Heslop v Heslop. A reminder of the constraints of the Moçambique rule for rights in rem, and (obiter) on joining a pre-Brexit with a post-Brexit claim under the Withdrawal Agreement.

Heslop v Heslop & Anor [2021] EWHC 2957 (Ch) essentially queries whether Deceased testator actually had any estate or interest in Jamaican Property which she could pass by will.

Under the Moçambique rule (after British South Africa Co v Companhia de Moçambique [1893] AC 602) an English court will not, as a matter of its own limits to jurisdiction, by and large determine matters of title to foreign land. The purpose of the rule is the maintenance of comity and the avoidance of conflict with foreign jurisdictions. The rule has been discussed on the blog before and it finds its EU equivalent of course in Article 24  Brussels Ia.

After considering the rule and the facts of the case, Dray DM holds it is not triggered here for [51-52]

the relief sought (across the two claims) is relief of an in personam nature in a dispute between the two central protagonists, the Second Defendant (the asserted trustee) and the Claimant (the asserted beneficiary) under the asserted trust. The fact that the land in question is situated in Jamaica does not preclude this court from having jurisdiction to hear the claim. The proceedings do not involve any determination of rights in rem. They do not assert a property right which is by its nature enforceable against third parties and they do not purport to bind strangers/third parties. For instance, no possession order, effective against the world at large, is sought (and none could be granted by this court). Neither is any order directed to the Jamaican Land Registry claimed (ditto). The court is only asked to resolve a dispute between those before it, the proceedings being based on an alleged personal (trust) relationship between the Claimant and the Defendants.

Obiter he then [57ff] considers forum non conveniens (argued in fact by neither parties), with the complication [63] that the two claims before the court have not been consolidated and are thus separate claims, albeit proceeding together, and that the first claim was commenced before the end of the Brexit transition period whereas the second claim was commenced afterwards. The judge holds (again: obiter) [68] (seeing also that no consolidation has been sought) that the former claim needs to be assessed viz BIa and the latter viz the post-Brexit rules, [74 ff] that under BIa A24 is not engaged for the same reason as the Moçambique rule, and [72] that if it had been, he would have been minded to follow (with all the necessary caveats  Kennedy v National Trust for Scotland‘s reflexive application.

Geert.

EU Private International Law, 3rd ed. 2021, para 2.208.

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