Akhmedova v Akhmedov and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Knowles |
| Judgment Date | 28 October 2020 |
| Neutral Citation | [2020] EWHC 3005 (Fam) |
| Docket Number | Case No: FD13D05340 |
| Court | Family Division |
| Date | 28 October 2020 |
[2020] EWHC 3005 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mrs Justice Knowles
Case No: FD13D05340
Mr Tim Penny QC and Mr Mark Belshaw (instructed by PCB Litigation LLP) for the Claimant
Hearing date: 28th October 2020
Approved Judgment
The Honourable Mrs Justice Knowles
Wednesday, 28 October 2020
Judgment by THE HONOURABLE Mrs Justice Knowles
Before me is a without notice application by Tatiana Akhmedova [“the wife”] for a search order against the tenth respondent, Temur Akhmedov [“Temur”], in the long running proceedings allocated to me. A final hearing is due to commence before me on 30 November for 15 days.
To prepare for this hearing, I have received and read a skeleton argument on behalf of the wife. I have read the application notice, the draft order, the affidavit of Mr Riem without all of the exhibits, (though I have been taken to some of them during the course of submissions) and a judgment by the Court of Appeal, TBD v Simons [2020] EWCA Civ 1182. My reading has been focused on paragraphs 127 to 193 of that authority.
First of all, I should say that I am grateful to the wife's legal team for their preparation of the application before me and for the comprehensive skeleton argument. I have also heard some oral submissions, and, once I have given this judgment, I will consider in its final form the draft order before me.
This is an ex tempore judgment. I apologise if it is not as polished as it would be otherwise, but it is important, if only for the management of these proceedings going forward, that I give a judgment today. Nothing in this judgment should be taken to suggest that I have determined the matters which will be the subject of the trial before me in November 2020.
The wife obtained a worldwide freezing order and ancillary disclosure orders against Temur at a without notice hearing on 17 July 2020. That order was continued at the inter partes hearing on 23 July 2020, and, on that date, I made an order requiring Temur to deliver up and provide access to his electronic devices and cloud storage accounts, and for these to be forensically examined by an independent IT expert, Aon [“the forensic examination order”].
I regret to say that no devices were delivered up by Temur. All his electronic devices, including the only desktop computer which he admitted to owning, were said by him to have been lost in transit from France to London when he was seeking to comply with the forensic examination order. An investigation has been launched by the courier company, DHL, and a police investigation is ongoing in France. Temur also failed to provide access to his cloud accounts in defiance of the forensic examination order. The only data delivered by Temur or on his behalf to the IT expert, Aon, was a mobile phone image which was held by the third party company that had originally produced the image.
I was told that the wife became aware on 20 October 2020 from material provided by Temur's current solicitors, Patron Law, that Temur was likely to have further electronic devices in his flat. These had not been disclosed by him or delivered up in accordance with the forensic examination order. Those circumstances gave rise to serious concerns on behalf of those who represent the wife that these devices contained critical evidence on the key issues in the proceedings, disclosure of which is necessary for their just resolution.
Mr Penny on behalf of the wife relies on the following matters: Temur's apparent concealment of these devices, in breach of his obligations to provide disclosure; his own admission of destroying documents and devices in the past; and his alleged assistance given to Farkhad Akhmedov's [“the husband”] schemes of evasion of this court's orders. All those matters were prayed in aid as a reason to bring the present application before me.
The background to the litigation is set out in my judgment dated 2 October 2019 under neutral citation [2019] EWHC 2561 (Fam). I do not repeat it here.
I have already noted that the claims against Temur, Counselor and Sobaldo (the 8th and 9th respondents) and Borderedge (the 11th respondent) are fixed for a three-week trial commencing at the end of November 2020.
This application has been made without notice. The principal reason for that is because the giving of notice would be likely to frustrate its purpose, for example because Temur may seek to remove, destroy or tamper with the devices which are the subject of the application, or cause someone else to do so.
Mr Penny submitted to me that there is good reason for that fear, namely Temur's failure to comply with the forensic examination order and give up his devices; his admitted systematic destruction of documents which go to the critical issues in this case, together with the apparent concealment of electronic devices from his own legal team.
In his comprehensive skeleton argument, Mr Penny sets out the law relating to search orders. I am satisfied I have the jurisdiction to make such an order pursuant to FPR 20.2(1)(h). The core requirements for the making of such an order are as follows: firstly, there must be an extremely strong prima facie case; secondly, that the damage, potential or actual, must be very serious for the applicant; thirdly, there must be clear evidence that the respondent has in his possession incriminating documents or things and that there is a real possibility that the respondent might destroy such material before any inter partes application could be made; and, fourthly, the harm likely to be caused by the execution of the order to Temur and his business affairs must not be excessive or out of proportion to the legitimate object of the order.
I have had my attention drawn to the case of TBD v Simons (see above), which concerns itself with the jurisdiction of the court to grant search orders, the interaction of that jurisdiction with a jurisdiction to grant imaging orders, and orders for disclosure and inspection. I have read those paragraphs of the Court of Appeal's judgment which are of particular relevance in setting out the legal framework for these orders, and the principles were summarised by Mr Penny in paragraph 15 of his skeleton argument. I do not propose to repeat its contents here, but I accept what is said therein.
I consider firstly the requirement for an extremely strong prima facie case against Temur. I accepted at a without notice hearing for the worldwide freezing order on 17 July 2020 that the wife had a good arguable case in respect of her claims against Temur. Those claims were set out in the judgment I delivered on that date in paragraphs 13 to 38 inclusive. I do not repeat them here, but they are incorporated by reference into this judgment.
At the hearing for the forensic examination order on 23 July 2020, the wife relied on the same facts to show that her case had reached the threshold of being an extremely strong prima facie case. I did not need to resolve that issue then, as Temur consented to the grant of the forensic examination order, though he sought to vary its terms.
Presently, I note that the wife does not have documentary evidence to show the total amount received by Temur from the husband, the first respondent. That is, in part, because of the secrecy achieved via a web of offshore structures, and because Temur has failed to give disclosure.
Mr Penny submitted that there was a real prospect of establishing at trial that Temur received very significant sums from the Liechtenstein trusts and the monetary assets, and that one purpose of the transfer to him of those sums of money was to put those assets beyond the wife's reach.
I also note that, in circumstances where Temur has failed to give proper disclosure of his wealth, the court may be invited to draw adverse inferences.
With respect to the Moscow property, I said a considerable amount about this in my judgment with respect to the worldwide freezing order. There is now, as there was not then, expert evidence that Temur did in fact become the legal owner of the Moscow property in June 2018. That evidence appears on the face of it to undermine his defence that he never became the beneficial owner of that property.
Mr Penny submitted that there is thus an extremely strong prima facie case that the husband's transfer of the Moscow property to Temur engaged section 423 of the Insolvency Act 1986. I accept that submission. Given all these factors, I am satisfied that the first criterion required for the grant of this without notice search order is made out in this particular case.
I turn now to the damage, potential or actual, to the applicant, noting that this damage must be serious.
I have summarised matters with respect to Temur's disclosure obligations, the forensic examination order and his alleged destruction and concealment of the evidence. The disclosure process has resulted in Temur failing to disclose a single contemporaneous document since 1 March 2016. He has disclosed no document from his own records save for two discrete emails that he believes to be helpful to his case. He has also destroyed critical documents going to key issues in the proceedings, and he makes specific admissions in respect to the following categories of documents.
First of all, documents relating to the “investment purpose” (namely the purpose for which his father was said to have given him money), the shares in Solyanka Servis LLC and the relevant issues defined in the disclosure order I made in May 2020; secondly, documents evidencing communications with a number of individuals relating to the transactions concerning the Moscow property; thirdly, documents evidencing communications with Mr Kerman and Mr Devlin in relation to the relevant issues, and...
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