Property situated in France — Father providing purchase price — Sale transaction taking place in France — Father transferring property into name of son — Whether property held in trust for father — Whether French courts having exclusive jurisdiction in dispute over property — Whether action concerning immoveable property or rights arising from contract — Whether Brussels Convention applicable — Referral to European Court
An agreement to purchase a property, known as Appartement 202, Le Brigantin, Port Auberon, Antibes, France, together with garage 95 and cave 121, was concluded in correspondence between a vendor and Mr Webb snr (G) in July and August 1971. In October 1971 the purchase was completed by payment of the purchase price to the vendor and the transfer of the property into the name of G’s son, L. The purchase price and incidental expenses amounted to Fr 600,000 or thereabouts provided by G and placed, pending completion of the purchase, in an account in L’s name at the Antibes branch of Barclays Bank SA. The payment to the vendor was made out of funds in that account. The necessary exchange control permissions were obtained from the Bank of England on the footing that the property would be purchased in L’s name. After the purchase the property was used by G and his wife as well as by L as a holiday home. The bulk of the outgoings payable in respect of the property after the purchase were borne by G. Subsequently G brought an action against L contending that it was agreed between himself and L, or that a common intention should be inferred, that L would hold the property in trust for G and that G was entitled to the use and enjoyment of the property to the exclusion of L and to require L to transfer the property into G’s name. L argued that the property and its contents were a gift to him from G and relied on the presumption of advancement. L sought an order that G’s action against him be dismissed on the basis that under article 16(1) of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 the English courts had no jurisdiction to entertain the action. Mervyn Davies J concluded that the action was not caught by article 16(1). L appealed to the Court of Appeal. Article 16(1) provided that the courts of the contracting state in which the property was situated had exclusive jurisdiction in proceedings which had as their object rights in rem in, or tenancies of, immoveable property. The case for allowing the appeal was that G was bringing an action to establish his rights of ownership of the property which was unquestionably “immoveable property”. Rights of ownership were rights in rem and so the action was covered by article 16(1). The case for dismissing the appeal was that G and L both intended when the property was purchased in 1971 that it would be placed in the name of L. The rights asserted by G in the action were not in rem rights of ownership but derived from the nature and content of the arrangements made between G and L when the property was purchased. Those were in personam rights, which had nothing to do with French land law; they were analogous to rights deriving from contracts for the sale of land and were not caught by article 16(1).
Held The appeal was adjourned and the court requested the European Court of Justice to give a preliminary ruling on the interpretation of article 16(1).
1. The issue for decision was whether the action constituted “proceedings which have as their object rights in rem in…immoveable property…” within the true interpretation of article 16(1). If it did then the French courts had exclusive jurisdiction and the action in England should be dismissed.
2. A preliminary ruling should be sought from the European Court on the interpretation of article 16(1), as to whether the French courts had exclusive jurisdiction, before judgment was given on the appeal.
3. Per Scott and Taylor LJJ: If it had been necessary to give a final judgment at this stage, the appeal should have been dismissed on the ground that the “object” of G’s action was the enforcement of rights in personam arising out of the arrangements made between G and L and were not rights in rem.
4. Per Nourse LJ: It was clear that the “object” of the action, ie its subject-matter, was a right in rem in immoveable property within article 16(1) and his lordship would have allowed the appeal and dismissed G’s action.
Mark Blackett-Ord and Barbara Rich (instructed by Williams Sturges & Co) appeared for the appellant; and Michael Briggs (instructed by Bower Cotton & Bower) appeared for the respondent.
