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Jonathan Cohen QC and Marc Delehanty succeed in defeating High Court jurisdiction challenge, involving novel application of recast Brussels Regulation

Jonathan Cohen QC and Marc Delehanty, instructed by Grosvenor Law, successfully represented a claimant resisting a defendant’s challenge to the English Court’s jurisdiction.  The judgment – Gray v Hurley [2019] EWHC 1636 (QB) – breaks new ground on the question of when a defendant can be found to have lost or broken previous domicile in England such that Article 4(1), Brussels Regulation (recast) cannot be relied upon to bring proceedings in England.

Ms Gray brought claims based on resulting trusts, undue influence and unjust enrichment against Mr Hurley in relation to high value real estate, shares and a collection of hypercars (including the Ferrari F1 that Michael Schumacher drove to the 2003 World Championship) located in various jurisdictions: Switzerland, Italy and New Zealand.  Those assets had been bought with her money whilst the parties were in a romantic relationship with each other.  For his part, Mr Hurley commenced proceedings in New Zealand for orders for a division of assets under that country’s Property (Relationships) Act 1976 (which applies non-married co-habiting couples).

At this stage of the dispute in England, upon Mr Hurley having made a CPR Part 11 jurisdiction challenge application, the English court was concerned with whether Mr Hurley was domiciled in England for the purposes of Article 4(1) (and the connected Schedule 1, para 9 of the Civil Jurisdiction and Judgments Order 2001) and with his contention that any English domicile he may have had was broken as he left this country for good after the break-up of the relationship but before the issuing of proceedings.

In the judgment in Lavender J found:

• Mr Hurley could be sued in England, pursuant to Article 4(1), even though by the time the claim form was issued he was no longer resident in England.  In so holding, the Judge accepted Jonathan and Marc’s submissions that Article 4(1) should be read as extending to the defendant’s last known domicile in a case where the Court: (i) is unable to identify the defendant’s place of domicile; and (ii) has no firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union.  On the evidence, the Court was satisfied that Mr Hurley was not domiciled in New Zealand and so this extended scope of Article 4(1) was engaged.
• The declaratory relief sought by Ms Gray as against Mr Hurley to the effect that any legal title he held to a villa in Italy was held for her beneficially could be pursued in English proceedings. The Judge held that such a claim did not have as its “object rights in rem in immovable property” and so did not fall within Article 24, Brussels Regulation (recast) – which would have meant that only the Italian courts could have adjudicated upon it.

It is anticipated that this judgment will be of great interest to practitioners dealing with issues of private international law for its central holding on the extended scope of Article 4(1).

The case has also attracted significant press attention recently: The Telegraph, The Times, The Sun, The Mirror and The Daily Mail.