Case No. ZC20D00020

[2002] EWCA Civ 949; [2003] 1 FLR 192, Thorpe LJ referred to the introduction of BIIA that required, on a mandatory basis, a stay if the petition in the other jurisdiction was first in time and said that he was of the opinion that, in order to confine to some extent the effect of applying two different rules, greater weight should be given, in discretionary stay cases, to the consideration of where proceedings were first issued. I take the view that it may be relevant who commenced litigation first but it all depends on the overall factual matrix in the case. For example, in this case, the fact that the Husband is proceeding in two jurisdictions might well be a more relevant factor than who started first.66.Finally, Mr Todd submits to me that he has a “knock-out” blow in relation to the application for a discretionary stay, namely that the proceedings in Norway on which the Husband relied when he made his application have now been dismissed. There are, in my view, two answers to that. The first is the one that Mr Yates gives. He submits that the Schedule to the DMPA 1973 at s5(6) provides that “nothing in this Schedule - … (b) prejudices any power to stay proceedings which is exercisable by the court apart from the schedule”. He goes on to submit that the 1973 Act thus expressly states that the statutory stay power under the 1973 Act does not derogate from the Court’s powers to stay under its inherent jurisdiction. I accept that submission but on the basis that the principles which are to be applied are exactly the same whether the court is exercising its statutory jurisdiction or its powers under the inherent jurisdiction. Second, the Husband could apply again tomorrow for a stay relying on his new proceedings. It would be a complete nonsense for me to have to hear the case all over again.