BR-2024-000795 - [2025] EWHC 2652 (Ch)

As to an arguable case to annul for want of domicile, the Family Court has already decided that in 2018 Mr Jones was domiciled in this jurisdiction notwithstanding his assertions in evidence to the contrary. That is a decision binding upon Mr Jones and the Trustees as his privy except to the extent that they have justifiable cause to ask the Court to readdress that issue. Such cause or right has not been established. Indeed, the Trustees do not appear to me to have challenged the facts in 2018. 

Ms Macro has submitted that the Trustees can rely upon the evidence Mr Jones gave before the Family Court but that would not be right, at least absent a change of circumstances. That is because, as matters stands, Mr Jones’s evidence has been rejected, and he could not re-argue the Family Court’s finding of fact and law that he was domiciled within this jurisdiction in 2018.

However, the 2018 decision does not mean the Trustees do not have an arguable case. They do because they rely upon what occurred since. Namely upon significant changes in circumstance attributable to the divorce. These include the location of his children, the absence of a wife, the loss of the matrimonial home in this jurisdiction, and the resulting changes in focus for Mr Jones’s life. In my judgment there is certainly a good arguable case that by the date of the Bankruptcy Order, those factors altered the location where Mr Jones permanently intended to reside to Austria. 

I therefore need to return to “the mess”. Whilst establishing an arguable case, the facts relied upon by the Trustees do not exclude the potential Mr Jones being able to file and serve evidence presenting a different interpretation depending upon Mr Jones’s evidence concerning domicile. As yet, there is no such evidence and I still need in that context to decide whether to permit the Trustees to rely upon domicile by reason of notice and, if so, upon what, if any terms.

Whilst Ms Macro in her submissions blames Mr Jones’s failure to ask for permission for further evidence at the directions hearing, Mr Pennington-Benton's submission is that the annulment application required amendment, whether directly or through the filing of further evidence in support. He submitted that a skeleton argument cannot be relied upon to add to the grounds which should appear in the application notice.

In my judgment the parties should have reached agreement or sought a decision at the July directions hearing concerning the scope of the annulment application. That agreement or hearing would have addressed whether the application required amendment and/or whether Mr Jones should be permitted to file and serve further evidence. It would also have addressed any issues concerning reply evidence. The failure to take that approach means that the parties have attended this hearing with different understandings as to its scope. That should not have occurred and both sides should have appreciated that and sought to avoid it.

Taking all the matters considered above into consideration under section E including paragraphs 61-64 and the “real problem”, in my judgment it would be wrong to prevent the Trustees from relying upon their notice by skeleton argument and from asserting an absence of domicile based on the evidence to which that notice refers. On the other hand, it would not be fair or just to exclude Mr Jones from asking to file and serve supplemental evidence in answer to address that case should he so choose. It is reasonable to anticipate that the agreement/hearing opined above would have agreed the inclusion of the ground of an absence of domicile but upon terms that there should be amendment and further rounds of evidence. This is not a case to refuse to adopt that approach now because the hearing’s submissions have concluded. 

I have reached that decision also taking into consideration the interests of the creditors. Dismissal would be disadvantageous if (which is yet to be decided) annulment is appropriate when: there are no assets in this jurisdiction; Mr Jones is in breach of his duty to deliver up the bankruptcy estate; his application relied upon a non-existent beneficial interest in the matrimonial home within the jurisdiction; and recognition in Austria has been refused. Those features justify a decision to treat the Trustees’ case as one including the challenge to domicile of which notice was given. Any unfairness to Mr Jones can be cured by the opportunity to present further evidence. This approach will increase costs but both sides wear the stain of fault for this mess.

My decision upon this issue, therefore, is that absence of domicile is a ground for the application to annul following the notice given but that a decision should not be made without Mr Jones having the opportunity to file and serve further evidence (if so advised). 

It is my decision that by the date of hand down of this judgment, Mr Jones should have informed the Trustees and this Court: (i) whether he wishes to file further evidence addressing the evidence of Mr Jones concerning domicile as identified within Ms Macro’s skeleton argument; and if so (ii) the outline nature of that further evidence. Assuming the answer to (i) is positive and the evidence outlined is material, directions can be given upon hand-down, if not previously agreed. I suggest they include incorporation of the ground in accordance with the notice given in the skeleton argument within the application notice by amendment. If the answer is negative or the evidence outlined of no material value, the need for any further hearing can be considered upon hand down unless consequential directions are agreed. I consider that directions should be expeditious but note that the Trustees may (I express no conclusion) need time to consult creditors.