F v F and Another

• Jurisdiction: Cayman Islands
• Judge: Schofield, J.
• Judgment Date: 21 January 1992
• Court: Grand Court (Cayman Islands)
• Docket Number: No. D58 of 1991
• Date: 21 January 1992

F

and

F and Another

Schofield, J.

No. D58 of 1991

Grand Court

Practice and procedure - Proceedings in other jurisdiction — Application for divorce filed locally by wife — Wife ordinarily resident in islands two years immediately preceding petition — Petition filed by husband in England — Injunction granted restraining husband from continuing to prosecute appeal — Husband domiciled in England and wife and child are citizens of the United States of America — Whether Grand Court provides natural forum for trial of divorce — Whether proceedings in England can be restrained — Whether pursuit of proceedings in England would be vexatious or oppressive.

Appearances:

Mr. Turner, for the petitioner.

Mr. Hill QC and Mr. Hampson, for respondent.

JUDGMENT OF THE COURT:

1 The petition in this matter was filed by the wife in this court on the 28 ^th May, 1991. The wife claims that the husband had committed adultery and she finds it intolerable to live with him and further he has behaved in such a way that she cannot reasonably be expected to live with him. The husband had earlier, on the 10 ^th May, 1991, filed a petition in the Macclesfield county court in England alleging unreasonable behaviour on the part of the wife.

2 On an ex parte application made by the wife on the 4 ^th 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 8 ^th July, 1991. At the inter partes hearing on the 8 ^th 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 19 ^th 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 on the 4 ^th July was finally determined when I delivered orders on the 31 ^st 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 24 ^th 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 inner partes hearing on the 17 ^th 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.

3 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.”

4 I cannot accept the contention of counsel for the husband that the true test is set out in th 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 interest 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:

“(Their Lordships) wish to observe that, in The Spiliada [1986] 3 All E R 843 esp at 857–858 [1987] A C 460 esp. at 480 per Lord Goff, care was taken to state the principle of forum non conveniens without reference to cases on injunctions.”

5 I must follow, in this application, the principles stated in Aerospatiale.

6 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 Cayman islands and have been so since the summer of 1986. The alleged adultery took place in Cayman and 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 the 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 th 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.

7 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...