Roberts J. Was a decision to stay a Sch 1 application pending conclusion of proceedings in another jurisdiction a substantive or procedural one?

The parties were Russian nationals and parents to two children, aged 11 and 18. The children had lived in London with F since May 2018. M lived in Russia, where complex financial proceedings were ongoing. M’s primary case was to strike out and summarily dismiss F’s Sch 1 application. If the court was unwilling to strike out, M’s secondary case was for a stay of proceedings 'until such time as the Russian litigation concluded'. She succeeded on the latter before Recorder Nice.

F’s principal attack upon the recorder’s decision was that there was an error of law in her treatment of this as a case management issue which turned upon the application of the overriding objective. He argued that sufficient recognition that there were proceedings ongoing in another jurisdiction which concerned the same subject matter led to the decision to stay proceedings in this jurisdiction being a substantive rather than a procedural decision, and thus invoked the high bar which must be hurdled in order to justify a stay.

Held: There was no basis upon which it could be said that the recorder’s decision was wrong. The Recorder specifically took no steps which would have prevented F from proceeding to a full determination of his claims on behalf of his children through the English courts. The steps taken by the recorder could properly be considered to be procedural as opposed to substantive, AY v AS & Another [2020] 1 FLR 536; and Spiliada Maritime Corporation v Cansualex Ltd [1978] AC 460 considered.

In practical terms, the recorder did not rule on the question of whether the Sch 1 proceedings should proceed in this jurisdiction, that door was left open. She merely determined when they should proceed. Therefore, permission was refused on the basis that the proposed appeal had no reasonable prospect of success, and there was no other compelling reason why the appeal should have been heard. Costs to be paid by F.