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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Chowdhury v Pzu SA [2021] EWHC 3085 (QB) (05 January 2021) URL: http://www.bailii.org/ew/cases/EWHC/QB/2021/3085.html Cite as: [2021] EWHC 3085 (QB) |
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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NAFIS CHOWDHURY |
Claimant |
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- and - |
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PZU SA |
Defendant |
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2nd Floor, Quality House, 6-9 Quality Court, Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. DX 410 LDE
Email: [email protected]
Web: www.martenwalshcherer.com
MS. L. WYLES (C) (instructed by Weightmans LLP) for the Defendant
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Crown Copyright ©
MASTER BROWN:
"Domicile of individuals (section 41)
9.—(1) Subject to Article 59 (which contains provisions for determining whether a party is domiciled in a Regulation State), the following provisions of this paragraph determine, for the purposes of the Regulation, whether an individual is domiciled in the United Kingdom or in a particular part of, or place in, the United Kingdom or in a state other than a Regulation State.
(2) An individual is domiciled in the United Kingdom if and only if—
(a) he is resident in the United Kingdom; and
(b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom.
(3) Subject to sub-paragraph (5), an individual is domiciled in a particular part of the United Kingdom if and only if—
(a) he is resident in that part; and
(b) the nature and circumstances of his residence indicate that he has a substantial connection with that part.
(4) An individual is domiciled in a particular place in the United Kingdom if and only if he—
(a) is domiciled in the part of the United Kingdom in which that place is situated; and
(b) is resident in that place.
(5) An individual who is domiciled in the United Kingdom but in whose case the requirements of sub-paragraph (3)(b) are not satisfied in relation to any particular part of the United Kingdom shall be treated as domiciled in the part of the United Kingdom in which he is resident.
(6) In the case of an individual who—
(a) is resident in the United Kingdom, or in a particular part of the United Kingdom; and
(b) has been so resident for the last three months or more,
the requirements of sub-paragraph (2)(b) or, as the case may be, sub-paragraph (3)(b) shall be presumed to be fulfilled unless the contrary is proved."
"[11] A settled or usual place of abode of course connotes some degree of permanence or continuity...... Depending on the circumstances of the particular case time may or may not play an important part in determining residence. For example, a person who comes to this country to retire and who buys a house for that purpose and moves into it, selling all his foreign possessions and cutting all his foreign ties, would to my mind be likely to be held to have become immediately resident here. In other cases it may be necessary to look at how long the person concerned has been here and to balance that factor with his connections abroad. Since the answer to the question depends on the circumstances of each case, I did not find the other authorities cited to us of any real assistance."
"The principles applicable under the old Acts and which survive for this purpose have already been discussed and dealt with. I also would begin, when considering what is meant by the word 'reside,' by observing Viscount Cave's acceptance of the definition in the Oxford English Dictionary, which my Lord has read, namely 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place.'
That definition is coloured and enlarged by numerous references in the authorities, such as by Lord Coleridge C.J. in Barlow v. Smith (1892) 9 B T.L.R. 57 where he speaks of a man's residence as being where he lives and has his home. There are other references to a man's home, references which I find helpful, because, although I recognise that the word is in some ways an ambiguous word, I think it nevertheless follows that a man cannot be said to reside in a particular place unless in the ordinary sense of the word one can say that for the time being he is making his home in that place. With regard to the army officer in Ford v. Hart (1873) L.R. 9 C.P. 273 it was said that when on service in Topsham Barracks he was living, sleeping and doing there all that constitutes residence. Indeed, this conception of residence is of the place where a man is based or where he continues to live, the place where he sleeps and shelters and has his home. It is imperative to remember in this context that 'residence' implies a degree of permanence. In the words of the Oxford English Dictionary, it is concerned with something which will go on for a considerable time. Consequently a person is not entitled to claim to be a resident at a given town merely because he pays a short, temporary visit. Some assumption of permanence, some degree of continuity, some expectation of continuity, is a vital factor which turns simple occupation into residence. Continuity is a vital factor which turns simple occupation into residence."
"(1) It is possible for a defendant to reside in more than one jurisdiction at the same time.
(2) It is possible for England to be a jurisdiction in which a defendant resides even if it is not his principal place of residence, i.e. even if he spends most of the year in another jurisdiction. A person will be resident in England if England is for him a settled or usual place of abode.
(3) A settled or usual place of abode connotes some degree of permanence or continuity.
(4) Residence is not to be judged according to a 'numbers game' and it is appropriate to address the quality and nature of the defendant's visits to the jurisdiction.
(5) Whether the defendant's use of a property characterises it as his or her 'residence', that is to say the defendant can fairly be described as residing there, is a question of fact and degree.
(6) In deciding whether the defendant is resident here, regard should be had to any settled pattern of the defendant's life in terms of his presence in England and the reasons for the same.
(7) If a defendant visits a property in England on a regular basis for not inconsiderable periods of time, where his wife and children live, in order to see his wife and children (including where the centre of the defendant's relationship with his children is England), such property has the potential to be regarded as the family home or his home when in England, which itself is evidence which may go towards supporting the conclusion that England is for him a settled or usual place of abode and that he is resident in England, albeit that ultimately it is a question of fact and degree whether he is resident here or not, having regard to all the facts of the case, including any discernible settled pattern of the defendant's life or as has also been put, according to the way in which a man's life is usually ordered."
"It follows from the case law to which I have referred, that in assessing whether or not an individual has ceased to be resident for jurisdiction purposes, the following principles apply:
i. The inquiry is a multi-factorial and fact-dependent evaluation, in which all relevant circumstances are considered in order to see what light they throw on the quality of the individual's absence from the UK:
ii. For residence to cease there should be a distinct break in the sense of an alteration in the pattern of the individual's life in the UK
iii. This may well encompass a substantial loosening of social and family ties, but does not require a severance of such ties
iv. The individual's intention to cease residing in the jurisdiction is relevant to the inquiry but not determinative
v. Actions of the individual after the material time (here, the issue of the claim form) may be relevant, if they throw light on the quality of the individual's absence from the UK
vi. If the individual has in fact ceased to be resident according to the applicable criteria, the fact that his motive for doing so was unworthy or even unlawful will not affect the position
vii. One should be careful to avoid the risk of over-analysis in applying what are ordinary English words."
"I accept [the submissions] that the claimant has not been staying at the hospital as a substitute for her home, as might be the case for example if a person is detained under the Mental Health Act. In my view the transfer to hospital took place across national borders is in some ways is liable to distract attention from the natural way of looking at things. Take, for example, a person who lives in England, who is badly injured in an accident in England and has to spend a long time in hospital for treatment in England. The natural way of looking at their residence would be to say that it was still their home, not that the hospital had become their home. That is where he or she was living and that is where he or she moved back to as soon as the need for treatment in hospital has come to an end. In the present context, too, in my view the claimant is not resident at the hospital and so therefore not resident at the material date in England and Wales".
"..(i) "that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway;
(ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but
(iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case it is a good arguable case for the application of the gateway if there is a plausible albeit contested evidential basis for it".
"The UK DWP pays for my German healthcare through an S1 form and I can use the NHS at any time as though I am an ordinary UK resident. This is due to the fact that I work for a UK employer, pay UK National Insurance and tax and receive exportable UK benefit contribution-based ESA. This is covered by the UK and will continue long term".
"Registering with other authorities
To register your S1 form take it to your local health office in your place of residence. They may ask you for proof of identity and your right to reside in Germany. They will register the form and retain one copy. The other copy was sent direct to the overseas healthcare team."
And further down:
"What if your circumstances change?
We must be told if you or dependent family:
- Starts work or starts getting a pension from another country.
- Changes address in Germany or moves to another country, including the UK…"
Note 1 There appeared to be missing ‘not’ in the recording. [Back] Note 2 In the recording that there is reference to the UK instead of England in various places, which was plainly a mistake.
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