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(Court of Appeal; Thorpe and Laws LJJ; 16 March 2006)
The English wife had lived with the husband in France for many years. After the wife's return to England, the husband petitioned for divorce in France. The wife's English matrimonial proceedings were stayed under Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility repealing Regulation (EC) No 1347/2000 (Brussels II Revised). The wife then issued English proceedings under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) on two properties in London held in the husband's name and to the proceeds of sale of another property. The judge refused to grant the husband a stay of the proceedings, accepting the wife's argument that Art 22 of Brussels II Revised applied, and that the jurisdiction in which immovable property was located was entitled to deal with an issue relating to that property.
The husband should have argued, under Art 2 of Brussels II Revised, that persons domiciled in a Member State were to be sued in that Member State, but had failed to do so. None of the cases from the European Court of Justice on the construction and application of Art 22 of Brussels II Revised had been cited before the judge. Had they been, it would have been relatively simple to establish that Art 22 of Brussels II Revised did not apply if the location of the property was immaterial to the claim, in that, as in this case, the issues raised by the action related to personal beneficial interests, requiring no on-the-spot investigations or enquiries. Where a married couple engaged in contested ancillary relief proceedings, it was hard to justify a claim by one of them under TOLATA. The TOLATA proceedings in this case were plainly strategic and superfluous to the French ancillary relief proceedings. The primacy of the French proceedings was to be recognised by a stay of the wife's TOLATA claim.