|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Barlow Clowes International Ltd (In Liquidation) & Ors v Henwood  EWCA Civ 577 (23 May 2008)
Cite as:  EWCA Civ 577,  BPIR 778
[New search] [View without highlighting] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION (BANKRUPTCY COURT)
Strand, London, WC2A 2LL
B e f o r e :
THE COURT OF APPEAL, CIVIL DIVISION
LADY JUSTICE ARDEN
LORD JUSTICE MOORE-BICK
| (1) BARLOW CLOWES INTERNATIONAL LIMITED (in liquidation)
(2) NIGEL JAMES HAMILTON
(3) MICHAEL ANTHONY JORDAN
|- and -
|PETER STEPHEN WILLIAM HENWOOD
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Anthony White QC and Miss Samantha Knights (instructed by Messrs Alan Taylor & Co) for the Respondent
Hearing dates : 5-6 February 2008
Crown Copyright ©
Lady Justice Arden :
" The approach of the court to any particular case will depend upon the nature of the issues and the kind of case determined by the judge. This has been recognised recently in, for example, Todd v Adam  EWCA Civ 509, 2 All ER (Comm) 97 and REEF Trade Mark v Bessant (t/a REEF)  EWCA Civ 763,  RPC 101. In some cases the trial judge will have reached conclusions of primary fact based almost entirely upon the view which he formed of the oral evidence of the witnesses. In most cases, however, the position is more complex. In many such cases the judge will have reached his conclusions of primary fact as a result partly of the view he formed of the oral evidence and partly from an analysis of the documents. In other such cases, the judge will have made findings of primary fact based entirely or almost entirely on the documents. Some findings of primary fact will be the result of direct evidence, whereas others will depend upon inference from direct evidence of such facts.
 In appeals against conclusions of primary fact the approach of an appellate court will depend upon the weight to be attached to the findings of the judge and that weight will depend upon the extent to which, as the trial judge, the judge has an advantage over the appellate court; the greater that advantage the more reluctant the appellate court should be to interfere. As I see it, that was the approach of the Court of Appeal on a "rehearing" under the RSC and should be its approach on a "review" under the CPR.
 Some conclusions of fact are, however, not conclusions of primary fact of the kind to which I have just referred. They involve an assessment of a number of different factors which have to be weighed against each other. This is sometimes called an evaluation of the facts and is often a matter of degree upon which different judges can legitimately differ. Such cases may be closely analogous to the exercise of a discretion and, in my opinion, appellate courts should approach them in a similar way.
 In Todd v Adam, where the question was whether a contract of service existed, Mance LJ  2 All ER (Comm) 97 at  drew a distinction between challenges to conclusions of primary fact or inferences from those facts and an evaluation of those facts, as follows:
"With regard to an appeal to this court (which would never have involved a complete rehearing in that sense), the language of 'review' may be said to fit most easily into the context of an appeal against the exercise of a discretion, or an appeal where the court of appeal is essentially concerned with the correctness of an exercise of evaluation or judgment—such as a decision by a lower court whether, weighing all relevant factors, a contract of service existed. However, the references in CPR 52.11(3) and (4) to the power of an appellate court to allow an appeal where the decision below was 'wrong' and to 'draw any inference of fact which it considers justified on the evidence' indicate that there are other contexts in which the court of appeal must, as previously, make up its own mind as to the correctness or otherwise of a decision, even on matters of fact, by a lower court. Where the correctness of a finding of primary fact or of inference is in issue, it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge's conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence. In the present case, however, while there was oral evidence, its content was largely uncontentious."
(i) A person is, in general, domiciled in the country in which he is considered by English law to have his permanent home. A person may sometimes be domiciled in a country although he does not have his permanent home in it (Dicey, pages 122 to126).
(ii) No person can be without a domicile (Dicey, page 126).
(iii) No person can at the same time for the same purpose have more than one domicile (Dicey, pages 126 to128).
(iv) An existing domicile is presumed to continue until it is proved that a new domicile has been acquired (Dicey, pages 128 to 129).
(v) Every person receives at birth a domicile of origin (Dicey, pages 130 to 133).
(vi) Every independent person can acquire a domicile of choice by the combination of residence and an intention of permanent or indefinite residence, but not otherwise (Dicey, pages 133 to138).
(vii) Any circumstance that is evidence of a person's residence, or of his intention to reside permanently or indefinitely in a country, must be considered in determining whether he has acquired a domicile of choice (Dicey, pages 138 to143).
(viii) In determining whether a person intends to reside permanently or indefinitely, the court may have regard to the motive for which residence was taken up, the fact that residence was not freely chosen, and the fact that residence was precarious (Dicey, pages 144 to151).
(ix) A person abandons a domicile of choice in a country by ceasing to reside there and by ceasing to intend to reside there permanently, or indefinitely, and not otherwise (Dicey, pages 151 to153).
(x) When a domicile of choice is abandoned, a new domicile of choice may be acquired, but, if it is not acquired, the domicile of origin revives (Dicey, pages 151 to 153).
The intention required for a domicile of choice ((vi) above)
"A change of [a person's domicile of choice] can only be effected animo et facto -that is to say, by the choice of another domicile, evidenced by residence within the territorial limits to which the jurisdiction of the new domicile extends. He, in making this change, does an act, which is more nearly designated by the word "settling" than by any one word in our language. Thus we speak of a colonist settling in Canada or Australia, or of a Scotsman settling in England, and the word is frequently used as expressive of the act of change of domicile in the various judgments pronounced by our Courts."
"Domicil of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicil, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that the residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicil is established." (emphasis added)
"had determined to make, and had made, Scotland his home, with the intention of establishing himself and his family there, and ending his days in that country?" (emphasis added)
All the facts which throw light on the subject's intention must be considered ( (vii) above)
"Positioned at the date of death in February 2003 the court must look back at the whole of the deceased's life, at what he had done with his life, at what life had done to him and at what were his inferred intentions in order to decide whether he had acquired a domicile of choice in England by the date of his death. Soren Kierkegaard's aphorism that "Life must be lived forwards, but can only be understood backwards" resonates in the biographical data of domicile disputes."
"The person whose domicile is in question may himself testify as to his intention, but the court will view the evidence of the interested party with suspicion. Declarations of intention made out of court may be given in evidence by way of exception to the hearsay rule. The weight of such evidence will vary from case to case. To say that declarations as to domicile are "the lowest species of evidence" is probably an exaggeration. The present law has been stated as follows: "Declarations as to intention are rightly regarded in determining the question of a change of domicile, but they must be examined by considering the persons to whom, the purposes for which, and the circumstances in which they are made and they must however be fortified and carried into effect by conduct and action consistent with the declared expressions.". Thus in some cases the courts have relied to some extent on declarations of intention in deciding issues as to domicile; indeed, in one case, the declaration was decisive. But in other cases the courts have refused to give effect to the declarations on the ground that they were inconsistent with the conduct of the propositus: a domicile cannot be acquired or retained by mere declaration. The courts are, in particular, reluctant to give effect to declarations which refer in terms to "domicile" since the declarant is unlikely to have understood the meaning of the word. Declarations which are equivocal have little effect: thus a declaration of intention to reside permanently in the United Kingdom is no evidence of acquisition of a domicile of choice in any of the countries which are included in the United Kingdom; although it may be evidence of the abandonment of a domicile elsewhere." (pages 142 to 143)
Abandonment of a domicile of choice ((ix) and (x) above)
"On abandoning a domicile of choice, a person may acquire a new domicile of choice, or he may return to and settle in the country of his domicile of origin. He may also simply abandon his domicile of choice without acquiring a home in another country. It was at one time thought that in such a case the previous domicile was retained until a new one was acquired. But it is now settled that where a person simply abandons a domicile of choice his domicile of origin revives by operation of law. This rule has been much criticised since it may result in a person's being domiciled in a country with which his connection is stale or tenuous and which, indeed, he may never even have visited. It has been abolished in New Zealand and Australia, and replaced by a statutory rule that a domicile continues until a new domicile is acquired. The English and Scottish Law Commissions have proposed similar legislation." (page 152)
(i) The Villa was occupied by the Henwoods for 14 years initially on a three month lease and then on an annual renewable lease which has been renewed in successive years (without any obligation to do so on either side). For reasons explained by the judge, this lease came to be held in the name of a company owned by Mrs Henwood. (It was not lawful for foreigners to own property in Mauritius until 2002.)
(ii) Mr Henwood continued to travel extensively. He spent only limited periods each year at the Villa. Thus in the period 1992 to 2006, he spent on average 87 days (roughly three months) per year in Mauritius. Those periods were in most years substantially exceeded by periods spent in France. During those periods, the Henwoods stayed mostly at the French Property.
(iii) A relatively small proportion of the Henwood's possessions were moved to the Villa compared to those that remained in the French Property.
(iv) Though the Villa was rented and there was no enforceable obligation to renew the lease each year, over the years the Henwoods spent their own money on the Villa, eg. providing it with a swimming pool, rebuilding the kitchen and creating a beach. Mr Henwood's evidence in his second witness statement was that he would never have spent the time, money and energy on developing the Villa unless it had been a long term project at the outset to become a permanent home. Overall, however, they spent much more on the renovation and improvement of the French Property than on the Villa.
(v) In May 2006, Mrs Henwood bought a property near the beach in Tamarina, Mauritius, which had not then been built. This enabled them to obtain the right of permanent residence on an application in Mrs Henwood's name. Accordingly Mr Henwood's right to reside in Mauritius depends on Mrs Henwood continuing to be the owner of a property in Mauritius. Mrs Henwood had not decided whether to rent or to live in the property on its being built.
(vi) The Henwoods employed a number of staff at the Villa and at the French Property. At the French Property Mr Henwood also employed a secretary and maintained a home office from which he could conduct business.
(vii) The Henwoods did make enquiries about the practicalities of obtaining Mauritian citizenship, but did not apply for this, principally because they would have had to give up their British citizenship and passports. They held residency permits from 1992 to 2001.
(viii) Mr Henwood's job with IMM Ltd came to an end in 1996 in the wake of bad publicity about the Barlow Clowes collapse, and he moved to a company set up by his wife. It became clear this business was not viable and he sought to develop work opportunities in other areas. As part of this he became involved with working for the Seychelles government and thus obtained Seychelles citizenship. His work permits in Mauritius ended in 2001 or 2002.
(ix) The judge rejected Mr Henwood's evidence that he had retired. The judge held that he continued to work for OCRA. The judge accepted that, until the Henwoods obtained the right of permanent residence in Mauritius, they could only live there for three months on any one visit, without a specific extension, which Mr Henwood appears to have obtained from time to time.
"Because they provide a convenient description of Mr Henwood's life which, as to the facts, is largely unchallenged I propose to adopt paragraphs 18 to 65 of Mr Henwood's counsel's closing submissions as a description of the background facts of this case. For ease of reference I will use the paragraph numbers in the original. I will intersperse those paragraphs with passages of my own showing where that description is challenged by the Respondents. It goes without saying that the Respondents do not accept those passages in the text or quotations from exhibits which describe Mr Henwood's own statements of his intentions, from time to time, or those of his wife." (J)
"(i) Where a person is seeking to show he has abandoned his domicile of origin in favour of a domicile of choice, he must show a strong case on the evidence that he has abandoned his domicile of origin. By contrast, once a domicile of choice has been established, it is easier to satisfy a court that that domicile of choice has itself been abandoned in favour of a new domicile of choice [J16].
(ii) For the creation of a new domicile of choice, residence in that country must be 'freely chosen'. However, even if Mr Henwood's reason for taking deliberate steps to establish himself in Mauritius was to avoid for example the bankruptcy proceedings, those steps would still be capable of supporting a claim to a domicile of choice. Indeed such a motive could even confirm his intention to reside permanently or indefinitely in Mauritius [J20-25].
(iii) The judge accepted the Appellants' submission that, where Mr Henwood was occupying two residences, ie. the Villa and the French Property, he had to show that he was occupying one of them as his 'chief' residence in order for that place to be his domicile of choice. In other words, "if, on the evidence, the conclusion were to be reached that The French Property was more of a home to the Henwoods than the Villa, Mr Henwood would have failed to establish a domicile of choice in Mauritius" [J27]."
"Wherever there is a conflict between the evidence of Mr Henwood unsupported by documents and the evidence of the [appellants] I would unhesitatingly accept the latter in preference to the former." ([J30])
32. It is common ground that The French Property was purchased in June 1988 simultaneously with the collapse of Barlow Clowes. It is not suggested that these two events were in any way linked. It was bought more than 4 years before Mr Henwood left the IOM at a time when I have found that Mr Henwood's domicile was there and remained there until December 1992. It is not in issue that when it was acquired it was acquired as a holiday home. The Respondents do not suggest that it has ever constituted the Henwoods' home. The petition states at paragraph 1 that "the debtor's centre of main interest [in the case of an individual his home] is not within a member State and therefore the EC Regulation does not apply." The Respondents therefore, are not suggesting that The French property constitutes or has constituted Mr Henwood's home nor that his domicile has been or currently is France. They do suggest however, that it could become Mr Henwood's home in the future and that his retention of it undermines his claim to a domicile of choice in Mauritius.
33. I have already accepted the Respondents' factual case on the evidence that the French Property is a more substantial establishment than the Villa, in which the Henwoods have invested much more money by way of improvement and extension than they have invested in the Villa. Mr Henwood retains an interest, jointly with his wife in The French Property. It contains more of their chattel assets than the Villa does. They have spent the bulk of the summer months there. Mrs Henwood's parents and their relatives and friends have visited them there. In most years, since the Henwoods started to occupy the Villa, Mr Henwood has spent substantially more time in France than in Mauritius and of that time in France he accepts the majority will have been while staying at The French Property. I do not accept Mr Henwood's evidence that his lengthy sojourns at The French property were materially caused by the requirement to supervise works of repair and improvement at the property or, as he suggested, that it has been in some way rendered uninhabitable by flooding. Mr Henwood filed a French Tax return every year. The house includes facilities from which a business can be conducted. In spite of Mr Henwood's denials I find that he has a French secretary available to serve him at the house.
34. I do not accept Mr Henwood's evidence that The French property is genuinely up for sale. The only documentary support for this was certain written instructions to local land agents, shortly before the hearing, to place the property on the market. Dispatching those letters does seem to me to be creating self serving evidence by Mr Henwood in an attempt to minimise the significance of The French Property as an alternative residence to the Villa.
35. Later in this judgment I will deal with the significance of the apparent attempts of Mr Henwood to avoid having to pay the Petitioning Debt. Having regard to the fact that France is a Member of the European Union and that Mr Henwood, through his shareholding in the French SCI which owns the property and his wife, retains a right to reside there, it is unlikely that the Respondents would have any difficulty in enforcing the judgment comprising the Petition Debt against Mr Henwood in France by insolvency proceedings there. I say it is likely because I have not been referred to the relevant provisions of French Law governing the commencement of insolvency proceedings against individuals who are not domiciled in France. I assume that the Respondents have in mind seeking to execute their judgment on Mr Henwood's interest in the SCI."
"41. However in the absence of any suggestion that their marriage was in difficulties on or about the 19th December 2005 and in the light of her cooperation in obtaining from the Mauritian authorities permission for both of them to permanently reside in Mauritius it does not seem to me that her absence undermines Mr Henwood's case fatally. It was not suggested that he was preventing her giving evidence that it was not Mr Henwood's intention permanently to reside in Mauritius at the relevant date or subsequently. There was no evidence of an intention by her to sell her newly acquired property in Mauritius thereby undermining Mr Henwood's right of permanent residence in that country. Indeed if in fact it is the case that the Henwood marriage was in difficulties by December 2005, this does not assist the Respondents' case necessarily, because it would remove a reason for Mr Henwood to wish to return to the IOM in due course."
"Reasons pertaining to the Villa
(i) Between paragraph 35 and 46 of their written submissions counsel for Mr Henwood have set out a largely unchallenged account of the events of Mr Henwood's life following the collapse of Barlow Clowes. In particular they described his ostracism in the IOM following that collapse leading to the disappearance of his business, his departure with his wife on a worldwide holiday which included visits to Mauritius, the emergence of business opportunities in Mauritius and the Seychelles, his finding of the Villa and taking a lease of it for an experimental period of three months and finally his move with his wife from the IOM to Mauritius and the Villa leaving the Grange, his home in the IOM, occupied by his parents-in-law under a long tenancy at a nominal rent under which they were conspicuously over-housed. The Henwoods did not go to The French property at this point. It seems to me that these occurrences are consistent with the intention expressed by Mr Henwood in his witness statements of establishing a new home away from the IOM (and also from the UK) from which he felt that he had been driven out. Mr Henwood's various expressions of his intentions at this time were not directly challenged in the course of his cross-examination. Thus there was no challenge to his having formed an aversion to living in the United Kingdom as the result of his tragic early life history. There was no challenge to his having formed an aversion to living in the United Kingdom as the result of his tragic early life history. There was no challenge to his statement that by 1992, as the result of his travels he had formed a liking for "island life" which he found particularly agreeable on Indian Ocean islands and, in particular, Mauritius with its substantial population and relatively developed society where he was able to find friends and establish a social life.
(ii) The fact that as at December 2005 Mr Henwood and his wife had occupied the Villa as a residence for a period of approximately fourteen years which he or they both visited for appreciable periods every year.
(iii) The fact that their occupation of the Villa has taken a form which indicates that it was intended to be permanent, as opposed to self-catering holiday accommodation which might be abandoned at any time. True it is that the Henwoods occupied the Villa under an annually renewable lease which gave no right of future renewal. That it was expected by landlord and tenant that the lease would be renewed on the expiry of each annual period is supported by a written statement on behalf of the Henwoods' landlord which was in evidence. I have set out above a summary of the various works of improvement which the Henwoods have, over the years, effected at the Villa at their own expense. Also set out above is a description of the staff, engaged on a permanent basis by the Henwoods to look after the Villa, and themselves when they are there, and also when they are not. It is not challenged that when the Henwoods moved to the Villa in 1992 they took some of their possessions with them and that they have since kept possessions there giving a clear indication of their intention to return there from time-to-time.
(iv) Mr Henwood has shown the Villa as his address on various documents, in particular his diary where, in places it is described as "home", the emergency address of his wife appearing on his passport, and in a recent will."
"60. If, as the Respondents suggest, Mr Henwood and his wife moved to the Villa with the intention only of establishing a further holiday home, Mr Henwood was not abandoning his domicile of choice in the IOM. It has always seemed to me that the strongest case against Mr Henwood's contentions is that, notwithstanding the circumstances of his departure from the IOM, he always intended to return there with his wife when the hue and cry had died down. That was where his adopted family lived and where, as recent evidence suggests, Mrs Henwood's instincts would drive her to wish to return to. Why otherwise retain the Grange, their former residence, and not sell it and with the proceeds provide Mrs Henwood's parents with a house more consistent with their requirements? If this factual analysis is correct Mr Henwood has not abandoned his domicile of choice in the IOM and the application succeeds on this ground."
The judge did not consider all the circumstances that bore on the question whether Mr Henwood had the requisite intention to reside permanently or indefinitely in Mauritius
Other points which arise out of the judge's "Reasons pertaining to the Villa" and other reasons for his Conclusion
Weight given by the judge to Mr Henwood's own statements about his motivation for residence in Mauritius
Did Mr Henwood bear a heavier burden of proving that his domicile of choice had changed if in the meantime his domicile of origin had revived?
"There remains the question of standard of proof. It is beyond doubt that the burden of proving the abandonment of a domicile of origin and the acquisition of a domicile of choice is upon the party asserting the change. But it is not so clear what is the standard of proof: is it to be proved beyond reasonable doubt or upon a balance of probabilities, or does the standard vary according to whether one seeks to establish abandonment of a domicile of origin or merely a switch from one domicile of choice to another? Or is there some other standard?
In Moorhouse v. Lord, Lord Chelmsford said that the necessary intention must be clearly and unequivocally proved. In Winans v. Att.-Gen., Lord Macnaghten said that the character of a domicile of origin "is more enduring, its hold stronger and less easily shaken off." In Ramsay v. Liverpool Royal Infirmary, the House of Lords seemed to have regarded the continuance of a domicile of origin as almost an irrebuttable presumption. Danger lies in wait for those who would deduce legal principle from descriptive language. The powerful phrases of the cases are, in my opinion, a warning against reaching too facile a conclusion upon a too superficial investigation or assessment of the facts of a particular case. They emphasise as much the nature and quality of the intention that has to be proved as the standard of proof required. What has to be proved is no mere inclination arising from a passing fancy or thrust upon a man by an external but temporary pressure, but an intention freely formed to reside in a certain territory indefinitely. All the elements of the intention must be shown to exist if the change is to be established: if any one element is not proved, the case for a change fails. The court must be satisfied as to the proof of the whole; but I see no reason to infer from these salutary warnings the necessity for formulating in a probate case a standard of proof in language appropriate to criminal proceedings.
The formula of proof beyond reasonable doubt is not frequently used in probate cases, and I do not propose to give it currency. It is enough that the authorities emphasise that the conscience of the court (to borrow a phrase from a different context, the judgment of Parke B. in Barry v. Butlin) must be satisfied by the evidence. The weight to be attached to evidence, the inferences to be drawn, the facts justifying the exclusion of doubt and the expression of satisfaction, will vary according to the nature of the case. Two things are clear - first, that unless the judicial conscience is satisfied by evidence of change, the domicile of origin persists: and secondly, that the acquisition of a domicile of choice is a serious matter not to be lightly inferred from slight indications or casual words."
"The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his under age stepdaughter than on some occasion to have lost his temper and slapped her. Built into the preponderance of probability standard is a generous degree of flexibility in respect of the seriousness of the allegation established. Ungoed-Thomas J expressed this neatly in In re Dellow's Will Trusts  1 W.L.R. 451, 455: "The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it."
This substantially accords with the approach adopted in authorities such as the well known judgment of Morris LJ in Hornal v. Neuberger Products Ltd.  QB 247.This approach also provides a means by which the balance of probability standard can accommodate one's instinctive feeling that even in civil proceedings a court should be more sure before finding serious allegations proved than when deciding less serious or trivial matters."
"It is always to be remembered that the native character easily reverts, and that it requires fewer circumstances to constitute domicile in the case of the native subject than to impress the national character of one who is originally of another country."
"….it is easier to show a change from one domicile of choice to another domicile of choice than it is to show a change to a domicile of choice from a domicile of origin." ()
Was the judge in error for not making a finding as to which of Mr Henwood's homes was his "chief residence"?
"Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time." (emphasis added)"
"A man may have homes in more than one country, at one time. In such a case, for the purpose of determining his domicile, a further enquiry may have to be made to decide which, if any, should be regarded as his principal home."
"The primary question therefore is whether the taxpayer actually ceased to reside here after January 1, 1974. Residence in a country for the purposes of the law of domicile is physical presence in that country as an inhabitant of it. If the necessary intention is also there, an existing domicile of choice can sometimes be abandoned and another domicile acquired or revived by a residence of short duration in a second country. But that state of affairs is inherently improbable in a case where the domiciliary divides his physical presence between two countries at a time. In that kind of case it is necessary to look at all the facts in order to decide which of the two countries is the one he inhabits."
"Speaking for myself, while I find the contrast between an inhabitant and a person casually present useful to describe the minimum quality of residence which must be taken up in a new country before a domicile there can be acquired, the concept of being an inhabitant seems to me less illuminating in cases of dual or multiple residence such as the present.
Clearer guidance is to be found in a well-known passage in the speech of Lord Westbury in Udny v Udny:
"Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time."
I infer from this sentence, which was quoted by the commissioners, that a person who retains a residence in his domicile of origin can acquire a domicile of choice in a new country only if the residence established in that country is his chief residence. The commissioners therefore asked themselves whether the taxpayer had made her grandmother's house in Guernsey 'her chief place of residence'. They regarded this question, in my judgment rightly, as being the same as whether 'in the sense in which the term is used in this context' the taxpayer had become an inhabitant of Guernsey."
"In my view it is highly unlikely that any married couple would deliberately abandon the idea that they had a home where they were based or to which they would not wish ultimately to return."
"By domicile we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers or foreign languages will very much help you to it."
Judge's alternative basis
"61. In the result, however, for the reasons which I have set out above I am driven to the conclusion that when Mr Henwood moved with his wife to the Villa in 1992 he did so with the intention of permanently residing there. If, however, that conclusion is wrong it seems to me clear that he formed such an intention by the time the petition was presented with the result that he then abandoned his domicile of choice in the IOM and established a new domicile of choice in Mauritius. It seems to me very likely that the attractions of Mauritian bankruptcy law will have driven him to form this intention and that the last minute purchase by Mrs Henwood of a property in Mauritius which would confer on Mr Henwood a right permanently to reside in that country is strongly indicative that Mr Henwood had formed such an intention at least by this time."
"26. A domicile of origin continues until a domicile of choice elsewhere is acquired see Dicey 6 R-017. Where a claimant leaves a domicile of origin without showing the necessary intention and residence to establish a domicile of choice in another country, his domicile of origin adheres to him see Udny's case at page 449. Where a domicile of choice is abandoned by a claimant but no new domicile of choice is established, the claimant's domicile of origin revives see Udny's case at page 452 and 460, but this requires proof of intention to abandon the domicile of choice. If all that is shown is movement accompanied by indecision as to whether the move is to be permanent or not the domicile of choice will not have been abandoned. See Morgan v Cilento ibid [ WTLR 457] at para 74."
(i) that he was retired (J between italicised  and );
(ii) about the long periods spent in France were substantially as a result of works of repair and improvement to the French property or because flooding had rendered the property uninhabitable or that his secretary working at the French property was his wife's personal assistant (J between italicised  and  and J);
(iii) that he did not have an office in France from which he conducted business (J);
(iv) that the French property was up for sale (J);
(v) that he was not an expert in asset protection or that he had not been able to put substantial assets beyond the reach of his creditors (J);
(vi) that he had no continuing interest in OCRA.(J).
Lord Justice Moore-Bick:
Lord Justice Waller: