Home Information Cases Barlow Clowes International Ltd (In Liquidation) v Peter Henwood (2008)

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Barlow Clowes International Ltd (In Liquidation) v Peter Henwood (2008)

Summary

As a matter of law, a domicile of choice was not lost if a person merely moved away without having decided whether to move permanently, but it did not follow as a matter of law that if a person moved from his place of domicile of choice without having decided whether to reside permanently or indefinitely elsewhere, he had retained his domicile of choice.

Facts

The appellant company and its receivers and managers (B) appealed against a declaration ((2007) EWHC 1579 (Ch)) that the respondent (H) was domiciled in Mauritius and against the dismissal of its bankruptcy petition against H. The petition was based on a judgment debt obtained in 2001 against H in respect of his dishonest assistance in the disposal of monies stolen from B. The bankruptcy petition had been presented in December 2005, and in March 2006, H had applied for a declaration that the court had no jurisdiction to hear the petition on the ground that he was not domiciled in England and Wales. It was not disputed that H's domicile of origin was England, but he had travelled extensively throughout his adult life, owning a number of foreign properties and living for some years in the Isle of Man. In 1992, H had let his Isle of Man property on a long lease, and had taken a lease of a villa in Mauritius. He renewed the lease over a period of 14 years, developing the villa and holding a Mauritius residency permit and work permit. He spent little time in Mauritius because of extensive travel and because of substantial periods of time spent at his French property. H's work permit in Mauritius had ended around the same time as the judgment debt was obtained, as did his residency permit. In May 2006, his wife bought a further property in Mauritius, which enabled them both to obtain a right of permanent residence. In determining the court's jurisdiction to deal with the bankruptcy petition, the judge had made adverse findings about H's credibility, but had concluded that H had, on the evidence, established a domicile of choice in Mauritius. B submitted that (1) the judge had failed to make a finding as to which of H's homes was his chief residence; (2) H's domicile of origin must have revived when he left the Isle of Man in 1992 and that the onus of proof on him was a heavier one than if he was seeking simply to show that one domicile of choice had superseded another.

Held

(1) There was a fundamental flaw in the reasoning of the judge below because he had failed to address the single supremely important ultimate issue, namely whether H had the intention to reside permanently or indefinitely in Mauritius as at the date on which the petition was presented. Any test of chief residence involved looking at the quality of the residence in order to decide in which country the subject had an intention to reside permanently. The judge below had looked at which country was "home", using "home" in the sense of a permanent home. It was permissible for him to have used the concept of home in that context, but he had erred in proceeding on the basis that domicile of choice would inevitably be retained during a period of indecision. The instant court was therefore required to make its own evaluation of the facts. On the evidence, H had failed to establish a domicile of choice in Mauritius or anywhere else, and the only conclusion was that his domicile of origin had revived. (2) It would be odd to have two different approaches to the burden of proving domicile within the same case. In an increasingly cosmopolitan world, where migration was not confined to higher socio-economic groups, it was likely that many people would be as attached to a domicile of choice as to a domicile of origin which they had enjoyed originally, and the law should reflect that fact. The rationale that it was easier to establish that domicile of origin had been retained by inferring that the person would have wanted the domicile of his native character did not apply universally. As a general proposition, the acquisition of any new domicile should generally be treated as a serious allegation because of its serious consequences. Such an approach ensured logical consistency between two situations where the policy interest to be protected was the same. What evidence was required in a particular case depended on the application of common sense to the particular circumstances. On the evidence, H had an aversion to England because of childhood memories and if his domicile of origin arose at all, it arose only because of the default rule. It was not improbable that he would want to acquire a domicile of choice elsewhere, and there was no reason to be unduly sceptical about a suggestion that he had done so. The judge had not been required to consider whether evidence to meet a more serious case had to be adduced if there was an interval of time when, under the default rule, his domicile of origin revived, Udny v Udny (1866-69) LR 1 Sc 441 HL, Fuld (Deceased) (No3), In the Estate of (1968) P 675 PDAD, Winans v Attorney General (No1) (1904) AC 287 HL, Whicker v Hume 11 ER 50 HL considered and Plummer v Inland Revenue Commissioners (1988) 1 WLR 292 Ch D approved.

Appeal allowed

Court of Appeal
Waller LJ (V-P), Arden LJ, Moore-Bick LJ
Judgment date
23 May 2008
References

​LTL 23/5/2008 : (2008) NPC 61