Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood

A domicile of choice requires voluntarily chosen residence and a fixed intention to make the country the person’s permanent or indefinite home. The issue must be decided by a global evaluation of all relevant facts, including the quality of competing residences. A person’s declarations of intention require support from conduct.

A domicile of choice may be abandoned without acquisition of a new domicile of choice. In that event, the domicile of origin revives by operation of law. The civil standard applies, although a change of domicile is a serious matter requiring cogent evidence in its factual context.

The appellants presented a bankruptcy petition against Mr Henwood for a judgment debt exceeding £9 million. Under section 265 of the Insolvency Act 1986, the English court could make a bankruptcy order only if he was domiciled in England and Wales when the petition was presented on 19 December 2005.

Evans-Lombe J held that Mr Henwood had acquired a Mauritian domicile of choice and dismissed the petition: [2007] EWHC 1579 (Ch). The appellants contended that he had not established a Mauritian domicile of choice and that his English domicile of origin had revived after he left the Isle of Man.

1. Appeal allowed. The judge’s declaration of no jurisdiction and dismissal of the bankruptcy petition were set aside. An order dismissing Mr Henwood’s application to set aside the petition was substituted.

2. Arden LJ, with whom Moore-Bick LJ and Waller LJ agreed, held that the judge’s conclusion about Mr Henwood’s intention was an inference from primary facts. The Court of Appeal was therefore required to make its own evaluation after the judge omitted material matters, especially the extensive connection with the French property and the significance of Mrs Henwood’s position.

3. A domicile of choice requires residence together with a fixed intention to reside permanently or indefinitely. Where a person has homes in more than one country, the court must assess the quality of each residence to determine whether either is the real and permanent home. A separate formal finding of “chief residence” is unnecessary if that evaluative task is performed.

4. The judge erred in treating a domicile of choice in the Isle of Man as persisting unless another domicile of choice was acquired. A domicile of choice is lost when the person ceases to reside there and ceases to intend permanently or indefinitely to reside there. If no new domicile of choice has been acquired, the domicile of origin revives by operation of law.

5. On the evidence, Mr Henwood abandoned his Isle of Man domicile of choice in 1992 but did not then acquire one in Mauritius. Nor had he proved by 19 December 2005 that Mauritius was his permanent or indefinite home. His short and insecure occupation of the Mauritian villa, extensive use of the French property, international business life, and unreliable self-serving statements did not establish a final choice of Mauritius over France or any other place.

6. His English domicile of origin had accordingly revived. The jurisdictional condition in section 265 of the Insolvency Act 1986 was satisfied.

• Court of Appeal (Civil Division) — allowed the appellants’ appeal and substituted an order dismissing Mr Henwood’s jurisdiction application: [2008] EWCA Civ 577.
• High Court, Chancery Division (Bankruptcy Court) — Evans-Lombe J held that Mr Henwood was domiciled in Mauritius and dismissed the bankruptcy petition: [2007] EWHC 1579 (Ch).