Domicile of origin and choice

The Court of Appeal judgment in Barlow Clowes Int Ltd & others v Henwood [2008] EWCA Civ 577 provides a useful rehearsal of domicile law.

In what might prove a revelation to those who have come to see domicile as a concept inextricably linked to dodgy foreigners not paying their fair share of tax, the case has nothing whatsoever to do with taxes. Rather, it concerns the scope for the enforcement of a bankruptcy petition in the English court against one of the individuals who helped themselves to investors' money in the Barlow Clowes International (BCI) scandal. If the individual concerned was not domiciled in England, the English court had no jurisdiction in the matter.

The individual had a domicile of origin in England but had abandoned this in favour of the acquisition of a domicile of choice in the Isle of Man. This much was not in dispute but, in the fallout from BCI, the individual had done a runner from the Isle of Man and taken steps to move, instead, to Mauritius, being, rather fortuitously, a jurisdiction offering certain international protections for the less than upstanding.

The court held that the individual had not proven that he had adopted a domicile of choice in Mauritius and having, therefore, abandoned his previous domicile of choice in the Isle of Man, his domicile of origin would revive by default. He was, therefore, domiciled in England and the bankruptcy petition was valid.

Whilst the consideration of an individual's domicile will turn on the facts of each case, the recorded facts do serve as a reminder over the degree of effort which must be taken to acquire a domicile of choice. Here, one is left with the impression that the individual was somewhat casual in his approach or optimistic in his reliance on factors which were seen as having only superficial relevance.