LTL 24/9/2009
Chancery Division Jules Sher QC
Members
Guy Newey QC
Areas Of Practice
Commercial Chancery Litigation
Date of Judgment
18 September 2009
Facts
Although a defendant worked and resided in Kenya and spent no more than a small fraction of his time in England, a house he owned in London, which was occupied by his wife and family, was his "usual or last known residence" for the purpose of serving proceedings upon him.
Held
(1) The quality of V's use of the house in England was as a home. It was where his immediate (and wider) family lived as a united unit, and that was a factor of some relevance. It would be dangerous to apply the conclusion reached in cases concerning extremely wealthy businessmen who owned and used extremely valuable residential property in London, that they were not resident in the UK, too readily to other cases in which individuals owned houses in this country and occupied them for only a limited part of the year, Cherney v Deripaska (2007) EWHC 965 (Comm), (2007) 2 All ER (Comm) 785 and OJSC Oil Co Yugraneft v Abramovich (2008) EWHC 2613 (Comm) distinguished. Further, the term "usual residence" meant, in its ordinary signification, that which was in ordinary use. There was a notion of regularity about it but not necessarily comparative intensity of use. On the evidence, R had a much better case in establishing that the English address was a usual residence of V than the latter had of establishing the contrary. Moreover, if one could have more than one residence, one could have more than one "last known" residence, and V, accordingly, failed in his jurisdictional challenge to service of the proceedings upon him. (2) There was no dispute that the doctrine of res judicata provided that where the merits of a cause of action had been finally disposed of by a judicial tribunal the parties were bound by that outcome and were estopped from re-litigating that cause of action. In the instant case, however, the merits of the cause of action by R against V had not been finally disposed of by the courts in Singapore or, indeed, disposed of at all. The Singapore courts had merely applied the principle of public policy, recognised and applied by most countries, that they would not enforce, directly or indirectly, the revenue laws of another country. They had not made a determination of the cause of action on the merits, merely declined to exercise their jurisdiction to determine the cause of action pursued by R, Norway's Application (Nos1 and 2), Re (1990) 1 AC 723 HL applied. The common sense of the matter was that the claim had not been dealt with, finally or at all. The Singapore courts could not assist, and it would be a travesty of justice if, on that account alone, the English courts rejected the claim as well. V's application to stay proceedings on the ground of res judicata had, therefore, to be rejected also.
Application refused
Comment
The applicant (V) applied to set aside service upon him of proceedings brought by the respondent company in liquidation (R) or, alternatively, to stay proceedings on the ground that they were res judicata. R had gone into liquidation, having owed a substantial sum in respect of unpaid tax. R subsequently sued V in Singapore alleging that, just prior to R's liquidation, a large sum had been paid away from R by a director, in breach of fiduciary duty, to V's Singapore bank account, and that V was therefore liable to account for that sum on the basis of knowing receipt. The Singapore court found that whilst the sum received by V represented the traceable proceeds of R's money and that it would be unconscionable for him to retain it, the claim in Singapore amounted to an indirect enforcement of the revenue laws of the United Kingdom, and dismissed R's claim on that basis. R then commenced fresh proceedings against V in England for the same relief on the ground that it was denied enforcement in Singapore. The claim form was not served on V personally but on his father at an address in London. V challenged that service. V contended that (1) the London address, whilst vested in him and his wife and occupied by his wife and family, was not his "usual or last known residence", as he worked and resided in Kenya and spent no more than a small fraction of his time in England; (2) even if the proceedings had been correctly served, the doctrine of res judicata operated to prevent R from re-litigating a cause of action already determined by the Singaporean courts.
