Louvet v. Lovet and Another
Read the full judgment text of on BabelCite. was delivered on 3 November 1989.
1. This is an appeal against His Honour Judge Blackwell's refusal, on 12th December 1988, to order the stay of these matrimonial proceedings pending the determination of parallel matrimonial proceedings in France. The facts are fully set out in his judgment and I propose to refer only to the salient events in the chronology.
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CACV000075A/1989
Headnote Forum non conveniens. Observations upon the application to matrimonial proceedings of the principles of Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 and of de Dampierre v de Dampierre [1988] AC 92. No grounds for interference with trial judge's discretion. Appeal dismissed.
-------------------- Coram: Hon Fuad, V-P, Hunter & Penlington, JJA Date of Hearing: 30 - 31 October, 1 - 2 November 1989 Date of Judgment: 3 November 1989 ---------------------- J U D G M E N T ---------------------- Hunter, JA : 1. This is an appeal against His Honour Judge Blackwell's refusal, on 12th December 1988, to order the stay of these matrimonial proceedings pending the determination of parallel matrimonial proceedings in France. The facts are fully set out in his judgment and I propose to refer only to the salient events in the chronology. 2. The marriage took place on 30th May 1973 in France, and was preceded by the making of a contract known as a Separation de Biens. The husband is a French national, born and brought up in France, although he seems to have spent a substantial part of his working life in the Far East. For him it was his second marriage. He had had an earlier marriage, and two children still living by that marriage. The wife was born and brought up in Japan. 3. The parties met in Tokyo on the date which is in dispute in 1969 or 1970 and they seen to have had something of an on and off relationship then in Tokyo. It would seem that the wife first went to France in 1971 or thereabouts, when she stayed for a period of time with the husband's mother. Cohabitation seems to have started later in that year first in Tokyo and later in Hong Kong. The parties went to France in 1973, following a change or loss of job on the husband's part. It was upon that visit that the marriage took place. This was followed by cohabitation in France until about November 1975, when the husband resumed employment in Hong Kong. Thereafter the parties cohabited in Hong Kong until September 1979. The marriage did not seem to be a great success. The wife complains of unreasonable behaviour on the part of the husband during that period. 4. The actual parting took place in September 1979, whilst the parties were on leave in France, when the wife announced that she was not returning. In the husband's view, first, the wife then put herself in desertion and secondly, not long afterwards started an adulterous relationship with a French lawyer. The next material date seems to be 1981 when two things happened. First, the parties seem to have accepted that a divorce was inevitable. Secondly, this is the admitted start of an adulterous association between the husband and the second respondent, which resulted in the birth of a daughter in October 1986. 5. Between 1982 and 1985, negotiations took place in France between lawyers on both sides in an attempt to reach an agreement with a view to divorce. The wife says that the husband did not sign when things were ready and was eventually playing around; whilst the husband says the wife did not sign because she was regularly increasing her demands. One can only record that conflict. There is no way in which this court can resolve it. The fact of the matter was that no agreement was reached. 6. I move on to 1988, when on 12th September, the wife filed her petition in this suit. On 10th October, the husband started the corresponding proceedings in France, based upon the wife's alleged desertion and adultery. On 25th October the husband applied for a stay of the Hong Kong proceedings. The hearing of that application before the judge was on the 21st and 22nd November. On 12th December, he gave judgment dismissing the application. On 8th February 1989, the French court accepted jurisdiction in the French proceedings rejecting, as I understand it, a parallel application by the wife. On 10th May, this Court granted the husband leave to appeal out of time against Judge Blackwell's order. Only last month, an appeal brought by the wife was heard in France against the decision given on 8th February. The judgment in that appeal is still awaited. That brief summary contains the relevant chronology. 7. I turn now to the relevant principles. The first principle to note, is that this is an appeal against the exercise of a judges discretion. It so happens that one of the classic expositions of an appellate court's function was made in a precisely similar type of case by Lord Brandon in The Abidin Daver [1984] AC 398 at p 420: -
That is the governing principle on discretion. For my part, I would add to it reference to a dictum of Asquith LJ cited by the House of Lords in G v G [1985] 1 WLR 647 at p 651. This was a custody appeal. In dealing with it, their Lordships emphasised that no special considerations applied to those appeals. What was cited with approval were these observations of Asquith LJ in Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343: -
8. As far as the relevant principles concerning the stay of the proceedings, which the court has jurisdiction to try, those have quite recently been reformulated and restated, initially in The Abidin Daver [1984] AC 398; more particularly in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 and in de Dampierre v de Dampierre [1988] AC 92. A convenient summary of the principles of Spiliada is to be found in the judgment of Bingham LJ in Du Pont de Nemours v Agnew [1987] 2 Lloyd's Rep 585, and this court attempted the same process in The Adhiguna Meranti [1987] HKLR 904. I hope I am not condemned of arrogance if I refer to the formulation in The Adhiguna Meranti. It survived criticism on this appeal: it is locally accessible: and it is in fact the formulation upon which the judge relied. What was said in the judgment of the court in that case at p 109 was: -
That question was first formulated by Lord Kinnear in Sim v Robinow (1892) 19 R 665. The judgment goes on. "Although this may no longer be necessary, per Slade LJ in Charm Maritime v Kyriakou (now reported in [1987] 1 Lloyd's Rep 433), we still think it convenient for the purposes of analysis to view the problem at three separate stages, namely". I would emphasise that this was only for the purposes of analysis but it does seem to be convenient because the same analysis was adopted in both courts in this case.
9. The final question, this being a matrimonial case, can perhaps be reformulated in the language of de Dampierre with the necessary adaptations in this way. In the language of Lord Templeman at p 101: is it just that the wife should allowed to exploit her Hong Kong advantage and would it unjust to confine her to her remedies in France? Or in the language of Lord Goff at p 110; "objectively speaking", would justice be done if this petitioner was compelled to pursue her remedies in France? Those, it is common ground, are the applicable principles. 10. The judge, as I have indicated, read almost the same passages as I have from The Adhiguna Meranti, and directed himself accordingly. He came first to the conclusion that the Hong Kong court had jurisdiction to try under section 3(c) of the Matrimonial Causes Ordinance, on the basis that the husband had a substantial connection with Hong Kong at the date of the petition. He then posed to himself at stage 1 the double barrelled question in the speech of Lord Goff, reformulating first says part, not as a double negative, but as a positive. He this: -
He then considered the second part of the stage l question and held this: -
11. I think he might have paused there and said that that is "normally fatal". But in recognition that this analysis was by way of stepping stones towards-the ultimate question put in Sim v Robinow, he went on to put the ultimate question to himself in de Dampierre terms: -
12. The fact that the judge founded himself upon his adverse answers to the applicant at stage 1, has, I believe, significant consequences if it is correct. First, as Lord Goff himself pointed out in Spiliada at p 477 D: -
13. One view of the decision in de Dampierre is that their Lordships came to the same view there too. Secondly, returning to Lord Goff in Spiliada at p 478 B, he says this: -
Then authority is cited: -
14. Indeed, if one goes back to the Sin v Robinow question, almost by definition, it admits of one answer only if stage 1 is answered in the same way as the judge did. 15. Thirdly, it seems to follow that if one answers this question at stage 1, the difficult balancing exercise which arises at stage 3 is not reached. This is the most delicate an difficult aspect of this jurisdiction because it involves what has been called the critical equation: it involves balancing the interests of justice in the broadest sense of that word. Some of the earlier tests in these authorities were expressed in terms of advantage "to the plaintiff", so that the matter could arguably be measured by the standards of the plaintiff's tribunal, e.g. Hong Kong. That seems to me to have been the approach of the lower courts in de Dampierre. But it was rejected by the House of Lords in favour of the more international concept of justice to both. 16. In the matrimonial context I do not think it is difficult to see why. It is, I believe, notorious that most contested matrimonial suits come down to arguments on custody or maintenance or both. It is inevitable that the advantage say to the wife petitioner produces an identical corresponding disadvantage to the husband respondent. If measured solely by the local standards of different tribunals, justice to one must equal injustice to the other. De Dampiere, and indeed this case has, I think, shown that the French law of maintenance is by the standards of the UK and of Hong Kong 20 or 30 years out of date. Fault still plays a potentially significant role, and a finding of sole fault against a wife, produces what used to be called in earlier days a compassionate allowance. Years ago this was recognised as unjust or unfair to the wives in the UK and in Hong Kong, and was rejected. It is therefore pertinent to ask upon what basis did the House of Lords compel a wife to submit to a regime which by UK domestic standards alone was apparently unjust. 17. The answer, I believe, is that the Lords faced the problem which had been most succinctly put by Oliver LJ in Spiliada in the Court of Appeal [1985] 2 Lloyds Rep 116 at p 135: -
It is, I think, significant that Oliver LJ was saying that the problem only arose when the defendant was taken out of what was prima facie the appropriate jurisdiction. If he was, is it quite plain that you cannot judge by the standards of the individual jurisdictions because you reach a headlong conflict. There is no half-way house. You have to recognise that there is going to be one loser and one winner in the result. The court has accordingly to resort to wider considerations, to perhaps a supranational standpoint, and try to determine in each case which is the fairer jurisdiction to the parties collectively or, perhaps putting it more brutally, which overall produces the least unjust result. That I believe is basically the de Dampierre test. 18. I have gone into these matters because it seems to be necessary to do so to have a true understanding of the de Dampiere decision and its relevance to this application. Mr Allman-Brown invites us in effect to say that it governs. There was there a French marriage and a contract of Separation de Biensr the matrimonial home was in London; the London jurisdiction was based upon residence and there were UK assets in the London house; the wife was seeking the advantage of what she conceived to be the fairer UK maintenance system but she was sent back to France. He invites us to say that this wife should be treated in the same way upon the basis that she, too, will get "substantial justice" in France. 19. I think that this approach overlooks certain crucial features in the de Daropierre decision. First, at least Lord Goff in that case, had no difficulty in answering the question at stage 1 against the wife. At p 109 E, he refers to "the very strong factors connecting the case with France" and concludes "that prima facie the courts of France clearly provide the appropriate jurisdiction". 20. Secondly, I think it is significant, and this emerges particularly from the speech of Lord Templeuian, that when the Law Lords were considering the appropriate test, they were looking for the connection between the forum and the action, the forum and the matrimonial proceedings. They considered the real contentious issues. Indeed at p 99 in his speech Lord Templeman sets them out, and identifies them as maintenance and custody. 21. When they were considering then, both the factors which led to the appropriate forum and the critical equation in the light of the more beneficial English Law, it seems to me that they isolated and concentrated upon three dominant factors. First, that that case was wholly French. They were dealing with two French nationals brought up and educated in France. Secondly, the husband's position was specially and peculiarly French. There was his title; the family home of considerable size; the family estate, and the family business in Cognac. All the courts attached great weight to family fortune and tradition. It must have seemed singularly more significant than London residence for the purposes of the Cognac business, coupled with purchase of the London property. Thirdly, the second contested issue was custody. Here the English court was wholly impotent. The issue was Paris v New York. England was demonstrably not the appropriate tribunal for the determination of half the contested issues. 22. At bottom, it seems to me that the Law Lords were perhaps giving effect to a sentiment which had been expressed in more homely language by Lord Denning in the Court of Appeal in MacShannon v Rockware Glass [1977] 1 WLR 376 at p 381 E, when sending a Scotsman back to Scotland, he said: -
It was the governing French features, which I believe to have been dominant in that decision. Those three special features are wholly absent in this case. We are governed by the principles of de Dampierre, but not By the facts. Equally, it cannot be right to seek to extract some of the fringe facts and apparent findings from de Dampierre and treat them as binding. 23. With that introduction, I turn to the particular attacks here made upon the decision of the trial judge. First, it is said under Head 1 of Lord Brandon's analysis that the judge misdirected himself, he misapplied the true principles in Spiliada. Initially that was based upon the contention that he took into account at stage 1 factors of convenience which were irrelevant then. That flew in the face of authority and was abandoned. It was replaced by an alternative submission which went like this. Lord Goff in his speeches in Spiliada and de Dampierre drew a fundamental distinction between connecting factors, relevant for consideration at stage 1, and juridical advantages, relevant for consideration at stage 2. These two categories were mutually exclusive. If something qualified as a connecting factor, it had to be brought into account in whole or in part at that stage only. It was wholly to be excluded from consideration as a juridical advantage. In particular, it was submitted that with the possible exception of a choice of law clause in contract, no question of substantive or procedural law could ever rank as a connecting factor and could only constitute a juridical advantage. Basing the submission upon Lord Goff's speeches, which were afforded near statutory effect, we were invited to prefer Lord Goff to anything which Lord Templeman may have said. 24. In my judgment, this formulation is really no better than the first. I can see no justification for it whatever in Lord Goff's speeches. In Spiliada it is perfectly true that when he came to deal with juridical advantages at p 478, he said: -
Certainly it is a wider inquiry. But there is no suggestion that it was a fundamentally different and mutually exclusive inquiry. Indeed the example then given was the example of a local failure, e.g. corrupt system in the local court. He deals with the matter quite specifically again in de Dampierre at p 109. When drawing attention to the need to distinguish between these factors, one finds these words "(which may embrace the former)". In other words he is clearly envisaging that factors which have significance as advantages may equally be connecting factors as well. Mr Allman-Brown was quite unable to reconcile his submission with those words, which he could not start to explain. Indeed, as I have tried to show, in my judgment precisely the same dominant features were considered by the House of Lords both as connecting factors and as relevant to the ultimate equation in de Damaierre. It was the very weight of the connecting factors that carried the husband home on the other matter. 25. Secondly, it is quite apparent in many commercial contexts, that you cannot start to consider or compare the appropriateness of any particular forums or rival forums without considering the nature of the law and procedure administered in those forums. This clearly emerges from the speech of Lord Diplock in The Auidin Daver. In my judgment there is no substance whatever in this attack and no hint of a misdirection in this case. 26. The next attack upon the judge's decision encompasses the next two points in Lord Brandon's analysis and they can conveniently be taken together. I have read already the passage in the judgment which led to his conclusion that Hong Kong was not only the natural but clearly the more appropriate forum for the trial. Indeed to those points the judge might have added in the context of a adultery and much of the unreasonable behavior alleged in the petition, occurred, so it is said, in Hong Kong. Mr Allman-Brown accepts that all these can properly be regarded as connecting factors. But he objects that they are not sufficient to get this wife home. His main criticism was directed to the way in which, as he puts it, insufficient weight was given to the connecting French factors in this case, and to the judge's refusal to conclude that his client had discharged the evidential burden upon him. To these matters, I shall now turn. 27. First, there were three matters which were particularly relied upon to establish the French connection. The first was the exequatur; the second was the divorce negotiations; and the third was Separation de Biens. Here there was some conflict of French law revealed on the evidence before the judge. I propose to follow the course suggested in The Adhiguna Merahti at p 915 where this appears: -
Approaching the expert evidence in that way it seems to me that the evidence put before the court on behalf of the wife reads more persuasively and consistently than that put before the court by the husband. The husband's expert evidence and his personal evidence suffers from the defect that he took certainly one and probably two false points. 28. I turn to the point on the exequatur. There the husband personally, claiming the support of his lawyer M. Stasi, made a robust attack upon Hong Kong decrees and Hong Kong orders, and suggested fairy bluntly that they were virtually useless in France. Without an exequatur, he said, neither the decree nor any consequential order would be recognised or enforced, and far from permitting enforcement of any financial order, a French court would positively forbid it. To my mind, the husband's own language went considerably beyond that employed by M Stasi in his letters. 29. This was dealt with by Professor Mayer, who is something of a private international law specialist, on behalf of the wife. He was provoked into describing what was said about prohibition in strong language: "absolutely untrue" is the phrase he used. It seems to me, that with some conviction, he showed: first, that the decree would be recognised secondly, that an exequatur was only needed to enforce overseas orders in France; that normally there will be no difficulty about getting an exequatur; and if there was, it would be a difficulty created by the husband himself. 30. This is a point where the judge noted the rival contentions without making an express finding. It seems to be implicit in his conclusion that, like me, he was minded to prefer Professor Mayer because of the considerable element of exaggeration in the husband's evidence. It seems to me that effect will be given in France to a Hong Kong decree; and that the absence of an exequatur might only affect a financial order in the unlikely event of the Hong Kong court, deeming it sensible or necessary to make a maintenance order which could not be enforced against the Hong Kong assets alone. Then any difficulties which might be created by the husband would savour of self-induced frustration. 31. I am very conscious, having expressed those thoughts, that in a remarkably short time I may be proved wrong by a French court. I can only say, first, that if the husband is proved right in that way, it is most extraordinary that the point was not even hinted at in de Dampierre because it would seem to apply equally to an English decree as a Hong Kong decree. Secondly, it would seem to me regrettauly to show that the change in England from judicial chauvinism to judicial comity, noted by Lord Diplock in The Abidin Daver at p 411, has not been matched in France. 32. The second point is that the judge gave insufficient weight to the abortive negotiations between 1982 and 1985. The husband, with the support of M Stasi, originally asserted that these negotiations constituted the commencement of proceedings in France in 1982. It seems to me that a glance at Article 230 of the French Civil Code shows this to be a false point, which M Stasi was constrained to admit when challenged. In 1982, both parties were hoping for a divorce by mutual consent. A procedure to bring that about existed in France, but not in Hong Kong. You can only start proceedings like this in France if and when you have reached agreement, because in the words of the Code, you "must only submit" this agreement in your application to court. No agreement was reached which could be submitted. What was the convenient and indeed only available procedure leading to divorce by consent, seems to me to have little or no bearing upon which is the appropriate forum for contested proceedings. It seems to me that the judge was right to give little or no weight to this. 33. The third matter is Separation de Biens. I note here that the validity of this is put into issue by the wife, but let me assume that that challenge fails. Here one can derive help from the decision in de Dampierre where there was the same marriage contract unchallenged. The judge followed the views expressed by Dillon LJ in the Court of Appeal. That view, which I personally share, is that prima facie, such an agreement operates only to exclude the French law of post-marital communal propriety, and to leave the parties, in what I would be minded to describe as the normal UK or Hong Kong position. Dillon LJ said this [1987] 1 FLR at p 54: -
I can see no grounds for criticising that approach because I can detect no criticism of it in the House of Lords. Therefore, for my part, I cannot criticise the trial judge for following and applying it. The fourth main head of criticism of the trial judge was where he said that the French proceedings have had no impact. Here it seems to me that the judge was giving effect to what Lord Goff said in de Dampierre at p 108 A, which seems to me to come down to this: -
34. Proposition No. 4 was true of de Dampierre where. The husband had started first in France, and the proceedings had reached the point of an interim maintenance order, which was then governing the position between the parties. Here, at the time the matter came before the judge, the husband's proceedings had not passed beyond "the initial process". It seems to me that the direct application of Lord Goff's principles supports the trial judge's conclusion. 35. Fifthly, he was criticised for the significance he attached to the court's jurisdiction under section 17 of the matrimonial Proceedings and Property Ordinance (Cap 192) to set aside what the husband had at that stage simply described as "a bestowal" of $4.6 million in favour of his natural children, that is to say the two children of his first marriage and the one that has been born in Hong Kong in 1986. 36. I cannot myself criticise the trial judge for regarding this as a significant connecting factor when: -
37. Finally, criticism is directed to two observations the judge made about the husband's assets. First, he said that he was not satisfied on the evidence before him "that the majority of the husband's assets are in France". The problem here is that the husband had been ordered to file an affidavit of means within 21 days on 10th October. His effective affidavit complete with the exhibits, was not in fact filed until 21st November, the first day of the hearing, and betrays all the sighs of having been prepared in haste. In my view, it is impossible to criticise this tentative conclusion from the judge which indeed simply reflected counsel's submissions. Secondly, the judge said this: -
The husband's assets in France are reasonably clear. The same cannot be said of the Hong Kong assets. Investigation of these assets, it seems to me, can be conducted much more efficiently and effectively here. It is the right place, and the expert evidence seems to me to show that Hong Kong's methods of investigation are the most effective. 38. The position seems to me to be this. The judge decided this matter at stage 1. But he also put to himself and answered the balancing question in de Dampierre form. He did not misdirect himself. He gave the most careful consideration to all relevant matters. I nave been unable to detect any significant flaw in his approach, and I find his reasoning convincing. Whether I would have reached the same conclusion is immaterial, but I minded to think that I probably would. What seems to me apparent is that his conclusion was not plainly wrong, and that no grounds exists upon which this court can properly interfere with it. Fuad, V-P: 39. I agree. I, too, have not been persuaded that the decision make by the judge, in the exercise of discretion, was one which he could hot wake reasonably and properly on the material before him, and applying the authorities by which he was bound. I would, therefore, also dismiss the appeal. Penlington, JA: 40. As was set out by Lord Brandon in The Abidin Daver until 1973, the position, as regards an application for a stay of proceedings on the basis that an action should be conducted in another alternative jurisdiction, was that the applicant has to show that it would be oppressive or vexatious to allow the proceedings in England to continue. It was a difficult task to do so and rarely succeeded. However, following the decision in The Atlantic Star in 1973, the position changed, and it is now that the decision is to be made on the basis of which forum is the best suited to the interests of all parties and the interests of the justice. These are very broad and sweeping words because it is not easy to decide when, as here and in the majority of the cases, the interests of the parties as to the forum greatly differ. Is there then another forum which is so clearly more appropriate or convenient, and which is the natural place for the case to be tried as set out by Lord Goff in Spiliada at p 477. Or as Lord Keith said in The Abidin Daver "with which the action has the most real and substantial connection". If one forum does seem to have such natural and substantial connection, are there then special circumstances which should overrule that first decision, including juridical advantages. Here an advantage which is cited on behalf of the petitioner is the provisions of section 17 of the Matrimonial Proceedings and Properties Ordinance, relating to a disposition of property, in particular one made within three years of the proceedings being brought. 41. There are many factors which will fall for consideration in both classes, and I do not consider that they are in any way mutually exclusive. But I do consider that the history of the parties and the marriage, are connecting factors as was said by Lord Templeitian in de Dampierre. Such matters as the place of birth of the parties; where the marriage was celebrated; where prior negotiations took place, are all circumstances which connect the parties and the action to a particular forum. 42. It is also a fundamental principle that simultaneous actions in different forums should be avoided, if at all possible, as was said by Lord Diplock in The Abidin Daver. At first sight, it seemed to me that it was inevitable that the French proceedings would go on, and that may result in different decisions from both the French and the Hong Kong courts. This would, it seems to me, be a strong reason to stay proceedings here, if satisfied that the French petition would give both parties a just decision. It is true that the Hong Kong proceedings were first in time, although closely followed by those in France brought by the respondent. I do not consider, however, that is a matter of great consequence. 43. I now consider that, though, this matter may be settled, if it is not, it is not inevitable that proceedings will in fact go on in both jurisdictions as regards the property. That therefore this is not such an important consideration as I first saw it to be. 44. Bearing in mind that an appeal from the decision to grant or to refuse a stay is one very difficult for an appeal court to interfere with, it did seem to me unfortunate that, considering the long period of negotiations in France between the parties, some six years, that matters in Hong Kong were brought to a head very quickly indeed, and resulted in the application to call fresh evidence which we first considered. It may be if all matters had been before the trial judge, whatever his decision would have been, we might not have been hearing this appeal. However, we have to consider only the factors which were before the trial judge and with some hesitation, I also do not consider that the judge has fallen into such error as would justify this court's interference. Representation: Andrew Allman-Brown (M/s Haldane, Midgley & Booth) for Appellant/1st Respondent Michael Thomas, QC, Ian Payne (M/s Hampton, Winter & Glynn) for Respondent/Petitioner Note Later in November 1989, the French court allowed the wife's appeal against the decision of 8th February 1989, and declined to accept jurisdiction. |