Adriani Dori, a research fellow at the MPI Luxembourg, has drawn my attention to a decision to request a preliminary ruling by the Court of Appeal of England and Wales in the case of Mandy Gray v. Hamish Hurley.
The questions raised to the application of the Brussels I bis Regulation. They read as follows:
Does Article 4(1) confer a directly enforceable right upon a person domiciled in a Member State?
If it does,
Where such a right is breached by the bringing of proceedings against that person in a third State, is there an obligation upon the Member State to provide a remedy, including by the grant of an anti-suit injunction?
Does any such obligation extend to a case where a cause of action available in the courts of a third State is not available under the law applicable in the courts of the Member State?
In light of the factual background, which I reproduce hereunder from the Court of Appeals decision itself, I am not sure the case falls under the substantive scope of application of the Regulation (but see C-361/18, of June 6, 2019); the issue is as well under discussion before the UK courts.
However, the Court of Justice might have a different view or decide to answer nevertheless, in order to provide the national court with a helpful reply (framed in the applicable EU instrument, to the extent that the question raises systemic concerns and could be asked in relation to any EU rule on international jurisdiction in civil matters).
Ms Gray was until 2014 a United States citizen. In 1995 she married a successful investment manager. They moved to London in 2008. In 2015 they divorced; Ms Gray emerged with half of the matrimonial assets, her share amounting to more than 100 million US Dollars.
Mr Hurley is a New Zealand citizen who was born and educated in New Zealand. He came to live and work in England in 2002.
In 2009, Ms Gray met Mr Hurley in London, where he worked as a physical therapist. In March 2013, they began a romantic relationship that lasted until January 2019.
During the relationship, the couple pursued a lavish international lifestyle funded entirely by Ms Gray. They spent more time abroad than in the UK and they each acquired Maltese citizenship in February 2017.
The following assets (and others not the subject of legal proceedings) were acquired using Ms Gray’s money but were held either in joint names or in Mr Hurley’s sole name or in corporate names: A property in Italy costing 9.5 million Euros upon which a further 9 million Euros was spent on restoration and renovation; a farm in New Zealand costing 25 million NZ Dollars; four sports cars in Switzerland costing over 11 million Euros; deposits on two further cars at between 0.5 million Euros and 1 million Euros for the first and 30,000 CHF for the second; business investments totalling 9.1 million US Dollars.
In January 2019, Ms Gray ended the relationship. She changed her will, cancelled Mr Hurley’s credit cards, and closed their joint accounts.
On 25 March 2019, Mr Hurley began proceedings in New Zealand seeking an order under the Property (Relationships) Act 1976 which applies to qualifying co-habiting couples following the end of a relationship. It distinguishes between ‘relationship property’ and ‘separate property’. It provides for the division of ‘relationship property’, with a presumption of a half share.
On 26 March, Ms Gray issued proceedings in the High Court in England seeking a declaration that she was entitled absolutely to the listed assets, or that they were held on resulting trust, or for restitution by reason of undue influence.
There followed a welter of applications by both parties, among which Ms Gray’s request for an anti-suit injunction restraining Mr Hurley from pursuing the New Zealand Proceedings.
On 17 June, Lavender J heard Ms Gray’s anti-suit application, and ordered that a further consequentials hearing would take place at which he would hand down judgment on that issue. Six days later, the Judge handed down his judgment dealing with the anti-suit application. He began by addressing domestic law on anti-suit injunctions. In particular, he directed himself in accordance with the principles set out by Toulson LJ in Deutsche Bank AG v Highland Crusader Offshore Partners LP at . He then surveyed the provisions of the Judgments Regulation and referred to the decision of the Court of Justice in Owusu at , where Article 2 of the Brussels Convention 1968 (the predecessor to Article 4(1) of the Brussels I bis Regulation) was held to be mandatory so as to prevent the court of a Member State from declining jurisdiction in favour of the court of a third State on forum conveniens grounds.
He did not accept that he was bound by precedent as Ms Gray contended. He then rejected her submission that a ‘breach’ of Article 4(1) was at least a significant factor in the exercise of his discretion. Instead he exercised his discretion with reference to the Deutsche Bank factors.
In doing so, he reiterated that England was the appropriate forum for the trial of Ms Gray’s claims, but recognised that Mr Hurley’s claim in New Zealand could not be determined in England. He rejected a submission that there was no material connection between the parties and New Zealand. He did not accept that pursuing the New Zealand claims would be unconscionable or illegitimate. He recognised the role of comity and the fact that it was still open to a New Zealand court to decline to entertain Mr Hurley’s application, either on the basis that he was not domiciled in New Zealand or for some other reason. He bore in mind that an anti-suit injunction would not require Mr Hurley to bring his claim elsewhere, but rather to prevent him from bringing it at all.
Accordingly, in an order of 29 July the Judge dismissed Ms Gray’s anti-suit application. He granted permission to appeal on two grounds: Whether he was wrong that Article 4(1) of the Brussels I bis Regulation did not require the grant of an anti-suit injunction, and whether he was wrong that Article 4(1) of the Regulation was not a significant factor in the exercise of discretion as to whether to grant an anti-suit injunction.
On 19 August, Ms Gray filed an Appellant’s Notice applying for an expedited hearing, which was granted. In the context of this proceedings, after analysing allegedly binding precedents as well as literature, the Appeal Court concluded:
For all that, we cannot say that in the context of these proceedings the meaning Article 4(1) is acte clair. It is an important provision whose correct meaning was not obvious to the Judge (who gave permission to appeal) and cannot be regarded as obvious by this court or by other courts. We shall therefore refer the matter to the Court of Justice for a preliminary ruling before proceeding to a final determination of this appeal.
The decision to refer to the Court of Justice was adopted in December 2019. No file number can be found at the website of the Court of Justice yet. Should the request be registered after 31 January 2020, the Court will still have jurisdiction to deal with it according to Article 68 of the Withdrawal Agreement, provided, of course, it enters into force.