(1) Yukos International UK BV v Dmitri Merinson
| Jurisdiction | England & Wales |
| Judge | Mr Salter |
| Judgment Date | 27 February 2018 |
| Neutral Citation | [2018] EWHC 335 (Comm) |
| Docket Number | Claim No: CL – 2017-279 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 27 February 2018 |
[2018] EWHC 335 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice. Rolls Building
Fetter Lane, London, EC4A 1NL
Mr Richard Salter QC
Sitting as a Deputy Judge of the High Court
Claim No: CL – 2017-279
Mr James Willan and Mr Stephen Donnelly (instructed by CMS Cameron McKenna Nabarro Olswang LLP) appeared for the Claimants
Mr Daniel Jowell QC and Mr Edward Cumming (instructed by Enyo Law LLP) appeared for the Defendant
Hearing date: 18 December 2017
Mr Salter QC:
Introduction
This is a dispute about jurisdiction. It raises interesting issues as to the meaning of the phrase “after the dispute has arisen” in Article 23(1) of the Recast Judgments Regulation 1 (and, by implication, also in Article 15(1) concerning jurisdiction in matters relating to insurance, and in Article 19(1) concerning jurisdiction over consumer contracts), and as to the effect (if any) on jurisdiction of the provisions of Chapter IV of the Recast Judgments Regulation relating to Authentic Instruments and Court Settlements. So far as the researches of counsel have been able to discover, these issues have not previously been directly considered by the court.
Background
Mr Merinson's employment by Yukos
The defendant (“Mr Merinson”) was employed by various entities within the Yukos group of companies from March 2002. For most of the relevant period, he was based in the Netherlands. Most recently, he was employed by the first claimant (“Yukos International”) as a financial manager/analyst under the terms of a contract of employment dated 20 May 2005 (as subsequently varied). His duties included (among other things) “overseeing and control of financial operations and .. optimisation of case management”. These duties were later extended to include providing similar services to other companies within the Yukos group of companies, including the second and third claimants (and this application has been argued on the basis that all of the claimants in this action were Mr Merinson's “employers” for the purposes of Section 5 of the Recast Judgment Regulation 2). Mr Merinson's contract of employment with Yukos International was governed by Dutch Law and included a term stating that it was subject to the exclusive jurisdiction of the Dutch courts.
On 12 October 2015, Mr Merinson wrote to Yukos International, asserting that the dismissal in September 2015 of one of the directors of Yukos International had had the effect of terminating Mr Merinson's employment from 31 December 2015 under a provision of his contract of employment entitling him in those circumstances to a severance payment equivalent to 12 months' salary.
This letter was the trigger for discussions between Mr Merinson and his employers. At the same time, four separate sets of proceedings were commenced before the courts of the Netherlands by Mr Merinson and by certain entities within the Yukos group of companies (“the Dutch Proceedings”).
On 28 September 2016 there was a hearing in the Dutch Proceedings before Ms L van Berkum, a Sub-District Court Judge of the Court of Amsterdam, Private Law Division. At that hearing, the parties reached terms of settlement. These were embodied in a settlement agreement (“the Settlement Agreement”) executed by the parties, which was then in turn incorporated into the proces-verbaal 3 of the Dutch court (“the Dutch Court Settlement”).
The Dutch Court Settlement
The terms of the Settlement Agreement incorporated into the Dutch Court Settlement were widely drawn, and included a clause which purported to confer exclusive jurisdiction on the courts of the Netherlands.
The proces-verbaal recording the hearing on 28 September 2016 recites that:
The parties state, after a recess of the hearing, that they have agreed the following settlement agreement.
The Settlement Agreement which follows then states (omitting immaterial passages):
To end their dispute, the Parties agree as follows:
1. This arrangement is made between Merinson and Yukos International and for the benefit of all the entities affiliated with Yukos International including without limitation any direct or indirect Yukos subsidiaries, affiliates, divisions, successors, predecessors and/or related corporate entities or group entities, including any other former subsidiaries of Yukos Oil Company or any affiliates thereof ..
2. The employment contract and any other legal relationships (save for this agreement) between the parties ended on 1 January 2016.
3. Merinson has no obligation to repay the salaries and other emoluments received by him to date.
4. ..
5. Yukos International will pay to Merinson a sum of 200,000 Euros net.
6. This sum should have been deposited in the bank account of Merinson .. with reference “severance compensation”, no later than by 5 October 2016
7. Merinson declares that to this day he has complied with the confidentiality clause as included in article 19 of the employment contract in relation to all information concerning Yukos and will continue to do so, now and in the future. On violation of this confidentiality clause is set a penalty of 360,000 Euros immediately due and payable to Yukos International.
Merinson declares that, other than the documents produced in the current proceedings and in the summary proceedings between the parties, he has no (digital) documents in his possession that regard Yukos ..
..
Merinson will not render his co-operation to, work for or render services to any party involved in any legal action concerning Yukos or persons affiliated with it; if Merinson should be requested to appear in any legal action versus Yukos, he will inform Yukos of this immediately.
8. The moment that payments can lawfully be made from the assets of the Dutch branch to former shareholders of Yukos Oil, Yukos will pay to Merinson .. a second net sum of 200,000 Euros ..
9. ..
10. Parties give mutual and final discharge for all that they have claimed in these legal actions and all they might yet claim in the context of the legal relationship that used to exist between them, notwithstanding the right to claim specific performance of this settlement agreement.
11. The Parties intend that the disputes released here be construed as broadly as possible. This release extends to Yukos and any current or former Yukos Entity officer, director, employee, consultant, agent and attorney, whether or not acting in his/her representative, individual or any other capacity.
12. ..
13. ..
14. This agreement shall in all respects be interpreted, enforced and governed by the laws of the Netherlands. Any disputes regarding or relating to any aspect of this agreement formation, meaning, performance or breach, including any claim for breach of the confidentiality provision, shall be submitted to the courts of the Netherlands.
15. Parties each bear their own procedural costs and agreed to have this current action deleted.
The Settlement Agreement was subsequently amended by an addendum dated 18 November 2016. This addendum amended Articles 2 and 3 of the Settlement Agreement, so as to read as follows:
2. The employment contract and any other legal relationships (save for this agreement) between the parties ended on 1 October 2016.
3. Merinson has no obligation to repay the salaries and other emoluments received by him to date and Yukos has no obligation to pay any salaries and other emoluments to Merinson other than the salaries and other emoluments paid to Merinson to date.
This addendum was in English, and was signed by the parties. It was not incorporated into any proces-verbaal of the Dutch court.
The copy of the Dutch Court Settlement produced to the parties on 28 September 2016 did not bear the words “ in namm van de Koning” (“in the name of the King”). It is common ground between the parties that those words are required in order to make Dutch court settlements formally enforceable under Dutch law. On about 12 December 2017, Mr Merinson's Dutch lawyers therefore procured from the Dutch court a copy of the Dutch Court Settlement bearing those words. That copy is of the original Dutch Court Settlement, materially unchanged except for the addition of these stamped words. It does not incorporate the changes in the wording of the Settlement Agreement effected by the addendum dated 18 November 2016.
The present action
The Claim Form in the present action was issued on 3 May 2017. In it, the claimants (“the Yukos Group”) make two groups of claims:
10.1 First, they seek to recover damages for losses which they claim to have suffered as a result of what they allege were Mr Merinson's breach of his duties under his employment contract. I shall refer to this group of claims as “the Damages Claims”.
10.1.1 The Claim Form gives little detail of the basis of these claims: but, as appears from the evidence, what the Yukos Group alleges (in very broad terms) is that Mr Merinson, in the course of his employment, took “kickbacks” amounting to millions of pounds from the financial institutions with which he was charged with negotiating the Yukos Group's financial and banking arrangements.
10.1.2 It is right that I should record at the outset that Mr Merinson disputes the Yukos Group's allegations and asserts that, in bringing this action, the Yukos Group is unjustly and improperly seeking to punish him for trying to “blow the whistle” internally within the Yukos Group in relation to the wrongdoing of those in control of the Yukos Group.
10.2 Secondly, they seek a declaration that the Dutch Court Settlement does not, on its true construction, bar the Damages Claims; alternatively, an order that the Settlement Agreement as...
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Merinson v Yukos International UK BV & Others
...sitting as a Deputy Judge of the High Court held, in his clear and comprehensive judgment dated 27 February 2018 (“the judgment”) [2018] EWHC 335 (Comm); [2018] QB 2 This appeal from that judgment involves the contention by a former employee that proceedings brought by the former employer......