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08 JAN 2016

Priority of proceedings under EU Brussels II: An Irish High Court decision may mean all change after 15 years of practice

David Hodson OBE

Family lawyer


Priority of proceedings under EU Brussels II: An Irish High Court decision may mean all change after 15 years of practice
On Wednesday 2 December 2015, Ireland’s High Court by its most senior family court judge, Mr Justice Henry Abbott, handed down a decision, just published, in an Anglo-Irish case which dramatically changes expectations of what is needed across the EU to gain priority of proceedings. It is surprising it has taken until almost the 15th anniversary of the Brussels II Regulation for the matter to be argued. It is subject to appeal which will be followed closely by family lawyers across Europe.

If upheld, it will produce a significant change in practice by lawyers and by court administrators and in the running of family court buildings.

The point was a simple one. What has to be done to gain priority, lis pendens, for divorce and other legal separation proceedings? Is it to be first to issue proceedings, as has been practice in England and elsewhere across Europe, or simply to deliver papers to the court and/or to be received by the court? The Irish decision was the latter. Issuing itself was not needed. Only receipt or possibly delivery is paramount.

It is well-known law that where there are proceedings relating to divorce etc. between the same parties brought in the courts of different EU member states, the court second seized shall stay its own proceedings until such time as the jurisdiction of the court first seized is established, Art 19.1 Brussels II. The court is deemed to be seized when the originating documents are “lodged with the court”, Art 16.1.1. There are surrounding features about steps for service but this is the essential element. Lis pendens appears in other EU legislation e.g. EU Maintenance Regulation so it has wide application.

Over the almost 15 years, since March 2001 when Brussels II originally came into force, practitioners have proceeded to make sure their proceedings were 'issued' first to gain priority. But from this Irish decision it would seem this was not needed and that receipt by the court alone was sufficient.

The case is reported as MH v MH (2015) IEHC 771 and can be found here.

The essential facts of the Anglo-Irish case are straightforward. On a particular Friday in early September 2015 the wife’s English lawyers sent, by document exchange, divorce papers to the Bury St Edmunds Divorce Centre. The document exchange post was apparently received at about 8:00am on the Monday and the invariable practice, although nothing could be confirmed for the particular day and the particular papers, was for envelopes to be opened over the next couple of hours, sorted and put into categorised piles by date of receipt. The divorce proceedings were not issued then. At about 2:30pm Monday, the same day, the husband issued matrimonial papers in Ireland. The wife’s Petition in England was then issued on the Friday. Which had priority?

There was no doubt in which jurisdiction proceedings had been issued first. It was in Ireland. But was priority of proceedings either the sending by the lawyers on the Friday afternoon or the receipt in the document exchange in the court building on the early Monday morning or the opening of the envelopes and placing in piles for future action, any of which would be sufficient to give priority to England? The High Court in Ireland said these steps were sufficient for priority. It stayed its own proceedings to allow England to go ahead on the basis that an English court first received the papers and so was seized first.

The precise word in the Brussels Regulation is 'lodged'. The husband’s case in law is in part set out in the reported judgment. His case on the practice was that since 2001 'lodged' had been understood to mean 'issued' by the court, not just received. It was further argued by the husband’s Irish lawyers that the intention of the word ‘lodged’ in the Regulation was specifically to cater for differences between jurisdictions in which issuing precedes service e.g. England and Ireland, and those countries in which service of proceedings precedes issue. They argued that in Ireland and England the meaning of 'lodged' has, for the last 15 years, meant 'issued'. This is why not only the date but also the actual time of issue is vital. This is the good practice guidance given by English family law organisations and in many other places i.e. actually issue first and don’t just deliver papers to the court office. It is why lawyers make sure that the petition is issued by the court even if there are outstanding difficulties with lack of marriage certificates and other elements. It is arguably why the court system has made specific arrangements for the localised urgent issue of divorce petitions following the centralisation of the administration to regional divorce centres. Whilst the time of issue of a divorce petition is shown on the first page of a divorce document, only the date of receipt is shown, indicating timing is not of importance on receipt rather than issue. There are many other elements in practice.

Simply delivering it to the court office has been understood as inadequate and insufficient to gain priority under lis pendens.

The wife’s case was that delivery to the Court building and/or the opening of the envelope containing the Petition was sufficient for the document to be 'lodged' for the purpose of Article 16 and thereby gain priority.

The husband is now appealing in Ireland and it should be heard by the Irish Court of Appeal in Spring 2016. It is a family law case but as lis pendens transcends civil and family litigation, it has ramifications beyond Brussels II, to include for example Brussels I Recast, and affects civil litigation lawyers.

We act for the husband in England, having been instructed after the above events in September occurred. Our leader is Stephen Trowell QC. The husband is represented in Ireland by solicitor Justin Spain, Dervla Browne SC and Linda Coughlan, Junior Counsel. The wife also has solicitors, Leading and Junior Counsel in London and Dublin who are experienced in international matters.

Subject to a successful appeal, the decision has significant implications in practice.

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Court buildings must now make themselves accessible to receiving papers both during office hours and out of hours. Some, perhaps most, are not accessible. The Bury St Edmunds Regional Divorce Centre has no counter and, it is believed, no post box. How does someone urgently deliver so that it is received during working hours? Even more, emergencies do occur and why should a party not be able to deliver out of hours? One of the fundamental elements of the Irish judgment was that there should be no discrimination between Member States where some courts were quick at issuing and some were much slower. Surely there is a discrimination of a similar kind in that the courts in some countries allow delivery out of hours and some do not? At least issuing is very clear in that it is during working court hours. So as a consequence of this judgment, Court buildings across Europe need immediately to gear up for more time-sensitive receipt both during working hours through postbox and counters and out of hours opportunities. It cannot be acceptable simply to refuse receipt opportunities out of hours if courts in other member states allow it.

Next, what is the evidence of receipt by the court? Is it when the document exchange or the post bag arrives, and do all courts have a daily record of arrival time? Is that sufficient and/or should each item be separately noted on receipt? The evidence of the Bury St Edmunds Divorce Centre is that it can take several hours each day merely to open the post. Is the lodgement on receipt of the post in the actual building or when the specific paperwork is opened? At the moment family courts do not timestamp receipt. They must now do so.

Next, what about evidence of personal delivery out of hours presuming this is possible? Do we need process servers, photographs of the trainee putting the petition through the court letterbox with a verifiable timestamp, objective witnesses to verify, or more? Uncertainty of time of delivery and receipt surely trumps any difficulties in the time of issuing.

Next, fairly soon it will be possible to issue online and many of us have been campaigning for this over many years. So the date of delivery and the automated receipt message from the court will be instantaneous and identical timing. It happens with tax returns, company returns and more. It will happen soon with the family courts in some countries. This gives a huge advantage to the party wanting the proceedings in that country and a major disadvantage to the party seeking to deliver to a conventional building. The concerns expressed in the Irish judgment about the discrimination through issuing is fully stood on its head by the discrimination through being able to deliver online to the courts in some Member States and not others.

Indeed, new family court rules which came into force on 1 January 2016, new Practice Direction 5B (communication and filing of documents by email), confuses the picture even further because they make provisions for applications received electronically after close of business, 4:31pm and before midnight, effectively 11:59pm, as not being issued before the next day the court office is open. In the context, this raises the inevitable question of the distinction between real-time delivery, actual or deemed receipt, and actual issue. If those drafting these rules had anticipated that priority was gained by delivery or receipt rather than issuing then there would have been far tighter terminology. See article on this new practice direction: 'Two small steps towards a digital family court' by David Hodson.

The Bury St Edmunds Regional Divorce Centre reports up to 40% of its petitions are returned through defects and not issued. Is priority gathered even though the delivered petition is received first in time, despite being returned for corrections and not issued? Does it only get priority if it is subsequently issued? This would seem to create an uncertainty of a lacuna period. Does initial receipt continue to give priority even if it is returned because of technical or other defects and then subsequently delivered back to the court in a matter of weeks or maybe months? There will be many arguments subsequently about technical rejection of papers if thereby priority is lost. Surely actual issuing is far more certain.

One of the concerns already in Ireland is that this decision doesn’t just affect the family law community but all civil litigation lawyers operating in other EU legislation with lis pendens. It might be the same here in England and Wales.

Lis pendens, the rush to court, has always been a rotten law introduced by the EU. It has directly discouraged mediation and other ADR and settlement discussions before proceedings are commenced, directly discouraged attempts to save marital relationships, directly encouraged the fast ending of marriages by commencing tactically the divorce petition and favoured the party with funds for specialist international family law advice. The EU has been unwilling to admit the many shortcomings and disadvantages.

Now, 15 years after introduction, a fundamental element of the law and practice under Brussels II has been determined at first instance, against expectations of many practitioners across Europe. The Irish High Court has ruled priority comes from the receipt by the court, not the issuing by the court. The race to court still exists. But the winner now only has to reach the court building and deposit the court papers within it, rather than engage in the extra costs of making sure it is immediately issued.

This clearly affects many practitioners undertaking family law work with an international aspect across Europe and lends support to the long-established practice of racing to court to commence proceedings where jurisdiction, in particular intra-EU, may be disputed. The outcome of the appeal will be much awaited around Europe.

(As an ancillary footnote of interest to international practitioners, on behalf of the husband we proposed to the English court an innovative and constructive way forward in respect of the finances. Whichever country has jurisdiction, there will need to be a financial resolution, which requires reliable disclosure. Provision was therefore made for jurisdiction-neutral financial disclosure, able to be openly used by either the Irish courts or the English courts and by advisers in both jurisdictions, with expert evidence being gathered for use in either jurisdiction. In this way, no time is lost once the jurisdiction issue is resolved. Our approach was encouraged and endorsed by DDJ Butler at the CFC in chambers. This approach is commended in other international cases, where possible.)
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