10 December 2018 - Article
Withers, together with Rupert D'Cruz of Littleton Chambers, represented the Claimant, Mr Bestolov.
A copy of the judgment can be found here.
The case in this briefing note addresses the concepts of residence and domicile in the context of jurisdiction and the conflict of laws. It does not relate to the concepts of residence and domicile in the context of UK taxation, which are governed by different rules and are outside the scope of this note.
In a decision handed down on Friday 28 July 2017, the English High Court has found that a Russian businessman whose wife and children live in London (at least during the school term-time), and who has a temporary right of residence in England due to his wife's UK “Investor Visa”, is domiciled in England notwithstanding that he lives most of the time in Russia and that his businesses are almost exclusively there. As a result, the English Court is bound to accept jurisdiction to hear the claim against him.
In Ruslan Urusbievich Bestolov v. Siman Viktorovich Povarenkin the Claimant brought proceedings in the English High Court seeking repayment of a debt which arose under a form of joint venture arrangement. The arrangement related to the acquisition and development of mines in Russia.
Defendant's jurisdiction challenge
The Defendant was served personally in England, which meant that the English Court automatically had jurisdiction to determine the claim, but the Defendant applied for an order that the Court decline to exercise its jurisdiction in that way, on the basis that Russia was the more appropriate place for the claim to be heard. The Defendant contended that as both parties were Russian citizens and lived in Russia, both parties' business interests were in Russia (the Claimant's exclusively, and the Defendant's substantially), neither had business interests in England, their contract was concluded in Russia, the subject matter of the contract related to the acquisition and development of certain mines in Russia, performance was to be effected in Russia, and not in England, all evidence and witnesses were in Russia, all documents were originally in Russian and the witnesses would be Russian speakers requiring interpreters, Russia was clearly more appropriate. Moreover, said the Defendant, the parties had not agreed that the English Court should have jurisdiction to determine their dispute(s) or that English law applied to their contract; in sum, the claim had no connection at all to England and every relevant connection to Russia.
The Claimant's primary case was that the Defendant is domiciled in England and therefore the English Court must accept jurisdiction to determine the claim.
It was common ground between the parties that if the Defendant was found to be domiciled in England, the Court had no power to stay the proceedings and the Defendant's jurisdiction challenge would be dismissed.
The judge found that the Defendant was resident in England on the following basis:
- The Defendant's wife and children have, since 2013 resided in a substantial property in London for the majority of the year.
- The Defendant and his wife had made a “life style choice” that the Defendant's wife and their children would live in England during the school year whilst the children are educated in England.
- The London flat should be characterised as a family home; it was not “a hotel”.
- The Defendant spent substantial, regular and increasing, periods of time in England in order to spend time with his wife and children.
- The Defendant and his wife had spent very substantial amounts of money to satisfy UK “Investor Visa” requirements, leading to temporary residence in England with the potential to apply for permanent residency.
- The nature and circumstances of the Defendant's residence indicate “overwhelmingly” that he has a substantial connection with England.
The Court must therefore accept jurisdiction, and the Defendant's application was dismissed.
The Defendant sought and was refused permission to appeal.
The judgment provides a thorough, well-reasoned and instructive authority on the issues of residence, domicile and jurisdiction. It develops and affirms existing case law on domicile and jurisdiction and will be an important authority for anyone considering those issues.
Importantly, it is of real, direct and practical significance for Russians (and indeed other non-British citizens) who may regard themselves as resident in Russia (or elsewhere overseas) but can find that they are also held to be domiciled in England for jurisdictional purposes, even on the basis of short visits to see family living here.
If you have any questions, or would like to know how this might affect you or your business, phone or email Chris Coffin or Steph Balsys.