Helena Gorbunova v The Estate of Boris Berezovsky (also known as Platon Elenin) (Deceased) and Others

JurisdictionEngland & Wales
CourtChancery Division
JudgeMr Justice Arnold
Judgment Date22 Jul 2016
Neutral Citation[2016] EWHC 1829 (Ch)
Docket NumberCase No: HC12B04996

[2016] EWHC 1829 (Ch)

IN THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

Rolls Building

Fetter Lane, London EC4A 1NL

Before:

Mr Justice Arnold

Case No: HC12B04996

Between:
Helena Gorbunova
Claimant
and
(1) The Estate of Boris Berezovsky (also known as Platon Elenin) (deceased)
(2) Societe D'Investissments France Immeubles
(3) Ovaco AG
(4) Comodo Limited
(5) LMC Trustees Limited
(6) Fotopark Limited
(7) Steelville Limited
(8) Lev Krant
(9) Nicholas Stewart Wood (as Trustee of the Estate of Boris Berezovsky)
(10) Kevin John Hellard (as Trustee of the Estate of Boris Berezovsky)
(11) Michael Thomas Leeds (as Trustee of the Estate of Boris Berezovsky)
Defendants

Henry Legge QC, Leon Sartin and Hugh Cumber (instructed by Withers LLP) for the Claimant

Elspeth Talbot Rice QC and Donald Lilly (instructed by Holman Fenwick Willan LLP) for the Ninth to Eleventh Defendants

Hearing dates: 6–7 July 2016

Mr Justice Arnold

Contents

Topic Paragraphs

Introduction

1

Ms Gorbunova's evidence

2–42

The relationship between Ms Gorbunova and Mr Berezovsky

3–9

Death of Badri Patarkatsishvili in 2008 and subsequent litigation

10–14

End of the relationship in 2011

15–16

The December 2011 conversation

17–23

The January 2012 conversation

24–25

The Litigation Deed

26–31

The Commercial Court judgment and settlement with the AP Family

32–36

The Litigation Agreement and the Settlement Agreement

37–41

Commencement of the proceedings

42

The death of Mr Berezovsky and the appointment of the Trustees

43

The proceedings

44–46

The Litigation Deed

47

The Litigation Agreement

48–49

Principles applicable to summary judgment applications

50

Principles applicable to the interpretation of written documents

41–52

Did either the Litigation Deed or the Litigation Agreement establish a trust?

53–73

The law

55–59

The Litigation Deed

60–65

The Litigation Agreement

66–71

Conclusion

72–73

Ms Gorbunova's amendment application

74–75

Did either the Litigation Deed or the Litigation Agreement constitute an equitable assignment?

76–86

The law

79

The Litigation Deed

80–82

sThe Litigation Agreement

83–85

sConclusion

86

Ms Gorbunova's claims for rectification

87

The law

88

The Litigation Deed

89–94

The Litigation Agreement

95–97

Conclusion

98

Ms Gorbunova's claims for proprietary estoppel and constructive trust

99

The law

100

The Litigation Deed

101–105

The Litigation Agreement

106–110

Conclusion

111

Other estoppels

112

Overall conclusions

113

Introduction

1

There are two applications before the Court. The first is an application by notice dated 20 May 2016 by the Ninth to Eleventh Defendants ("the Trustees"), who are the joint trustees of the insolvent estate of the late Boris Berezovsky ("the Estate") to strike out, alternatively for summary judgment dismissing, certain proprietary claims made by the Claimant ("Ms Gorbunova"), who was Mr Berezovsky's long-term partner. The second is an application by Ms Gorbunova to re-amend her Particulars of Claim to introduce claims of equitable assignment, rectification, proprietary estoppel and constructive trust and other estoppels. The second application was only foreshadowed during the course of, and made following the conclusion of, the hearing of the first application. I am grateful to the Trustees' counsel and solicitors for their readiness to argue the second application the following day, which avoided the need for a separate hearing possibly before a different judge.

Ms Gorbunova's evidence

2

Counsel for Ms Gorbunova relied heavily for the purpose of resisting the Trustees' application upon a lengthy and detailed witness statement of Ms Gorbunova running to 221 paragraphs. This witness statement was also relied upon in support of Ms Gorbunova's own application, although as will be seen counsel for the Trustees submitted that significant parts of the draft Re-Amended Particulars of Claim are in fact inconsistent with it. There is no dispute that, for present purposes, Ms Gorbunova's account must be assumed to be true. Accordingly, I must summarise that account.

The relationship between Ms Gorbunova and Mr Berezovsky

3

Mr Berezovsky had two marriages, to Nina Korotkova and Galina Besharova. Ms Gorbunova and Mr Berezovsky commenced their relationship in 1991 in Russia. They began cohabiting in 1993. In 1996 and 1997 they had two children together, their daughter Arina and their son Gleb. They had a wedding ceremony in 1999 and they exchanged wedding rings. They only discovered later that they had not been married, because Mr Berezovsky had not yet been divorced from Galina. Although they were technically never married, they were for all intents and purposes husband and wife for almost 20 years.

4

Mr Berezovsky, a highly successful businessman, was the "breadwinner" of the relationship. From about 1993 to 1999 Mr Berezovsky was politically well connected. In common with many Russian oligarchs, Mr Berezovsky conducted many of his business dealings very informally, even when very large value transactions were taking place.

5

Ms Gorbunova was at Mr Berezovsky's side as his business and political connections grew during the 1990s. She was his partner and his ally through these times. Mr Berezovsky treated her as a confidant. From her involvement with Mr Berezovsky's dealings she had a good understanding of their wealth, though she was not aware of the precise nature of the structures in which the family assets were held.

6

Given their wealth as a couple, they enjoyed a luxurious lifestyle. Despite their wealth, the couple faced considerable difficulties during their lives together. Mr Berezovsky was the target of death threats and assassination attempts even before his political exile, which also threatened the lives of those around him. A driver was killed in a car bomb attempt which seriously injured Mr Berezovsky in 1994, and it was only good fortune which protected Ms Gorbunova from injury. From 1994 onwards, they required a high level of security at all times.

7

In 1999 Mr Berezovsky told Ms Gorbunova that he viewed his family as having three branches, and that each would get a third if anything were to happen to him.

8

In 2000 the family fled from Russia. They first lived in France, before moving to the United Kingdom in 2001. The family moved to a property known as Wentworth Park in Surrey, which was chosen and furnished by Ms Gorbunova. In 2003 Mr Berezovsky was able to obtain political asylum, and he changed his name to Platon Elenin. The threats against the couple continued during their time in the UK, and the reality of these threats was brought home by the murder of Alexander Litvinenko in 2006.

9

Mr Berezovsky always assured Ms Gorbunova that she would be financially secure if he should die suddenly. It was important to the family that she should have a " ???????" (zanachka), which roughly translates as a "secret stash" or "secret nest-egg". In particular, Mr Berezovsky assured Ms Gorbunova that Wentworth Park and its contents were hers. A yacht known as Thunder B, and another yacht which was in the process of being constructed, the Darius, were also treated by the couple as belonging to Ms Gorbunova. She received about €50 million from the sale of the Darius in 2008.

Death of Badri Patarkatsishvili in 2008 and subsequent litigation

10

Mr Berezovsky faced considerable difficulties when his long-time business partner Arkady Patarkatsishvili (known as "Badri") died unexpectedly in February 2008. Badri and Mr Berezovsky were involved in business joint ventures together, and his death created cash-flow problems for Mr Berezovsky, as Badri had had control of many of Mr Berezovsky's assets. This led to Mr Berezovsky commencing proceedings against Badri's family ("the AP Family").

11

In addition to his dispute with the AP Family, by 2009 Mr Berezovsky was conducting litigation on a number of other fronts, including a claim against Roman Abramovich, a claim against Vasily Anisimov relating to an entity called Metalloinvest and a claim concerning certain entities called Salford. These four claims are referred to as "the Litigation".

12

It was understood that the outcome of Mr Berezovsky's litigation would benefit the family. He was concerned to ensure that his litigation should continue for his family's benefit if he should die suddenly, and attempted to make arrangements to that effect.

13

Just as with his business dealings, Mr Berezovsky would discuss his litigation in detail with Ms Gorbunova. Ms Gorbunova permitted Mr Berezovsky to make use of large sums from her accounts to fund his litigation. It was always understood that he would repay these sums regardless of the outcome of the litigation. Ms Gorbunova also permitted Mr Berezovsky to use her yacht, the Thunder B, to obtain a tape recording Mr Berezovsky thought would assist his case against Mr Abramovich.

14

In 2010 Ms Gorbunova agreed to Mr Berezovsky raising a mortgage over the family home at Wentworth Park.

End of the relationship in 2011

15

The relationship between Mr Berezovsky and Ms Gorbunova gradually deteriorated in 2011. However, in 2011 both Mr Berezovsky and Ms Gorbunova were heavily involved in the action against Mr Abramovich, the trial in which began in October 2011. Ms Gorbunova was a witness for Mr Berezovsky in the action and accompanied him to court every day.

16

Evidence in the trial concluded in early December 2011, removing the distraction of attending court. At the time Mr Berezovsky was pressing Ms Gorbunova to permit him to raise more money using the family home at Wentworth Park. This brought things to a head, and in late December 2011 Mr Berezovsky and...

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