Avonwick Holdings Ltd v Azitio Holdings Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Picken,Mr. Justice Picken |
| Judgment Date | 14 July 2020 |
| Neutral Citation | [2020] EWHC 1844 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Case No: CL-2016-000494 |
| Date | 14 July 2020 |
and
[2020] EWHC 1844 (Comm)
THE HON. Mr. Justice Picken
Case No: CL-2016-000494
IN THE HIGH COURT OF JUSTICE
BUSINESS & PROPERTY COURTS
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Neil Calver QC, Edward Ho, Ben Woolgar and Alexandra Whelan (instructed by Quinn Emanuel Urquhart & Sullivan LLP) for the Gaiduk Parties.
David Foxton QC, Louise Hutton, Anton Dudnikov and Catherine Jung (instructed by Hogan Lovells International LLP) for the Taruta Parties.
David Wolfson QC, Sebastian Isaac, Harris Bor and Henry Hoskins (instructed by Covington & Burling LLP) for the Mkrtchan Parties.
Stephen Smith QC and Peter Ratcliffe (instructed by Baker & McKenzie LLP) for Prandicle Limited.
Hearing dates: 2, 3, 7, 8, 10, 15, 16, 17, 18, 23, 24, 25, 28, 29, 30 and 31 October, 1, 4, 5, 6, 7, 8, 11, 12, 18, 19, 20 and 21 November 2019
Draft judgment supplied to the parties: 6 July 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mr Justice Picken
Contents
| Introduction | [1]–[67] |
| Approach to this case | [68]–[72] |
| The Avonwick Claim: an outline | [73]–[84] |
| The Taruta Claims: an outline | [85]–[93] |
| Contingent Claims against the Taruta Parties: an outline | [94] |
| Other claims not yet for determination | [95] |
| The Evidence | [96]–[145] |
| The Avonwick Claim | [146]–[464] |
| Applicable law | [150]–[176] |
| Relevant legal principles | [177]–[192] |
| The alleged Price Representation | [193]–[373] |
| Falsity and fraud | [374]–[375] |
| Reliance | [376]–[382] |
| Joint tortfeasor liability and agency | [383]–[416] |
| Limitation | [417]–[451] |
| Causation and loss | [452]–[463] |
| Conclusion | [464] |
| The Taruta Claims against the Gaiduk Parties and the Mkrtchan Parties | [465]–[836] |
| Applicable law | [467]–[530] |
| Contractual formation | [531]–[560] |
| Ukrainian law | [533]–[548] |
| English law | [549]–[560] |
| Was the alleged 2009 Shareholders' Agreement a valid and binding agreement? | [561]–[704] |
| Was the alleged 2010 Further Shareholders' Agreement a valid and binding agreement? | [705]–[713] |
| Breach and remedies | [714]–[718] |
| Limitation | [719]–[760] |
| Alternative claims | [761]–[768] |
| The unjust enrichment against the Gaiduk Parties | [769]–[835] |
| Conclusion | [836] |
| The Taruta Claims against Prandicle | [837]–[887] |
| The Loan and Amended Settlement Agreement Claims against | |
| Mr Mkrtchan | [888]–[1103] |
| Background | [888]–[905] |
| The Loan Claim | [906]–[1020] |
| The alleged US$100 million loan | [914]–[964] |
| The alleged US$50 million loan | [965]–[1016] |
| Discharge by the Settlement Agreement? | [1017]–[1020] |
| The Amended Settlement Agreement Claim | [1021]–[1103] |
| Clause 3.1.2: specific performance | [1036]–[1044] |
| Clause 3.1.2: damages | [1045]–[1090] |
| Clause 3.1.1: specific performance | [1091]–[1103] |
| Conclusion | [1104]–[1105] |
Introduction
These are very substantial proceedings which have been described, not inaccurately, as being akin to divorce proceedings between three extremely wealthy Ukrainian businessmen: Mr Vitaliy Gaiduk, Mr Sergiy Taruta and Mr Oleg Mkrtchan (together, the ‘Partners’). Mr Gaiduk and Mr Taruta are also prominent in Ukrainian politics, Mr Gaiduk being a former Deputy Prime Minister of Ukraine (as well as having held various other ministerial posts) and Mr Taruta being both a former Governor of Donetsk Oblast, a region which has since March 2014 been held by pro-Russian forces, and a member of the Ukrainian Parliament representing the same region. Another party, Prandicle Ltd (‘Prandicle’: the Third Third Party), is beneficially owned by Mr Oleh Dubyna, who was for a time Minister of Industrial Policy and First Vice Prime Minister of Ukraine. As for Mr Mkrtchan, although amply represented by both solicitors and counsel at trial, he was unable himself to attend trial owing to the fact that he is currently in prison in Russia after a secret trial which culminated in his receiving a nine-year sentence of imprisonment in August 2019.
By way of relatively brief background, the history of this dispute begins in 1995, when Mr Gaiduk and Mr Taruta (amongst others) founded a global portfolio of assets which came to be worth billions of dollars, including a Ukrainian metallurgical business called the Industrial Union of Donbass (‘IUD’). Mr Gaiduk was then Deputy Chair of the Donetsk Regional Council/Deputy Head of the Donetsk Oblast region, in which role he was responsible for the region's industrial and energy sectors. Mr Taruta had enjoyed a successful career in the metallurgical business and was appointed as IUD's first General Director.
At first, IUD principally traded in and supplied gas and other commodities to the many steel producers in Eastern Ukraine.
By August 1996, Mr Gaiduk and Mr Taruta each held a 35% stake in IUD via their respective corporate vehicles, CJSC Vizavi (‘Vizavi’) and Azovintex LLC (‘Azovintex’). At that time, Mr Taruta was appointed as General Director of IUD. In that role, Mr Taruta was responsible “not only for the operational activity of IUD but also for devising a rapid expansion plan”.
In 1997 Mr Taruta appointed Mr Mkrtchan as Head of IUD's Metallurgical Department. Mr Taruta and Mr Mkrtchan had met in the early part of that decade, when Mr Mkrtchan was working as a metal trader and Mr Taruta was working for Azovstal Metallurgical Plant. Mr Gaiduk did not previously know Mr Mkrtchan and was introduced to him by Mr Taruta.
In the years which followed, IUD increasingly expanded into steel production, and in 2002 it acquired a number of steel businesses from the Ukrainian state. These included OJSC Alchevsk Iron and Steel Works, OJSC Dnieper Iron and Steel Integrated Works and OJSC Alchevsk By-Product Coke Plant.
That same year, Mr Mkrtchan replaced Mr Taruta as IUD's General Director, so becoming responsible for the operations of IUD which had previously been managed by Mr Taruta.
Mr Mkrtchan's taking over of this role enabled Mr Taruta to focus his efforts on developing IUD's external business, such as acquiring assets and dealing with financiers. Mr Mkrtchan and Mr Taruta worked alongside one another in IUD's head offices in Donetsk in these respective roles.
As for Mr Gaiduk, he moved on from his state-based role to Kiev where he held various political offices at a national level, including Minister for Energy and later, as previously mentioned, Deputy Prime Minister of Ukraine, until about 2004. He was not involved in the day-to-day management of IUD, and his role in IUD's management was more limited than that of Mr Mkrtchan and Mr Taruta. He was, as Mr Taruta described it, a “passive investor” focused on politics rather than IUD's business. In that political sphere, Mr Gaiduk worked to promote IUD's interests.
Mr Mkrtchan and Mr Taruta became close personal friends, describing each other as brothers and socialising with each other's families. They even lived in houses on neighbouring plots of land.
Mr Gaiduk also had a close relationship with both Mr Taruta and Mr Mkrtchan, although this was largely professional rather than social.
In terms of shareholdings, in 1998, the then shareholders of IUD, Mr Gaiduk and Mr Taruta and a Mr Akhmetov, agreed to give Mr Mkrtchan a bonus in recognition of the work which he was doing.
Meanwhile, by June 2003 only Mr Gaiduk and Mr Taruta were shareholders in IUD, with PJSC Vizavi (‘Vizavi’) and PJSC Azovintex (‘Azovintex’) each holding 49.99% of the shares in IUD. The remaining 0.02% was held by FDI Onyx Don (‘Onyx Don’), which was jointly controlled by Mr Gaiduk and Mr Taruta.
It was at this point that, according to Mr Mkrtchan, the Partners reached a further understanding that he (Mr Mkrtchan) would acquire a one-third shareholding of IUD for US$14 million (i.e. US$7 million to each of Mr Gaiduk and Mr Taruta), although he accepts that this understanding was not made formal or binding until 2006. It was his position that, as far as he was concerned, this reflected the reality that the Partners were, by this point, equal partners in IUD, each with distinct and complementary roles within the business. This is a matter to which I shall return later.
Mr Mkrtchan formally acquired his shareholding in late 2006: IUD issued additional share capital and allotted it to Mr Mkrtchan's corporate vehicle, Region LLC (‘Region’). The effect was that Vizavi held 33.84% of IUD, and each of Azovintex and Region held 33.08%. The reason for Mr Gaiduk's larger share was that earlier in the year it had been agreed with Mr Oleh Dubyna, who managed certain IUD-owned businesses, that he would receive a share in IUD by way of bonus. This was to be held for Mr Dubyna by Mr Gaiduk. The terms on which Mr Mkrtchan acquired his stake entail some dispute, as explained later.
On the same day, Mr Taruta's company Azovimpex Limited Liability Foreign Trade Company (‘Azovimpex’) acquired a 17% interest in Region, equal to an additional 5.62% interest in IUD. In practice, therefore, Mr Taruta held 38.70% and Mr Mkrtchan 27.46% of...
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