Home is where the heart is; home is also where a Claim Form can be served. Under the Recast Brussels Regulation a person “domiciled” in an EU Member State can be sued in the courts of that Member State, and such a claim cannot be stayed on forum non conveniens grounds. As long as this remains the law, a person with worldwide interests who is “domiciled” in England may face a claim in respect of them in the English Courts, notwithstanding the fact that England may have little or nothing to do with the facts of the dispute in question.
The Civil Jurisdiction and Judgments Order 2001 (“CJJO”) establishes the test as to whether a person is “domiciled” in England for the purpose of the Recast Brussels Regulation. The test is essentially:-
- Is the person “resident” in England; and
- If so, does the person have a “substantial connection” to England?
From caselaw the following concepts arise:
- It is possible for a person to be “domiciled” in more than one country.
- A person may be considered “resident” in England even if it is not their principal place of residence.
- If a person visits England regularly, whether they are “resident” or have a “substantial connection” to England is not to be decided on a pure “numbers game” regarding the number of days spent in England. The Court will consider the nature and quality of visits in question. Flying visits to attend business meetings usually count for less than do clear evidence of family ties together with permanence and continuity.
In this case, Mr Povarenkin is a Russian citizen who works in Moscow and spends much of his time in a large property he owns there. He is married with two children. His children go to school in England, and for about four years his wife has lived with their children during term time at an expensive flat in central London. During term time Mr Povarenkin visits his family at that flat approximately twice a month. The Povarenkin family spend the Christmas and New Year holidays at their home in Moscow, and spend their Easter holidays either in France or Moscow.
Mr. Bestolov and Mr. Povarenkin entered into some agreements regarding mining projects in Yakutia. The relationship broke down, and Mr. Bestolov caused proceedings to be served on Mr. Povarenkin at Heathrow Airport when he was visiting London to celebrate his wife’s birthday. Mr. Povarenkin applied to set aside the Claim Form, arguing he was not domiciled in England.
Applying the law to the facts of Mr. Povarenkin’s life, the Court considered that Mr Povarenkin was “resident” in England (although he was also resident in Russia) by virtue of his regular visits to his family. Moreover, his regular visits and his family’s continual presence during term time meant that he had a “substantial connection” to the jurisdiction. Accordingly, the English courts had no option but to take jurisdiction in a claim against him. It was not possible for him for Mr. Povarenkin to try to have the claim stayed on forum non conveniens grounds.
This is obviously a case which may resonate through the minds of many of the international elite. Many ultra high net worth individuals have a number of residences, including one in London, and move between them with some regularity. They cannot avoid the risk of being held to be “domiciled” here by limiting their physical presence. The message is that if people with family ties to England wish to avoid being subject to the English courts, they should ensure that any contracts they enter into contain appropriate dispute resolution provisions.