Schofield J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
HOLDEN AT GEORGE TOWN, GRAND CAYMAN
Cause No D58/91
Mr. Turner for the Petitioner
Mr. Hill QC and Mr. Hampson for Respondent
ORDER
F v. F AND ANOTHER
21-01-92
The petition in this matter was filed by the wife in this Court on the 28th May, 1991. The wife claims that the husband has committed adultery and she finds it intolerable to live with him and further that he has behaved in such a way that she cannot reasonably be expected to live with him. The husband had earlier, on the 10th May, 1991, filed a petition in the Macclesfield County Court in England alleging unreasonable behaviour on the part of the wife.
On an ex parte application made by the wife on 4th July, 1991, I granted an injunction restraining the husband from continuing to prosecute the proceedings in Macclesfield County Court. That injunction remained in force until the 8th July, 1991, when it was reviewed inter partes. An application for orders pending suit had been filed by the husband in this Court on 4th July, 1991. At the inter partes hearing on the 8th July negotiations were commenced between the parties to resolve all ancillary matters and on the husband's undertaking not to take further action by himself or his agents in the English proceedings I lifted the injunction. The application for orders pending suit came before the Court on 19th July, 1991, and was adjourned on several occasions, the husband's undertaking not to pursue the proceedings in Macclesfield County Court remaining in force. The husband's summons of the 4th July was finally determined when I delivered orders on the 31st October, 1991.
With the delivery of those orders the husband considered that his
undertaking regarding the English proceedings abated and he has taken steps to pursue his petition in Macclesfield County Court.
The decree in that suit comes up for determination on Friday of this week, the 24th January. I have granted the wife's further ex parte application restraining the husband from continuing to further prosecute those proceedings but set the matter for an inter partes hearing on the 17th January. There is a cross summons filed by the husband for a discharge of the injunction but such summons was unnecessary because the order granted ex parte is only effective until I have considered the wife's application inter partes. This I now do.
The principles governing the grant of an injunction to restrain the commencement or continuance of proceedings in a foreign jurisdiction can be ascertained from the following passage from the decision of the Privy Council in SN1.
Aerospatiale v. Lee Kui Jak and another. [1987] 3 All E R 510, 522
"In the opinion of their Lordships, in a case such as the present where a remedy for a particular wrong is available both in the (Cayman) court and in a foreign court, the (Cayman) court will, generally speaking, only restrain the plaintiff from pursuing proceedings in the foreign court if such pursuit would be vexatious or oppressive. This presupposes that as a general rule, the (Cayman) court must conclude that it provides the natural forum for the trial of the action and further, since the court is concerned with the ends of justice, that account must be taken not only of injustice to the defendant if the plaintiff is allowed to pursue the foreign proceedings, but also of injustice to the plaintiff if he is not allowed to do so. So, as a general rule, the court will not grant an injunction if, by doing so, it will deprive the plaintiff of advantages in the foreign forum of which it would be unjust to deprive him."
I cannot accept the contention of counsel for the husband that the true test is set out in the headnote to Spiliada Maritime Corp. v. ConsulEx Ltd.. The Spiliada [1986] 3 All E R 843, that the Court would choose the forum in which the case
could be tried more suitably for the interests of all the parties and for the ends of justice. The Spiliada was not a case involving an application for an injunction to restrain foreign proceedings. Lord Goff of Chieveley said in Aerospatiale, just before the passage above cited:
"I must follow, in this application, the principles stated in Aerospatiale.
I have no hesitation in finding that the Grand Court of the Cayman Islands provides the natural forum for the trial of this divorce suit. Although the husband is domiciled in England his wife and the child of the marriage are citizens of the United States of America. Both parties are ordinarily resident in the Cayman Islands and have been so since the summer of 1986. The alleged adultery took place in Cayman and all witnesses thereto are here. The alleged unreasonable behaviour of both parties took place in Cayman and all parties thereto are here. The cost of transporting the parties and the witnesses to England would be high. Whilst it is argued on behalf of the husband that there is a strong possibility that at the end of the day this suit will be uncontested, there is at present no sign of this and the Court must proceed on the basis of the present standing of proceedings, that the suit is contested. I cannot therefore accept the husband's argument that it would be less expensive to pursue proceedings in the Macclesfield County Court as matters stand at present. The husband avers that the wife will be eligible for legal aid in England, but there is nothing to support that averment.
The only party to the marriage who is earning is the husband,
and his professional pursuits are all in Cayman. The most substantial family asset is the family home in Macclesfield but discovery in all other respects, in relation to ancillary matters, are more easily performed in Cayman. The argument of counsel for the wife that, in connection with ancillary matters, the Grand Court will be more readily able to understand the relation of high remuneration to cost of living in these Islands is also persuasive. The most appropriate forum for the trial of this divorce suit is the Grand Court of the Cayman Islands; indeed it has little true connection with England.
But of course, according to Aerospatiale, that is not the end of the matter. I can only restrain the proceedings from continuing in England if their pursuit would be vexatious or oppressive. I must be reluctant to interfere with proceedings properly brought in a foreign jurisdiction and I must not lose sight of the fact that it was the husband who first filed petition.
In this connection the Court is concerned with the ends of justice. Counsel for the husband has taken the view that in law his client cannot cross-petition in this Court although he wishes to do so. I readily concede that if this view is correct then I ought not to deprive the husband of his opportunity, not only to answer the wife's petition, but to file a cross-petition himself. I would therefore refuse this injunction and leave him to pursue his petition in England, in which case, as I understand it, the wife could then cross-petition in the English suit. For to grant the injunction in those circumstances would be to deprive the husband of an opportunity to present his own petition for the dissolution of the marriage, at least until the wife's petition is determined. Clearly that would be unjust. The husband is not domiciled in Cayman and does not fall within this Court's jurisdiction as set out in section 5 of the Matrimonial Causes Law to entertain a suit filed by him. The jurisdiction of this Court to entertain the wife's petition is based on her ordinary
residence within these Islands for at least two years immediately preceding the presentation of the petition. In Levett v. Levett and others [1957] 1 All E.R. 720 the English Court of Appeal held that in relation to the English statutory equivalent conferring jurisdiction on the Court to hear a petition based on the wife's ordinary residence in England, as opposed to domicile, the jurisdiction extended in favour of the wife and gave the husband no right to cross-pray if he could not petition in his own right as being domiciled in England. The relevant portion of the English statute then in force reads:
"(b) in the case of proceedings for divorce or nullity of marriage, if the wife is resident in England and has been ordinarily resident there for a period of three years immediately preceding the commencement of the proceedings, and the husband is not domiciled in any part of the United Kingdom or in the Channel Islands or the Isle of Man."
In Levett Hodson LJ held, at p. 723:
"The courts in this country under s. 18 have jurisdiction to entertain proceedings by a wife; it is quite true that the meaning of the word 'proceedings' may vary according to its context, and in one authority to which our attention was drawn, Pryor v. City Offices Co." (1883), 10 Q.B.D. 504, from the decision of this court it was quite clear that the word "proceedings" may cover the whole of the proceedings in question, beginning with the claim and including a counterclaim. It does not follow, to my mind, that in the present context, in considering the question of proceedings being entertained by a wife, the word "proceedings" includes anything that may follow in the same suit. The position is, I think, exactly the same as if Parliament has used more homely language and said that the court should have jurisdiction to listen to a request or to hear a claim by a wife for a particular form of relief. That approach to this section makes it impossible to hold that a husband, in answer to a wife's claim could get himself under the umbrella of this section so as to make use of the argument based on reciprocity."
That decision was applied by Sachs, J., in Russell v. Russell and Roebuck [1957] 1 All E. R. 929. The result of the decision
in Levett has been described by Lord Pearce in the House of Lords decision in Indyka v. Indyka [1967] 2 All E.R. 699 (at p. 717) as less than satisfactory. Indeed in applying that decision in Russell Sachs J. said:
"It has not unnaturally been argued that it would seem hard to a husband, and might even be distasteful to a court, that a wife, after praying for the exercise of the court's jurisdiction in the knowledge that any adultery of hers must be determined, and after having unsuccessfully contested to the utmost the issue whether she was guilty of such adultery, and having failed on that issue, should then be able to turn round and say that the court has no power to grant relief to the husband according to the justice of the case. It could indeed be argued that a better example of "heads I win and tails you get nothing" would be hard to devise; but such an argument cannot of itself prevail where the issue is purely one of construction and where the intentions of the legislature can be ascertained from the contents of the statute. The court is chary of assuming jurisdiction over the matrimonial affairs of those not domiciled in this country in the absence of clear direction so to do."
Fortunately in the Cayman Islands the legislation gives the Court a clear direction that the husband is not shut out as he appears to be in England. The relevant section is differently worded than the English provision upon which Levett was decided.
Section 5 of our Matrimonial Causes Law, passed subsequent to the decisions in Levett and Russell, reads:
"5. The Court has jurisdiction to entertain a suit arising out of this Law where at the time of filing suit; or at a material time with reference to the suit and within one year of the presentation of the petition, either of the parties to the suit was domiciled in the Islands; or the party filling suit, being a female, has been ordinarily resident in the Islands for at least two years immediately preceding the presentation of the petition."
There is a distinction between "proceedings" as in the English statute and "suit" as in the Cayman statute; indeed Hodson L.J. makes that very distinction in the passage quoted from Levett above. If a husband cross-petitions he does not commence a fresh suit. This Court has jurisdiction to entertain this suit filed at the instance of a wife who has been ordinarily resident
in these Islands for at least two years immediately preceding the presentation of her petition, and I can find nothing in the Law to prevent either party taking other proceedings, including the husband cross-petitioning, within this same suit. Once jurisdiction is assumed by the Court by virtue of the residential qualification of the wife, the Court must have jurisdiction to entertain any other step in the suit, including a cross-petition of the husband. It seems that if the English section 18 (1) had read "entertain suit" instead of "entertain proceedings by a wife" the decision in Levett would have been different. That is exactly the position with our equivalent statutory provision.
The husband is not, therefore, at a juridical disadvantage in putting himself within the jurisdiction of this Court. There is no injustice to him in preventing him from pursuing the English suit. To my mind everything points to this Court being the appropriate forum for this suit. Whilst the English Court has jurisdiction to entertain the suit, I have been unable to accept one single criterion which would persuade me that the suit should be heard in England. I have taken into account that in the last year the wife spent several weeks in England and could have offered herself to the jurisdiction of the English Court, but the husband has argued in another application that in making that trip the wife dissipated funds which would now be useful to meet present financial needs. The parties do not seem to have the whereewithal to spend protracted periods overseas in the pursuit of these proceedings and to pay the expenses of witnesses if they are needed, as indeed they may well be.
I detect in the husband and his advisors some degree of frustration in that negotiations to settle all matters connected with this suit are being protracted and are not bearing fruit. If indeed the negotiations are being frustrated because of the wife's recalcitrance or the pedantry of her legal advisors then there is justification for the husband's own frustration. But I am unable to make any comment on the justification for that
frustration, because I know little of the conduct of the negotiations. I do comment however that it would not be legitimate for this Court to put a party to the kind of inconvenience and expense which the wife would be subjected to if the suit were to progress in England on the sole ground that she is balking a smooth settlement of the matters in dispute. So far as I am aware there is no backlog so as to prevent a suit of this nature being speedily dealt with in this Court. Let the husband then set the matter for hearing and have all issues determined, if negotiations are not bearing fruit. I cannot see that such a course could possibly be more expensive than the pursuit of similar proceedings four thousand miles away. From my knowledge of the financial resources of the parties which is on record so far it would be unjust to expect the wife to defend the suit in England.
I am of the opinion that for the husband to pursue the proceedings in the Macclesfield County Court would be vexatious and oppossive to the wife, and I order that the injunction dated the 10th January, 1992, remain in force. Accordingly I dismiss the prayer in paragraph (1) of the husband's cross-summons filed on the 16th January, 1992.
Paragraph (2) in that summons, that the husband have leave to file an answer in this suit within 7 days is granted. And now on the husband's application to extend that prayer, he is granted leave to file a cross-petition within fourteen days.
Costs of this application to the wife.
[signature]
D. Schofield
dated this 21st day of January, 1992