12/05/2016
Factors in Determining Domicile: Eng King Ltd v Vincent Petrillo
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In this case, decided on 5 May 2016, the Commercial Court gave guidance as to the indicia for consideration in determining domicile.
Factual background
The Claimant was a Swiss businessman, who alleged that he had given the Defendant ( a Russian) $17million, which the Defendant had then wrongly kept rather than investing. The Claimant first brought Russian proceedings for unjust enrichment, on the grounds that the money had passed through Russian bank accounts. The Russian court rejected the claim on the grounds that the dispute was contractual, and that this precluded an unjust enrichment remedy. The Claimant then brought English proceedings, alleging fraudulent misrepresentation and breach of fiduciary duty by the Defendant. The Defendant denied fraud, and denied the jurisdiction of the English courts, stating that Russia or
Belarus was a more appropriate forum.
Judgment on domicle
The test for domicile under the Civil Jurisdiction and Judgments Order 2001 Sch.1 paragraph 9, for the purposes of Regulation 1215/2012, was whether (i) he was resident in the UK, and (ii) the nature and circumstances of his residence indicated that he had a substantial connection with the UK.
Judge Waksman QC stated that it was possible to be resident and domiciled in more than one jurisdiction. It was necessary to determine whether the residence in England have the necessary degree of permanence and stability.
The factors that were considered relevant to establishing such permanence and stability were:
i) Regular visits to stay with children and ex-wife in the UK
ii) Remaining on the electoral roll at the former marital home in England
iii) Continued use of marital address in England on formal documents
iv) English landline and mobile numbers
v) His company had a business address in England near his former marital home
vi) His Russian bank account statements showed transfers to English accounts, undermining the Defendant’s evidence that he had no assets in the UK
Further, a number of negative factors were taken into consideration:
i) The Defendant had not explained where he spent the majority of his time.
ii) Although there was no evidence that he owned property in the UK, there was no evidence of property ownership in Russia or elsewhere either.
iii) He had not produced documents showing a different address elsewhere.
iv) Even if he did have business interests abroad, this did not prevent him being resident in the UK.
On this basis, Judge Waksman QC found that the Defendant was domiciled in the UK for the purposes of jurisdiction.
If it had been necessary to consider the appropriate forum, the following factors would have weighed against Russia or Belarus:
i) The applicable law was English.
ii) Neither party was a Russian speaker. Given the fraud allegations, witness examination and credibility Issues would be paramount and therefore it was appropriate that cross-examination be conducted in English.
iii) The number of Russian documents and witnesses was insignificant.
iv) In Russia, the fraud allegations would necessitate a criminal investigation causing further delay in the resolution of this dispute.
Analysis
This case provides a useful practical review of factors that may be relevant to determining domicile. The weight given to the absence of evidence positively supporting a claimed foreign domicile is noteworthy.
