JSC BTA Bank v Roman Vladimirovich Solodchenko and Others (14) Syrym Shalabayev (15) Alexander Udovenko and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Briggs |
| Judgment Date | 17 May 2011 |
| Neutral Citation | [2011] EWHC 1613 (Ch) |
| Court | Chancery Division |
| Docket Number | Claim No. HC10C02462 |
| Date | 17 May 2011 |
[2011] EWHC 1613 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London
WC2A 2LL
Mr Justice Briggs
Claim No. HC10C02462
Mr Stephen Smith QC and Miss Emily Gillett (instructed by Messrs Hogan Lovells) appeared on behalf of the Claimant/Applicant.
The Fourteenth Defendant/Respondent did not attend and was not represented.
This is an application by the claimant, JSC BTA Bank, to commit Syrym Shalabayev to prison for contempt of court by reason of his failure to comply with the disclosure provisions in an international freezing order served personally on him in Cyprus on 5 th November 2010. An unusual feature of this case is that, since service of the freezing order and the substituted service of the committal application, Mr Shalabayev has done nothing of any kind to respond, either by communicating with the Bank or with the court, or by instructing legal representatives to do so. He has not, therefore, attended today nor offered any excuse for not doing so.
The questions, therefore, arise:
(i) should the court proceed to hear the application in Mr Shalabayev's absence; and
(ii), if so, and if the contempt alleged is proved, should the court proceed immediately to sentence, again in his absence, or adjourn for a sufficient time before sentence to give him a final opportunity, either to purge his contempt or to raise any relevant matters in mitigation?
Since the answers to those questions depend upon, substantially, the same evidence as is relied on by the Bank to prove the alleged contempt, it is convenient to set out that evidence and, in particular, the procedural history of the matter first.
The Bank's claim against Mr Shalabayev is, in summary, that he was centrally involved in a misappropriation of very substantial assets of the Bank and in the dishonest concealment of the proceeds of their realisation for the ultimate benefit of his brother-in-law, Mr Ablyazov. A measure of the loss alleged to have been caused to the Bank by Mr Shalabayev's conduct can be derived from the £200 million upper limit of the without notice freezing order granted against him by Henderson J on 3 rd November 2010.
Paragraphs 9 to 11 of that freezing order, contained under the heading "Provision of Information", imposed the following obligations on Mr Shalabayev:
"9. (1) Unless sub-paragraph (2) applies, each Respondent must within seven working days of service of this order and to the best of his/its ability after making all reasonable enquiries:
(a) inform the Applicant's solicitors in writing of all of his/its worldwide assets exceeding in value £10,000, whether in his/its own name or not and whether solely or jointly owned and whether the Respondent is interested in them legally or beneficially or otherwise, giving the value, location and details of all such assets;
(b) supply to the Applicant's solicitors copies of all documents in his/its control (which for these purposes shall mean documents which are or were in his/its physical possession and/or to which he/it has a right to possession and/or to which he/it has a right to inspect or take a copy) which evidence the matters set out in (a) above.
(2) If the provision of any of this information is likely to incriminate the Respondent, he/it may be entitled to refuse to provide it, but he/it is recommended to take legal advice before refusing to provide the information. Wrongful refusal to provide the information is contempt of court and may render the Respondent liable to be imprisoned, fined or have his/its assets seized.
10. (1) Unless sub-paragraph (2) applies, each Respondent must within seven working days of service of this order:
(a) to the best of his/its ability, and after making all reasonable enquiries, provide the answers in writing to the questions set out in Schedule D hereto; and
(b) supply to the Applicant's solicitors copies of all documents in his/its control (which for these purposes shall mean documents which are or were in his/its physical possession and/or to which he/it has a right to possession and/or to which he/it has a right to inspect or take a copy) which evidence the matters set out in (a) above.
(2) If the provision of any of this information is likely to incriminate the Respondent, he/it may be entitled to refuse to provide it, but he/it is recommended to take legal advice before refusing to provide the information. Wrongful refusal to provide the information is contempt of court and may render the Respondent liable to be imprisoned, fined or have his/its assets seized.
11. Within ten working days after being served with this order, the Respondents must swear and serve on the Applicant's solicitors an affidavit setting out the above information."
The reference in paragraph 10(1)(a) to Schedule D is a reference to a series of questions, by way of interrogatories, about payments referred to in an earlier schedule, Schedule C, designed to require Mr Shalabayev to provide information of a tracing nature to assist the Bank in finding, if possible, where the proceeds of the assets to which I have referred are now to be found.
Service of the freezing order occurred, as I have said, on 5 th November 2010. Service is verified by the Bank's service agent, a Mr Marios Pavlou, who is a private service process officer, appointed by the Supreme Court of Cyprus, and it describes personal service on Mr Shalabayev at the Curium Palace Hotel, Limassol in Cyprus, including the freezing order itself, an order for service out of the jurisdiction and a letter from the Bank's solicitors, which specifically drew to the recipient's attention the disclosure obligations in the freezing order, warned him of the consequences of non-compliance and encouraged him to obtain legal advice.
The letter also made reference to the Bank's wish to serve further documents on Mr Shalabayev as soon as possible, including an application for continuation of the freezing order. In fact, the evidence shows that Mr Shalabayev had left the hotel when, on the following day, the process server endeavoured to serve those additional documents.
The disclosure obtained pursuant to further court orders from Yahoo, an email service provider, shows that Mr Shalabayev has been in the habit, continuing after the service of the freezing order upon him, of using email accounts with that service provider, including...
To continue reading
Request your trial
-
Alfa-Bank v Reznik
...set out by Roth J in JSC BTA Bank v. Stepanov [2010] EWHC 794 Ch. at para.12, and Briggs J, as he then was, in JSC BTA v. Solodchenko [2011] EWHC 1613 Ch. at 13. 17 Applying those principles, the first consideration is the reason for Mr. Reznik's absence. As I have identified, he is subject......
-
Alfa-Bank v Reznik
...set out by Roth J in JSC BTA Bank v. Stepanov [2010] EWHC 794 Ch. at para.12, and Briggs J, as he then was, in JSC BTA v. Solodchenko [2011] EWHC 1613 Ch. at 13. 17 Applying those principles, the first consideration is the reason for Mr. Reznik's absence. As I have identified, he is subject......
-
Bonnier Books UK Group Holdings Ltd v Richard Marcus Johnson
...EWHC 1790 (Comm) [28]–[36] (Flaux J); JSC BTA Bank v Stepanov [2010] EWHC 794 (Ch) [12] (Roth J); and JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch) [13] (Briggs J). Each of Stepanov and Solodchenko involved committal applications. In Solodchenko Briggs J made it clear that the court sho......
-
The Law Society of England and Wales v Mr Jakub Wojchiech Pawlak
...next few weeks, ideally in the week commencing 29 November 2021. 127 My reasoning is as follows. 128 In JSC BTA Bank v Solodchenko [2011] EWHC 1613 (Ch) at [16], Briggs J identified that it may be appropriate to adjourn sentencing after a finding of contempt where the committal proceedings......
-
Contempt Of Court In Bankruptcy Case
...that the present application be heard in the absence of R by reference to the checklist set out in JSC BTA Bank v Solodchenk [2011] EWHC 1613 (Ch) which required the Judge to consider (amongst other things) The absent party had been served with notice of the hearing (with sufficient time to......