The power of domicile

This post looks at two cases which show the  importance of the Brussels I Regulation’s primary rule of jurisdiction – that defendants should be sued in the jurisdiction of their domicile.  Those cases are Aspen Underwriting v Kairos Shipping [2017] EWHC 1904 (Comm), Bestolov v Povarenkin [2017] EWHC 1968 (Comm).  It is the fifth of our “new term catch up series”.

Aspen Underwriting achieves a potentially unsatisfactory result with some claims being tried in England and others capable of resolution only in the Netherlands (the place of domicile).  On the other hand, in Bestolov v Povarenkin, jurisdiction was established on the basis of domicile under the Brussels Regulation when it would not have been asserted at common law. Continue reading

Merits of claim against anchor defendant matter (probably)

This second post in our “new term catch up series” looks at Sabbagh v Khoury [2017] EWCA Civ 1120, an important case about using an anchor defendant under the Brussels Regulation regime.

The use of anchor defendants in English proceedings is very common. Establishing a claim against an anchor defendant allows co-defendants to be sued in England when jurisdiction could not otherwise be established over them.  In Sabbagh v Khoury, the Court of Appeal considered whether, when the Brussels Regulation (or the Lugano Convention) applied, the claim against the anchor defendant had to be meritorious or whether even a hopeless claim against the anchor defendant would be enough to found jurisdiction.

Interestingly, but unhelpfully for litigants, the Court of Appeal judges disagreed with one another.  Patten and Beatson LJJ held that the claim against the anchor defendant must have a real prospect of success.  Gloster LJ considered that this was unnecessary although did agree that the anchor defendant regime cannot be invoked if the sole object of the claim is to oust the jurisdiction of the courts which would otherwise have jurisdiction over the non-anchor defendants.

There is also considerable scope for the issue to be re-argued because, in fact, the court’s decision on whether the claim against the anchor defendant needed to have a real prospect of success was obiter dictum. Continue reading

Factors in Determining Domicile: Eng King Ltd v Vincent Petrillo

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. Continue reading

Israeli will dispute not to be heard in England: Winkler v Shamoon [2016] EWHC 217 (Ch)

The Chancery Division’s lengthy judgment earlier this week in a dispute between the legatees of a billionaire Israeli businessman (Mr Shamoon) makes interesting reading.  The result is that the English court would not take jurisdiction over a dispute about whether certain shares were to be treated as part of Mr Shamoon’s estate.

As well as covering specific points on the scope of the succession exception in Regulation 44/2001 (Brussels I), the judgment contains useful guidance on general points notably, what constitutes submission to the jurisdiction (at common law and under the Regulation). Continue reading