Berezovsky v Abramovich [2011] EWCA Civ 153 (23 February 2011)

Berezovsky sued Abramovich in England, claiming jurisdiction based on Abramovich's presence or domicile. The Court of Appeal scrutinised Abramovich's personal and business life, finding his main interests remained in Russia. It held he was not domiciled in England, so the proceedings were set aside.

Facts

The claimant, Mr Berezovsky, initiated a substantial commercial claim against the defendant, Mr Abramovich. To establish the jurisdiction of the English courts, the claimant had to serve the claim form on the defendant while he was within the jurisdiction. Service was effected on Mr Abramovich while he was shopping in Sloane Street, London. Mr Abramovich subsequently applied under CPR Part 11 to set aside this service, contending that the English court lacked jurisdiction. The central question for jurisdiction hinged on whether Mr Abramovich was ‘domiciled’ in England and Wales under Article 2 of the Brussels Regulation. The High Court judge, Colman J, heard extensive evidence concerning Mr Abramovich’s lifestyle, including his family arrangements, property ownership in London and elsewhere, his ownership of Chelsea Football Club, his business interests which were primarily in Russia, and a detailed analysis of the time he spent in England versus Russia. Colman J concluded that Mr Abramovich was not domiciled in England. Mr Berezovsky appealed this decision.

Issues

The primary legal issue before the Court of Appeal was whether the High Court judge had erred in fact or law in his conclusion that Mr Abramovich was not domiciled in England and Wales for the purposes of the Brussels Regulation. This required an evaluation of the judge’s assessment of where Mr Abramovich had his ‘principal establishment’ and the ‘centre of his interests’.

Judgment

The Court of Appeal unanimously dismissed the appeal, upholding the High Court’s decision. Lord Justice Rix delivered the leading judgment, with which Lord Justice Moore-Bick and Lord Justice Patten agreed.

Legal Principles on Domicile

Lord Justice Rix affirmed that the trial judge had correctly identified the legal principles for determining domicile under the Brussels Regulation. Domicile requires a stable, habitual presence and is determined by locating an individual’s ‘principal establishment’ or the ‘centre of his interests’. This is a unitary and autonomous concept within EU law. Lord Justice Rix summarised the position:

It is common ground that the search is for Mr Abramovich’s principal, and sole, establishment, on a permanent or lasting basis… In this connection, the concept of a ‘centre of his interests’ may be a helpful guide… the concept of an establishment, and a principal establishment, requires not merely physical presence, but an establishment: and that is something which looks to a place where business is done or a profession is practised, or more generally an occupation is pursued…

Analysis and Reasoning

The appellant argued that the judge had given undue weight to a quantitative analysis of time spent in Russia versus England, and insufficient weight to the ‘qualitative’ factors of Mr Abramovich’s connections to London, such as his prestigious properties and ownership of a Premier League football club. It was argued these factors demonstrated an intention to make England his home.

However, the Court of Appeal found no flaw in the judge’s approach. Lord Justice Rix emphasised that the question of domicile is a fact-sensitive inquiry and an appellate court should not interfere with the first-instance judge’s evaluation unless a clear error of law or a conclusion unsupported by evidence is demonstrated. The court held that the judge had conducted a meticulous ‘balancing act’ of all relevant factors and was entitled to conclude that the ‘hub of the wheel’ of Mr Abramovich’s life remained in Moscow, Russia. The court stated:

In my judgment, the judge did not misdirect himself in law. He correctly identified the principles… He performed an extremely careful and detailed review of all the relevant evidence and he reached a conclusion which was plainly open to him on that evidence. I do not think that he can be validly criticised for his evaluation of that evidence.

The court concluded that despite Mr Abramovich’s very substantial connections with England, the evidence as a whole pointed overwhelmingly to Moscow being the centre of his business, political, and personal life, and therefore his place of domicile.

Implications

The decision provides an important modern illustration of the application of the domicile test under the Brussels Regulation to high-net-worth individuals with complex international lifestyles. It confirms that owning significant assets, including prominent property and a major sporting entity, in a jurisdiction does not automatically lead to a finding of domicile there. The judgment underscores the principle of appellate deference to the trial judge’s findings of fact, particularly in multi-factorial assessments like determining domicile. It stands as a key authority on the comprehensive, evidence-based evaluation required to establish an individual’s ‘centre of interests’ for jurisdictional purposes.

Verdict: The appeal was dismissed.

Source: Berezovsky v Abramovich [2011] EWCA Civ 153 (23 February 2011)