Musa and Others v Holliday
| Jurisdiction | England & Wales |
| Judge | Sir Nicholas Wall,Lord Justice Sullivan,Lord Justice Lloyd,Lord Justice Waller,Lord Justice Rix,Lord Justice Wilson |
| Judgment Date | 15 October 2012 |
| Neutral Citation | [2010] EWCA Civ 335,[2012] EWCA Civ 1268 |
| Docket Number | Case No: B4/2011/2918,Case No: B4/2009/0937 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 October 2012 |
[2010] EWCA Civ 335
Her Honour Judge Kushner QC,
sitting as a Judge of The High Court
Before: Lord Justice Waller
Vice-President of The Court of Appeal, Civil Division
Lord Justice Rix
and
Lord Justice Wilson
Case No: B4/2009/0937
GD07FO1113
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mark Hill QC and Miranda Allardice (instructed by Kingsley Napley Solicitors LLP) for the Appellants
Peter Crampin QC and Ulick Staunton (instructed by Hunters Solicitors) for the Respondents
Hearing date: 2 nd March 2010
Lord Justice Waller:
This is an appeal by the adult children of Ramadan Hussein Guney (Ramadan) against the finding by Her Honour Judge Kushner QC, sitting as a Judge of the High Court. By her judgment, given on 19 th March 2009, she held that the deceased was domiciled in England and Wales at the date of his death on 2 nd November 2006. The judge thereby resolved a preliminary issue in proceedings brought against the adult children by Diane Holliday (Diane) with whom Ramadan had an intimate relationship going back some years before his death. A son of hers by a previous relationship was also a claimant. On the judge's conclusion, it followed that the court would have jurisdiction to entertain the proceedings against Ramadan's estate for financial provision under section 2 of the Inheritance (Provision for Family and Dependants) Act 1975 (the 1975 Act). The appellants, with the permission of Scott Baker LJ, challenge the judge's conclusion, asserting that on the law properly analysed and on the facts properly analysed Ramadan never abandoned his domicile of origin, Cyprus.
Neutral in the above dispute (although joined as a defendant) is Houssein Ramadan Guney (Houssein) aged 10 years old, the son of Diane and Ramadan with whom the adult children have reached agreement under which they will share the assets of Ramadan's estate in England in equal shares. Albeit neutral, Houssein is a significant party in considering the issue in this case.
It is important to emphasise at the outset (and I am sorry to say that unfortunately I do not think the judge at all times kept this in mind), there was only one issue for the judge to decide in order to reach a conclusion on the preliminary issue. There was no issue that Ramadan was originally domiciled in Cyprus. There was no issue that he resided in England at various addresses from 1958 until his death in 2006. It was never suggested that when he took up residence in England in 1958 he did so at that time with the requisite intention of settling in England so as to have abandoned his domicile of origin and acquired a domicile of choice in England. It was furthermore never suggested by either side that he at some stage acquired a domicile of choice in England but had, by some later stage, abandoned that domicile of choice and that his domicile of origin had thus revived. This was one of those cases in which if he was to have acquired a domicile of choice in England there came a stage, following lengthy residence, where it was right to infer that he had the intention to reside in England indefinitely – to settle in England and abandon his domicile of origin. The only issue was therefore was it right at any stage of his residence in England prior to his death to infer that he had formed the intention to settle in England indefinitely and abandon his domicile of origin.
That this is a very difficult question is demonstrated by Rule 11 in Dicey Morris & Collins 14th edition page 139 and the text thereunder. “Any” circumstance in a person's life can be relevant and what has been considered important in some cases, e.g. the desire of a person to be buried in a particular place, has been considered an important factor in some cases and discounted in others; the presence of a man's wife and children in a country has been taken as an important factor, “but again this is not decisive”.
Some criticism is made of the judge by Mr Mark Hill QC for the appellants that the judge did not refer to the authorities cited to her by both sides in identifying the principles of law which she was to apply. That, I think, would be an unfair criticism if she accurately set out the principles which it seems were not in issue, and if in the result it was clear that she had accurately applied the principles. But there are indications that she did not, at least with precision, define the principles of law so as to identify the only question she had to answer, and indications that she may not have approached the only question she had to consider with the principles accurately understood in mind.
The most obvious indication that she may not have been approaching the matter correctly is the fact that she did not once pose the question – did Ramadan ever form the intention to reside indefinitely in England? Having surveyed many points in the life of Ramadan in paragraph 6 she commenced paragraph 7 with these words:—
“7.1 Although all the matters above are relevant to the question of Mr Guney's domicile at the date of his death, they do not, in my view, point cogently for or against the proposition that Mr Guney intended to end his days in N. Cyprus.”
Of course it would be highly material if she had concluded that Ramadan did intend to “end his days in Cyprus”, but the onus was on those seeking to show that he no longer retained his domicile in Cyprus to establish that he had formed the intention to reside indefinitely in England and “end his days” there.
Furthermore when setting out the principles of law which she was going to follow she referred to certain issues which simply did not arise. She said this at paragraph 2.5:—
“The issue therefore arises, that, if Mr Guney had not assumed a domicile of choice in the UK and retained his domicile of origin, was that domicile Greek Cypriot by reason of the position of Paphos following partition, or Turkish Cypriot, by reason of his culture and heritage? If the decision is that Mr Guney was domiciled in England, that issue does not fall to be decided.”
But the issue she identified never would arise and it was never argued that it would since, if Mr Guney had a domicile of origin it was in Cyprus, not one part of Cyprus. That is not to say the problems in Cyprus might not be relevant to the question whether he intended to reside permanently somewhere else, but that is a different matter.
She then said this at paragraph 2.8:—
“If I find that Mr Guney intended to shift his main residence back to Cyprus or not to end his days here, then the domicile of choice would in effect have been rescinded and the domicile of origin would have revived.”
But no-one was arguing that Mr Guney had achieved a domicile of choice in England but then abandoned it.
She only refers to the tenacity of a domicile of origin in paragraph 2.9 as a last point on the law, whereas one would expect, if the only issue had been identified at an early stage, clearly at this stage tenacity of the domicile of origin would have been identified as an important aspect of that issue.
Thus there is force in the argument that the judge may not have had the principles of law she was to apply as accurately in her mind as she should have done. How then do I suggest the principles should be summarised?
A similar case to the present is Agulian v Cyganik [2006] EWCA Civ 129. By that I do not mean simply that it involved a Cypriot and the question whether he obtained a domicile of choice in England. I mean that it was a case in which, like the present, the only question was whether an intention to reside in England indefinitely could be established not when Mr Agulian (Andreas in the judgment) arrived but following a long period of residence. It is helpful therefore to see what the approach of the court was to that problem.
Paragraphs 5 and 6 set out the law in the following terms:—
“5. In Re Fuld [1968] P 675 Scarman J explained that the legal relationship between a person and the legal system of the territory which invokes his personal law is based on a combination of residence and intention. Everybody has a domicile of origin, which may be supplanted by a domicile of choice. He noted two particularly important features of domicile (page 682D-E) which are relevant to this case:
“First, that the domicile of origin prevails in the absence of a domicile of choice, i.e., if a domicile of choice has never been acquired or, if once acquired, has been abandoned. Secondly, that a domicile of choice is acquired when a man fixes voluntarily his sole or chief residence in a particular place with an intention of continuing to reside there for an unlimited time.” [As pointed out by Buckley LJ in IRC v. Bullock [1976] 1 WLR 1178 at 1184H Scarman J's formulation “for an unlimited time” requires some further definition]
6. After reviewing the more important authorities and noting the need in each particular case for “a detailed analysis and assessment of facts” in relation to the subjective state of mind of the individual in question, Scarman J stated the law in terms which this court should expressly approve (page 684F–685D)
“(1) The domicile of origin adheres unless displaced by satisfactory evidence of the acquisition and continuance of a domicile of choice; (2) a domicile of choice is acquired only if it is affirmatively shown that the propositus is resident in a territory subject to a distinctive legal system with the intention, formed independently of external pressures, of...
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