Whyte v Whyte [2005] EWCA Civ 858

Case No 2004/0984[2005] EWCA Civ 858
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEENS BANCH DIVISION
Mr Justice Jack
HQ03X02153
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 21 July 2005
Before
LORD JUSTICE BUXTONLORD JUSTICE NEUBERGERLORD JUSTICE THORPE
Between
Lawrence Robert WhyteAppellantMarsha WhyteRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Allen Dyer (instructed by Judge Sykes Frixou) for AppellantMr M Smith (instructed by Stitt & Co) for Respondent
JudgmentLord Justice Buxton :
[1]This appeal is against an order of Jack J that the court has no jurisdiction to try the appellant’s claim against the respondent. That claim is for the enforcement in this country of a judgment of the District Court of Harris County, Texas. As part of that enforcement action the appellant sought a freezing order over property in Cranley Gardens London SW7. It is contended that that order is inept in any event because the respondent has no interest in that property. We however are not concerned with that issue, but with the wider issue of whether enforcement proceedings of any sort can be brought in this jurisdiction. The respondent says that they cannot because she did not submit, and is not to be taken as having submitted, to the jurisdiction of the Texas court. Apart from submission, there is no other basis on which the Texas court’s order might be enforced here.[2]Lawrence Whyte [the father] married Marsha Whyte [the mother] in 1990. A child, Nina, was born in January 1995. In September 1995 divorce proceedings were commenced in the Harris County District Court, culminating in a final decree in January 1998. That decree was made with the agreement of, and submission to the jurisdiction of, both parties. It appointed the parties as “Joint Managing Conservators” of Nina, but with the father being granted “primary physical residence” in Texas.[3]The decree contained no less than 25 pages of the most detailed provisions in relation to Nina’s residence, care and contact with her parents. Specific provision was made for Nina’s time with each parent, and her delivery by the one to the other, and clause 15 contained an express provision enjoining either parent from taking Nina to a country not party to the Hague Convention. The purpose of that clause, in seeking to facilitate control of any breach of the possession orders, is obvious. The decree contained sanctions for breach of its terms. Clause 20 provided that a party violating the terms of the decree would be liable for costs and fees incurred by the other as a result of the non-compliance. And a note reminded the parties that breach of the order was a contempt of court, punishable by imprisonment.[4]In breach of the divorce decree, the mother in August 1998 took advantage of one of her periods of agreed custody to remove Nina to the Russian Republic, a country not party to the Hague Convention. She refused to return her. Proceedings in the Russian courts resulted in those courts refusing to honour the Texas decree and awarding custody to the mother. Eventually, in December 2001, the father was reduced to self-help, in that he had Nina seized in Russia and returned to Texas. The mother’s flagrant defiance of the court order, and the dislocation, distress and trauma that must as a result have been inflicted on Nina, a child who at the time of the abduction was three and a half years old, do not need further comment.[5]The father did not proceed against the mother under the penal provisions of the decree, but rather brought proceedings against her under chapter 42 of the Texas Family Code. That provides damages for “interference with possessory interest in child”, and that such damages may include the costs of recovering possession; “mental suffering and anguish” caused to the plaintiff because of a violation of the court’s order as to possession; and exemplary damages in respect of actions done with malice. A final order was made in favour of the father in March 2003, which awarded him as against the mother $867,219 for costs of recovery of Nina; $500,000 for pain and suffering; and $250,000 punitive damages. The mother took no part in those proceedings. It is that order that the father seeks to enforce.[6]There is in my view a short answer to this appeal. The position with regard to a party who, like the wife, had submitted to an original action but who claims that that submission does not implicate her in a subsequent and related action in which she took no part has been recently considered by this court in Murthy v Sivajothi [1999] 1 WLR 467. Evans LJ said at page 476H:
“when the defendant has submitted to the jurisdiction of the foreign court, then he cannot be heard to say that the court has no jurisdiction to decide the issues raised by the proceedings in which the submission was made. The remaining question is what the scope of those issues was…..it is easy to see why different and unrelated claims should not be taken to be within the scope of the submission. But equally, in my judgment, it is impossible to say that claims which are directly concerned with the same subject matter should not…..[That] approach holds good, in my judgment, where the [party] makes a related claim in the sense discussed in the United States authorities and reflected in our own RSC Ord 16 r 8(1)(c): ‘any question or issue relating to or connected with the original subject matter of the action’. Whether a particular claim should be regarded as related in this sense must always be a question of fact and degree.”
[7]These issues have usually been discussed in commercial or property cases, as was Murthy itself. The principle stated by Evans LJ is, however, in my view particularly apt for application in a case within the family jurisdiction, where proceedings may affect wide range of the aspects of the parties’ lives. And it is particularly apposite in the present case. The Texas decree was, if not all about Nina, then at least to a very large extent about her. She was the subject matter of that action. A breach of the orders about Nina in that action was not merely something relating to or connected with the original subject matter, but actually part of the original subject matter itself.[8]That the mother by her defiance of the divorce decree submitted to the penalties available to the court for breach of that decree is not affected at all by the fact that the father chose to proceed under the expansive chapter 42, rather than confine himself to the more limited recourse provided by the decree itself. Chapter 42 is part of the Texas Family Code, and is clearly recognised in that jurisdiction as an inherent part of the protection to be provided to families who have the misfortune to have their affairs regulated by the courts. It is quite impossible to say that the mother did not submit to that regime when she submitted to the divorce decree that it enforces.[9]The judge was not pressed with the full force of Murthy, because the case seems to have been presented to him through the medium of an earlier appeal in this court, [2004] EWCA Civ 35, in which an attempt was made to enforce the chapter 42 order against the second defendant, who is the mother of Mrs Whyte. She had become involved in the divorce proceedings because as a co-owner of property with Mrs Whyte she had been required to sign a release of various interests as part of the financial settlement in the divorce. Even if, which this court thought doubtful, she had thereby submitted to those divorce proceedings, she had not done so in any way that made it fair or reasonable to say that she had also submitted to proceedings that related not to the financial aspects of the divorce but to the custody of Nina, with which the second defendant was not concerned. That case therefore gives no help in the very different issue that is before us. If that had been made clearer to the judge I am satisfied that he would have seen this case in a different light.[10]I would allow the appeal; declare that the courts of this country have jurisdiction to entertain a claim against the mother based on the chapter 42 decree of the Texan court; and remit the proceedings to the Queens Bench Division.

Lord Justice Neuberger:

[11]I agree.

Lord Justice Thorpe:

[12]I also agree. The objection to jurisdiction seems to me to depend on the purely technical point that the father elected to seek the redress to which he was clearly entitled by originating petition under chapter 42 rather than by an application in the divorce proceedings. Had he obtained an order for the reimbursement of his costs and expenses under clause 20 of the consent order the mother would clearly have no ground on which to contest jurisdiction. He might have limited his order under chapter 42 to the reimbursement of the same costs and expenses. That only illustrates how unrealistic it would be to find a submission to the jurisdiction in the first instance but not in the second.

Cited in 2 later judgments