Helena Gorbunova v Boris Berezovsky (also known as Platon Elenin) and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mann |
| Judgment Date | 18 January 2013 |
| Neutral Citation | [2013] EWHC 76 (Ch) |
| Docket Number | Case No: HC12BO4996 |
| Court | Chancery Division |
| Date | 18 January 2013 |
[2013] EWHC 76 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mann
Case No: HC12BO4996
Robert Anderson QC and Sarah Haren (instructed by Mishcon de Reya) for the Claimant
Anthony Trace QC and Thomas Grant (instructed by Addleshaw Goddard LLP) for the Defendant
Hearing dates: 14 th and 15 th January 2013
This is an application by the defendant, Mr Berezovsky, to discharge an interim freezing order made against him on a without notice application at the behest of the claimant, Ms Gorbunova, on 20 th December 2012. He does so primarily on the basis that the evidence and other material placed before the deputy judge who made the order (Mr Roger Wyand QC) did not comply with the procedural rules and other principles for the making of without notice applications, though he also has criticisms of the form and extent of the restraint. His application is made under the liberty to apply contained in the freezing order.
Background
Ms Gorbunova was, until last year, the longtime partner of Mr Berezovsky, the by now well-known Russian emigré. There are two children of their relationship. She makes claims against Mr Berezovsky under the following heads. I describe the claims in outline only, and in some cases without any detail because of the confidentiality said to attach to the subject matter.
(a) She says that Mr Berezovsky promised her that when the house in which they lived at Wentworth Park was sold (which it was, last year) he would procure that she received £5,000,000 from the proceeds of sale, and within two years he would buy a substitute home for her and the two children. In fact, when the moneys were to hand, Mr Berezovsky used them to pay various debts and she did not see any of it.
(b) Mr Berezovsky claims to be the ultimate beneficial owner of two properties in the south of France. Those properties are held through a ladder of companies and trusts. Ms Gorbunova has also been told that she is a beneficiary under those trusts. She says that Mr Berezovsky has told her that she is the owner of the properties. She regards them as an important part of her financial security. A sale of those properties is being planned, and a purchaser identified. As a result of information received from the purchaser, and other investigations, and what she regards as the unreliability of Mr Berezovsky, Ms Gorbunova is fearful that she will not receive the proceeds of any such sale because Mr Berezovsky needs the money himself. She therefore fears that he will renege on his assurances.
(c) In September 2012 Mr Berezovsky settled a claim that he was making against the estate and representatives of a Georgian man called Badri Patarkatsishvili. The terms of that settlement were confidential. Ms Gorbunova has been told in outline what those terms are, but apparently has not seen the settlement document. Because those terms are confidential I will not set out in this judgment what she knows about those terms, save to say that Mr Berezovsky has an entitlement under that settlement, part of which is deferred moneys. Mr Berezovsky promised Ms Gorbunova that she would receive certain of those moneys, subject to various matters which entitled Mr Berezovsky to retain some. In essence, she claims an interest in some future receipts. However, she alleges that Mr Berezovsky has agreed to pay his former wife some of the same moneys. Ms Gorbunova complains about this.
(d) Ms Gorbunova asserts various claims that she says their children have against Mr Berezovsky under the Children Act 1989 which she issued in the Family Division on 11 th January 2013. She produces no evidence at all in support of those claims. All she does is refer to the opinion of a QC as to the range of values of such claims in aggregate. In the interests of the children, I will not, and do not need to, set out that range here.
Ms Gorbunova makes claims of the following nature arising out of those outline facts. First, she claims an interest in the first three items of property. Second, she makes contractual claims so far as any of those items of property are not available to be paid to her in accordance with the agreements made and assurances given at least in relation to Wentworth Park and the litigation proceeds. The hearing before me, quite properly bearing in mind the issues involved, did not go into the merits of those claims, and assumed they were good for the purposes of the hearing. Nothing in this judgment reflects in any way on the merits of those claims, either in terms of their overall merits or in terms of the extent to which they are arguable. Those are matters for another day.
Basing herself on those claims, on 18 th of December 2012 Ms Gorbunova applied for a freezing order against Mr Berezovsky and seven other defendants who, between them, are said to embody the chain of companies, trustees and Protectors having interests in, or control over, the French properties. The matter came before Mr Roger Wyand QC, sitting as a deputy judge of this Division. He heard the matter and apparently indicated that he would be minded to make an order, but there were certain matters relating to service out of jurisdiction and enforcement of the order abroad that needed to be dealt with. On 20 th December junior counsel for Ms Gorbunova attended before the deputy judge again to deal with those matters, and the order was made.
I do not need to set out the full terms of that order. It suffices if I describe it as having the following elements:
(i) Mr Berezovsky's assets up to £200m were frozen.
(ii) Mr Berezovsky and the various other defendants were restrained from dealing with the French properties without the consent of Ms Gorbunova.
(iii) Mr Berezovsky was restrained from dealing with the net proceeds of sale of Wentworth Park or any property representing those proceeds.
(iv) Mr Berezovsky was restrained from dealing with the proceeds or value of the settlement of the litigation.
The application was made without notice and Ms Gorbunova gave an undertaking that she would serve the order, the proceedings and application material "as soon as practicable".
The basis of the present application
Mr Berezovsky claims to have very substantial grounds for challenging the order because of a breach of the duty of full and frank disclosure and on the merits and on other grounds. However, he acknowledges that such an application will take some time to prepare and, in particular, a significant amount of time to hear (perhaps a matter of days), so that application cannot be speedily mounted. However, he also claims to have a good reason for having the order set aside on the basis that the material before the deputy judge was not sufficient to justify an urgent, without notice application. As will appear, he complains that the application and its supporting documentation did not comply with the letter of rules and practice directions, and the facts of the case were not sufficient to bring it within that exceptional class of cases in which an applicant is entitled to proceed without notice.
That application is said to be much shorter than the more substantive application, and therefore Mr Berezovsky sought to bring it on in the applications court. It was asserted on behalf of Mr Berezovsky that it could be dealt with within the time allowed for such applications. It is plain that that always was a completely hopeless prospect. The application required the court to have a grasp of a significant amount of detail and that was best dealt with by pre-reading. Pre-reading alone took over two hours. The hearing of the substantive application then took over 3 1/2 hours, and that is without a further significant amount of time spent determining the question (not at all straightforward) as to whether or not the application should be heard in private. It should never have been presented to the application court as one which was appropriate for it. Mr Berezovsky might have taken the view that it was urgent; I can see why he did. But his lawyers should have been more aware of the likely length of time necessary to hear it. Fortunately for him, I was available to take the matter outside the applications court list.
Privacy matters
Mr Berezovsky wished to have this application accompanied by what amounted to total privacy. He proposed that the proceedings be anonymised, that the hearing should take place in private and that all sorts of strictures should be added to the order preventing disclosure. On the day before the substantive hearing of the matter I ruled against the application that the listing be anonymised. At the hearing itself I ruled that it should take place in private because of confidentiality issues affecting some of the evidence and the interests of the children, but that the matter would be reviewed after the delivery of this judgment.
The basis of Mr Berezovsky's application
As indicated, on this occasion Mr Berezovsky confined himself to limited objections on the material submitted to the judge, without prejudice to his potential more widely-based application. He takes the following points:
(i) There was insufficient material to justify a completely without notice application, both in terms of technical shortcomings in the evidence and in terms of the quality of the evidence.
(ii) There was insufficient evidence of a risk of dissipation to justify a freezing order, even taking Ms Gorbunova's evidence at face value.
(iii) The order is wrong in that it provides for an aggregation of the £200m frozen amount and...
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