Jsc Bta Bank v Mukhtar Ablyazov (Defendant/Applicant)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HAMBLEN |
| Judgment Date | 08 March 2012 |
| Neutral Citation | [2012] EWHC 648 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Docket Number | Claim no 2009 Folio 1099 |
| Date | 08 March 2012 |
[2012] EWHC 648 (Comm)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
COMMERCIAL COURT
Rolls Building
Fetter Lane
London EC4
Mr Justice Hamblen
Claim no 2009 Folio 1099
Mr Stephen Smith and Mr Tim Akkouh (instructed by Hogan Lovells) appeared on behalf of the Claimant.
This is an application by the claimant to amend aspects of a Receiving Order obtained against the defendants in August 2010.
The application is made without notice and in private and is supported by the Receivers who have been represented at the hearing.
The background to the application is set out in a series of judgments which Mr. Justice Teare has given in these proceedings. The general background to the proceedings and to the Receivership Order is set out in his judgment of 16 July 2010 and in particular paragraphs 1 to 35, 126 to 147, and 161 to 170. The immediate background leading up to the present application is covered in his sentencing ruling of 16 February 2012 and his judgment of 29 February 2012.
In summary, the claimant bank has claims which I am informed total some $4.5 billion against the defendants and in particular the first defendant Mr. Ablyazov. It is alleged that the claimant's assets were misappropriated when Mr. Ablyazov was chairman of the claimant bank. There are eight sets of proceedings in the Commercial Court and one in the Chancery Division.
Since August 2009, the claimant has done what it can to ensure that Mr. Ablyazov's assets are preserved so that they will be able to meet any judgment subsequently obtained. The steps taken have included obtaining a worldwide freezing order against Mr. Ablyazov in August 2009, cross-examining Mr. Ablyazov as to his personal asset disclosure in late 2009, obtaining the Receivership Order in August 2010 and adding 636 undisclosed companies to the Receivership Order in January, April and May 2011.
In February 2012, the bank obtained an order committing Mr. Ablyazov to prison for a period of 22 months for three deliberate substantial contempts of court. The allegations found proved concerned the non-disclosure of assets in breach of the freezing order, the giving of false evidence on oath, and dealings with assets contrary to the terms of the freezing order. The recent events which have prompted the present application are essentially these.
Firstly, Mr. Ablyazov has, it would appear, gone into hiding. He did not, despite indications given otherwise to the Court, attend the handing down of the Court's judgment on the contempt application. He failed to attend the judgment and has since disappeared and has not informed his solicitors of his whereabouts.
Secondly, Mr. Batyrgareyev, who is Mr. Ablyazov's principal disclosed nominee, would appear to have taken a number of recent steps to procure formal corporate documentation relating to companies within Mr. Ablyazov's asset holding structures, seemingly for the purpose of dealing with such companies or their assets contrary to terms of the freezing and receivership orders. In particular, it has recently come to the claimant's attention that there has been an attempt to sell a valuable asset covered by the Receiving Order, namely Mr. Ablyazov's 10 per cent interest in a company called Novaya Tabachnaya Companiya in return for consideration of 77 million Euros.
There have been Cypriot proceedings brought by third parties in relation to this purported sale in which reference is made to a notice given from a company called Instem, of whom the director is said to be Mr. Batyrgareyev. That notice refers to a sale on 10 February of the shareholding and steps were taken in the Cypriot proceedings to seek to prevent that sale from being completed.
Thirdly, in his committal judgment Mr. Justice Teare found at paragraph 33 that Mr. Batyrgareyev had executed backdated novation agreements on Mr. Ablyazov's instructions for the purpose of dealing with frozen assets and frustrating the Receivership Order.
The application is supported by the 37th witness statement of Mr. Hardman and also by the Receivers' report dated 6 March 2012. The amendments which are sought to the Receivership Order and the justification for those amendments are explained in the Receivers' report, in Mr. Hardman's statement and the supporting skeleton argument the Claimant has provided for this hearing.
The Claimant seeks to vary the Receivership Order in the following respects:
"a. To appoint the Receivers as 'receivers and managers' over certain companies within Schedule 3 to the Receivership Order. Such an appointment will extinguish the powers vested in the current directors (Messrs Batyrgareyev and Kythreotis) to administer these companies and their assets.
"b. To amend paragraphs 12B and 12C of the Receivership Order so that the Receivers can use the powers granted under those paragraphs to obtain information about the assets which Mr. Ablyazov has disclosed.
"c. To list in Schedule 3 to the Receivership Order each company of which Mr. Ablyazov has admitted ownership, in order to make it clear that the Receivers' powers extend to the same.
"d. To amend paragraph 2 of Schedule 4 to the Receivership Order, to make it clear that the Receivers are only prevented by that paragraph from carrying on the business of certain CIS-based operating companies.
"e. To bring within the scope of the receivership the three UK properties which Mr. Justice Teare has found, to the criminal standard, belong to Mr. Ablyazov.
"f. To correct a small number of minor errors in Schedules 3A to 3C of the Receivership Order, and to add additional persons and entities to Schedule 5 to the Receivership Order."
The jurisdiction to make the orders sought derives from section 37(1) of the Senior Courts Act 1981, which provides that:
"The High Court may by order (whether interlocutory or final) grant an injunction or appoint a receiver in all cases in which it appears to the court to be just and convenient to do so."
The present application includes an application to appoint...
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...breach of full and frank disclosure at the time the Injunction Application was made” and the decision in JSC BTA Bank v Ablyazov [2012] EWHC 648 (Comm) is cited in support of this proposition. 68 I accept Mr Brownbill's submission that this argument does not assist Mr Gilbert or Conyers in......
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