The High Court considered whether a bankruptcy order, made by the Office of the Adjudicator, should be annulled due to lack of jurisdiction. The case considered key issues for trustees and cross-border insolvency practitioners.
The trustees sought annulment of Mr Jones’s bankruptcy, arguing it was wrongly granted due to his Centre of Main Interests (COMI) being in Austria. Mr Jones had applied for bankruptcy in England in 2021, relying on domicile and residence links, including a family court finding from 2018.
The Austrian courts refused to recognise the English bankruptcy, frustrating asset recovery. The trustees argued that the adjudicator erred by relying on new evidence during review and that Mr Jones’s COMI was in Austria. Mr Jones opposed, asserting trustees lacked standing and that domicile provided jurisdiction.
Judge Jones held that trustees do have standing under section 282(1)(a) Insolvency Act 1986. However, he found the application focused solely on COMI and did not expressly challenge domicile. Given that the review decision was based on domicile, the trustees were required to amend their application by formally incorporating the ground that Mr Jones was not domiciled in England and Wales at the time of the bankruptcy order. This is necessary because the original application focused solely on COMI and did not expressly challenge domicile, despite the adjudicator having relied on domicile to establish jurisdiction. Mr Jones may file further evidence.
The judgment explores competing indicators of COMI. Factors supporting Austria included Mr Jones’s residence since 2012, business operations, asset location, and public perception. In contrast, ties to England included his domicile of origin, use of a UK address, directorships, banking arrangements, and the location of his divorce proceedings.
The judgment underscores the importance of clearly identifying jurisdictional grounds in bankruptcy applications and the practical challenges of cross-border asset recovery post-Brexit. Practitioners should note the court’s willingness to allow trustees to pursue annulment where recognition abroad is refused, but also the procedural rigour required when challenging domicile.
In regards to Nilsson & Carter v Jones [2025] EWHC 2652 (Ch)
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