr. Todd's argument about the effect of the Malaysian Court of Appeal's decision which simultaneously upheld the High Court's ruling on forum conveniens but remitted for re hearing the issues of jurisdiction and dispensation of a conciliation appointment. Does this not leave the decision about forum conveniens in thin air, unsupported by any divorce petition? Is it not therefore 'collateral' to necessary findings about jurisdiction which have yet to be made? Does it have any status at all, given that the husband's current Malaysian petition has (in retrospect) been filed without the necessary dispensation of a conciliation appointment? In the context of these rhetorical questions, Mr. Todd submits that the husband's Malaysian divorce petition is a nullity.

[33] Again, however, I prefer Mr. Scott's submissions. Whilst this is essentially a matter of Malaysian law, which is not before me, I observe that the Malaysian Court of Appeal said nothing about the husband's petition being a nullity. In the particular unusual circumstances which have arisen here, it seems to me still to exist (unless or until dismissed) awaiting the Malaysian court's determination next month as to jurisdiction and to dispensation of the requirement for a conciliation appointment. If those decisions go well for the husband, then his petition will proceed to trial. This does not to my mind mean that there is nothing to which the Malaysian court's decision on forum conveniens can attach. In any event it was a necessary decision for the Malaysian court to make because it was specifically asked for by the wife at a time when the husband was invoking the jurisdiction of the Malaysian court, as he is still doing by virtue of the pending remitted hearing.

[34] Third, Mr. Todd maintains that, because in December 2013 the Malaysian High Court judge determined issues against the wife contrary to Coleridge J's request in his order of 4th July 2013, the husband should not now be permitted to ask this court to pay any regard to the Malaysian court's decisions. This argument fails for two reasons: (a) Coleridge J's request was only that. He specifically made clear that he was not seeking to tie the hand of the Malaysian court, nor could he; (b) the wife was herself applying to the Malaysian court for a decision on forum conveniens. She cannot therefore deploy a comity-type argument to try to stop the husband advancing his arguments here.

[35] The fourth point is the question of the precise issue determined by the Malaysian court. Although the High Court judge in Malaysia had applied Spiliada (above) the wife's Malaysian counsel invited the Malaysian Court of Appeal to apply the Australian case of Voth v Manildra Flour Mills Pty Ltd. [1992] 1 LPR 205. There the High Court of Australia had held that the test for forum conveniens is whether the party seeking the stay from the court seized can show that that court is a clearly inappropriate forum. The Malaysian Court of Appeal acceded to that submissions and applied exactly that test, concluding that the wife had not shown that the Malaysian jurisdiction was a clearly inappropriate jurisdiction.

[36] Mr. Scott's submission is readily understandable and attractive. The Malaysian court decided that it was the forum conveniens. The wife should not be permitted to challenge or re-litigate that decision in this jurisdiction in what Mr. Scott describes as a mirror claim. Therefore prosecution of her case in this country should be stayed until in November 2014 the Malaysian court hears the questions of jurisdiction and dispensation with the requirement of a conciliation appointment.

[37] Mr. Todd maintains that this is an over simple occasion and says that one has to look at the precise issue determined, as to which he relies on New Brunswick Railway Co. v British and French Trust Corporation Ltd [1939] AC 1 and Thyssen Bornemisza (1985) 2 FLR 670 at 692. He further submits that the Malaysian decision only decides forum conveniens as at April 2014 whereas time has now moved on. There were other differences upon which he relied as between then and now, although none of them struck me as a sufficient change of circumstance to justify not giving effect to the Malaysian court's decision if it would otherwise be right to do so.

[38] My conclusion is that it is necessary to look beneath the headline label of forum conveniens so as to discern the precise issue which the Malaysian court determined. The answer is that it merely determined that Malaysia is not an inappropriate forum. That does not mean that, therefore, England is not an appropriate forum. England may also be appropriate, or not inappropriate. There are many features linking the case to this jurisdiction just as there are many linking it to the jurisdiction of Malaysia. What the Malaysian Court of Appeal did not consider or determine was the comparative test summarised above which this court applies under Spiliada. That court has not said that "... this court (the Malaysian court) is more convenient than the jurisdiction of England". Indeed, it expressly recognised within paragraph 33 of its judgment that this hearing before me remained pending. It follows that, although this hearing may at first sight look like an 'appeal' from the Malaysian Court of Appeal's decision, it is not. It should give the Malaysian court no 'offence' (nor is it intended to do so) because in spite of the identical headline label, there is actually no identity of the real underlying issue as between the two jurisdictions. I do not therefore agree with Mr. Scott that the forum conveniens decision to be taken here is a mirror of the Malaysian decision.

[39] Mr. Scott advances a fail safe argument, in addition to his case on estoppel, which relies on the court's inherent power to prevent the re-litigation of an issue previously decided if such would be manifestly unfair or would bring the administration of justice into disrepute: Hunter v Chief Constable of the West Midlands Police [1982] AC 529: Arthur Hall & Co v Symons [2002] 1 AC 615 at 702H. In the circumstances of this case I do not however consider that this adds anything to Mr. Scott's main argument. If, as I have found, the underlying issue decided in Malaysia is not the same as the underlying issue as it would fall to be decided in this jurisdiction, then I cannot see that it would be 'manifestly unfair' to the husband for the wife to be able to continue in this jurisdiction in her attempt to establish that this court has jurisdiction.

[40] For these reasons I reject the case made on behalf of the husband that the wife is estopped from pursuing her case on jurisdiction at this hearing. Absent some sensible and pragmatic compromise between the parties, it follows that the two jurisdictions may well find themselves exercising concurrent jurisdictions until one jurisdiction or the other recognises and gives effect to an earlier decision of the other. That will arise if the husband establishes jurisdiction in Malaysia, either by upholding the concept of ‘domicile of dependence’, or by showing the wife's domicile to be there as well as his, which proposition the wife denies. I recognise that a concurrent jurisdiction outcome would be most regrettable and, for want of a better word, invidious. But in situations like this, where neither party is prepared to step down, it is sometimes unavoidable, as is noted in de Dampierre above, page 107 at F per Lord Goff and in DGC v SLC [2005] 3 HKC 293 at paragraphs 20 and 21. I will now proceed to deliver Judgment No 2.

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