Moloobhoy & Anor v Kanani

For service under Civil Procedure Rules 1998, a defendant may have more than one usual residence. The question is whether the property has the quality of a home and forms part of the defendant’s settled pattern of life, assessed as a matter of fact and degree. Time spent there is not decisive.

On a forum non conveniens application, a defendant who has established no real defence must identify the issues said to make another forum clearly more appropriate. The court may determine summary judgment before a jurisdiction challenge is finally exhausted only in a very rare or exceptional case. That course may be justified where the defendant is resident and has assets in England, admits the underlying obligation, and has no discernible defence.

The claimants sought an account of the net proceeds of selling and developing land in Dubai under an alleged oral partnership agreement. The defendant applied to set aside service and to stay the proceedings in favour of Dubai. The claimants applied for summary judgment.

The claim form and particulars had been left at the defendant’s substantial Pinner property after an intercom conversation in which the speaker confirmed that the defendant was resident there. The principal issues were whether the property was the defendant’s usual residence, whether Dubai was clearly the more appropriate forum, and whether the court should determine the account claim summarily before the defendant had decided whether to submit to the jurisdiction.

1. Service. Applying Relfo Ltd (in liquidation) v Varsani [2010] EWCA Civ 560, a person may have more than one usual residence. The relevant questions are whether the property is used with the quality of a home and whether that use forms part of a settled pattern of life with continuity and permanence. The court must assess the nature and quality of occupation, not merely compare the periods spent at competing residences. The claimants had a good arguable case that the Pinner property was the defendant’s usual residence. Service was therefore valid under Civil Procedure Rules 1998, CPR 6.9(2).
2. Forum. Applying Spiliada Maritime Corporation v Cansulex Ltd [1987] 1 AC 460, the burden was on the defendant to show that Dubai was clearly the more appropriate forum. The land’s location was of little significance because the claim concerned money and an account of sale proceeds. The defendant identified no defence or concrete issue requiring determination in Dubai. He therefore failed to discharge the burden, and no stay was granted.
3. Summary judgment. Under Civil Procedure Rules 1998, CPR 11 and CPR 24, the power to determine summary judgment alongside a jurisdiction challenge should ordinarily be exercised only in a very rare case, following Speed Investments Ltd v Formula One Holdings Ltd [2004] EWHC 1772 (Ch) and European Capital Trade Finance Ltd v Antenna Hungria RT (unreported, 27 March 1995). This was such a case. The defendant was resident and owned enforceable assets in England, admitted the obligation to account, and had deliberately identified no possible defence.
4. Disposition. The defendant was ordered to furnish a full account of monies received and disbursed by him or Jackinson in connection with Plot E146 from 1 January 2005 to the date of judgment. The claimants’ application for any interim payment was left for later determination.