Shulman v Kolomoisky & Anor

Whether an individual has ceased to reside in England is a multi-factorial, fact-dependent evaluation of the quality of the person’s absence. A distinct break in the pattern of life in England is required, but severance of social and family ties is unnecessary. Intention to leave is relevant but not determinative, and later conduct may illuminate the position at the material date. Motive, even if unworthy, does not prevent residence from ending. The court should avoid over-analysis of ordinary words such as residence. A person is domiciled in Switzerland where he factually resides there with an objectively ascertainable intention to establish permanent residence, having regard to the centre of his vital interests.

The claimant brought proceedings concerning a business relationship and served the second defendant at his former family home in London. The second defendant applied for a declaration that the court lacked jurisdiction. The claim had no connection with England, and jurisdiction depended on whether he was domiciled in England when the claim was issued, or alternatively whether he had become domiciled in Switzerland.

The central issue was whether, by 12 May 2017, the second defendant had ceased to reside and be domiciled in England, effected a distinct break in the pattern of his life there, and become domiciled in Switzerland.

1. Application allowed. The court had no jurisdiction to entertain the claim against the second defendant. It was unnecessary to decide whether service had been effected at his usual or last known residence.
2. The claimant bore the burden of showing a good arguable case that the second defendant was domiciled in England. The test required a plausible evidential basis and, where possible, a reliable assessment of factual issues on the available material. The claimant had not met that burden.
3. Residence for jurisdiction purposes required a multi-factorial evaluation of all relevant circumstances. There had to be a distinct break, meaning an alteration in the pattern of the individual’s life in England. A substantial loosening of social and family ties could suffice; complete severance was unnecessary. Intention was relevant but not determinative, and subsequent conduct could throw light on the position at the material date.
4. The evidence showed that the second defendant had firmly decided to leave England, substantially reduced his visits, arranged a move to Geneva, obtained Swiss administrative documentation, acquired accommodation and local connections, separated formally from his wife, and moved the centre of his life to Geneva. His temporary use of different accommodation there, and some lack of candour concerning the Q flat, did not alter the conclusion.
5. Applying Swiss law, domicile required factual residence in Switzerland together with an objectively ascertainable intention to establish permanent residence. Both elements were satisfied. The second defendant was domiciled in Switzerland by 5 April 2017 and therefore by the issue of the claim.