I am working on rather intricate conflicts issues this week (which I am enjoying) so I am turning to the blog for a little cerebral relief (equally pleasing). In [2018] EWHC 1544 (Ch) Deutsche Apotheker- und Arztebank EG v Leitzbach , reported with thanks by Ashfords, Hodge J correctly applied the COMI test of Regulation 1346/2000 to dismiss jurisdiction for the courts in England and Wales.
Dr Leitzbach had obtained a bankruptcy order after a previous attempt in which he had failed to testify to COMI in England and Wales. His, successful, second attempt, it now became clear, was obtained after misrepresentation. Dr Leitzbach’s arguments pro COMI it seems were mostly based on residence in the UK, proof for which he sought to obtain from (in fact non-existing) supermarket loyalty cards, as well as receipts of purchases made hundreds of miles apart within a short time-frame.
Note at 27 Hodge J’s in my view entirely correct sympathy for forum shopping in insolvency: as long as COMI can be correctly ascertained in the jurisdiction, this is an entirely justifiable phenomenon. Except indeed COMI was not in the UK as the High Court equally found:
at 71: ‘I simply cannot accept the evidence of Dr Leitzbach as to the fact that he was living and working …as a consultant in England and Wales at the relevant time. I simply do not accept his evidence to that effect. Secondly, however, I would in, any event, have found that, as a professional dentist who had been practising as such in Germany, Dr Leitzbach had never acquired a COMI in England and Wales…’
at 74: ‘so far as his visibility as a dentist is concerned, third parties would clearly have formed the view that he was continuing to practise with his brother in Germany until the end of 2012. He remained on the appropriate public dental register until the end of 2012. He secured a certificate that he was unfit for dental work at the end of 2011; but even that document was addressed to the former practice address in Hochheim, and it operated simply to relieve the debtor from making contributions to his official German dental pension scheme only until 30 June 2012…Dr Leitzbach accepted..that he was representing to third parties that he remained in practice as a dentist in the Hessen dental register until the end of December 2012. It was that dental practice address that was used by Dr Leitzbach to register himself on the postgraduate dental course that he undertook. He accepted that others on the course would all have assumed that he was continuing to practise as a dentist in Germany. His CV, written for the purpose of a published article in a dental journal, gave the impression that he had worked as a dentist in Germany until the end of 2012, and that, thereafter, his only professional activity was attending the postgraduate dental course.’
COMI never have been in the UK, the carpet was pulled from underneath the previous Bankruptcy order and this had to be annulled.
Geert.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 5, Heading 5.6.1.