Gorbachev v Guriev
| Jurisdiction | England & Wales |
| Neutral Citation | [2024] EWHC 247 (Comm) |
| Year | 2024 |
| Court | King's Bench Division (Commercial Court) |
2024 Jan 31
Evidence - Witness - Examination of witnesses - Parties seeking order that defendant and witness give evidence abroad by way of depositions taken by judge sitting as special examiner - Whether jurisdiction to grant order for taking of evidence during rather than before trial - Factors relevant to exercise of discretion to make order -
The claimant brought a claim against the defendant in relation to ownership of a Russian business. The defendant and his son, on whose evidence the defendant wished to rely, were Russian nationals who were prohibited from entering the United Kingdom. In advance of a trial in the High Court, the claimant and defendant applied jointly for an order pursuant to CPR r 34.8F1 that during the trial the evidence of the defendant and his son be taken on commission in Dubai by the judge sitting as a special examiner appointed pursuant to rule 34.13(4).
On the application—
Held, granting the application, that narrowly interpreted, the effect of CPR rr 34.8 and 34.13 was that evidence could only be taken on commission before the start of and not during the trial, but that approach was unduly narrow given the court’s general case management powers in the CPR and its inherent jurisdiction to manage its own procedures and the cases before it; that, in all cases, the choice between evidence given by video link during the course of the trial and the taking of evidence abroad by a judge using the special examiner procedure was not a choice between a sub-optimal and an optimal solution but rather involved deciding which of two sub-optimal solutions was the most appropriate in the circumstances; that in most cases it was highly likely that the balance would favour evidence being given by video link on cost and convenience grounds; but that since in the present the central allegation depended on a careful assessment of the oral evidence, the risk of something being lost in the course of the video link was significantly more important than it would be in a conventional commercial claim where the commercial arrangement was the subject of extensive contemporaneous written material; that also there were difficulties with giving evidence by video link because of the need to use translators; and that, accordingly, the balance came down in favour of using the special examiner procedure (post, paras 11, 13–15, 19).
APPLICATION
In a claim brought by the claimant, Alexander Gorbachev, the defendant, Andrey Grigoryevich Guriev, sought an order that the trial judge take his evidence and that of his son, Andrei Andreevich Guriev Jr, in Dubai while sitting as a special examiner having appointed himself to that role pursuant to CPR r 34.13(4). The application was supported by the claimant.
The facts are stated in the judgment, post, paras 1–3.
Paul Stanley KC and Christopher Lloyd (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the claimant.
Tom Weisselberg KC and Daniel Cashman (instructed by PCB Byrne) for the defendant.
The court took time for consideration.
31 January 2024. JUDGE PELLING handed down the following judgment.
1 On 16 January 2024, I heard an application made jointly by the claimant and defendant for an order that the evidence of the defendant and his son Mr Guriev Junior, be taken on commission at the DIFC court in Dubai by me sitting as a special examiner. Following the conclusion of the hearing, I informed the parties that I had decided to accede to the submissions for reasons I would give at a hearing fixed for 31 January 2024. This judgment sets out those reasons.
2 As both parties accept, there are two elements to the application. The first is whether the English court has jurisdiction to make orders for a trial judge to designate him or herself a special examiner for the purpose of taking evidence overseas during the course of the trial; and secondly, assuming there is such a jurisdiction, whether, as a matter of discretion, an order to that effect should be made.
3 By an e-mail sent to the parties prior to the hearing, I asked them to consider the degree to which there was a public policy consideration relevant to either jurisdiction or the exercise of discretion given that the only reason either the defendant or his son is precluded from giving evidence in England is that they are designated persons under regulation 5 of The Russia (Sanctions) (EU Exit) Regulations 2019 (the “Regulations”). This point had not been addressed by the parties down to that point. That issue was addressed at the outset of the hearing. It is convenient to consider this issue first before turning to the more general considerations that arise relating to jurisdiction and discretion.
4 The express purpose for which the Regulations were made are those set out in regulation 4 of the Regulations, being, for the purposes of:
“(1) encouraging Russia to cease actions destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty, or independence of Ukraine: and
“(2) promoting the payment of compensation by Russia for damage, loss or injury suffered by Ukraine on or after 24 February 2022 as a result of Russia’s invasion of Ukraine.”
5 The Regulations are divided up into a series of Parts. By regulation 20 of the Regulations designated persons are excluded persons for the purposes of section 8B of the Immigration Act 1971. The effect of this provision is that neither the defendant nor his son are able to enter the UK. Regulation 20 appears in Part 4. Part 4 contains no anti-circumvention provisions. Regulation 20 does not come within the scope of regulation 3, which is concerned with contraventions that occur by conduct occurring wholly or partly outside the UK. Broadly, aside from the immigration effect already described, the Regulations operate by freezing the assets of designated persons—see Part 3 of the Regulations. Chapter 3 of Part 3 contains express anti-circumvention provisions. They expressly apply only to the prohibitions contained in regulations 11 to 18(c) and so do not apply to regulation 20. I should add that, as is well known, the asset freeze prohibitions can be disapplied by HM Treasury, either by general licence or by a specific licence, that general licences have been issued that permit...
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Alexander Gorbachev v Andrey Grigoryevich Guriev
...or with the express consent of the Authority. All rights are reserved. IN THE HIGH COURT OF JUSTICE No CL-2020-000358 BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES COMMERCIAL COURT (KBD) [2024] EWHC 247 (Comm) Rolls 7 Rolls Buildings Fetter Lane London EC4A 1NL Wednesday, 31 January 202......
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Alexander Gorbachev v Andrey Grigoryevich Guriev
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