Relfo Ltd v Varsani

For service under CPR 6.9(2), an individual may have more than one residence. The court assesses whether a property is a residence by examining the quality of occupation, including whether it is used as a home, rather than relying only on the number of days spent there. “Usual” emphasises regularity and continuity, but does not require the residence to be the person’s principal or main residence. “Usual” and “last known” residence are disjunctive.

A foreign judgment refusing assistance solely because it would enforce foreign revenue laws does not ordinarily determine the merits of the underlying cause of action. It therefore does not create cause of action estoppel preventing proceedings in England on that cause of action.

Relfo Ltd, in liquidation, brought proceedings against the defendant concerning £500,000 transferred from the company and subsequently remitted to his Singapore bank account. The claimant first sued in Singapore for knowing receipt, dishonest assistance and proprietary relief.

The Singapore court found that the money represented traceable proceeds of a breach of fiduciary duty and that the defendant’s retention was unconscionable, but dismissed the claim because it indirectly enforced United Kingdom revenue laws. The Singapore Court of Appeal dismissed the claimant’s appeal.

The claimant then issued proceedings in England. The defendant applied to set aside service, arguing that the property where service had occurred was not his usual or last known residence. Alternatively, he sought a stay on the basis of res judicata.

1. The claimant had to show a good arguable case that 9 Gainsborough Gardens was the defendant’s usual or last known residence. This required a much better argument on the available material than the defendant’s case.
2. The defendant resided in Kenya, but that did not prevent him residing in England as well. Residence depends on the quality of occupation. The property in England was the settled home of his wife and children, and he returned there regularly. His use of the property was therefore as a home.
3. The cases concerning internationally mobile and exceptionally wealthy businessmen did not require the same result. Their properties were used intermittently, fleetingly or like private hotels, and the relevant family circumstances differed materially.
4. “Usual” is an ordinary word. It imports regularity and continuity, but not principal status. “Usual” and “last known” residence are disjunctive, and a person may have more than one such residence.
5. The Singapore proceedings did not finally dispose of the merits of the claimant’s cause of action. The Singapore court had applied the public-policy principle against enforcing foreign revenue laws and had not determined the underlying claim. The defendant’s applications to set aside service and for a res judicata stay were dismissed.
6. The court left undecided whether the Singapore findings created issue estoppel and did not address the separate public-policy submission concerning recognition of a foreign judgment conflicting with English public policy.

The judgment records that the claimant appealed the Singapore decision on the foreign revenue issue, but the Singapore Court of Appeal dismissed that appeal on 12 January 2009. The English court then dismissed the defendant’s applications concerning service and res judicata.