I’m not even really going to attempt to.
The incredibly mind-melting debate here is whether when an English Court made an order that a Husband pay some money for maintenance for his Wife into a Russian bank account, they were unlawfully requiring the Husband to do something which is in contravention with the EU sanctions against Russia that arise because of Russia’s conduct (or perceived conduct, if you are Russian and are taking umbrage) in the Ukraine.
If this is a legal conundrum to which you genuinely need to know the answer, then you can probably afford to pay a lawyer far better than me to explain it to you.
R v R 2015
I only really kept reading because one of the silks in the case was Lord Pannick QC, who was so wonderful over the last few years in dismantling Chris Grayling, so I was pleased to see him in Court doing his regular job. [One who has recently done sterling service, matching the political machinations of the evil Pitt, as it were]
And that led me to see that the silk on the other side was Jonathan Swift QC, which is just a fabulous name. I am very jealous.
And that in turn, led to this nice turning of a phrase by the Court of Appeal
Like taking an axe to a tree, Mr Jonathan Swift QC, for the Wife, challenges the basic proposition on which Lord Pannick’s submission is based.
I like that.
If anyone has examples of the Court of Appeal ever saying that just like every cowboy sings a sad sad song, every argument has its thorns, I will be glad to receive them.
If you are at all curious, the final Court of Appeal answer was that the Husband has to pay the money and the appeal was refused. They provide a lovely little table with the various regulations as an aid to understanding the reasoning, which I must shamefully confess left me little the wiser.
This helped a bit though, and has I think the best use of bracket punctuation since Nabokov’s Lolita (“My very photogenic mother died in a freak accident (picnic, lightning) when I was three” ) I have underlined the particular brackets that impressed me so, courtesy of Briggs LJ.
- The starting point must be to ask whether the common objective sought to be achieved by the so-called normal and abnormal routes is itself one which the relevant regulatory regime seeks to prohibit or control. If it is, then the conclusion that the abnormal route is a circumvention may easily follow. If it is not, then the so-called abnormal route is (if, as here, not itself a breach of the regulatory regime) merely a lawful route to a lawful objective which circumvents nothing. It is merely the result of a sensible choice between a lawful and unlawful route to a common lawful objective. One may and should take care to avoid breaking the law, but that does not mean that avoidance is a circumvention of it.
- Let me illustrate this by reference to an example analysed during the hearing, deliberately far removed from the present facts. A judge is being asked (perhaps unusually) to direct the specific performance by a reluctant but uniquely qualified carrier of a contract for the carriage of an exceptionally wide and heavy load from London to York. The ‘normal’ route is to use the M1 motorway, not least because of the virtual absence of roundabouts. While formulating his order (including using night time to avoid creating traffic jams) the judge is told that there is a weak bridge on the M1 which has just been protected by a temporary weight restriction, below that of the heavy load. So he rewrites his order requiring use of the A1. He has chosen an abnormal route so as to avoid breach of the weight restriction. But no one would say that he has circumvented it. Why? Because it is no part of the purpose of the weight restriction to prevent heavy loads being carried from London to York. The judge has simply chosen a lawful and regulation-free route to a lawful objective, and avoided one which would have required the driver to break the law.
- In my judgment the same principled analysis leads to the same result in the present case. The EU Regulation does not without more have as part of its purposes the prohibition or even regulation of the payment of maintenance by scheduled Russian persons to their Russian wives, even if the wife lives within the Union, still less to prohibit or regulate the exercise by EU judges of such jurisdiction as they may have to compel payment of such maintenance. Its purposes, and the “measures referred to in Article 2” do extend to prohibit or, after a court order, regulate by Treasury licence, the payment of such maintenance, voluntarily or pursuant to a court order if, but only if, the Husband’s conduct (and that of any bank asked to assist) falls within the carefully modulated boundaries set by Article 17. Payment to the Wife in England would fall within those boundaries. Payment to her in Russia would not.
- In my judgment therefore, all that the Judge did by ordering payment in Russia was to achieve a lawful objective, namely the court enforced payment of interim maintenance, by a lawful route, namely an order for payment to the Wife in Russia, none of which was either prohibited or regulated by the EU Regulation (or, for good measure by the UK Regulations) either as a whole, as a matter of purpose, or by the measures referred to in Article 2. There cannot therefore have been a circumvention of those measures within the meaning of Article 9.