Ishtiaq Baig v Zoheb Hassan [2026] EWHC 11 (KB)

[2026] EWHC 11 (KB)Case No KA-2025-000086
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/01/2026
Before
THE HON. MRS JUSTICE STEYN DBE
Between
ISHTIAQ BAIGAppellantZOHEB HASSANRespondent
David Lemer (instructed by Stone White Solicitors) for Appellant for The respondent did not appear and was not representedHearing Hearing dates: 5 December 2025
Approved JudgmentThis judgment was handed down remotely at 10.00am on 5 January 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................THE HON. MRS JUSTICE STEYN DBE
[1]This is an appeal against the order of Master Dagnall (‘the Judge’) dated 5 February 2025 to set aside the claim form on the basis that the Court does not have jurisdiction to hear and determine the claim pursuant to s.9 of the Defamation Act 2018. The appeal is brought with permission granted by the Judge.[2]The appellant describes himself as a prominent businessman and philanthropist who is well-known in the Pakistani community in this jurisdiction. He lives mainly in Pakistan but he is a British citizen and says that he retains significant ties to this jurisdiction. The appellant is the brother-in-law of the respondent, having been married to the respondent’s sister, Nazia Hassan, who died on 13 August 2000. The respondent is a pop star in Pakistan, having been a member of a very successful duo with Nazia.[3]The essential question on this appeal is whether the Judge was wrong to find that the respondent was not domiciled in the United Kingdom on the date of issue of the claim form, 8 August 2022, and in particular that he was not then resident here. There are two grounds of appeal by which the appellant contends, first, that the Judge erred in his approach to the respondent’s evidence, by placing reliance upon the fact that the appellant had not cross-examined the appellant; and, secondly, that the Judge failed to properly apply the good arguable case test as set out in Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192 (‘Brownlie’).[4]At the hearing before the Judge on 15 May 2024, 17 October 2024 and 19 December 2024 (when judgment was given), both parties were represented. The respondent chose not to appear or be represented at the appeal hearing, but I had the benefit of a skeleton argument from David Hirst of Counsel which was filed on his behalf on 5 June 2025, and I have considered the Respondent’s Notice dated 14 May 2025 by which he submits that the Judge’s decision is vitiated by no error and that his decision should be upheld for additional reasons.

The claim

[5]The claim for defamation relates to various statements made by the respondent, concerning the appellant’s alleged treatment of his late sister, in broadcast interviews on Pakistan television channels on 12 and 13 August 2021. The claim was issued on 8 August 2022 and amended prior to service on 30 November 2022. On 5 December 2022, the amended claim form, together with particulars of claim, were served on the respondent by first class post.[6]A year earlier, on 14 September 2021, the appellant had issued a claim for libel in Pakistan in respect of the same broadcasts, claiming damages of 1 billion rupees (£2.7 million) and successfully obtaining an interim injunction. That claim is ongoing.

The application before the Judge

[7]By application dated 23 January 2023, pursuant to CPR 11, the respondent sought(a) an order that the claim form and amended claim form should be set aside; and(b) an order that the court had no jurisdiction to try the claim or should not exercise it.[8]The Judge received witness statements from two solicitors for the appellant, Ushrat Sultana and Tanzila Ayyaz, from the solicitor for the respondent, Noor Siddiqui, and from the respondent himself, his wife, Gina Hassan, and his witness, Umer Butt. The evidence of the three solicitors went to the service issue. The evidence of the respondent, Ms Hassan and Mr Butt went to both the service and jurisdiction issues. The respondent required Ms Sultana and Ms Ayyaz to attend for cross-examination, and they did so. The appellant did not apply to cross-examine any of the respondent’s witnesses.[9]The Judge rejected the argument that there had been no valid service. The respondent was out of the jurisdiction when service was effected. But the Judge held that the respondent was properly served, in accordance with s.1140 of the Companies Act 2006, as the director of an English-registered company, by the amended claim form and particulars of claim being sent by first class post to the address in this jurisdiction held for him in the Companies House register (albeit the Judge accepted the documents were not received at that address). There is no cross-appeal against that decision.[10]On the jurisdiction argument, the Judge held that, pursuant to s.9 of the Defamation Act 2013 (‘the 2013 Act’), the court had no jurisdiction to hear the claim because it was brought against a person “who is not domiciled … in the United Kingdom” (s.9(1)) and the Judge was not satisfied that “of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement” (s.9(2)). Both requirements had to be met for the court to conclude that it had no jurisdiction. There is no appeal against the Judge’s conclusion, applying s.9(2), that this jurisdiction is not clearly the most appropriate place to bring this claim. The focus of this appeal is on s.9(1).

The legislative provisions

[11]Section 9 of the Defamation Act 2014 provides, so far as material:
“(1) This section applies to an action for defamation against a person who is not domiciled— (a) in the United Kingdom. (2) A court does not have jurisdiction to hear and determine an action to which this section applies unless the court is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring an action in respect of the statement. … (4) Sections 41 and 42 of the Civil Jurisdiction and Judgments Act 1982 apply for the purpose of determining whether an individual, corporation or association is regarded as ‘domiciled in the United Kingdom’ for the purposes of this section.” (Emphasis added.)
(a) in the United Kingdom.[12]Section 41 of the Civil Jurisdiction and Judgments Act 1982, which is one of the two provisions referenced in s.9(4) of the 2013 Act, is the relevant provision in the case of an individual. It provides so far as material:
“(1) The following provisions of this section determine, for the purposes of this Act, whether an individual is domiciled in the United Kingdom or in a particular part of, or place in, the United Kingdom. (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 this residence indicate that he has a substantial connection with the United Kingdom. … (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 subsection (2)(b) or, as the case may be, subsection (3)(b) shall be presumed to be fulfilled unless the contrary is proved.” (Emphasis added.)
(a) he is resident in the United Kingdom; and (b) the nature and circumstances of this residence indicate that he has a substantial connection with the United Kingdom.

(b) has been so resident for the last three months or more,

[13]The Judge concluded that the defendant was not resident, at the date of issue of the claim form, for the purposes of s.41(2)(a). However, he made clear that if he had reached the contrary conclusion then he would have found the “substantial connection” test in s.41(2)(b) was met. The Respondent’s Notice does not challenge that conclusion.

The test on appeal

(a) The test on appeal

[14]This appeal is “limited to a review of the decision of the lower court”: CPR 52.21(1). The appeal court will allow an appeal where the lower court was “wrong” (CPR 52.21(3)(a)). No reliance is placed, on this appeal, on limb (b) (“unjust because of a serious procedural or other irregularity in the proceedings in the lower court”). The appeal court may draw any inference of fact which it considers justified on the evidence: CPR 52.21(4).

The good arguable case test

[15]In Soriano v Forensic News LLC [2021] EWCA Civ 1952 [2022] QB 533, the Court of Appeal considered the standard of proof applicable under s.9 of the 2013 Act. Warby LJ gave the sole judgment, with which the President of the King’s Bench Division, Dame Victoria Sharp and Elisabeth Laing LJ agreed. He noted that in Wright v Ver (CA) [2020] 1 WLR 3913 it had been common ground before Nicklin J and the Court of Appeal that the standard was the balance of probabilities, and so it had not been the subject of argument ([59]). In Soriano the standard of proof was not determinative as “the upshot would be the same” applying the balance of probabilities or the good arguable case test. Consequently, it was “strictly unnecessary to decide the point” ([60]). Nonetheless, Warby LJ continued:
“But we have had full argument, and it may be of value for future contests under section 9 to express an opinion. Mine will come as no surprise. It is that the standard of proof which a claimant must meet on an issue under section 9 is the well established standard for forum conveniens disputes, of a good arguable case. That is because, as I have explained, section 9 should not be treated as a fresh stand-alone provision of unique character but rather as a tailored modification of the established regime, and it does not purport to alter the standard of proof.”
[16]In this case, it was common ground before the Judge, following Soriano, that it was for the appellant to show that he had a “good arguable case” on jurisdiction under s.9 of the 2013 Act, applying that test as reformulated by Lord Sumption in Brownlie, endorsed by the Supreme Court in Goldman Sachs International v Novo Banco SA [2018] UKSC 34[2018] 1 WLR 3683, and further explained by the Court of Appeal in Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10 [2019] 1 WLR 3514 (‘Kaefer’). That remains common ground on appeal.[17]In Brownlie, at [7], having described “good arguable case” as a “serviceable test, provided that it is correctly understood”,Lord Sumption reformulated its effect as follows:
“The reference to ‘a much better argument on the material available’ is not a reversion to the civil burden of proof which the House of Lords had rejected in Vitkovice. What is meant is (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway [‘limb (i)’]; (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 [‘limb (ii)’]; 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 there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it [‘limb (iii)’]. I do not believe that anything is gained by the word ‘much’, which suggests a superior standard of conviction that is both uncertain and unwarranted in this context.”
[18]The way in which the test falls to be applied was further explained in Kaefer by Green LJ at [58]-[80] and Davis LJ at [119].[19]The term “plausible evidential basis” in “limb (i)” is “a reference to an evidential basis showing that the claimant has the better argument” (Kaefer, [73]). The “basic test” is relative: it boils down to “who had (relatively) the better of the argument” (Kaefer, [74]). The burden of proof is on the claimant; the test is context-specific and flexible: (Kaefer, [75]).[20]In applying the basic test of who, on the evidence, had the better of the argument, the court should follow the instruction in “limb (ii)”: “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’: see per Lord Steyn in the House of Lords in Canada Trust [2002] 1 AC 1, 13; and per Lord Rodger of Earlsferry in Bols [2007] 1 WLR 12, paras 27 and 28.” (Kaefer, [78])[21]If the court is reliably able to take a view on the available material that one side has the better argument, that is enough to resolve the issue and it is unnecessary to address limb (iii).[22]Limb (iii) is intended to address the position where “the court finds itself simply unable to form a decided conclusion on the evidence before it and is therefore unable to say who has the better argument” ([79]). In a series of earlier cases, given the limitations imposed by the interlocutory process, the court found it impossible to form a positive view which side had the better argument: see Kaefer, [79], citing Antonio Gramsci [2012] 2 Lloyd’s Rep 365, [39] and [44]-[48]. The solution encapsulated in limb (iii) “moves away from a relative test”, “to an extent”, 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” (Kaefer, [80]). Ground 1: Did the Judge err in his approach to the respondent’s evidence? The parties’ submissions

Ground 1: Did the Judge err in his approach to the respondent’s evidence?

[23]In support of ground 1, the appellant relies on three passages in the judgment. At paragraph 10(4), having set out the undisputed periods that the respondent was in Pakistan or in the UK up to October 2022,

the Judge stated:

“…the defendant next left this jurisdiction on 28 October 2022 for Pakistan and has remained there since apart from visiting this jurisdiction for 15 days on 12 November 2022 and spending five days in the United Arab Emirates and 14 days in the United States of America. The claimant does not accept that the position since November 2022 had been fully demonstrated by the defendant on the evidence as a result of an absence of passport stamps after 12 November 2022. However, it seems to me, having considered all the material before me that I should accept the defendant’s own witness evidence where there is nothing to contradict it.”
[24]At paragraph 27, having observed that Ms Ayaaz and Ms Sultana had been called to give oral evidence,

the Judge said:

“Other witnesses, including, in particular, the defendant and Butt have only given evidence by witness statement and there has been no application to cross-examine them. That, by no means, means that their evidence is incontestable but it makes it more difficult to reject their assertions of fact. On the other hand, questions as to what are the legal consequences of particular events having taken place are simply matters for the Court and are not, as such, matters for witnesses to opine on.”
[25]The Judge turned to address the jurisdiction issue at paragraph 89. At paragraph 107 he said:
“With reference to all the various evidence and submissions, it seems to me that I should generally accept the defendant’s own evidence where it is not contradicted by other material, albeit only as far as it goes. There has been no real attempt to challenge it by counter-evidence and no request to cross-examine, although I accept that cross-examination in this particular type of case is not usual. I do [note] that, at one point, the claimant’s solicitor asked in correspondence to cross-examine the defendant, and the defendant’s solicitor rejected that proposal, although the claimant’s side did not then pursue it. However, it seems to me that the evidence only takes me to a limited distance in deciding this matter, as the real question is the legal conclusion of law from the facts which are evidence.”
[26]In addition, in the context of his reasons for granting permission to appeal the Judge said, “I considered and weighed all the material; and where I consider that I was justified in accepting the defendant’s evidence, and where there was no application to cross-examine and medical evidence in support”.[27]The appellant submits that these passages show that the Judge placed material reliance on the absence of cross-examination in the weight he gave to the respondent’s evidence. The appellant contends that cross-examination of the respondent would have been impermissible, relying on Canada Trust Co v Stolzenberg (No.2) [2002] 1 AC 1, Kaefer and BB v Al Khayyat [2021] EWHC 1499 (QB) (which I address below). Consequently, it was not open to the Judge to place any reliance on the absence of cross-examination, and in doing so the appellant submits he gave undue weight to the respondent’s written evidence.[28]The respondent submits that applications under CPR 11 are governed by CPR 23 and are normally decided, as was the case here, on the written evidence of the parties, but the court retains a power to allow cross-examination, relying on Bank of Credit and Commerce International SA v Al-Kaylani [1999] I.L. Pr 278.[29]The appellant does not dispute that, in general, the court retains such a power, and indeed it was exercised in this case in the context of the service issue, but contends that cross-examination is prohibited in the context of jurisdiction disputes.[30]In any event, the respondent submits that the Judge did not materially rely on the absence of cross-examination against the appellant because he took into account the fact that it was not usual for there to be cross-examination, and he took the view that cross-examination would have made little difference as the real question was not testing the evidence but the interpretation and legal conclusion that one placed upon it.

The authorities relied on

[31]In Canada Trust, Lord Steyn (giving the leading speech) observed at 13E-H:
“The judge and all members of the Court of Appeal held, contrary to the submissions on behalf of the defendants, that a test of good arguable case is the appropriate standard of proof to apply to the question whether a defendant is domiciled in England on an application under Ord 12, r 8 involving issues arising under article 6 [of the Lugano Convention]. … In a purely English case the test of a good arguable case had been laid down by the House of Lords as applicable also in respect of domicile as a ground of jurisdiction: Seaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438. The question is whether in the context of article 6 the more stringent test of a balance of probabilities should apply. The adoption of such a test would sometimes require the trial of an issue or at least cross-examination of deponents to affidavits. It would involve great expense and delay. While it is true that the jurisdictional issues under the Conventions are very important, they ought generally to be decided with due despatch without hearing oral evidence. In my view Waller LJ’s judgment [1998] 1 WLR 502, 553-559 correctly explained on principled and pragmatic grounds why the defendants’ argument is misconceived.” (Emphasis added.)
[32]In the Court of Appeal, Waller LJ had said in Canada Trust [1998] 1 WLR 547 at 555D-E that in adopting the standard of “good arguable case”, “… what the court is endeavouring to do is to find a concept not capable of very precise definition which reflects that the plaintiff must properly satisfy the court that it is right for the court to take jurisdiction. That may involve in some cases considering matters which go both to jurisdiction and to the very matter to be argued at the trial, e.g. the existence of a contract, but in other cases a matter which goes purely to jurisdiction, e.g. the domicile of a defendant. The concept also reflects that the question before the court is one which should be decided on affidavits from both sides and without full discovery and/or cross-examination, and in relation to which therefore to apply the language of the civil burden of proof applicable to issues after full trial is inapposite. Although there is power under Ord. 1, r. 8(5) to order a preliminary issue on jurisdiction, as Staughton LJ pointed out in the Attock Cement Co case [1989] 1 WLR 1147, 1156D, it is seldom that the power is used because trials on jurisdiction issues are to be strongly discouraged.” (Emphasis added.)[33]In Kaefer Green LJ observed at [58]:
“Over many years the courts have expressed the view that the determination of disputes about jurisdiction should be determined with despatch. They are a (frequently costly and time consuming) distraction from the main event, which is the determination of the substance of the dispute and not where its adjudication takes place.”
[34]Green LJ noted at [65] that it was common ground that “any court determining jurisdiction must take into account the limitations inherent in the fact that a jurisdiction dispute is an interim hearing often in the absence of full evidence”. And, as cited at paragraph 20 above, he said the exercise is “intended to be one conducted with ‘due despatch and without hearing oral evidence’: see per Lord Steyn in the House of Lords in Canada Trust [2002] 1 AC 1, 13; and per Lord Rodger of Earlsferry in Bols [2007] 1 WLR 12, paras 27 and 28.”[35]In BB v Al Khayyat Chamberlain J refused to order cross-examination in an application for a stay on forum non conveniens grounds. He observed that the authorities “draw attention to the need to ensure an application for a stay on forum non conveniens grounds does not turn into a mini-trial of the claim. … It would defeat the point of the application if, in order to determine it, the court had to try the underlying allegations forming the substance of the case” ([45]). On the facts, it was “very clear that the main purpose of the proposed cross-examination of the Al-Khayyat brothers is to establish, or at least to ventilate, the allegations underlying the claim: i.e. that the Defendants have been involved in the funding of terrorist activities”, and it would be “relevant to the interference allegations only indirectly” ([57]). He determined that it would be “inappropriate to allow cross-examination for this purpose” ([58]-[62]).[36]In BCCI SA v Al-Kaylani the third defendant applied for service to be set aside on the grounds that he was not domiciled in France, although he was resident there. It was common ground that a material factor in determining domiciliary status in French law was whether or not he paid taxes in France. The court determined that “the plaintiffs should be at liberty to administer interrogatories directed, at least, to whether Mr Mahresi pays tax in France and whether he pays tax in Tunisia” ([26]), and so refused to make the order sought that “the plaintiffs be debarred from seeking to adduce, whether by the administration of interrogatories, cross-examination or otherwise” any further evidence dealing with that issue.

Decision on Ground 1

[37]It does not seem to me that BCCI SA v Al-Kaylani establishes the point for which the respondent has cited it. There was no application to cross-examine in that case, and Evans-Lombe J only addressed the question whether to permit interrogatories (requiring a party to answer specific questions in writing under RSC Order 26).[38]I accept that the court has a power to allow cross-examination (CPR 32.7), but it is a power that has to be exercised, in the context of a challenge to jurisdiction, having regard to the authorities to which I have referred which strongly discourage trials of jurisdictional issues, and make clear that they are intended to be determined with despatch and without hearing oral evidence. Nevertheless, the appellant puts the point too high in asserting that oral evidence on the determination of a jurisdiction issue is prohibited.[39]The Judge was clearly alive to “the limitations which an interlocutory process imposes” and to the point that “the exercise is intended to be one conducted with due despatch and without hearing oral evidence”. He quoted passages in those terms from Brownlie at [7] (citing Waller LJ in Canada Trust at 555) and Tugushev v Orlov [2019] EWHC 645 at [60] in his judgment at [92]-[93]. He expressly acknowledged that cross-examination “in this particular type of case is not usual” ([107]). It is not surprising that he made reference to the absence of cross-examination of the respondent or his witnesses in circumstances where there was a contrast in respect of the two issues he was dealing with in his judgment. On the service issue, the respondent had applied to cross-examine two of the appellant’s witnesses, and the appellant had agreed to call them. Whereas there was no application by the appellant to cross-examine the respondent or any of his witnesses on their evidence (which went to the service and jurisdiction issues, save for Mr Siddiqi’s evidence which addressed service only).[40]In referring to the lack of oral evidence the Judge was, in effect, making clear that he was applying the good arguable case test on the material available to him, within the confines of an interlocutory exercise in which the respondent’s evidence had not been tested. The essential point was that, in assessing who had the better of the argument, he considered he had no proper grounds for rejecting the respondent’s coherent and uncontradicted evidence of fact. He was entitled to conclude that the lack of detail on some points, on which the appellant relied, was an insufficient basis to reject sworn evidence which was not countered by any contradictory evidence.[41]In view of the Judge’s conclusions, there are two primary facts that this ground goes to. The first was the respondent’s evidence that he had remained in Pakistan since 28 October 2022, apart from a total of 34 days abroad (in the UK, UAE and USA), which was part of the evidence of where he had been located prior to 2020, during the period from early 2020 to October 2022, and thereafter. The appellant exhibited to Ms Sultana’s statement of 19 October 2023 various tweets showing dates on which the respondent was located in the United Kingdom, none of which contradicted his evidence.[42]The second concerned the character and purpose of the respondent’s extended stays in the UK during the period from early 2020 to October 2022. In that regard, the Judge had evidence from the respondent but he placed most reliance on a letter from Dr Sameer Zar, a Consultant Physician and Gastroenterologist who wrote (prior to the issue of proceedings) that the respondent “has been undergoing extensive tests and treatment under my medical supervision for the past few years while he is visiting the UK from Pakistan”. Dr Zar explained that the purpose was to investigate suspected abdominal cancer. He gave examples of some of the tests undertaken, said that he had carried out a particular procedure two years ago and “I … have strongly recommended for him to delay his return to Pakistan so that I can carry out another one”. Dr Zar said, “The treatment process has been understandably quite lengthy and, at times, frustrating as Mr Hassan resides in Pakistan to care for his old mother who is a stroke patient for which I hold full sympathy for him.” The appellant criticised the lack of detail but the evidence was uncontradicted.[43]I am not persuaded that the Judge’s reference to the lack of oral evidence flowed from, or evinces, any legal error. Nor do I accept that he placed undue weight on the respondent’s evidence. Accordingly, I dismiss the appeal on ground 1. Ground 2: Did the Judge fail to properly apply the good arguable case test? The parties submissions

Ground 2: Did the Judge fail to properly apply the good arguable case test?

[44]The appellant submits that while the Judge evidently had the Brownlie guidance in mind, he erred in applying it. He contends, first, that the Judge applied a materially higher standard of proof than he should have done. He contends that the Judge determined the issue of domicile on the basis of an assessment of the respondent’s claim that he was not domiciled, on the balance of probabilities, instead of determining whether there was a plausible evidential for the appellant’s claim that the respondent was domiciled in the jurisdiction.[45]Secondly, the appellant submits that when applying limb (ii) the Judge erroneously concluded that findings could reliably be made on contested issues of fact by giving weight to the absence of cross-examination, and accepting the respondent’s evidence in the absence of contrary evidence. Mr Lemer focused principally on this aspect of the grounds in his oral submissions.[46]Thirdly, the Judge failed to recognise that, in circumstances where there were a number of contested issues, the appellant had demonstrated a plausible, albeit contested, case that the respondent was domiciled in the jurisdiction.[47]The respondent submits that the Judge correctly (and extensively) cited and applied the authorities that were relevant to the determination he had to make, in particular, Brownlie, Kaefer, Soriano and Tugushev. The second ground amounts to sophistry and is unsustainable as the Judge clearly considered whether the appellant had the better argument on the evidence. The appeal is simply an attempt to re-run the argument which is not appropriate in circumstances where it is not vitiated by any error.

Decision

[48]In my judgment, it is plain that the Judge did not apply a higher standard of proof than he should have done. At paragraph 30 of his judgment he said:
“When considering the actual factual issues between the parties, I have had to consider whether the relevant party on whom he burden of proof lies has satisfied the civil standard of proof, being that on the balance of probabilities, i.e. whether it is simply more likely than not that any particular historical fact or event occurred.”
But as Mr Lemer acknowledged, at that stage of his judgment, the Judge was focusing on the service issue rather than jurisdiction.[49]The Judge’s consideration of the jurisdiction issue began at paragraph 89. At paragraph 91, the Judge correctly noted (and observed that it was common ground) that “on considering the material before me the question becomes whether the claimant has shown ‘a good argument case’ on one of the two points [in section 9]”, citing Soriano, [60]. At paragraph 92, he correctly held that “the ‘good arguable case’ test is to be approached in the special meaning that that expression has in this area of law”, as defined in Brownlie at [7], which he quoted. At paragraph 93, the Judge correctly directed himself:
“I, therefore, have to ask myself if I can answer the jurisdictional test questions on the material before me. If I cannot do so, the claimant succeeds as long as there is a plausible, albeit contested, evidential case for the claimant’s contention.”
[50]The Judge then directed himself by reference to Tugushev, [48]-[60], where it is reiterated that the test is a “good arguable case” as reformulated in Brownlie at [7], explained in Kaefer, and summarised by Carr J at [59]-60]:
“59. ….(i) The reference to a ‘plausible evidential basis in limb 1 is a reference to an evidential basis for showing that the claimant has the better of the argument; (ii) Limb 2 is an instruction to the Corut to overcome evidential difficulties and arrive at a conclusion if it reliably can. Not every evidential lacuna or dispute is material or cannot be overcome. Judicial commonsense and pragmatism should be applied, not least because the exercise is intended to be one conducted with due despatch and without hearing oral evidence. (iii) Limb 3 arises when the Court finds itself simply unable to form a decided conclusion on the evidence before it and is therefore unable to say who has the better argument. I would be unfair for the claim to jurisdiction to fail since, on fuller analysis, it might turn out that the claimant did have the better of the argument. The solution encapsulated in limb 3 moves away from a relative test and, in its place, introduces a test combining a good arguable case and plausibility of evidence. This is a more flexible test which is not necessarily conditional upon relative merits. 60. I respectfully too would wish to emphasise that it is important not to overcomplicate what should be a straightforward test to be applied sensibly to the particular facts and issues arising in each individual case. Whatever perorations there may be along he way, the ultimate test remains one of ‘good arguable case’. To this end, a Court may apply the yardstick of ‘having the better of the argument’ which, as Nigel Davis LJ commented at [119] in Kaefer, confers ‘a desirable degree of flexibility in the evaluation of the Court’. The test is to be understood by reference to the new, reformulated three-limb test identified in Brownlie.”
[51]The Judge correctly directed himself that “the Court should seek to come to [a] conclusion if it reliably can” (paragraph 93). He set out the summary of the principles relevant to the question whether a person is resident in the UK, on which both parties relied, in Tugushev, drawing on Bestolov v Povarenkin [2017] EWHC 1968 (Comm), [44]. Among other matters, the Judge expressly noted that “it is perfectly possible for a person to be resident in more than one country” (paragraph 99).[52]After noting the submissions, the Judge explained his conclusions on the residence question at paragraphs 107-130. The passage relied on in support of the contention that the Judge applied a materially higher standard of proof is at paragraph 124 where he said:
“Nevertheless, I find that the defendant has sufficiently shown, and so that I can and should come to a reliable conclusion, that the defendant was not resident in the United Kingdom at the relevant time. I would come to such a conclusion on the balance of probabilities (should that be the relevant test) i.e. that the defendant has satisfied me that it is more likely than not, but in any event regard my conclusion as being ‘reliable’ in Brownlie terms…”
[53]The burden was on the claimant. It does not assist him to point to the fact that Judge put his conclusion in terms of what the defendant had shown (not resident) as opposed to what the claimant had failed to satisfy him of (resident). Nor does the fact that the Judge stated, in the alternative, what his conclusion would be if the standard under s.9 were on the balance of probabilities demonstrate any error. It is understandable that he did so in circumstances where in Wright v Ver Dingemans LJ had said the standard was the balance of probabilities, in Soriano Warby LJ said the good arguable case test applied, and in both cases their observations had been obiter, albeit following full argument in Soriano. Moreover, the claimant’s skeleton argument before the Judge had contended, “even applying the test of balance of probabilities, the Defendant was domiciled in the UK. Of course, the less exacting test of a good arguable case is applicable in this context”. The Judge applied the good arguable case test, as reformulated in Brownlie, and made no error in explaining that the outcome would have been the same if the test had been the balance of probabilities.[54]The remainder of the appellant’s second ground is essentially another way of putting the first ground and it fails for the same reasons. The Judge properly directed himself, recognising that if, on the material before him, he could not reliably answer the question as to which party had the better of the argument, then he should apply limb (iii). The Judge undertook a detailed and careful analysis, applying the relevant principles. The mere fact that by way of submission the appellant criticised the level of detail in the evidence given by the respondent, and questioned the reliability of the respondent’s evidence, did not preclude the Judge from assessing that he was able to reach a reliable conclusion on the material before him that the respondent had the better of the argument.[55]The Judge found the issue as to the quality and nature of the respondent’s presence at the London flat difficult (paragraph 123). But it is not suggested that his decision was perverse. In my judgment, there is no proper basis for the appellate court to interfere with the Judge’s careful appraisal of the evidence on the issue, in circumstances where, as I have said, he properly directed himself as to the legal approach. This is not a case where the Judge failed to take into account material facts or took account of immaterial facts. Nor was there any demonstrable misunderstanding, or a perverse evaluation of the evidence. It is not open to an appellant to invite the court to re-perform the analysis of the evidence to see whether it agrees with the Judge simply because the High Court is said to be in the same position as the Judge (see Kaefer, [95]).[56]The appellant has not shown that the Judge misdirected himself or that his decision was wrong. Accordingly, the appeal on ground 2 also fails.

Respondent’s Notice

[57]The respondent also seeks to uphold the decision on alternative grounds. As I have dismissed the appeal, it is unnecessary to deal with the Respondent’s Notice. However, I note that I would not have been prepared to stay the claim on forum non conveniens or abuse of process grounds on this appeal, in circumstances where the respondent’s application seeking a declaration that the court has no jurisdiction or should not exercise it did not include an application for the case to be stayed on either ground; and the respondent’s Counsel expressly accepted before the Judge that he should not decide the abuse argument “at this point in the proceedings” (paragraph 141 of the judgment).

Conclusion

[58]For the reasons I have given, the appeal is dismissed.