Gray v Hurley

For jurisdiction under the Judgments Regulation, a person may be domiciled in England where he is resident here and the nature and circumstances of his residence show a substantial connection with England. Residence is a question of fact and degree and is not determined by counting days alone. A person whose English residence has ended may nevertheless be sued at his last known English domicile where his current domicile cannot be identified and there is no firm evidence that he is domiciled outside the European Union.

A claim concerning beneficial ownership under a resulting trust is not necessarily a claim concerning rights in rem in immovable property. Exclusive jurisdiction for the situs court does not apply where the claim does not seek a sale, transfer or determination of an external proprietary right.

Mandy Gray and Hamish Hurley were formerly in a long-term relationship. After the relationship ended, Mr Hurley commenced relationship-property proceedings in New Zealand. Ms Gray issued English proceedings concerning assets and investment payments, alleging resulting trusts, undue influence and unjust enrichment.

The jurisdiction dispute concerned whether Mr Hurley was domiciled in England, whether the claims fell within exclusions or exclusive-jurisdiction provisions of the Judgments Regulation, and, alternatively, whether service out could be authorised under CPR 6.36 and Practice Direction 6B. The court also considered whether there was a serious issue to be tried and whether England was clearly the appropriate forum.

1. Jurisdiction under Article 4. The court held that Mr Hurley had been resident and substantially connected with England during the relationship. Residence depends on the quality and nature of the defendant’s life and is not a numbers game. By 26 March 2019, however, he had ceased to reside in England because his relationship and only English home had ended, he had been excluded from that home, and he had taken no steps to obtain another English residence.
2. Mr Hurley was not resident in New Zealand on the material date. His visits to his parents’ home during the relationship did not amount to residence. Applying the reasoning in Hypotecni banka a.s. v Lindner and G v de Visser, Article 4 could be applied by reference to England as his last known domicile where his present domicile could not be identified and there was no firm evidence that he was domiciled outside the European Union. Ms Gray had the burden of proof, which she discharged.
3. Exclusions and exclusive jurisdiction. Article 1(2)(a) did not apply because the relationship was not shown to be one deemed by the applicable law to have effects comparable to marriage. Article 24(1) did not apply to the San Martino claim. The claim concerned alleged beneficial ownership under a trust, not a sale, transfer or determination of rights in rem having external effect. The distinction from Webb v Webb was not displaced by Komu v Komu or Magiera v Magiera. Article 25(1) also did not apply because the claim was not a dispute about interpretation, execution or termination of the sale agreement.
4. Alternative service-out analysis. The court would have found a serious issue to be tried on the resulting-trust, restitutionary and direct investment claims. A nominee company’s registration of the Cars did not prevent a serious issue between Ms Gray and Mr Hurley where Mr Hurley claimed the beneficial interest and controlled the nominee. However, payments made directly to Women of Wukar, Bell Green and professional advisers did not arguably enrich Mr Hurley, so the indirect investment claims disclosed no serious issue.
5. The relevant Practice Direction 6B gateways were satisfied. England was clearly the appropriate forum because the relationship had its strongest connection with England, substantial relevant acts occurred here, and many claims were governed by English law. The claim form could therefore be served out of the jurisdiction. The application for permission to serve out was redundant, but would have been granted except for the indirect investment claims.