In the matter of Nicholas Mark Jones
[2023] EWHC 1359 (Ch)
Judith Susan Portrait & Anor (as Trustees of the Gatsby Charitable Foundation) v Khadijeh Minai
28 June 2023
[2023] EWHC 1605 (Ch)
High Court
Someone owed money and tried to make a bankrupt another person in the UK. The person owing money said they mostly lived in Ukraine and couldn't return because of the war. The judge believed them and said the bankruptcy case couldn't go ahead.
Key Facts
- •Bankruptcy petition against Khadijeh Minai for an undisputed debt of £325,752.60.
- •Petition based on a County Court Order from July 2021.
- •Dispute centered on the Court's jurisdiction under section 265 of the Insolvency Act 1986.
- •Minai's claimed domicile is Ukraine, with significant business interests there.
- •Petitioners argue Minai's COMI (Centre of Main Interests) is in England and Wales based on property ownership and company registrations.
- •Minai claims her presence in England is involuntary due to the conflict in Ukraine.
- •Evidence included witness statements, oral testimony, and company registration documents.
Legal Principles
A bankruptcy petition can be presented if the debtor's COMI is in England and Wales, or they meet other conditions specified in section 265 of the Insolvency Act 1986.
Insolvency Act 1986, section 265
COMI is determined as at the date of the petition's presentation.
O'Donnell v Bank of Ireland [2012] EWHC 3749 (Ch); Re Melars Group Ltd [2021] EWHC 1523 (Ch)
COMI is the place where the debtor conducts the administration of its interests on a regular basis and is ascertainable by third parties. For individuals without independent business activity, it's presumed to be their habitual residence.
EU Regulation on Insolvency Proceedings (EU) 2015/848 (as retained in UK law)
The meaning of “place of residence” under s.265(2)(b)(i) is determined by considering all the facts and circumstances; it requires some degree of permanence and continuity.
Reynolds Porter Chamberlain LLP v Khan [2016] BPIR 722; HRH Prince Hussam Bin Saud Bin Abdulaziz Al Saud v Mobile Telecommunications Company KSCP
Outcomes
The bankruptcy petition was dismissed.
The court found insufficient evidence to establish that Minai's COMI was in England and Wales as at the date of the petition. While she owned properties in England, the evidence did not demonstrate that these were her habitual residence or the centre of her main economic interests. The court considered Minai's evidence regarding her life and business in Ukraine to be more persuasive, despite the limited documentary evidence provided, given the circumstances in Ukraine.
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