Gaines-Cooper v Revenue and Customs

The acquisition of a domicile of choice requires both actual residence in the new jurisdiction and an intention to reside there permanently or indefinitely. In deciding whether those requirements were met at a historical date, the tribunal may consider later evidence concerning both residence and intention. There is no universal cut-off: remoteness affects the strength of inferences, not the relevance of the evidence as a matter of law.

On an appeal limited to questions of law, disagreement with factual findings, or an argument that they are against the weight of evidence, cannot be recast as legal error where the tribunal had evidence capable of supporting its conclusion. A second appeal requires more than a real prospect of success; it must also raise an important question of principle or disclose another compelling reason.

The Special Commissioners decided that the appellant remained domiciled in England and Wales for the tax years 1992/93 to 2003/04. They rejected his case that he had acquired a domicile of choice in the Seychelles in 1976. Lewison J upheld that decision and dismissed the appeal. Arden LJ refused permission to appeal on the papers.

The appellant renewed his application for permission to bring a second appeal. He alleged errors of law in the Special Commissioners’ reasoning, including reliance on later evidence, failure to consider relevant evidence, and impermissible findings concerning his chief residence. The central issues were whether the proposed challenge was a question of law and whether it satisfied the second-appeal threshold.

Disposition. Rimer LJ, with Wilson LJ agreeing, refused the renewed application for permission to pursue a second appeal.

1. Domicile of choice. Acquisition of a domicile of choice requires both an intention to reside permanently or indefinitely in the new jurisdiction and actual residence there.
2. Later evidence. Evidence arising after the claimed acquisition date may be considered in assessing both intention and residence. There is no universal time limit. The appropriate period depends on the circumstances of the case. The remoteness of evidence affects the cogency of the inferences available from it, but does not make the evidence irrelevant as a matter of law.
3. Fact and law. The Special Commissioners understood the appellant’s case and evaluated the evidence as a whole. Even if they had considered matters of marginal relevance or made factual errors in reciting the evidence, the proposed challenge remained a challenge to their findings of fact. On an appeal limited to a question of law, a conclusion supported by evidence could not be challenged merely because another tribunal might have reached a different conclusion or because it was said to be against the weight of the evidence.
4. Authorities on appellate review. The appellant sought to read Lord Radcliffe’s observations in Edwards v Bairstow [1956] AC 14 too widely. They did not permit the facts to be reopened by presenting disagreement with factual findings as an error of law. Barlow Clowes International Ltd v Henwood [2008] EWCA Civ 557 was distinguishable because that appeal was not confined to a question of law and permitted interference with findings of fact where relevant evidence had been ignored.
5. Second appeal threshold. Under CPR Part 52.13, a real prospect of success was a precondition, but it was insufficient by itself to establish another compelling reason. The proposed issues concerning chief residence and the temporal relevance of evidence were fact-sensitive and did not raise an important question of principle of general value. Nor was there any special circumstance amounting to another compelling reason.
6. The Special Commissioners’ finding that the appellant lacked the necessary intention to reside permanently in the Seychelles made the proposed appeal on chief residence essentially academic.

1. Court of Appeal (Civil Division): the renewed application for permission to pursue a second appeal was refused. Arden LJ had previously refused permission on the papers. [2008] EWCA Civ 1502
2. High Court of Justice, Chancery Division: Lewison J upheld the Special Commissioners’ decision and dismissed the appeal.
3. Special Commissioners: decided that the appellant was domiciled in England and Wales for the tax years 1992/93 to 2003/04 and had not acquired a domicile of choice in the Seychelles in 1976.