Cherney v Deripaska

For jurisdictional domicile, an individual may be resident in more than one place, but residence requires a settled or usual place of abode with sufficient continuity and permanence. Ownership, staffing and availability of a property do not by themselves establish residence where the individual’s use is infrequent, intermittent and brief.

Personal service under CPR 6.4 requires leaving the claim form with the individual. Delivery to a security guard or other intermediary is insufficient without a recognised agency relationship. The court should not dispense with service under CPR 6.9 where doing so would circumvent the rules governing service out of the jurisdiction.

The claimant sought a declaration that the defendant held 20 per cent of the shares in a Russian company on trust for him. The defendant challenged service and jurisdiction.

The claim form was handed to a security guard outside the defendant’s London property, who agreed to pass it to the defendant. The claimant argued that the defendant was domiciled in England under the Jurisdiction Regulation and the Civil Jurisdiction and Judgments Order 2001, or alternatively that service was valid under CPR 6.4 or 6.5. He also applied to dispense with service under CPR 6.9.

The issues were whether the defendant was resident and domiciled in England, whether service was effective, and whether service should be dispensed with.

1. Domicile and residence. The defendant owned and maintained 5 Belgrave Square, used it whenever he was in England, and had staff there. However, his use was generally limited to short and irregular visits, while most of his time was spent in Russia. Residence under paragraph 9(2) of Schedule 1 to the Civil Jurisdiction and Judgments Order 2001 requires a settled or usual place of abode involving some degree of permanence or continuity. The claimant therefore failed to establish a good arguable case that the defendant was resident, and consequently domiciled, in England. The substantial-connection and presumption provisions were accordingly not satisfied.
2. Service at the property. The address was not the defendant’s usual residence for CPR 6.5(6), even though it was where he usually stayed when in England. Leaving the claim form with the security guard did not constitute personal service under CPR 6.4, which requires leaving it with the individual. The guard was not shown to be the claimant’s agent or to have apparent authority from the defendant to accept service. Kenneth Allison Ltd v A.E. Limehouse & Co supported the strict application of the rule.
3. Dispensing with service. Although the claim had come to the defendant’s attention, dispensing with service would have allowed the claimant to circumvent Section III of CPR 6 and obtain service on a defendant outside the jurisdiction without complying with the applicable safeguards. The court therefore refused to exercise its discretion under CPR 6.9.
4. The claim form had not been duly served. The defendant was not domiciled in England within the meaning of the Jurisdiction Regulation. The application to dispense with service was refused, leaving the claimant to seek permission for service out of the jurisdiction if the claim was to proceed in England.