Scottish Court of Session Decisions

At advising, on 23rd April 1992, the opinion of the court was delivered by Lord Allanbridge.

OPINION OF THE COURT.—This is an action of divorce by a wife, who is the pursuer and respondent, against her husband, the defender and reclaimer. Her action was raised on 31st January 1991 in the Court of Session and on 18th March 1991 her husband petitioned for divorce in the district court of Draguignan in France. On 27th September 1991 the Lord Ordinary refused a motion to sist the cause in terms of para. 9 (1) of Sched. 3 to the Domicile and Matrimonial Proceedings Act 1973. The husband has now reclaimed against the Lord Ordinary's interlocutor of 27th September 1991 which refused to sist the present action to allow the French proceedings to be disposed of before further steps are taken in the present action.

The relevant parts of said para. 9 are as follows:—[Their Lordships quoted same and continued thereafter.]

At the time the Lord Ordinary heard the motion to sist in September 1991, the facts, as contained in the summons and defences which were then unadjusted, were that the wife averred that the Court of Session had jurisdiction as she was domiciled in Edinburgh on the date when the action was begun. (See sec. 7 (2) (a) of the Domicile and Matrimonial Proceedings Act 1973). On the other hand the husband avers that he is domiciled in France, that he had raised an action of divorce in France on the ground of the wife's adultery in France in March 1991, and that both parties resided in France and were habitually resident in France throughout the year prior to their separation. In these circumstances the husband averred that the French court was the appropriate forum to dispose of the present dispute between the parties.

The parties were married at Edinburgh on 10th June 1977. At the time the present action was raised there was one child of the parties under 16 years of age, namely, Euan Fraser Mitchell born on 15th September 1975, but that child is now over 16 years of age. After the marriage the parties lived together in Edinburgh until about April 1989 when, as stated in the Lord Ordinary's opinion, it seems that the parties moved to France where they lived together until finally separating in July 1990. At the time the present proceedings were raised by the wife in January 1991 the instance shows she was then residing in France, although in September 1991 the Lord Ordinary was told that she had recently returned to live in this country. There was a dispute between the parties as to where their various assets were situated and in particular it was maintained by senior counsel for the husband as reclaimer that as the husband's assets were now substantially based in France where he presently resides, the French court was the appropriate forum. On the whole matter senior counsel had submitted that having regard to the present or recent whereabouts of both parties, the fact that they had lived together in France, the fact that the most part of their assets was, at least, arguably located in France and the fact that the witnesses to the merits were presumably resident in France, the balance of fairness (including that of convenience) as between the parties, made it appropriate that the present proceedings should be sisted in Scotland.

The leading case on the interpretation of the English equivalent of said para. 9 is de Dampierre v. de Dampierre [1988] AC 92. Paragraph 9, which relates to the sisting of consistorial actions in Scotland, is contained in Sched. 3 of the 1973 Act whereas the English equivalent in similar terms is contained in Sched. 1 of the same Act. In this case the House of Lords allowed an appeal by a French husband who had raised an action for divorce against his French wife in France and had been refused a sist to stay the wife's action for divorce in England. The Lord Ordinary in the present case adopted the reasoning of the House of Lords in that case and in particular founded on what Lord Templeman said, at p. 102 F-H, regarding the situation of the French wife which the Lord Ordinary considered was very similar to the situation of the Scottish wife in the present case. The Lord Ordinary said that he construed the decision in de Dampierre'scase as leaving open, as a very relevant consideration in deciding whether or not to sist proceedings, the "overall connection of the marriage" with the jurisdiction or jurisdictions in question, With that approach in mind he said he had little doubt that the motion in the present case should be refused but that, even without the benefit of that approach, he would still, he thought, on balance, have refused the motion.

In the appeal before us senior counsel for the reclaimer submitted that the Lord Ordinary had erred in law in concluding that he should approach the question of the balance of fairness, primarily from the angle of the "overall connection of the marriage" and the entitlement of the "Scottish" spouse in terms of the dicta of Lord Templeman. This is the first and most important of the husband's grounds of appeal which are very clearly and helpfully set out in his written grounds of appeal in this case.

Lords Templeman and Goff of Chieveley each delivered speeches in de Dampierre's case. For the purposes of this appeal it is necessary to refer to a passage from each of their separate speeches. At p. 102 F-H Lord Templeman said:

"In my opinion it is not unfair to the wife in the present circumstances to deprive her of the advantages of seeking from an English court maintenance which she might not obtain from a French court. The wife's connections with England were tenuous and she voluntarily severed all connection with England before instituting her English divorce proceedings. The wife is French; she was married in France, she can litigate in France as easily as in England and she can obtain from the French court all the redress to which she is entitled under French law. The wife cannot sever her direct French connections derived from ancestry, birth, nationality, education, culture and marriage laws, or her indirect French connections through her husband and child. On the one hand it is logical and not unfair to the wife to treat her as a French wife entitled to the rights conferred by French law on divorced wives. On the other hand it would be unfair to the husband to treat the wife as if she were an English wife entitled to the rights conferred by English law on divorced wives when, in truth, she is a French wife, resides at present in the United States and has no connection with England."

At pp. 107H to 108C Lord Goff of Chieveley said:

"Under the principle of forum non conveniens now applicable in England as well as in Scotland, the court may exercise its discretion under its inherent jurisdiction to grant a stay where it is satisfied that there is some other tribunal, having competent jurisdiction, in which the case may be tried more suitably for the interests of the parties and for the ends of justice"

: see Sim v. Robinow (1892) 19 R 665, per Lord Kinnear at p. 668. The effect is that the court in this country looks first to see what factors there are which connect the case with another forum. If, on the basis of that inquiry, the court concludes that there is another available forum which, prima facie, is clearly more appropriate for the trial of the action, it will ordinarily grant a stay, unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted: see Spiliada Maritime Corporation v. Consulex Ltd . [1987] AC 460 at pp. 475–478. The same principle is applicable whether or not there are other relevant proceedings already pending in the alternative forum: see The Abidin Daver[1984] A.C. 398, per Lord Diplock at p. 411. However, the existence of such proceedings may, depending on the circumstances, be relevant to the inquiry. Sometimes they may be of no relevance at all, for example, if one party has commenced the proceedings for the purpose of demonstrating the existence of a competing jurisdiction, or the proceedings have not passed beyond the stage of the initiating process. But if, for example, genuine proceedings have been started and have not merely been started but have developed to the stage where they have had some impact upon the dispute between the parties, especially if such impact is likely to have a continuing effect, then this may be a relevant factor to be taken into account when considering whether the foreign jurisdiction provides the appropriate forum for the resolution of the dispute between the parties."

In presenting his main argument, senior counsel for the reclaimer drew our attention to the fact that Lord Goff of Chieveley at p. 107H of the English case, had explained that the principle of forum non conveniens which had become established in Scotland was now available in England in choosing the appropriate forum. This, according to senior counsel was the proper approach and he referred to what was said by Lord Dunedin, at p. 18 of Société du Gaz de Paris v. Armateurs Français 1926 SC (HL) 13 to the effect that the test was whether there was another court of competent jurisdiction in which the case may be tried "more suitably for the interests of all parties and for the ends of justice". Counsel submitted that Lord Templeman had gone too far and departed from the accepted test laid down in the forum non conveniens cases and that his observations regarding the French wife, quoted and founded on by the Lord Ordinary in his opinion in this case, were obiter and did not form part of the ratioof the decision of the House of Lords in that case and that being so Lord Templeman's approach was not one which required to be followed in the courts in Scotland.

This was a bold approach by senior counsel and it is not one with which we agree. We consider it is quite clear from what was said by Lord Goff of Chieveley in the passage quoted supra, that the court should look first to see what factors there are which connect the case with another forum. Once that has been done and prima facie there is a more appropriate forum on the basis of that connection, then unless there are circumstances by reason of which justice requires that that should not be the forum, that should ordinarily be the appropriate forum.

The speeches of both Lords Templeman and Goff of Chieveley were read in draft by Lord Keith of Kinkel, Lord Brandon of Oakbrook and Lord Ackner who each agreed with them, (see pp. 98C–D and 103E), and Lords Templeman and Goff of Chieveley each agreed with the other's speech, (see pp. 102B–C and 111F–G), so that all their Lordships agreed with Lord Goff of Chieveley's explanation of the initial approach in such cases and the result of taking that approach is explained in some detail in Lord Templeman's speech in the passage from it we have quoted.

In these circumstances we are quite satisfied that the Lord Ordinary was correct to adopt the approach that he did in the present case. The initial approach should be to consider the overall connection of the marriage with the jurisdictions in question. In this case the parties were married in Scotland in June 1977 and lived there together for about 12 years when they apparently went to France in April 1989 and lived together for about 15 months before they separated in July 1990. They are British nationals and their respective backgrounds are Scottish and by far the greater part of their married life was spent living together in Scotland. In the English case, Lord Templeman referred to the fact that the wife was French and she was married in France and she had a direct French connection derived from "ancestry, birth, nationality, education, cultural and marriage laws" and an indirect connection through her husband and child. We agree with the Lord Ordinary that the wife in this case is in a similar situation to the French wife in that case. It is true, as pointed out by senior counsel for the reclaimer, that the French wife had voluntarily severed all connection with England before instituting her English divorce proceedings, whereas the wife in this case was still resident in France when she instituted her present divorce proceedings in Scotland. However, we do not consider that is a sufficiently important distinction to counter the overall connection of the marriage with Scotland, especially as in this case the wife was relying on her Scottish domicile as founding jurisdiction in the Scottish courts.

Having correctly decided that the overall connection of this marriage was prima facie with Scotland, the Lord Ordinary would only have been entitled to grant the sist if he took the view that there were, nevertheless, other circumstances by reason of which justice required that a sist should be granted. These circumstances were put to the Lord Ordinary and repeated to us by senior counsel for the reclaimer. They are detailed in his written grounds of appeal. The first circumstance is based on the parties' residence in France. We accept that this is a circumstance to be taken into account but there is a considerable dispute between the parties as to the nature of their respective residences. The wife, according to the counsel who appeared for her before the Lord Ordinary, had recently returned to live in this country but it was suggested that the husband, at least from time to time, resided in Edinburgh at the former matrimonial home named "The Whitehouse". It was said on behalf of the husband that both he and the wife still resided in France. Because of this dispute the Lord Ordinary was unable to reach a concluded view on this particular matter which will no doubt require to be the subject of evidence.

The second circumstance is based on the parties admitted last residence being in France, under reference to a comparison between said para. 9 with para. 8 of the third Sched. to the 1973 Act. A sist would have been mandatory in terms of para. 8 had the other proceedings been continuing in another "related" jurisdiction such as England (see para. 3 (2) of Sched. 3). However, that comparison may raise other questions regarding "related" jurisdictions as contrasted with foreign jurisdictions and it is not disputed that para. 9 applies in the circumstances of this case. We get no assistance on the basis of this comparison.

The third circumstance was the "admitted" absence of any assets of the wife in Scotland, her assets being said to be in France and the business interests and assets of the husband being also in France. Whilst it is averred by the wife that she has a share in the parties' joint property in France, she also avers she has the proceeds of sale of her business in Scotland and the husband himself avers she is a director along with her mother of two companies, namely Edoborg Ltd. and Addside Ltd., which are clearly not in France. As regards the husband's assets we can well understand why the Lord Ordinary said he was far from satisfied that the location of the husbands' many and varied assets could at that stage be ascertained with any certainty. He also said particular doubts surrounded the beneficial interest in "The Whitehouse" which he was informed had recently been sold for £750,000 to a company registered in the Isle of Man, although it was eventually acknowledged that the defender himself had an interest in that company, albeit the extent of that interest was unknown to his legal advisors. Suffice it to say that nothing was said to us which further clarified the husband's position regarding his various assets. His wife avers that not only is he the proprietor of "The Whitehouse" but that he also owns or owned adjacent property, has substantial banking arrangements in the Isle of Man and owns a number of valuable motor cars at "The Whitehouse" together with its contents. Finally the only source of income disclosed by the husband in his present pleadings is £17,000 superannuation from the National Health Service. In this state of the pleadings before the Lord Ordinary and the information available to him, we do not consider there are any circumstances regarding the parties' respective income and capital which would make it more appropriate in the interests of justice that a motion to sist this action should have been granted.

The fourth and fifth circumstances founded on by senior counsel for the reclaimer, related to his submission that the facts connected with the merits of the case had occurred in France and the consequent requirement for "primarily" French witnesses to speak to the facts. Also the financial aspects of the case would require witnesses from France. The "convenience of witnesses" is one of the factors to which the court must have regard in terms of para. 9 (2). With regard to the merits of the action, senior counsel who appeared before us on behalf of the respondent, pointed out that the grounds of the wife's divorce depended on her husband's behaviour throughout the marriage and the wife, her mother and her sister would be the main witnesses whereas only one French witness would be required to speak to the final matter of the alleged assault in France at the end of 1990. In these circumstances we do not consider that the convenience of such witnesses could be said to be a factor making it more appropriate that the action be heard in France. There may well be other witnesses speaking to the parties' respective assets but, as already indicated, in the present state of uncertainty regarding these assets, the court could not be expected to know at this stage which other witnesses are likely to be required to give evidence.

Two other grounds of appeal were argued before us. The first was that the Lord Ordinary had erred by taking into account the order in which the actions were commenced et separatim the existence of an application by the wife to the French court that jurisdiction should be declined in terms of art. 21 of the Convention of Brussels. Senior counsel for the reclaimer referred to what Lord President Clyde said at p. 402 of Argyllshire Weavers Ltd. v. A. Macaulay (Tweeds) Ltd . 1962 SC 388, which demonstrated that in Scotland litis contestation takes place when defences are lodged. In the present case defences were not lodged by the husband until August 1991, as correctly noted by the Lord Ordinary in his opinion supra at p. 375. In fairness to the Lord Ordinary it is to be noted that he only took the date of the commencement of the respective proceedings into account when considering whether there were any factors that would require him to change his mind, having decided correctly in our view, that the marriage was so closely connected with Scotland that the action regarding it should proceed there. He said he bore in mind that in terms of procedural fairness the present action was raised in advance of the husband's petition. We do not consider that the question of which proceedings were raised first is of any real significance in this case at the time the motion to sist was made. Lord Goff of Chieveley deals with this matter in the second part of the extract from his speech that we have already quoted supra, where he indicates that sometimes the matter of whether other proceedings are already pending may be of no relevance at all. In this case both the proceedings in the Scottish and French courts could be said to be still in their initial stages. Neither counsel suggested that any substantial weight should be attached to the fact that the Scottish action was commenced first. We agree with that approach by counsel in the circumstances of this case. We do not consider that the Lord Ordinary attached any significant weight to this factor although he correctly said he had to bear it in mind.

As regards the Lord Ordinary's view that there was much to be said for awaiting the outcome of the French court's decision on the matter of its own jurisdiction, we were told by senior counsel for the reclaimer that this matter had now been resolved by the French court who had decided it had jurisdiction, although the date when it did so was not entirely clear. However, on 18th March 1992 the French court had decided, as reconciliation of the couple did not seem possible, to give the husband leave to sue his wife for divorce within three months. According to senior counsel for the reclaimer the objection to the jurisdiction of the French court had been based on art. 21 of the Convention of Brussels of 27th September 1988 which stated that the second jurisdiction chosen must be relinquished in favour of the court in which jurisdiction was first chosen. However, this convention did not apply to matrimonial actions in the United Kingdom (see Civil Jurisdiction and Judgments Act 1982 Sched. 1, which gives the text of the convention as amended and, in title 1, explains that the scope of the convention does not apply to matrimonial disputes), or in France. In these circumstances there was no longer any dispute as to whether the French courts had jurisdiction and no longer any suggestion that this matter still required to be determined. Senior counsel for the respondent did not offer any contrary submissions on this matter and did not submit that this question of jurisdiction in the French courts was still outstanding. That being so this factor, which formed the basis of the third ground of appeal, has now gone as a reason for refusing to grant the sist but it was relevant at the time the Lord Ordinary was reaching his decision on the motion roll.

The fourth and last ground of appeal related to the former matrimonial home known as "The Whitehouse". It was to the effect that the Lord Ordinary was wrong to take the property, or the alleged fact that the husband resided there, into account in reaching his decision. We consider that the Lord Ordinary was fully entitled to conclude that "The Whitehouse" remains, on any view, an important subject of dispute between the parties. We have already referred to his earlier remarks in his opinion regarding it. A copy of a minute, dated 17th July 1990, signed by the husband and wife, both therein described as then residing at "The Whitehouse" was shown to us, in terms of which the wife purports to acknowledge that that property is not matrimonial property in terms of the Family Law (Scotland) Act 1985. A copy of a disposition, dated 8th February 1991, was also shown to us. It is a disposition by the husband in favour of Pageant Investments Ltd., whose registered office is in the Isle of Man and in terms of which the husband purports to sell "The Whitehouse" to the company for a sum of £750,000. We are further informed that the wife has now adjusted her pleadings to seek orders from the court setting aside both these documents. This further information merely serves to confirm that this property still remains a subject of dispute between the parties and one which might more conveniently be resolved in a Scottish rather than a French court.

For all these reasons we can find nothing in the husband's four main grounds of appeal, argued before us in such careful detail by his senior counsel, which persuades us that this appeal should be allowed. We consider the Lord Ordinary's approach in this case was the proper one. He did not err in law and correctly followed the approach laid down by the House of Lords in the de Dampierre case. We have decided this reclaiming motion on the information that was made available to the Lord Ordinary and the arguments presented to him when he heard and refused the motion for sist in September 1991. We need only add that had we decided that he had erred in exercising his discretion and that we required to consider the matter anew in the light of up-to-date information, we ourselves would have refused to sist the wife's action in Scotland. We need not rehearse the further information provided to us, although some of it has already been referred to in this opinion. We were informed by senior counsel for the respondent that the wife has not lived in France for about six months but has lived in England and Scotland at various addresses and has as yet no fixed abode. We were told by senior counsel for the respondent that a draft, unsigned and undated affidavit shown to us by senior counsel for the reclaimer regarding the wife's recent residence, was inaccurate. We were further informed that the most recent electoral roll and community charge roll indicated that the husband resided at "The Whitehouse". In addition senior counsel for the respondent submitted that whilst the wife could speak some French it would be difficult for her to understand the language in French court proceedings and that as the natural language of both parties was English, it was more appropriate that the divorce proceedings should take place in a Scottish court. That was a further factor we would have taken into account had we required to consider the motion de novo but we accept senior counsel for the reclaimer's contention that it was not a factor argued before the Lord Ordinary.

On the whole matter we therefore refuse the appeal and adhere to the Lord Ordinary's interlocutor of 27th September 1991.