Tan v Choy
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
Areas of Law
- Family Law
- Civil Procedure
- Conflict of Laws
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
The case involves a jurisdictional dispute over divorce proceedings, with the husband favoring England and the wife Malaysia. The court upheld the initial ruling favoring the husband's habitual residence in England, dismissed the wife's appeal on jurisdiction, CJEU referral, proceedings stay, and upheld the costs order.
Judgment
Lady Justice Macur DBE :
1. Council regulation (EC) No 2201/2003 (Brussels II) concerns “jurisdiction….in matrimonial matters”. This appeal concerns the fifth indent of Article 3(1) (a) which provides that “[i]n matters relating to divorce… jurisdiction shall lie with the courts of the Member State (a) in whose territory… the applicant is habitually resident if he or she has resided there for at least a year immediately before the application was made”.
2. The plethora of documents filed in the several bundles, an extraneous application to admit “new” evidence, the length of the skeleton arguments produced (even when reduced in compliance with the direction of the President of the Queen’s Bench Division to accord with PD 52C para 31(1)(a) which is reflected in the views of Moore Bick and Aikens LJJ in Standard Bank v Via Mat International the time estimate given would suggest a far greater ambit to this appeal than is actually the case. As it was the hearing was disposed of within half a day. [2013] EWCA Civ 490 ) and
3. In short, the husband wishes to litigate matrimonial matters arising from the impending dissolution of his marriage in England; the wife wishes to litigate in Malaysia.
4. The wife appeals against the order of HHJ Horowitz QC, sitting as a High Court Judge , sealed on 12 March 2013 which dismissed her application for (i) a reference to the Court of Justice of the European Union (“CJEU”); (ii) dismissal of the husband’s petition; alternatively, (iii) a stay of the husband’s petition. She also appeals the order that she shall make a payment of £100, 000 on account of costs.
5. The order arises from the judge’s affirmative decision as to the husband’s habitual residence and his determination of forum conveniens being in England and Wales. He did not consider that the law and/or facts of the case required clarification by ruling of the CJEU.
6. The “outline history” of the parties and the marriage recorded in paragraphs 74 to 100 of the judgment at first instance in fact contains extensive domestic detail. (This is not a critical comment; rather I consider it reflects the great care taken by the judge to assimilate the background which necessarily forms the context of the husband’s claim of habitual residence in England and Wales.) It is a redundant exercise to repeat it here. Cases involving disputed claim to jurisdiction are fact specific.
7. Where there were issues of fact the judge’s adjudications are clearly ar