Living overseas doesn’t mean you aren’t domiciled in England

In a useful reminder for parties who might not otherwise consider themselves to be subject to English jurisdiction, in the recent case of Bestolov v Povarenkin, the High Court confirmed that, where a defendant is domiciled in England, the courts of this country have jurisdiction and moreover no discretion to decline jurisdiction.

The court held that the defendant was domiciled in England, although he was a Russian national who had always been resident in Russia, had a “family home” in Moscow, was tax domiciled in Russia, ran his business from Russia, spent about 200 days of the year in Russia and had no business assets in England.

The test for domicile was whether he was resident in England and whether the nature and circumstances of this residence indicated a “substantial connection” with England. It was not necessary for England to be his only place of residence or even his principal place of residence.

The court considered that the following factors meant the defendant was resident in England and that he had a substantial connection to England:

• his wife and children spent most of the year in England;
• his wife’s property in England (where the children lived with her) was her usual address;
• the property had been bought with joint monies of the defendant and his wife;
• the only specific time the family spent together in the Moscow family home was Christmas;
• the defendant’s visits to England were to visit his wife and children – made out of choice, not out of necessity (for business reasons or similar);
• there was a distinct pattern to his visits – twice every month to spend time with the family;
• his relationship with his children was therefore centred in England; and
• his wife had spent significant sums to obtain a UK Tier 1 Investor Visa, allowing her indefinite leave to remain in the UK, which he benefited from as one of her named dependants.

The court held that these factors showed that the defendant and his wife had decided to set up a family home in England. The English courts had jurisdiction to hear the claim; the defendant was domiciled in England, notwithstanding his competing ties to Russia.

Victoria Prince, Associate, Fladgate LLP (vprince@fladgate.com)