McC (M) v McC (J)

• Jurisdiction: Ireland
• Judge: Mr. Justice Costello
• Judgment Date: 01 January 1994
• Neutral Citation: 1993 WJSC-HC 3992
• Court: High Court
• Docket Number: [1991 No. 48 C.A.]
• Date: 01 January 1994

MCC (M) v. MCC (J)

BETWEEN:

M. McC.

Plaintiff/Respondent

and

J. McC.

Defendant/Appellant

1993 WJSC-HC 3992

List No. 48CA/1991

Record No. E73/90

THE HIGH COURT

ON APPEAL FROM THE EASTERN CIRCUIT

County of Kildare

Synopsis:

CONFLICT OF LAWS

Foreign court

Order - Enforcement - Condition - Finality - Wife - Maintenance - Foreign law - Evidence - Conflict - Analysis of case law - Order enforceable although court which made the order had jurisdiction to vary its terms with retrospective effect - (1991/48 CA - Costello J. - 22/6/93) - [1994] 1 I.R. 293 - [1994] 1 ILRM 101

|McC. v. McC.|

EVIDENCE

Foreign law

Witnesses - Conflict - High Court - Issue - Determination - Power - (1991/48 CA - Costello J. - 22/6/93)1994 1 IR 293 1994 1 ILRM 101

|McC. v. McC|

HIGH COURT

Jurisdiction

Issue - Foreign law - Effect - Witnesses - Testimony - Conflict - Issue determined by court - (1991/48 CA - Costello J. - 22/6/93) - [1994] 1 I.R. 293 - [1994] 1 ILRM 101

|McC. v. McC.|

ORDER

Enforcement

Foreign court - Decision - Finality - Wife - Maintenance order - Whether order enforceable in Ireland - (1991/48 CA - Costello J. - 22/6/93) - [1994] 1 I.R. 293 - [1994] 1 ILRM 101

|McC. v. McC.|

Citations:

G V G 1984 IR 368

MCNAMARA V OWNERS OF SS HATTERAS 1933 IR 675

MATRIMONIAL CAUSES ACT 1973 (UK) S13

CLARKE V JONES (INSPECTOR OF TAXES) 1985 3 WLR 749

NOUVION V FREEMAN 1890 25 AC 1

HARROP V HARROP 1920 3 KB 386

MACARTNEY, IN RE 1921 1 CH 522

BEATTY V BEATTY 1924 1 KB 807

NUNN V NUNN 8 LR IR 298

KEYS V KEYS 1919 2 IR 160

MCDONNELL V MCDONNELL 1921 2 IR 148

COLT INDUSTRIES INC V SARLIE 1966 1 WLR 1287

MATRIMONIAL PROCEEDINGS & PROPERTY ORDINANCE (HONG KONG) NO 192 1972 S4

MATRIMONIAL PROCEEDINGS & PROPERTY ORDINANCE (HONG KONG) NO 192 1972 S4(1)(a)

MATRIMONIAL PROCEEDINGS & PROPERTY ORDINANCE (HONG KONG) NO 192 1972 SII

MATRIMONIAL PROCEEDINGS & PROPERTY ORDINANCE (HONG KONG) NO 192 1972 S4(7)

1 Judgment of Mr. Justice Costello Delivered the 22nd day of June 1993

2 Conflict of Laws - Enforceability of foreign maintenance order in this country - Maintenance order capable of being varied under Hong Kong law in changed circumstances - Whether the judgment of the Hong Kong court was "final and conclusive".

I

3 The issue which I am required to decide is whether the Irish courts will recognise and enforce a maintenance decree given in a court in Hong Kong in favour of the plaintiff. It is accepted that there is no constitutional bar to its enforcement - the issue turns on the correct principle of private international law to be applied. The dispute arises in the following circumstances.

4 The plaintiff and the defendant were married in England on the 26 August 1961. They moved to Hong Kong where, on the 20 May, 1986, the District Court of Hong Kong, Divorce Jurisdiction, made a decree nisi on the application of the plaintiff-wife for the dissolution of the marriage, the decree nisi being made absolute on the 9 July 1986. By an ancillary order of the 26 May 1986 it was ordered that the defendant do pay to the plaintiff certain lump sum payments on the dates specified in the order and in addition monthly periodical payments in the sums of $9,000 HK pending suit, such monthly payment to continue thereafter as "periodical payments". The decree and the order for the payment of the lump sum and periodical payments were made on consent. The defendant paid the lump sums as required by the order and the monthly periodical payments until the 15 June 1989. Since then he has made no further payments.

5 The defendant left Hong Kong and returned to Ireland (where he had been born). He remarried and until recently was employed here on what the plaintiff says was a substantial salary. He now, I have been told, is unemployed. The plaintiff returned to England (where she had been born) and when she ascertained the defendant's whereabouts she instituted these proceedings by Civil Bill, issued in the Eastern Circuit, claiming arrears of maintenance. The enforceability of the Hong Kong order was raised as a defence and by consent this issue was tried as a preliminary issue. On the 25 July 1991 it was decided that the order of the 20 May 1986 was enforceable in this country. It is against this decision that this appeal has been taken.

6 The defendant relied on the principle of private international law relating to the enforcement of foreign maintenance orders enunciated by Finlay P. in G. .v. G. (1984) I.R. 368. At p. 374 the learned President said:

"No argument arose before me about the principle of international law which is applicable to this issue. These Courts cannot and should not enforce a judgment which is not final. A judgment is not final if it can be varied or altered by application to the court that made it in the country in which it was made, though the existence of a right of appeal from that court which has not been exercised or has been unsuccessfully exercised does not detract from the finality of the judgment. In regard to a periodical payment such as this order for maintenance, I am satisfied on a consideration of the authorities that the crucial test must be whether the court which granted the order for maintenance had power within its jurisdiction to vary, rescind or alter the order retrospectively."

7 The defendant then argued that as the maintenance order of the 20 May 1986 could under Hong Kong law be varied retrospectively it follows that it is unenforceable in this country. In support of this submission an affidavit as to the law of Hong Kong was filed on the defendants behalf.

8 The plaintiff argued firstly that whilst accepting that the relevant statutory provisions in Hong Kong permit the court to vary the maintenance order of the 20 May 1986 they do not permit a retrospective variation and so it is claimed that the order is enforceable. In support of this submission an affidavit of Hong Kong law has been filed in which the opinion is expressed that the power to vary the maintenance order is not a retrospective one. Secondly, and alternatively, the plaintiff submitted that the principle of private international law relied by the defendant is not to be followed and that the proper applicable principle is that maintenance orders should be recognised and enforced even though they may be varied retrospectively in changed circumstances by the foreign court which made the original order.

9 When a dispute arises between experts (as has occurred in this case) as to how a foreign statute or ordinance should be construed then the court in this country may resolve the dispute by itself construing the instrument (See McNamara .v. Owners of S.S. Hatteras 1933 IR 675). I propose to do so. The relevant Ordinance in this case is 1972, cap. 192 and is entitled "Matrimonial Proceedings and Property". Section 4 of the Ordinance provides that on the granting of a decree of divorce the court may make an order that either party to the marriage shall make to the other such periodical payments and for such term as may be specified in the order (subsection (1) (a)). Section II confers powers to vary or discharge orders made under Section 4 (1) (a). It provides that where an order under that subsection has been made then "the court shall have powers to vary or discharge the order or to suspend any provisions therefor temporarily and to revive the operation of any provision so suspended". Subsection (7) provides that in exercising the powers conferred by the section the court "shall have regard to all the circumstances of the case, including any change in any of the matters to which the court was required to have regard when making the order to which the application relates ..."

10 It seems to me that the powers granted by Section II are very wide powers indeed and that the court exercising them could well decide that the maintenance order should be varied from a date which occurred prior to the date of the hearing of the application for variation because of some change in either the circumstances of the plaintiff or those of the defendant which had occurred at an earlier date. The section, in my opinion, would not restrict the court to varying the maintenance payments from the date of the hearing. This construction accords with the construction put on a similar provision, Section 13, of the Matrimonial Causes Act 1973, by the Court of Appeal in England in Morley Clarke .v. Jones (Inspector of Taxes) 1985 3 WLR 749.

11 I must hold therefore that if the rule of private international law to be applied in this case is that the Irish court will not enforce a foreign maintenance order which may be varied retrospectively by the court which granted it then this appeal must fail.

12 I turn then to the plaintiff's alternative submission. The principle enunciated by the learned President in G. .v. G. was derived from the English authorities to which he referred. The plaintiff invites me not to follow those authorities and to conclude that the Irish courts should enforce foreign maintenance orders, even those which may be varied retrospectively. In deciding whether to depart from the authorities from which the controversial principle has been derived I should draw attention to the fact that the learned President had not been asked to do so and that he expressly pointed out that no argument had arisen as to the applicable principles in the case which he was required to decide. I will assume for the moment that I have jurisdiction to do what I have been asked to do, but I will return to that point later.

II

13 The principle on which the defendant relies is established by decisions of the English courts and I will consider them firstly and then refer to three decisions of the Irish courts on the subject.

14 The leading English case is a decision of the House of Lords, Nouvion .v. Freeman (1890) 25 Appeal Cases p.1. The case related to...