HRH Prince Hussam Bin Saud Bin Abdulaziz Al Saud v Mobile Telecommunications Company KSCP

For bankruptcy jurisdiction under section 265(2)(b)(i) of the Insolvency Act 1986, whether a debtor has had a place of residence in England and Wales is a fact-sensitive, multifactorial question. Residence is a de facto condition and does not require legal ownership, exclusive occupation, continuous physical presence, personal possessions or the debtor’s settled home to be in the jurisdiction. A moral or family-based entitlement to occupy may suffice. The court must assess permanence, continuity, control, history of use, availability and the nature of the debtor’s connection in the relevant period. On appeal, an evaluative assessment will not be revisited unless an identifiable error is shown. The good arguable case test requires a provisional assessment of the better argument where possible, or a plausible evidential basis where the material is too inconclusive.

MTC obtained permission to serve a bankruptcy petition on Prince Hussam out of the jurisdiction under section 265 of the Insolvency Act 1986. ICC Judge Barber dismissed Prince Hussam’s application to set aside that order, finding that MTC had a good arguable case that he had had a place of residence in England and Wales during the three years before presentation of the petition.

The appeal concerned whether York House, a London flat owned by Prince Hussam’s mother, could constitute his place of residence despite his limited and historic use of it, the absence of personal possessions, his residence in Saudi Arabia, his entourage and a committal order preventing his return to England. The central issues were whether the judge had applied the good arguable case and place-of-residence tests correctly and whether she had made appealable errors in evaluating the evidence.

1. Permission refused. The proposed appeal had no real prospect of success on any of the five grounds.
2. The good arguable case test under [2017] UKSC 80, as repeated in [2018] UKSC 34 and explained in [2019] EWCA Civ 10, requires a plausible evidential basis for the jurisdictional gateway. Where possible, the court should form a provisional view as to which side has the better argument. If the evidence is too finely balanced, a plausible but contested evidential basis may suffice. The exercise remains provisional and must not become a determination of the ultimate merits.
3. Whether premises are a debtor’s place of residence under section 265(2)(b)(i) of the Insolvency Act 1986 is a multifactorial factual assessment. Relevant considerations include de facto control, permission or moral entitlement to occupy, duration and history of occupation, availability, permanence, continuity, whether the premises are a settled or usual home, the nature of the debtor’s presence and whether non-occupation is voluntary. No single factor is conclusive. Residence may exist although the debtor’s home is elsewhere, the property is shared, the debtor is not present during the relevant period, or the debtor keeps no personal possessions there.
4. The first-instance judge was entitled to assess the evidence by considering the relevant factors in the round rather than setting out MTC’s evidence and separately testing it against Prince Hussam’s evidence. That approach did not reverse the burden of proof.
5. The appellate court’s task was not to conduct the evaluative assessment afresh. Under [2019] BCC 1031, intervention requires an identifiable flaw such as a gap in logic, inconsistency or failure to take account of a material factor. No such flaw was established.
6. The judge was entitled to reject aspects of witness evidence without cross-examination where they were manifestly incredible in light of the other evidence, applying [2008] BCC 612. She was also entitled to find that non-use caused by the committal order did not establish abandonment. The decisions in [2023] EWHC 1359 (Ch) and [2023] EWHC 1605 (Ch) were factually distinguishable.

• High Court, Chancery Division: ICC Judge Barber dismissed the application to set aside the order permitting service of the bankruptcy petition out of the jurisdiction on 18 May 2023.
• Chancery Appeals: Mrs Justice Bacon heard the rolled-up application for permission to appeal, with the appeal to follow if permission were granted. Permission was refused on all grounds.