2 July 2020

The Supreme Court dismisses Charles Villiers’ appeal

Family Partner, Simon Blain's comments on the case were quoted in Eprivateclient's article: Supreme Court sides with wife in Villiers divorce battle meaning maintenance order will be granted in England instead of Scotland and Solicitor's Journal.

Background

Mr and Mrs Villiers are divorcing in Scotland, where they lived as a family. Mrs Villiers, who now lives in England, applied to the English court for an award of interim maintenance. The English legal system is regarded as being more favourable to wives that the Scottish legal system. The English court decided it had jurisdiction to deal with Mrs Villiers’ application, and made an interim maintenance award in her favour. That decision was upheld on appeal, and Mr Villiers appealed again to the Supreme Court. His appeal has been dismissed by a majority of 3 to 2.

The case highlights the extent to which EU law has been embedded in the legal systems of the UK, and provides a foretaste of the sorts of issues that are likely to emerge as Brexit is implemented.

Because England, Scotland and Northern Ireland have separate legal systems, there are many cases where parties have a choice of jurisdictions. There has always been a need for rules to decide which country’s law should take precedence in such cases and the common law developed the doctrine of “forum non conveniens”. Broadly that meant that the proceedings should continue in the country to which the parties had the strongest connection, and should be stayed (paused) in the other country.

There is equally a need for rules to determine which state’s legal system should have precedence, if parties have a choice of jurisdiction between two or more EU member states. The EU rules distinguish between divorce proceedings, in which a “first in time” rule applies, and maintenance claims, in which the person seeking maintenance is able to choose the jurisdiction where the claim should be heard. Those EU rules have been incorporated into UK law and apply in both England and Scotland.

The question for the Supreme Court was whether the EU rules should be used to determine whether the English court has jurisdiction to hear Mrs Villiers’ maintenance claim, or whether the common law rule of “forum non conveniens” should be applied. Under the EU rule, Mrs Villiers would be able to choose to pursue her maintenance claim in England, because it is regarded as separate proceedings from the divorce. Under “forum non conveniens”, it is likely the court would decide the maintenance claims should be decided in Scotland, the country to which the parties had the strongest connection, and where the divorce was being dealt with.

Judgment

Lord Sales gave the lead judgment, concluding that the EU rules, as incorporated in UK legislation, were intended to apply when deciding issues of jurisdiction in family cases between England and Scotland. Lord Kerr agreed with him. Lady Black agreed with his conclusions but gave her own judgment, setting out different reasoning. Lord Wilson disagreed and gave a dissenting judgment, with which Lady Hale agreed. Mr Villiers’ appeal was therefore rejected by a majority of 3 to 2.

Interestingly, the family law specialists on the panel were split. Whilst Lady Black felt the appeal should be dismissed, both Lord Wilson and Lady Hale dissented. However, Lord Wilson and Lady Hale have subsequently retired from the Supreme Court.

Significance

The judgement is significant for Mrs Villiers, who will be free to pursue her financial claim in England. She will hope to secure a more favourable settlement than she would have under Scottish law.

The judgment is unlikely to have wide significance as the case was very fact-specific, although it provides useful clarity for those who advise Anglo-Scottish families.

The case does illustrate the way that EU law has become enmeshed in our domestic legal systems since 1972. The UK government has said that existing EU rules will continue during the transitionary period, but will ultimately be replaced by new domestic legislation. Specialist family lawyers are concerned that other families will become involved in expensive and time-consuming litigation as new rules are introduced to regulate jurisdiction between the UK and the EU, and between the constituent nations of the United Kingdom and Northern Ireland.

Simon Blain is a Partner in the Family team.

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