IPJSC United Company Rusal v Whiteleave Holdings Ltd

Hearing dates: 09 and 10 December 2025

This judgment was handed down remotely at 10:30am on Friday 30 January 2026 by circulation to the parties' representatives by e-mail and release to the National Archives

Nigel Cooper KC:

Introduction

On 09 and 10 December 2025, I heard the Third Case Management Conference ( “CMC 3”) in this action. The First Case Management Conference ( “CMC 1”) took place on 10 July 2025, at which Bryan J. listed this action for a 14 week-trial in Easter and Trinity Terms 2027, and ordered that disclosure should take place on 08 May 2026. The Second Case Management Conference ( “CMC 2”) took place on 27 October and resulted in s.1 of the Disclosure Review Document ( “DRD”) being settled subject to two outstanding points which have now been resolved. The DRD identifies some 46 disclosure issues.

At the start of CMC 3, there were seven matters for resolution:

i) First, the obligations of the Second Defendant (hereafter “Mr. Potanin”) to provide disclosure of documents held by (i) PJSC MMC Norilsk Nickel (“NN”) and (ii) certain subsidiaries of NN on the basis that he has both legal and/or practical control of such documents for the purposes of PD 57AD.

ii) Second, whether there should be disclosure of documents from external custodiansof the First and Second Defendants (hereafter collectively “the Defendants” while the First Defendant is referred to as “ Whiteleave”), specifically Interros Group documents, and documents held by the lawyers and corporate service providers who have acted or are acting for Mr. Potanin or the Interros Group.

iii) Third, s.1 DRD points held over from CMC2, namely the wording of Issuefor Disclosure ( “IFD”) 18A and the test for relevance when considering whether Mr Potanin has directly or indirectly benefitted from impugned transactions.

iv) Fourth, whether the Defendants should be ordered to file a new DRD s.2 specificallyaddressing a series of questions, summarised in the Fourth Witness Statement of Ms. Bischof.

v) Fifth, the date ranges and searches to be used for Model D disclosure, to theextent these have not been agreed by the hearing.

vi) Sixth, issues relating to the Flash Drive (defined below).

vii) Seventh, amendment applications by the Claimant and by the Defendants.

In a spirit of cooperation, which is to be commended, the parties were able to resolve many of the second to seventh items listed above between themselves on terms which are recorded in my order of 16 December 2025, while others were resolved by oral rulings during the hearing of CMC 3. Accordingly, this reserved judgment is only concerned with the first item listed above, namely the extent of Mr. Potanin's obligations to provide disclosure of documents held by (i) NN and (ii) certain subsidiaries of NN on the basis that he has both legal and/or practical control of such documents for the purposes of PD 57AD.

It is important to emphasise at the start of this judgment that to the extent I address the issue of whether Mr. Potanin has legal or practical control over documents held by NN or its subsidiaries, I do so purely for the purposes of determining the extent of his disclosure obligations in this action and solely by reference to the tests for ‘control’ found under English law and Russian law in the context of disclosure. Nothing I say below is to be taken as making any finding or, indeed, expressing any view on the question of whether Mr. Potanin (or Whiteleave) has control of NN or its subsidiaries for any other purpose including for the purposes of the claims or counterclaims made in this action or for the purposes of any sanctions or counter-sanctions legislation.

So far as the other defendants are concerned, any issues between the Claimant and the Third Defendant were resolved prior to CMC 3 and the Third Defendant took no part in the hearing. The Fourth Defendant also took no part in CMC 3.

Evidence for the purposes of Rusal's Disclosure Application

Rusal's application was supported by the Fourth and Fifth Witness Statements of Ms. Olga Bischof, a partner with PCB Byrne, the law firm instructed on behalf of Rusal, as well as by two expert reports on Russian law from Mr. Maxim Kulkov.

In support of their opposition to Rusal's application, Mr. Potanin and Whiteleave rely on the First Witness Statement of Mr. Maxim Kuleshov, a partner with KKMP, the Russian law firm advising Mr. Potanin and Whiteleave, as well as an expert report on Russian law from Ms. Tatyana Neveeva.

Happily, there were not too many issues in dispute between the experts and both are well-qualified to act as experts on Russian law. To the extent there were issues between them, there is an inevitable difficulty that I did not hear their evidence tested under cross-examination. However, both experts appended their source materials to their reports and I have where necessary referred back to those materials for the purposes of resolving any conflicts in their evidence.

Background

The background to the action generally is summarised in the Agreed Case Memorandum and List of Issues. What follows is a further brief summary.

The parties are all shareholders (direct or indirect) or the ultimate beneficial owners of shares, in NN (or, on the Third Defendant's case, it was formerly such a shareholder). NN is a Russian company which, together with its subsidiaries (collectively the “NN Group”), is one of the world's largest producers of nickel, palladium, platinum, rhodium, copper and cobalt. NN's operations are centred in and around the town of Norilsk, which is in a remote part of northern Siberia.

The Claimant (hereafter “Rusal”) is a Russian company and (together with its subsidiaries) one of the world's largest producers of aluminium and alumina. It has been a major shareholder in NN since 2008.

Whiteleave is part of the Interros Group and is owned and controlled by Mr. Potanin. Mr. Potanin has, through various Interros Group entities, been a major beneficial owner of shares in NN since 1995.

Alongside being a major beneficial owner of shares in NN since 1995, Mr. Potanin is also the President and General Director of NN, a position equivalent to being a Chief Executive Officer. Mr. Potanin holds his position at present as a result of, and on the terms of, the Framework Agreement (discussed below).

An account of Mr. Potanin's wealth and the way in which he carries on business can be taken from the recent Supreme Court and Court of Appeal judgments in financial remedy proceedings arising out of Mr. Potanin's 2014 divorce from Ms. Natalia Potanina. The judgments are reported as Potanin v Potanina [2024] AC 1063 and Potanin v Potanina (No.2) [2025] EWCA Civ 1136 respectively. Two points are relevant to the question of disclosure in this action:

i) Almost all of Mr. Potanin's assets are held by the use of various trusts andcompanies; see the remarks of Lord Leggatt at [16].

ii) Mr. Potanin relies on trusted individuals to carry out his instructions and managehis assets. It appears from the answers provided in s.2 of the DRD filed by the Defendants that Mr. Potanin does almost nothing that is not done via his staff or proxies. His position is that he does not retain any hard copy or electronic documents or files; has no electronic document repositories under his control, does not have or use or a computer, smartphone, tablet, e-mail or any text or web messaging services and only uses his Nokia mobile for personal calls. In other words he runs NN as well as his other business interests exclusively by receiving reports and giving instructions in oral conversations but without apparently retaining any records of what is said. Rusal does not accept Mr. Potanin does not hold directly any relevant documents but says that the important inference of his position must be that where Mr. Potanin controls documents held by third parties, he should be obliged to obtain, search and disclose them.

The Third Defendant (hereafter “Crispian”) is a Cypriot company which acquired a shareholding in NN in 2013 as part of an arrangement by which the Fourth Defendant (hereafter “Mr. Abramovich”) who, at least at that time, owned and controlled Crispian, was to take on the role of “peacemaker” between Whiteleave (and Mr. Potanin) and Rusal (and, as at that time, Mr. Deripaska).

Rusal brings claims for breaches of a written agreement, “the Framework Agreement” (the “FA”), which was entered into on 10 December 2012 as part of the settlement of certain long-running disputes between Rusal and Interros as to the management of NN. The FA was subsequently amended by a number of “Side Letters” incorporated into its terms. Pursuant to clause 5.8, the FA and any dispute or claim arising out of or in connection with it is governed by English law and expressly subject to the jurisdiction of the High Court of England & Wales.

In the context of whether it is just and proportionate to make a disclosure order against Mr. Potanin in the terms sought by Rusal, it is significant that the signatories, including Mr. Potanin, expressly agreed to the jurisdiction of the High Court because they will have done so in circumstances where it can be reasonably inferred that they and...