Schedule 4 to the Insolvency (England and Wales) Rules 2016 provides that service is to be carried out in accordance with Part 6 of the CPR (§1(2)), and that a bankruptcy petition is to be treated as a claim form for the purposes of CPR Part 6 (§1(6) and accompanying table).

CPR 6.37 provides that the court’s permission is required for the service of the claim form out of the jurisdiction. For permission to be given, the claimant must (among other things) satisfy the court that there is a good arguable case that the claim falls within one of the jurisdictional gateways in PD 6B, §3.1. The relevant gateway here is gateway (20): where a claim is made under an enactment which allows proceedings to be brought, and those proceedings are not covered by any of the other grounds under §3.1.

The application of the standard of “good arguable case” in this context was explained by Lord Sumption in Brownlie v Four Seasons Holdings [2017] UKSC 80. After referring at §7 to the observation of the Court of Appeal in Canada Trust v Stolzenberg (No 2) [1998] 1 WLR 547, p. 555, that “‘Good arguable case’ reflects … that one side has a much better argument on the material available”, Lord Sumption continued:

That formulation was repeated by Lord Sumption in Goldman Sachs v Novo Banco [2018] UKSC 34, §9. In Kaefer Aislamientos v AMS Drilling Mexico [2019] EWCA Civ 10, Green LJ considered the application of the Brownlie formulation. I do not consider that it is necessary to set out his comments in full. They may for present purposes be summarised as follows.

I do not read those comments as encouraging the court to reach a final view on disputed factual matters rather than a provisional view for jurisdictional purposes. On the contrary, Green LJ expressly recognised that jurisdiction challenges are interim, and are likely to be determined in the context of evidential gaps and without hearing oral evidence; and he had emphasised that the court should be careful not to express a view on the ultimate merits of the case. The point being made in relation to limb (ii) was rather that the court should in principle attempt to reach a view on whether the claimant has the better argument, recognising the limitations of the material before it. Of course, in doing so the court may need to consider factual issues in relation to which, if it feels able to, it may reach a view. The overall test is however a provisional view of good arguable case, rather than a concluded view as to the merits.

Limb (iii) then addresses the situation where, despite best endeavours, the material before the court is too finely balanced, or too inconclusive, for the court to reach a conclusion one way or the other as to the overall relative plausibility of the overall evidential basis for the application of the relevant jurisdictional gateway. In such a case the court may determine a good arguable case on the basis of an assessment of plausibility which does not necessarily require a conclusion that the claimant has the better argument. There must, nevertheless, be sufficient support in the material before the court for it to conclude that a plausible evidential basis has been established.

Section 265 of the Insolvency Act 1986 sets out the grounds of the jurisdiction for a bankruptcy petition as follows:

In the present case MTC relies on s. 265(2)(b)(i), asserting that Prince Hussam had a place of residence at York House during the Relevant Period.

The question of whether a debtor “has had a place of residence” in England and Wales for the purposes of s. 265(2)(b)(i) or the identical provision in s. 263I(2) has been the subject of extensive consideration in the authorities. The judge referred at §53–85 of her judgment to Re Nordenfelt (1895) QB 151, Re Brauch [1978] (Ch) 316, Skjevesland v Geveran Trading (No 4) [2003] BCC 391, Reynolds Porter Chamberlain LLP v Khan [2016] BPIR 722, PJSC VTB Bank v Laptev [2020] EWHC 321 (Ch), my judgment in Lakatamia Shipping v Su [2021] EWHC 1866 (Ch), and the Roth J judgment.

There is no challenge to the judge’s analysis of the legal principles, and I do not therefore need to repeat that detailed analysis. The parties do, however, unsurprisingly emphasise different aspects of the principles set out in those cases. In the context of issues arising in this case the following points may be noted, but these are by no means exhaustive, and other considerations may be relevant in other cases:

The judge had before her a great deal of evidence, consisting of witness statements from (i) MTC’s solicitor, (ii) Prince Hussam’s solicitor, (iii) Prince Hussam himself, (iv) Princess Noorah, the Prince’s mother, (v) Princess Noorah’s solicitor, (vi) Princess Sarah, the Prince’s wife, and (vii) Khaled Hanjra, an employee of the family. She also considered evidence filed in the earlier stages of the litigation, including the evidence in relation to the 2020 petition and the evidence in support of the 2021 application to set aside the statutory demand in relation to the main arbitration debts.

She accepted that the court was required to consider the matter afresh on the basis of the evidence before it, although she noted that in doing so the court would draw on guidance from previous authorities, including the Roth J judgment on the question of how it should approach the application of s. 265. To the extent that the evidence before the court included factors considered in the Roth J judgment, the court was entitled to take into account the previous analysis (§98). There is no criticism of that approach in this appeal.

On the basis of the evidence before her the judge set out 11 matters which she considered were relevant in her assessment of whether Prince Hussam had a place of residence at York House. In short summary, these were:

On the basis of the judge’s assessment of all these factors, the judge’s conclusion was that MTC had shown a good arguable case on the evidence that Prince Hussam had a place of residence in the jurisdiction during the Relevant Period, in the sense that MTC had the better of the argument. If that was not the case, however, she considered that applying the Brownlie (iii) threshold there was at least a plausible albeit contested evidential basis for the application of the relevant jurisdictional gateway.

It follows from what I have just said that the judge’s conclusion was based on the multi-factorial assessment of the considerable volume of evidence before her. The judge was of course not making that assessment following trial having heard oral evidence from the witnesses. Her conclusions were, however, based upon an evaluative assessment of evidence from multiple witnesses as well as documentary evidence.

It is common ground that where an appeal challenges an evaluative assessment of that nature, the task of the appellate court is not to carry out that assessment afresh. It must be remembered that this is an appeal and not a re-hearing. The question is rather whether the decision of the judge was wrong by reason of an identifiable flaw in the judge’s treatment of the question to be decided, such as a gap in logic, a lack of consistency, or a failure to take account of a material factor: Re Sprintroom [2019] BCC 1031, §76.

With that in mind, I turn to the grounds of appeal.

The first two grounds of appeal, as originally cast, were that the judge did not correctly apply the Brownlie test and the place of residence test. Those grounds have now been somewhat reformulated by Mr Wardell KC, appearing today for Prince Hussam. His submission is that the judge did not seek to identify the evidential basis provided by MTC, and test that against Prince Hussam’s evidence before deciding who would have the better of the argument. In his submission, if the judge had applied the tests correctly on the basis of the evidence before her, she could not properly have concluded that MTC had established a good arguable case as to jurisdiction under s. 265. As it was, Mr Wardell submits that the judge effectively reversed the burden of proof.

Although that argument is couched as a failure to apply the test correctly suggesting an error of approach, I do not accept that the judge erred in her approach to the issue before her. She appreciated that it was for MTC to demonstrate a good arguable case on the basis of the Brownlie standard, and that in principle this required a conclusion that MTC had the better of the argument. That test does not, however, impose a straitjacket on the court as to the precise way in which it conducts its analysis of the evidence. Particularly when the question in issue as regards jurisdiction turns on a multifactorial factual evaluation, the court is entitled to set out its consideration of the relevant factors in the way that seems most appropriate, provided always that the court is directing itself properly as to the questions that it must decide.

The judge was therefore not required to set out in a formulaic way the positive evidence relied on by MTC and then test that against the evidence of Prince Hussam. It was entirely open to her to proceed as she did, by setting out in turn a series of factors which she considered relevant to the analysis of the place of residence, commenting on whether those factors supported the position taken by MTC or Prince Hussam, before taking a final view as to whether, considered as a whole, the evidence before her showed that MTC had established a good arguable case on jurisdiction. That is also, I note, the approach taken in the Roth J judgment at §42. Nothing in that approach suggests that the judge wrongly reversed the burden of proof.

Ultimately, therefore, Mr Wardell’s objection comes down to a challenge to the outcome of the judge’s assessment, and the weight given to the factors referred to by the judge. In particular, his submission is that decisive weight should have been placed on the fact that Prince Hussam has not stayed at York House since 2016, and stayed there only five times between 2010 and 2016, did not keep personal possessions there, did not have a set of keys, was not permitted to stay at York House while Princess Noorah was in residence, cannot for cultural and logistical reasons stay there with his entourage, and cannot stay there in the foreseeable future in any event due to the committal order. Those factors should, in Mr Wardell’s submission, have led to a conclusion that York House did not meet the threshold of permanence, continuity and control that the test requires.

Mr Wardell has, however, not identified any specific error in the judge’s assessment which could form a basis for appeal. The judge took account of the factors on which Prince Hussam relies and set out her assessment of these in her judgment. In particular:

The judge did not therefore omit material factors or err in her assessment of any of those factors. So far as material, they were weighted against the other factors identified by the judge and which I have summarised above.

Mr Wardell repeatedly submitted that the sole positive foundations for the judge’s overall conclusion in favour of MTC were the 2019 statement of Princess Noorah, and the fact that Prince Hussam had remained registered for council tax at York House until December 2019.

That mischaracterises the judgment. As I have already set out, the judge referred to 11 factors which she considered in the round. Significant matters supporting the position of MTC included the fact that the property was bought for use by the family when Prince Hussam was a teenager, the fact that the Prince had used this as his term-time residence for a period of around seven years, and that his family had also stayed there which was the reason for the modification of the property to accommodate his second son. The judge also took account of other evidence that Princess Noorah sought to provide London accommodation for her children, including a statement and letter from the solicitors for the Princess and other family members in August 2019 confirming that Princess Noorah “has allowed various family members including [Prince Hussam] to reside and stay there from time to time. … It is quite natural for a mother to let her son live in a property which she owns.”

Mr Wardell objected that this was all historic and of no relevance. I disagree. The evidence showed that this was a family home, which had been used from the outset as a family home where the Prince had stayed for many years during his studies in London, including at a time when he was married and had a family, and where he had, as the 2019 documents confirmed, an ongoing general permission to stay.

I will address Mr Wardell’s challenge to the judge’s conclusions on permission below in relation to Ground 3. For the purposes of Grounds 1 and 2, it suffices to say that this was a relevant factor that the judge took into account, and was one of the numerous reasons why she ultimately decided that MTC had the better of the argument as to Prince Hussam’s residence in the jurisdiction.

Mr Wardell also took issue with the judge’s findings as to the significance of the Prince’s registration for council tax. The judge explained in detail why she regarded the evidence on behalf of the Prince in that regard as being entirely unsatisfactory. The judge’s conclusions were ones that she was entitled to reach on the material before her. The exercise was an evaluative one in relation to which no appeal or error has been identified.

Mr Wardell also said more generally that the judge did not specifically evaluate the evidence by reference to the considerations referred to in Lakatamia v Su, in particular the questions of whether the quality of Prince Hussam’s connection with York House established a sufficient degree of permanence and continuity. The judge had, however, referred to those factors in her analysis of the legal test, and in substance she considered those factors in her discussion of Prince Hussam’s long-standing and continued connection with York House. It is right to say that permanence and continuity have to be considered in relation to the Relevant Period. But that does not mean that the analysis has to be carried out in a vacuum, without any regard to the history of the debtor’s connection with the property. The judge therefore rightly referred to that history as relevant to her analysis.

I therefore refuse permission to appeal on Grounds 1 and 2. An appeal on those grounds would have no real prospect of success.

Ground 3 objects that the judge rejected aspects of Prince Hussam’s evidence despite there being no cross-examination. The judge recognised the principle that the court should not ordinarily reject evidence given by a witness without the benefit of cross-examination, unless it is manifestly incredible, either because it is inherently so or because it is shown to be so by admitted facts or reliable documents: Coyne v DRC Distribution [2008] BCC 612, §58. The judge applied that test to the evidence before her, rejecting as incredible various aspects of the evidence given by Prince Hussam and Princess Noorah. Her assessment was based on the evidence before her, including other evidence from the Prince and his mother as well as what Green LJ describes as “judicial common sense”.

The disputed findings all, in essence, turn on or relate to the judge’s rejection of the contention of Prince Hussam and his mother that following the end of Prince Hussam’s studies in London, the Prince no longer had a general entitlement to stay at York House, but was required to obtain permission from his mother on each occasion. That contention was reflected in a number of specific points made in the evidence.

As the judge explained, it was noticeable that the detailed evidence regarding the Prince’s limited permission to use the property had emerged since the proceedings relating to the 2020 petition, and there was no explanation of why this was not mentioned in the evidence given in the earlier proceedings. The judge could perhaps have said, more precisely, that there was no adequate explanation – what had been said by Mr Wardell was that there was limited time available for evidence to be provided for the application to set aside the 2020 petition. But, as Mr Moverley Smith KC for MTC noted, that evidence could have been supplemented in the months prior to the hearing before Deputy ICC Judge Schaffer, particularly at the stage at which reply evidence was filed. The short deadline for the initial evidence did not, therefore, explain why the permission point was not subsequently raised if it was indeed relevant.

It is fair to say that the cases on both sides have developed somewhat during the course of this litigation. The basic point, however, is that a new point has arisen which is not only unsupported by the earlier evidence, but is in fact contradicted by the earlier evidence. That is a point which the judge was entitled, and indeed bound, to have regard to in her assessment.

In any event, the judge’s assessment did not turn decisively on this point. The more important problem with the new evidence on permission was that the judge considered it to be implausible in light of the other evidence before her, including the earlier statements made in 2019. The judge’s assessment was that there was in fact an ongoing understanding that Prince Hussam was free to use York House if it was available. In other words, he had an ongoing personal licence to reside, subject to availability (§119).

Prince Hussam may take issue with the judge’s conclusions. They were, however, conclusions that she was entitled to reach on the evidence before her. They were, contrary to Mr Wardell’s submissions, findings that were relevant to the judge’s overall assessment, because they went to the question of the Prince’s long-standing entitlement to reside at the property when in London, and the basis of that entitlement, which in the judge’s assessment went back over four decades. That had been a relevant factor in the conclusions of Roth J, and it was a relevant factor in the judge’s assessment. As the authorities establish, having a place of residence is a de facto situation and a moral entitlement to reside may be sufficient, particularly in a family context.

I therefore refuse permission to appeal on Ground 3, on the basis that it has no real prospect of success.

Ground 4 presents a miscellany of challenges to the assessment by the judge of individual pieces of evidence before her. The grounds of appeal set out 15 specific alleged errors. Mr Wardell helpfully confirmed at the hearing that all of these had already been covered in his submissions under Grounds 1–3. I therefore do not need to say anything more about these points, save to say that none of them discloses any error of the type that would justify a different conclusion being reached on appeal, for the reasons that I have already given.

Ground 5 is that the judge wrongly concluded that Prince Hussam had not abandoned any place of residence that he might have in the jurisdiction. Mr Wardell relied on the Nordenfelt case, in which the court found that the debtor had abandoned the disputed house by selling or packing up all his furniture such that the house could not, without some trouble and expenditure, be placed in a position to be used.

There is not, as I understand it, any dispute that abandonment is to be assessed as a question of fact and need not be permanent. There must, however, be facts from which abandonment can be inferred, as opposed to the fact that a debtor is for particular reasons simply choosing not to occupy a particular place of residence during the period of time. A wealthy person may have a number of places of residence in different locations, and the fact that one or other of them is not visited for a number of years does not equate to abandonment.

Mr Wardell said that the committal order means that Prince Hussam will not in fact be able to reside at York House in the foreseeable future. That may well be correct, as a matter of practicality – the Prince is extremely unlikely to return to a jurisdiction where he knows that he will be arrested on arrival and sent to prison. As the judge noted, however, the contention that the Prince should on that account be treated as having abandoned any place of residence he might have at York House was not supported by any of the evidence, including two witness statements from the Prince himself specifically in support of the set aside application before her (§129). If that had been the Prince’s position he could easily have said so, but he did not. The judge was therefore entitled to reject the abandonment submission on the basis of the evidence before her.

Finally, Mr Wardell referred me to two reasoned judgments in other cases where it was found that the relevant debtors did not have a place of residence in the jurisdiction. Those cases turned, however, on very different facts.

In Re Jones [2023] EWHC 1359 (Ch), the key points summarised at §19 of the judgment were that the debtor had not ever used the disputed property as a place of residence, there was nothing to indicate that he had any other place in which to reside, and brief periods spent at his parents’ home or in hotels were not enough. Those facts are quite different to those of the present case, where it is apparent from the evidence that York House was purchased as a family home by Princess Noorah many decades ago, was in fact used by Prince Hussam as his place of residence for seven years while he was studying in London, including with his young family, and where the judge found that the Prince had ongoing permission to reside when his mother was not there.

The second case referred to is Portrait v Minai [2023] EWHC 1605 (Ch). Again, however, the facts are very different. §§96–98 of that judgment record that the property was almost completely unfurnished and empty, and that Miss Minai had never lived in it for any significant period of time. By the time of the relevant period in that case, the house was merely an asset which Miss Minai was in the course of selling.

I do not therefore think that these judgments concerning very different factual situations take matters any further. Ground 5 does not, in my judgment, have any real prospect of success.

It follows that permission to appeal is refused on all grounds.