Relfo Ltd v Varsani

The claimant in these proceedings is Relfo Limited, a company in liquidation. In June 2001 it sold a property for approximately £4 million, giving rise to a tax liability estimated to be about £1.26 million. Some £3.5 million was distributed out of the company by way of dividend net of tax. As at 26 April 2004 the tax remained unpaid and Her Majesty’s Revenue and Customs (“HMRC”) issued to the claimant a Notice Warning of Legal Proceedings, stating that the company owed HMRC some £1.4 million, and requiring payment by 3 May 2004. On 4 May 2004, there was transferred out of the company a sum of £500,000 to the credit of an account of a company registered in the British Virgin Islands. On 5 May a sum (“the sum”) of $878,479.35, equivalent to 98.7% of £500,000, was remitted to the defendant’s bank account with the Singapore branch of Citibank. On 23 July 2004 the claimant was placed into voluntary liquidation and the creditors appointed Mr T.J.Bramston as liquidator. The majority creditor was HMRC.

The claimant sued the defendant in Singapore alleging that the £500,000 had been paid away from the claimant by its director, a Mr Gorecia, in breach of fiduciary duty and that the defendant was liable to account to it for the sum on the basis of knowing receipt or, alternatively, dishonest assistance of Mr Gorecia's breach of fiduciary duty. A proprietary claim to the sum was made as well.

The proceedings came to trial before Mrs Justice Judith Prakash in the High Court of Singapore between the 18 and 22 February 2008. The defendant was represented by counsel but elected not to give or call any evidence. Judgment was handed down on 30 June 2008.

The defendant ran three defences in those proceedings:

In her judgment Judith Prakash J held that Mr Gorecia had acted in breach of fiduciary duty in paying away the £500,000 and that there was sufficient evidence that the sum received by the defendant into his Citibank account represented the traceable proceeds of the claimant's money paid away from the claimant by Mr. Gorecia. She found further that the defendant knew that the moneys received by him were traceable to Mr. Gorecia's breach of trust and that it would be unconscionable for him to retain them. However, in view of her conclusion on the issue of knowing receipt, she made no findings on the dishonest assistance claim but she considered that there was insufficient evidence to make any findings of dishonesty.

On the basis of the judgment recited so far, the claimant would have succeeded. However, the judge went on to find that the claim in Singapore amounted to an indirect enforcement of the revenue laws of the UK and on this ground the claim was dismissed. In the light of this finding on the foreign revenue defence the judge made no determination at all in respect of the compromise defence.

The claimant served Notice of Appeal to the Singapore Court of Appeal in respect of the finding on the foreign revenue defence but, on 12 January 2009, that Court dismissed the appeal.

The claimant then commenced fresh proceedings in England for the same relief on the ground that the claim was denied enforcement in Singapore for the sole public policy reason that a country will not enforce the revenue debts of a foreign country. The Claim Form was issued on 26 January 2009. It was not served personally on the defendant. The claimant took advantage of CPR 6.9(2) and it was served together with Particulars of Claim by leaving the same with the defendant’s father at 9 Gainsborough Gardens, Edgware, Middlesex HA8 5BT. The defendant learned of the existence of these documents two days later. It is this service that is challenged by the defendant.

Under CPR 6.9(2) service of an individual must, if it is to be effective, be served at his “usual or last known residence”. It is the defendant’s contention that 9 Gainsborough Gardens was not his residence at all, and never has been his residence. His contention is that he is a habitual and permanent resident of Nairobi and should have been served, if permission had been given to do so, out of the jurisdiction, in Kenya. He claims that this Court has no jurisdiction over him and that the service at 9 Gainsborough Gardens should be set aside.

In the Singapore proceedings the defendant affirmed in various affidavits that 9 Gainsborough Gardens was his home. The most notable is an affidavit dated 15 October 2007, which was filed in support of an application to set aside a freezing order. In paragraph 35(c) of that affidavit he said: [The liquidator] “is in the United Kingdom, and I have a home in United Kingdom, free from encumbrance. Why should he take me on in Singapore which is so far from home for both parties and incur so much costs. He can always continue this fight in the United Kingdom, home grounds to both parties, where I have more assets.”

In that affidavit and in an affidavit dated 5 September 2007 he introduces himself as of 9 Gainsborough Gardens “and also residing at 3^rd Parklands Avenue, Nairobi, Kenya, and in the body of the last mentioned affidavit he says: “ I wish to state that I reside in Kenya and in the United Kingdom. I am not domiciled or resident, or have any business connection with, Singapore…”

In the light of these affirmations it is not surprising that the claimant decided to take the defendant at his word and take advantage of CPR 6.9(2) to serve the defendant with the present proceedings by leaving the Claim Form and Particulars at 9 Gainsborough Gardens. The defendant seeks now to distance himself from his own assertions. His counsel, Jonathan Brettler, submits that the question of residence is one for the Court and involves applying the correct legal test to the primary facts, and the defendant’s own view, expressed in a context where he was complaining that he should not have been sued in Singapore, should have very little evidential value. I agree that the question is ultimately one for the Court and that it has a significant legal content, but I do not agree that the defendant’s statements have little evidential value. He is in a unique position to give evidence as to the quality of his occupation of 9 Gainsborough Gardens and that evidence is of particular interest to the Court as it was not given in the present context which would lend itself to self serving statements in support of the defendant’s case.

In the present context the defendant’s evidence is contained in his witness statement of 23 February 2009. In paragraph 3, he asserts that he is domiciled in the Republic of Kenya , that he is a habitual and permanent resident of Nairobi and that he is not a domiciliary of the U.K. In paragraph 4 he asserts that he has lived all his life in Kenya and only travels to the United Kingdom for a holiday once a year where he stays for a period not exceeding one month. Such, in essence, was the factual basis upon which the defendant asserted that he had no residence in the U.K.

A more detailed picture has emerged during the course of these proceedings and the exchange of evidence in relation to freezing order relief, which has demonstrated the defendant’s opportunistic tendency to exaggerate the evidence to suit his case. This has not filled me with confidence that I can accept everything he says at face value. I do not want to overburden this judgment with examples of this. I will rest content with mentioning two. First, his reference (above) to a “period not exceeding a month”, which was repeated in his 2^nd witness statement, turned out to be 37 days in 2002, 49 in 2003, 43 in 2005, 38 in 2006, 53 in 2007 and 31 in 2008.

Another example is that the defendant’s solicitor asserted in a witness statement, presumably on instructions, that the defendant has a UK Overseas passport. In the event it has become clear (and this was only accepted at the hearing) that the defendant has a full British Passport with no endorsements to the effect that he is a British Overseas Citizen. He must have known this because his last passport showing him as a British Overseas Citizen , issued in 2002, did not expire until 2012. Yet his current passport showing him as a full British citizen was issued on 24 November 2003. Section 12 of the Nationality, Immigration and Asylum Act, 2002 gave British Overseas Citizens the right to apply for registration as British citizens from 30 April 2003. The inference is clear that the defendant made a positive decision to convert his passport as soon as he was able to do so.

At the end of the day, however, the essential factual evidence has come from the defendant himself and the claimant is not in a position to challenge most of it; and I must proceed on the basis of this unchallenged evidence. The exaggeration I have referred to goes to this, namely, that I am disinclined, where there is any doubt on the evidence, to resolve that doubt in favour of the defendant.

In the result the facts I have to consider are these. The defendant has a business in Nairobi which is known as the Patel Concrete Company and is carried on at 212/1 and 212/2 off Jogoo/Outer ring roads, Nairobi. He conducts that business with his brother. He is a British citizen and, being a foreigner in Kenya, is required to obtain an Entry Permit under class H which is issued to non-Kenyan citizens carrying on various types of business activity in Kenya. These permits are issued for two yearly periods at a time. An Aliens Certificate, also issued two yearly, is also required. The defendant’s residential address in Nairobi is Mpaka Road off the main 3^rd Parklands Road. I have no idea from the evidence what that property consists of or under what sort of title or ownership it is held or occupied.

As for the UK, 9 Gainsborough Gardens is vested in the defendant and his wife. It was transferred to him in 2005 when, according to evidence given by the defendant in Singapore, his wife and children (who are not British citizens) “settled” in the UK. He and his wife have three children aged 9, 19 and 20 who live at 9 Gainsborough Gardens. This is a united family: there is no suggestion that there is any estrangement between the defendant and his wife. His pattern of life is that he works in his business in Kenya and visits the family once a year for the periods indicated above. It will be noticed that there were no visits to the UK in 2004. In addition to his immediate family, the property is occupied as a residence by the defendant’s mother, father and disabled sister.

The defendant has other assets in the jurisdiction. He is the joint owner of a freehold property in Crawley known as Crabbet Park Equitation Centre of which he has a one third beneficial interest which he says belongs to him and his wife in equal shares. The property is worth £1,200,000 and is let as an equestrian centre. 9 Gainsborough Gardens is worth some £350,000.

The question for me is whether, on this evidence, 9 Gainsborough Gardens was the (or, perhaps a) “usual or last known residence” of the defendant in January 2009, when these proceedings were issued and served. More strictly, the question is whether the claimant has satisfied the Court that there is a “good arguable case” that that property had such a character. That is a lower test than proof “on a balance of probabilities” but, because the issue is determined, effectively finally, at the interlocutory stage, a “good arguable case” requires the claimant to establish that it has a much better argument on the available material than the defendant: Canada Trust Co v Stolzenburg (No. 2) [1998] 1 WLR 547,555 (CA), approved at [2002] 1 AC 13 (HL); Bols Distilleries BV v Superior Yacht Services Ltd [2007] 1 WLR 12 at 22 (PC). Logically, the first aspect of the question is whether the property is the defendant’s residence at all. Only if it is, or was, does the further question arise as to whether it is his “usual or last known” residence.

What Mr Brettler submits on behalf of the defendant is that he resides in Kenya, spending no more than a small fraction of his time, on holiday, in England and that, accordingly, he does not reside in England at all. He may have a beneficial interest in the house at 9 Gainsborough Gardens, but it does not follow that that house is his residence, let alone his usual residence. The fact that his wife and children reside at 9 Gainsborough Gardens is not relevant, he adds: it is his residence, not theirs, which is in issue here.

Mr Guy Newey QC, who appears for the claimant, accepts that the numbers of days spent in the UK house are relevant but submits that the “quality” of the use of the house is equally important, as was held by Langley J in Cherney v Deripaska [2007] 2 AER (Comm) 785 and [2007]EWHC 965 (Comm), at paragraph 45, and that that quality was as a home.

In my judgment the quality of the defendant’s use of the house in England was as a home. It was where his immediate (and wider) family lived. I reject Mr Brettler’s submission that the residence of his wife and children is irrelevant. 9 Gainsborough Gardens was the home of his wife and children which he could not share all of the time because of his business commitments in Kenya. But he returned there regularly each year from 2005, when his wife and children settled in the UK. As to the nature of his use of 9 Gainsborough Gardens, I do not see why I should not rely on his own assessment of the nature of that use which is evident from the affirmations in the Singapore proceedings I have referred to above.

Although each case depends upon its own facts, it would be wrong not to refer to the cases involving Mr Oleg Deripaska and Mr Roman Abramovich, both of whom owned very substantial residences in this country but were held not to be resident here at all. Taking first Mr Deripaska’s case (cited in paragraph 22 above), jurisdiction was sought to be established against him under Council Regulation (EC) No 44/2201 (“the Jurisdiction Regulation”). Under that regulation, persons domiciled in a member state are, whatever their nationality, to be sued in the courts of that member state. The “domicile” of an individual is provided for by the Civil Jurisdiction and Judgments Order 2001, which provides that an individual is domiciled in the UK if, and only if, he is resident in the UK and the nature of his residence indicates the he has a substantial connection with the UK.

Langley J had to consider whether Mr Deripaska was resident in the UK within the context of this legislation. Although the question was whether Mr Deripaska was “resident in” the UK (not whether he had “a residence in” the UK) and although the meaning of “resident” may differ in different contexts: see Dicey, Morris and Collins on The Conflict of Laws 14^th edition at 6-117, it is plain that the context in which the issue arose in that case is so closely analogous to the context in which the issue arises in the instant case that careful attention needs to be given to what was decided in that case.

The facts were that Mr Deripaska was the beneficial owner of a substantial house in London and had been since 2003. He used the house whenever he was in England. It was kept staffed with both security and domestic staff and ready for use throughout the year. He was spending something like 20 to 30 nights a year in the house at the relevant time, but the majority of his visits were for single nights and involved a constant flow of business meetings. He had houses in several countries including three in France. He had significant business interests in England but they formed a minimal part of his total interests which were largely Russian.

Langley J held that he was not resident in the UK. The use of the house resembled, the Judge held, that of a private hotel. It was infrequent, intermittent, and generally fleeting. The house had the character of continuity and permanence but its use did not. It could not, the Judge thought, in any normal sense of the words, be described as a “settled or usual place of abode” of Mr Deripaska. (These words on the meaning of “reside” come from the speech of Viscount Cave L.C. in the well known tax case of Levene v Commissioners of Inland Revenue [1928] AC 217 at 222.) Having held that he was not resident in the UK, it was unnecessary for the Judge to go on to consider whether the nature of the “residence” indicated a substantial connection with the UK. Accordingly, this last requirement did not colour the decision on “residence”, which is the issue I am concerned with in this judgment.

The case involving Mr Abramovich is OJSC Oil Company Yugraneft (in liquidation) v Roman Abramovich and others [2008] EWHC 2613 (Comm). This was another case under the Jurisdiction Regulation in which an extremely wealthy businessman, who owned and used extremely valuable residential property in London, was held not to be resident in the UK. Ownership of such property, which in the case of ordinary people would suggest settlement here may have no such significance, as the judge held (at paragraph 487), to someone for whom money is no object. Mr Abramovich’s visits to London were almost exclusively related to his ownership of the Chelsea Football Club and attendance at football matches. (He had no executive function in the club.) Such visits, the judge held (at paragraph 471) are not the sort of visits that necessarily suggest an intention to make England one’s home or usual place of abode. Although in the past his wife began to live in England during term time to be with the children who were being educated here, and he flew in and out of England to visit them, by the relevant time in late 2007, when the proceedings were issued and served, he had divorced his wife, he did not visit her and chiefly saw his children outside term time in Russia or on holidays outside England. See paragraph 486, which the judge concludes by saying that the centre of his relationship with his children was not in England. I regard these facts as important because I have placed some importance on the fact that the defendant and his wife and children are a united family and his wife and children have their home in 9 Gainsborough Gardens.

In my judgment, the consistent finding against residence in England in these Russian oligarch cases does not compel a similar conclusion in the case before me. It would, in my opinion, be dangerous to apply the conclusion reached in these cases too readily to other cases in which individuals own houses in this country and occupy them for only a limited part of the year. Mr Deripaska is plainly an exceptionally wealthy man with houses in many parts of the world. As Eady J put it in another case involving Mr Deripaska in which a similar conclusion was reached, namely, High Tech International AG and others v Deripaska [2006] EWHC 3276 (QB) at paragraph 24:

“Mr Deripaska is, if I may say so, very much a modern phenomenon. It makes it very difficult to draw useful comparisons with precedents from a different era. He is truly an international businessman and jets about the world for frequent and brief business meetings.”

No realistic comparison can be drawn between his case and that of the defendant in this case. In no real sense was Mr Deripaska’s house in London occupied as a home or a settled or usual abode. His family did not live in this house, although they also visited it sporadically. Langley J noted that he was in the house when his wife was also there for only 5 nights in 2005 and seven in 2006.

By contrast, the defendant’s wife and children occupy the house at 9 Gainsborough Gardens as their settled abode; indeed, their only abode. For business reasons the defendant has had to live for most of the year apart from his family. As he himself put it in his 2^nd witness statement at paragraph 14:

“In fact my wife and I have had to make a very painful sacrifice of having to live in different continents just so that we can give our children the best British education we can afford.”

On the evidence before me, I do not doubt that the defendant resides in Kenya, but that does not detract from the possibility that he resides in England as well. Both counsel accept that on the ordinary meaning of “reside” one can reside in more than one place at the same time: see Levene (cited above) at 222. The issue is whether the quality of his occupation of 9 Gainsborough Gardens is as a home or not and, on the evidence before me, I think it is.

Mr Brettler submits that while on the ordinary meaning of reside one can reside in more than one place, the phrase “usual residence” contemplates a single residence. There is plainly some force in this submission. He adds that “usual” must add something to the word residence. Mr Newey submits that one can have more than one usual (and last known) residence. If one can be ordinarily resident in more than one place, he submits, one can be usually resident in more than one place. It would be perfectly meaningful to say, for example, that the Queen usually resides at more than one of the Royal homes. “Usual”, he submits, does not import the idea of “principal”. When the framers of the rules wanted to introduce the notion of “principal” or “main” they did so in CPR 6.9(2) in relation to the place of business of a partnership, or office of a company, where they used the adjective “principal” expressly.

There is, as Langley J thought in the case cited above, a danger of over analysis here. “Usual” is an ordinary English word. It is not a term of art. It means, in its ordinary signification, that which is in ordinary use. There is a notion of regularity about it but not necessarily of comparative intensity of use. Contrasted with the word “principal” in the very same CPR 6.9(2), it would at least be wrong to read any such comparative element into it. It may not add very much to the simple word “residence”, although it does serve to emphasise the element of regularity and continuity of occupation of the property concerned. In my view, on the evidence before me, the claimant has a much better case in establishing that 9 Gainsborough Gardens is a usual residence of the defendant than the latter has of establishing the contrary.

“Last known” residence.

It is not strictly necessary to look further at “last known” residence but, as this threshold issue of service is so important to the parties, I think it right that I should say a few words about it. First, it is plain that “usual” and “last known” are to be read disjunctively. Secondly, if one can have more than one residence, one can have more than one last known residence. The issue between counsel on this aspect is whether it is part of the requirement of a “last known residence” that the defendant should not be resident there at the present time. Mr Brettler submits that the phrase imports a past, i.e. historic, residence and one where the defendant does not now live, and that it is simply inapposite to speak of a last known residence in the case of a residence currently occupied as such. Had I held that one can have only one usual residence and that the defendant’s usual residence was in Kenya , I would have held that although 9 Gainsborough Gardens was not his usual (in the sense of main) residence, it was one of his residences last known to the claimant despite the fact that he was still resident there. As Mr Newey said, the phrase in the rules is last known residence, not last known usual residence. Although the paradigm case for the operation of the rule is a residence where the defendant was resident once but is resident no more, there is nothing in it which restricts its operation to such circumstances.

The defendant accordingly fails in his jurisdictional challenge and I turn to his contention that the proceedings should be stayed on the ground of res judicata.

Mr Brettler takes the requirements of this doctrine from Spencer Bower: The Doctrine of Res Judicata 3^rd edition, by Mr Justice KR Handley, paragraph 9:

“Where a final judicial decision has been pronounced on the merits by an English or (with certain exceptions) a foreign judicial tribunal with jurisdiction over the parties and the subject matter, any party to such litigation, as against any other party…..is estopped in any subsequent litigation from disputing such decision on the merits….”

Mr Newey cites Dicey, Morris & Collins ( op. cit.) at14-027:

“ A foreign judgment may be relied on in English proceedings otherwise than for the purpose of its enforcement. A claimant who has brought proceedings abroad and lost may seek to bring a similar claim in England; or in proceedings on a different claim an issue may be raised which has been decided abroad. In such cases a foreign judgment decided abroad may give rise to res judicata, i.e to cause of action estoppel which prevents a party to proceedings from asserting or denying, as against the other party, the existence of a cause of action the non existence or existence of which has been determined by the foreign court, or to an issue estoppel, which will prevent a matter of fact or law necessarily decided by a foreign court from being re-litigated in England”.

There is no dispute between counsel as to the elements of the doctrine of res judicata. Where the merits of a cause of action have been finally disposed of by a judicial tribunal the parties are bound by that outcome and are estopped (per rem judicatam) from re-litigating that cause of action. It is as simple as that: a party is not allowed to re-litigate a cause of action that has already been decided between himself and the other party.

However, the merits of the cause of action by the claimant against the defendant have not been finally disposed of by the courts in Singapore or, indeed, disposed of at all. The Singapore courts have merely applied the principle of public policy, recognised and applied by most countries, that they will not enforce, directly or indirectly, the revenue laws of another country: Government of India v Taylor [1955] AC 491.That case was a case of direct enforcement. Peter Buchanan Ltd v McVey [1955] AC 516 was a case of indirect enforcement through the medium of a company in liquidation in which the foreign revenue was the priority creditor. Judith Prakash J held in Singapore that this was a case of indirect enforcement. She concluded at paragraph 71 of her judgment:

“ I am, accordingly satisfied that this claim is an attempt to indirectly enforce the revenue laws of the United Kingdom. Therefore, I cannot assist the plaintiff.”

As Mr Newey submitted, the claimant did not lose its cause of action; the Singapore court merely concluded that it could not assist the claimant in Singapore by reason of the near universal principle that the courts of one country will not enforce the revenue laws of another country. The court held that that principle applied in Singapore on the facts of this case. That is what was decided against the claimant and the claimant does not seek to challenge that issue in this court nor could it, of course, do so. The applicability of that principle was relevant in the Singapore court. On the facts of this case it is not relevant in the courts in this country. In the words of Sir Andrew Morritt V-C. in Miller v Bain & ors.[2002] BCC 899 at 910:

“If the UK court cannot enforce UK revenue claims, who, one asks, can?

The Singapore court has not made a determination of the cause of action on the merits. To the extent that it has considered the merits, it has actually found in favour of the claimant by rejecting the trust defence put forward by the defendant. Whether that gives rise to an issue estoppel is not before me and I therefore say nothing about this possibility. But I do say that the Singapore court has not made a determination of the claim against the claimant so as to give rise to an estoppel per rem judicatam.

Another approach to the issue is to characterise the principle of non-enforcement of a foreign revenue law as one going to the jurisdiction of the court. Certainly that is the way it has been characterised in Dicey, Morris & Collins, Rule 3, 5R-019. In Re State of Norway’s Application (Nos. 1 & 2) [1990] 1 AC 723 at 808, Lord Goff spoke of the court declining to exercise its jurisdiction. Seen in that light, the courts of Singapore have plainly not made a determination of the cause of action on the merits. They have merely declined to exercise their jurisdiction to determine the cause of action pursued by the claimant.

Either way, the common sense of the matter is that the claim has not been dealt with, finally or at all. The Singapore courts could not assist; it would be a travesty of justice if, on that account alone, the English courts rejected the claim as well.

Mr Brettler’s submission amounted to this: in Singapore, the defendant raised the foreign revenue defence, which relied on Government of India v Taylor. The claimant elected not to withdraw its Singapore action in the light of this defence, but instead elected to proceed to trial. At trial the court held that, on the facts of the case, the foreign revenue defence was well founded, and the claimant’s appeal against this decision was dismissed. The attempt now made by the losing party to start all over again, making the same claim in another forum, is precisely what the doctrine of res judicata was designed to prevent.

This submission is altogether too simplistic, in my judgment. It assumes, without argument, that the foreign revenue defence is a defence going to the merits, which it plainly is not, and it plays on the fact, which is perfectly true, that the claimant has lost in one jurisdiction and is now having a second go in another. Despite the apparent unattractiveness of that simple fact, for the reasons expressed above in this judgment, the facts of this case do not engage the doctrine of res judicata and I reject the application of the defendant to stay these proceedings.

In these circumstances, a further submission by Mr Newey, to the effect that the defendant’s application should be dismissed on the ground that a judgment of a foreign court which is in conflict with English public policy (even if it would otherwise give rise to a res judicata) will not be given effect in England, does not arise and I say nothing about it in this judgment.