Monday, 8 October 2007

Leman-Klammers v Klammers [2007] EWCA Civ 919

A silly case this, surrounding the efforts of a man to avoid his wife divorcing him. Its use to practitioners is a) to be reminded that the jurisdictional rules in Brussels II are absolutely clear b) that our courts are not inclined to revisit the Brussels II decision of another jurisdiction and c) the almost absolute nature of the discretion in the rarely-contested decision to grant a decree absolute.

The Klammers had issued proceedings on the same day in England and France and Mr Klammers then went before a French court arguing that it had jurisdiction to the exclusion of the courts of England & Wales. Unfortunately for him evidence was not produced that his proceedings were issued earlier in the day: worse still, that was incapable of remedy by his representative as the rules of the French court forbade evidence being given by a maitre (barrister). The French court therefore decided that the English & Welsh courts had jurisdiction.

The husband was not giving up, so invited the English court now vested with jurisdiction to revisit the French decision and send the proceedings back to France. No Can Do, said the court: the matter has been determined, and a decree nisi followed.

The husband had meanwhile had the idea of appealing the decision in France which, according to the evidence produced here, is a Byzantine process of indeterminate length and uncertain prospects. Pending his appeal, he argued, there should be no change in the status of the marriage. He delicately did not mention that he wanted to avoid the consequences of an English distribution of assets. (To be fair, this is the writer’s unsupported suspicion: there was no matrimonial home but given the lifestyles and incomes of the parties, one imagines there was something to fight about, at least until the legal costs of this process were incurred.)

Singer J went along with this to some extent, ordering that the decree should not be made absolute until the earlier of a) the outcome of the appeal or b) further order of the court. The diligent husband then appealed that decision but was refused by the Court of Appeal.

A request for a further order as allowed in Singer J’s order came before Baron J who was therefore dealing with a contested application for a decree absolute.

And quite simple it was too, as despite the small disadvantage to the wife involved in having to wait a little longer for a divorce (again, no-one mentioning the money) the husband had conducted himself with such desultoriness (the delay being described by the Court of Appeal as ‘extravagant’) that he had whistled away all the sympathy the court might have had for him.
The Court of Appeal, repeatedly emphasising the ‘unquestionably wide’ discretion that Baron J had available to her, decided that she had been right to take into account the husband’s failure to move his French appeal on, despite urging from Singer J and entirely within her rights to grant Mrs Leman-Klammers’ application.