Jsc Bta Bank v Mukhtar Ablyazov and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Teare |
| Judgment Date | 17 May 2013 |
| Neutral Citation | [2013] EWHC 1836 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 17 May 2013 |
| Docket Number | No 2009 FOLIO 1099 |
[2013] EWHC 1836 (Comm)
IN THE HIGH COURT OF JUSTICE No 2009 FOLIO 1099
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Court No 8
The Rolls Building
100 Fetter Lane
London EC4
Mr Justice Teare
No 2009 FOLIO 1099
Mr S Smith QC, Mr T Akkouh and MS E GILLETT (instructed by Hogan Lovells International LLP) appeared on behalf of the Claimant/Applicant.
Mr D Matthews QC and Mr J Sheehan (instructed by Addleshaw Goddard) appeared on behalf of Salim Shalabayev.
Mr G Hayman (instructed by Addleshaw Goddard) appeared on behalf of Mukhtar Ablyazov.
Friday, 17 May 2013
APPROVED RULING
This is an application by the Bank for a final charging order in respect of a flat in Alberts Court in London. The Bank applies for a final charging order because in the contempt proceedings brought by the Bank against Mr Ablyazov it was determined that the flat in question was owned by Mr Ablyazov who is now a judgment debtor.
In the contempt proceedings Mr Ablyazov said that he was not the owner of the flat and that Mr Salim Shalabayev was. Mr Salim Shalabayev gave evidence that he was the owner but was not believed by the court. The court determined that Mr Ablyazov was the owner of the flat and Mr Ablyazov appealed against all the findings of contempt including that in relation to his ownership of Alberts Court and that appeal was dismissed.
In response to the application for a final charging order Mr Salim Shalabayev has through counsel and solicitors appeared to oppose the granting of a final charging order in respect of the flat in Alberts Court on the grounds that he, not Mr Ablyazov, is the beneficial owner of it.
His appearance to make that opposition has caused the bank, through Mr Smith, to submit that it would be an abuse of process to permit Mr Salim Shalabayev to challenge the finding made in the contempt proceedings because such attempt is a collateral attack on the findings made in the contempt proceedings.
Mr Salim Shalabayev was not a party to the contempt proceedings. Mr Smith has reserved the question whether or not he was a privy of Mr Ablyazov but today he relies upon the statement of principle by Sir Andrew Morritt as Vice Chancellor in Secretary of State for Trade and Industry v Bairstow [2003] EWCA civ 321 at paragraph 38 where after an extensive review of the authorities Sir Andrew Morritt set out the propositions established by those authorities.
Paragraph (d) of those propositions is as follows:
"If the parties to the latest civil proceedings were not parties to or privies of those who were parties to the earlier proceedings, then it will only be an abuse of the process of the court to challenge the factual findings and conclusions of the judge or jury in the earlier action if:
"(i) it would be manifestly unfair to a party to the later proceedings that the same issue should be re-litigated; or
"(2) to permit such litigation would bring the administration of justice into disrepute."
Mr Smith submits that to permit Mr Salim Shalabayev to mount a collateral attack on the finding in the contempt proceedings would bring the administration of justice into disrepute.
Mr Matthews, on behalf of Salim Shalabayev, submits that the principle there stated by Sir Andrew Morritt does not apply in the case of somebody, such as his client, Salim Shalabayev, who was only a witness in the previous proceedings.
Mr Matthews points out that in the cases to which Sir Andrew Morritt referred the person seeking in subsequent proceedings to challenge a finding made in an earlier set of proceedings had been a party to the earlier set of proceedings and that accordingly, the statement of principle by Sir Andrew Morritt, which I have quoted, should not be regarded as applying to the position of someone such as Salim Shalabayev who was not a party to the contempt proceedings but was a mere witness in them.
The statement of principle by Sir Andrew Morritt is certainly wide enough to encompass the present case where Mr Salim Shalabayev was not a party to the earlier proceedings but was only a witness.
It seems to me that in principle there is no reason why the doctrine of abuse of process based on a collateral attack should not be capable of extending to the position of a witness to the earlier proceedings who becomes a party to the later proceedings. Obviously his position is different from that of someone who was a party to the proceedings but that difference should be taken into account when deciding whether the collateral attack would bring the administration of justice into disrepute.
That the doctrine of collateral attack and abuse of process should not be limited in the way suggested by Mr Matthews is in my judgment supported by the dicta in Conlon v Simms [2008] 1 Weekly Law Reports 484 in two places.
Firstly, in paragraph 141 Lord Justice Jonathan Parker referred to what Lord Diplock had said in the Hunter case, namely...
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