‘I was, as I say, of course, aware of the arbitration and the award made. Having been involved in matters of business for many decades, I was quite well aware of the potential ramifications of giving [the Debtor] a beneficial interest in any of the London Properties…’
‘Limb (ii) is an instruction to the court to seek to overcome evidential difficulties and arrive at a conclusion if it “reliably” can. It recognises that jurisdiction challenges are invariably interim and will be characterised by gaps in the evidence. The court is not compelled to perform the impossible but, as any judge will know, not every evidential lacuna or dispute is material or cannot be overcome. Limb (ii) is an instruction to use judicial common sense and pragmatism, not least because the exercise is intended to be one conducted with “due despatch and without hearing oral evidence”…’
‘What does the judge then do? Given that the burden of persuasion lies with the claimant it could be argued that the claim to jurisdiction should fail since the test has not been met. But this would seem to be unfair because, on fuller analysis, it might turn out that the claimant did have the better of the argument and that the court should have asserted jurisdiction… The solution encapsulated in limb (iii) addresses the situation. To an extent it moves away from a relative test and, in its place, introduces a test combining good arguable case and plausibility of evidence. Whilst no doubt there is room for debate as to what this implies for the standard of proof it can be stated that this is a more flexible test which is not necessarily conditional upon relative merits’
‘(1) A bankruptcy petition may be presented to the court under section 264(1)(a) only if – (a) the centre of the debtor’s main interests is in England and Wales, or (ab) the centre of the debtors main interests is in a member state (other than Denmark) and the debtor has an establishment in England and Wales, or (b) the test in subsection (2) is met. (2) The test is that – (a) the debtor is domiciled in England and Wales, or (b) at any time in the period of three years ending with the day on which the petition is presented, the debtor – (i) has been ordinarily resident, or has had a place of residence, in England and Wales, or (ii) has carried on business in England and Wales.’
‘I do not regard Goff LJ’s observation that it was unclear whether the debtor there may have stayed in the property that he owned (as lessee) as the guest of the mother of his son who was living there or whether she was there as his guest as establishing a rule that if a person in occupancy of a property is as a guest of someone else, the person cannot be said to have a place of residence in the property. In my judgment, what Re Brauch makes clear is that the determination depends on all the evidence and is very much a matter of fact and degree.’
‘I do not find fault with the registrar’s comment about what is to be found in the case of Re Brauch … It seems to me where you are saying that a person has a place of residence, you are looking at a de facto situation, not necessarily matters of legal right.’
‘It seems to me that a moral claim is quite sufficient in a family context.’
‘Flat 8, in this case, was normally occupied first of all by Anna [the debtor’s daughter], and then by John [the debtor’s son], and finally by John and Charlotte [John’s fiancée] together. But the evidence seems to be clear that Mr Skjevesland would phone up on a regular basis, and he and John between them would discuss when Mr Skjevesland could come over and stay there. On those times, first of all, John would move out to Charlotte’s flat. Then after Charlotte had given up her flat, they would both move out and go somewhere else. It seems to me on those facts it was open to the registrar to conclude that Mr Skjevesland called the tune in regard to that flat. If he decided that he wanted to go there and stay there for a period of three or four days in a week or two weeks’ time, he would get his own way. It was certainly open to the registrar to conclude that. Thus it seems to me that the registrar was entitled to conclude that Flat 8 was a place of residence in this country for Mr Skjevesland,… That being so, that ground of appeal must fail.’
‘… it is plain from the oral evidence that the respondent was able to and did reside in one or more of the flats when he was here.’
‘It is of no significance that the respondent did not own the property or have a tenancy or licence agreement or anything of that kind. It is plain from his evidence that he could get a key and enter and use a flat in the building whenever he wished to. There is no evidence to suggest that he required permission to reside in or use one or more of the flats.’
‘The judge did, however, decide that Mr Su had a place of residence in England and Wales during the relevant period, which he said must necessarily mean something different from having a place of ordinary residence. While the judgment did not make clear exactly which of Mr Su’s addresses were considered to be his place of residences, para 55 of the judgment recorded the submissions of Mr Su’s solicitor as having been that Mr Su was resident at HMP Pentonville, followed by a stay at his friend’s property in Surrey, and subsequently his occupation of the flat in Maida Vale. It appears, therefore, that the judge considered that Mr Su had a place of residence in the jurisdiction on the basis of one or more of those locations.’
‘[24] On the basis of the submissions made before me today the appeal comes down to a very short point of statutory construction: does the test of having a place of residence in section 263I simply mean, as Mr Underwood submitted, that the debtor should have had an entitlement of some sort to occupy a place that is capable of being described as someone’s place of residence or does it require an assessment of the quality of the residence of the debtor, as Mr Phillips submitted ? [25] On that point I have no hesitation in rejecting Mr Underwood’s submission. In the first place, it is not supported by the statutory language. As set out in section 263I(2), the test is that “the debtor .. has had a place of residence”. On the plain meaning of those words, therefore, the residence must be that of the debtor not someone else. Mr Underwood’s construction effectively asks the court to rewrite the statutory language and replace the concept of residence with one of mere occupation. But that is not the wording used in section 263I. [26] Secondly, Mr Underwood’s construction is not supported by any authority whatsoever. Mr Underwood referred me to the judgment of Chief Registrar Baister in [RPC v Khan] in which the judge considered both the concept of ordinarily resident and the alternative test of having a place of residence for the purposes of section 263I. At para 26 of that judgment the Chief Registrar summarise some of the applicable principles, noting in particular that having a place of residence is a de facto situation rather than a matter of legal right such that a licensee may have a place of residence; that a moral claim to premises may be sufficient; that the premises may also be occupied by others; and that it is possible to have a dwelling house without being in occupation during the relevant period. [27] Nothing in that summary, however, remotely suggests that a debtor may have a place of residence where the debtor has not in fact ever resided, but which is the residence of a third party which the debtor is temporarily occupying with the permission of that third party. [28] Thirdly, Mr Underwood’s construction would diminish the test in section 263I to complete triviality, in a way that would make no sense in the context of the statutory provision. As Mr Phillips pointed out, the primary jurisdictional test under section 263I is that the centre of the debtor’s main interests should be in England and Wales. As a derogation from that test, jurisdiction is established where one of the four conditions in section 263I(2) is satisfied, namely that (1) the debtor is domiciled in England and Wales, (2) the debtor has during the relevant three-year period been ordinarily resident in England and Wales, (3) the debtor has had a place residence in England and Wales during that period, or (4) the debtor has carried on business in England and Wales during that period. [29] The conditions of domicile, ordinary residence and carrying on business all connote a degree of substantiality and continuity of the connection of the debtor with the jurisdiction. By contrast, on Mr Underwood’s case a debtor could invoke the jurisdiction of the insolvency adjudicator simply on the basis that they had permission to occupy the residence of a third party for some period of time during the three years preceding the bankruptcy application, no matter how fleeting and transient that occupation was - and indeed on Mr Underwood’s submission irrespective of whether the debtor even did occupy those premises at all. That would be an absurd result that would render effectively nugatory the jurisdictional test insection 263I of the Insolvency Act 1986 . [30] I therefore reject Mr Underwood’s construction of section 263I. On that basis the appeal must succeed, since Mr Underwood’s statutory construction point was the only point on which Mr Underwood relied to oppose the appeal.’
‘40. Applying those principles to the facts of the case, as I have noted Mr Underwood accepts the evidence does not indicate that Mr Su “resided” at any of the properties that he occupied during the period since he arrived in England in January 2019. His presence at each of them was temporary and transient with no degree of permanence or expectation of continuity. The longest period of time appears to have been spent at the Maida Vale flat, which Mr Su’s own evidence describes as a “squalid little flat” that his prison cell mate allowed him to use. Mr Su says that he has very few possessions at the flat and feels like he is still living in a prison. 41. It follows that Mr Su cannot be described as having had a place of residence at any of the places that he has occupied since arriving in England for the purposes of section 263I. In concluding otherwise, the deputy judge, respectfully, in my judgment, fell into error.’
‘Although a long time ago, Mr Wardell realistically accepted that it would have been difficult to contend that at that time the Debtor did not have a place of residence in the jurisdiction (although I do not think that the Debtor had de facto control of the property where his mother was living).’
‘In any event, if someone has a permanent place where they can stay on their visits to London, but chooses instead to stay in a hotel, e.g. because they would like the benefit of a hotel’s facilities or because they accompanied by too many friends or relations to accommodate, I do not consider that they cease on that account to have a place of residence in London. When the Debtor came to England after being appointed governor in February/March 2018 with his entourage, when 24 York House was therefore too small for them, he stayed at 1 Phillimore Terrace…. That was possible because a nearby property (which as I understand it similarly belonged to the Debtor’s wife and three of his children) was vacant, so that they could use that to provide extra accommodation. So for a visit when 24 York House was unsuitable, the Debtor was able to use other properties belonging to his family.’
‘As Mr Wardell had to accept, a person does not undertake the liability to pay Council Tax on a property with which they have no connection’
‘Applying the lower standard of proof which I have held here applies and taking all the above matters into account, I have no doubt that the Creditor has shown a good arguable case that the Debtor has a place of residence in the jurisdiction, or that it has “the better of the argument” on the material available. At the hearing of the petition, the Court will have to assess the matter on the balance of probabilities and it will be open to the Debtor to give evidence explaining matters more fully.’
‘Until the other London Properties were purchased, 24 York House was the only property in London owned by the family and, therefore, Princess Noorah has allowed various family members, including the [Debtor], to reside and stay there from time to time. That does not, of course, create a beneficial interest in it. It is quite natural for a mother to let her son live in a property which she owns…. All of the purchase monies for the other London Properties were provided by Princess Noorah. They came entirely from her own funds in which no other person had any legal or beneficial interest…. Princess Noorah wished for properties to be available for her immediate family, mainly her five grandchildren and some great-grandchildren in the vicinity of 24 York House so that the family could enjoy time together in London.’
‘What you see … is properties in London being acquired for the use of the family, being funded by Princess Noorah, and additional properties being purchased because of the expanding nature of the family. The important point to note is that it is for the use of the family.’
‘In the light of DICCJ Schaffer’s finding that the Debtor had a right to stay in the family home and that there was no evidence that that right was withdrawn (see §56 of the Schaffer Judgment), which Roth J found meant the Debtor had permission from his mother to stay in York House at any time (see §42(ii)), the Debtor and his mother have now become very keen to portray their relationship as a formal one, where permissions needed to be sought and granted before he could stay’
‘Princess Noorah was happy for Prince Hussam to make use of York House when such use did not interfere with her own’
‘This begs the question: proof of what? Obviously, it is not a requirement to be registered for Council Tax in order to obtain a visa to visit this country or to open a bank account; nor is it a requirement that your father is registered here for Council Tax to obtain a student visa.’
‘I registered to pay Council Tax and remained registered until December 2019 because the family in the past would use evidence of payment of Council Tax by me to enable the children to obtain student visas.’
‘Paying the Council Tax does not mean that a person has beneficial interest. There can be many reasons why it is expedient for a person to assume responsibility. In this case, it was so that [the Debtor] had an address in London.’
‘[29] … In this regard, to obtain UK travel visas, applicants during the application process were asked to give proof of an accommodation address for their stay in the UK. As Prince Hassam was registered for Council Tax at York House, and the visas generally either concerned his family or staff working for his family, I used the York House address for all visa applications. [30] Although I cannot recall with certainty, I expect that this practice was first communicated by me to the secretary of the Al Saud Family’s Riyadh family office either in the late 1980s or early 1990s. The Riyadh family office then dealt with the formal visa applications process, and I understand my suggested practice was followed until Prince Hussam was no longer registered for council tax in 2019. [31] I should also mention that in relation to visas these also extended to student visas. In particular, Prince Saud, Prince Abdulaziz and Prince Mohammad all studied university degrees in London and had the permission of Princess Noorah to live at York House during their studies … Therefore, the York House address was used to obtain all of the student visas…’