This post has been contributed by Dr E Maganaris, Module convenor for Conflict of laws.
Pursuant to the Brussels Regulation (recast) [Regulation (EU) 1215/2012], a person domiciled in a Member State can be sued in the courts of that Member State and such a claim cannot be stayed on grounds of forum non conveniens. Consequently, an individual with interests unrelated to England but domiciled there may be sued in relation to those interests in the English Courts. That is despite the fact that England may have very little or even nothing to do with the facts of the dispute in question.
The above was confirmed by the High Court in its decision in Bestolov v Povarenkin [2017] EWHC 1968, (Comm), 28 July 2017. Mr Povarenkin is a Russian citizen who works and lives in Moscow. He is married with two children who study in London and live there during term time along with their mother. Mr Povarenkin, who visits his family approximately twice a month, has no business interests in England but his wife has a UK Investor Visa, which allows Mr. Povarenkin to temporarily reside in this country.
Mr. Povarenkin entered into some agreements with Mr. Bertolov, also a Russian citizen, regarding mining projects in the Yakutia region of Russia. All meetings and negotiations in relation to the agreements between the parties took place in Russia, the contracts were drafted in the Russian language and the performance under the agreements was affected in Russia. A dispute arose and in February 2017, on arrival to Heathrow airport whilst on his way to visit his family in London, Mr Povarenkin was personally served with a claim form. He applied for a stay of the proceedings in England on the grounds that Russia was the more appropriate forum to hear the claim. Mr. Bertolov argued that Mr Povarenkin was domiciled in England and therefore the court had no discretion under Article 4(1) of the Brussels Regulation (recast) to grant a stay.
The Civil Jurisdiction and Judgments Order 2001 establishes that a person is domiciled in England for the purpose of the Brussels Regulation (recast) if:
- The person is “resident” in England; and
- The person has a “substantial connection” to England.
The Court in this instance, then, had to decide whether or not Mr Povarenkin was domiciled in England. The Court’s investigation showed that Mr Povarenkin had lived his whole life in Russia, had significant business interests in that country and resided and paid tax there. However his wife, son and daughter lived in London where the children were being educated and spent more than half the year there.
The Court decided that because of his family connections, Mr Povarenkin was resident in England. He had a substantial connection with England, which meant that he was domiciled in the country. As a consequence the Court had jurisdiction and was obliged to dismiss his challenge.
The decision in this case has far reaching consequences for foreign nationals in that the latter, even if they are resident and pay tax in another country could be considered as domiciled in England for the purposes of jurisdiction. It confirms that an attempt to limit the time spent in the jurisdiction will not prevent individuals from being considered as resident in England. Rather, the courts will look at the nature of their relationship and connection with England for the purposes of determining residence.
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