JSC Commercial Bank Privatbank v Igor Valeryevich Kolomoisky
| Jurisdiction | England & Wales |
| Court | Chancery Division |
| Judge | Mr Justice Trower |
| Judgment Date | 30 July 2025 |
| Neutral Citation | [2025] EWHC 1987 (Ch) |
| Docket Number | Case No: BL-2017-000665 |
ass="generated-from-justis-xml" data-justis-datasource="TRVC">
THE HONOURABLE Mr Justice Trower
Case No: BL-2017-000665
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Robert Anderson KC, Andrew Hunter KC, James Willan KC, Tim Akkouh KC, Christopher Lloyd, Catherine Jung, Conor McLaughlin and David Baker (instructed by Hogan Lovells International LLP) for the Claimant
Mark Howard KC, Michael Bools KC, Alec Haydon KC, Alexander Milner KC, Geoffrey Kuehne and Jagoda Klimowicz (instructed by Fieldfisher LLP) for the First Defendant
Clare Montgomery KC, Nathaniel Bird and Alyssa Stansbury (instructed by Enyo Law LLP) for the Second Defendant
Thomas Plewman KC and Marc Delehanty (instructed by Pinsent Masons LLP) for the Third to Eighth Defendants
Hearing dates: 12, 13, 14, 15, 16, 19, 20, 21, 22, 26, 27, 28 and 29 June 2023; 3, 4, 5, 6, 20, 24, 25, 26 and 27 July 2023; 2, 3, 4, 5, 9, 10, 11, 12, 16, 17, 18, 19, 30 and 31 October 2023; 1, 2, 6, 7, 8, 9 and 10 November 2023
Approved Judgment
This judgment was handed down in court at 10.30am on 30 July 2025 and by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Contents of the Judgment
| Heading | Page No. |
| Introduction to the claims | 7 |
| The nature of the evidence: legal principles | 16 |
| The witnesses of fact called by the Bank | 19 |
| The Bank's other evidence of fact | 24 |
| Witnesses not called by the Bank | 25 |
| Absence of oral evidence from the Individual Defendants | 26 |
| Other evidence of fact withdrawn by Mr Kolomoisky | 29 |
| Interlocutory witnesses not called by the Defendants | 31 |
| Other available witness not called by the Defendants | 32 |
| The documentary evidence | 40 |
| Absent witnesses and deficient disclosure: the inferences to be drawn | 49 |
| Introduction to the Bank and its management | 50 |
| The General Meeting | 52 |
| The Supervisory Board | 54 |
| The Management Board | 57 |
| Other divisions within the Bank | 61 |
| The Individual Defendants and their relationship | 63 |
| PBC | 66 |
| Primecap | 70 |
| The Cypriot CSPs | 75 |
| Introduction to the Misappropriation and the forensic accounting experts | 75 |
| The Relevant Loans | 80 |
| The Supply Agreements | 85 |
| Security for the Relevant Loans | 89 |
| The Relevant Drawdowns | 94 |
| Cash Repayments and the Intermediary Loans | 101 |
| Developments in late 2014 and 2015 | 103 |
| The 2014 Ukrainian Proceedings | 105 |
| Glavcom, the LIGABusinessInform Interview and the GPO investigation | 107 |
| NashiGroshi and the Luchaninov e-mail | 110 |
| The related parties' reports and the Rokoman Spreadsheet | 115 |
| The Restructuring Plan and the proposal for the Asset Transfers | 121 |
| The mechanics of the Asset Transfers | 133 |
| The Transformation | 134 |
| The period between nationalisation and the commencement of these proceedings | 146 |
| Exercise by Mr Kolomoisky of influence and control over the Bank and its affairs | 152 |
| Exercise by Mr Bogolyubov of influence and control over the Bank and its affairs | 159 |
| The Deeds of Waiver and Indemnity | 166 |
| Summary of the influence and control of the Individual Defendants | 172 |
| Ownership and control of the Borrowers and Intermediary Borrowers | 173 |
| Ownership and control of the Corporate Defendants and the ED Principals | 183 |
| Ownership and control of the New Borrowers | 189 |
| Benefit to the Individual Defendants | 191 |
| Conclusions as to the role of the Defendants in the Misappropriation | 197 |
| Foreign Law: General | 199 |
| Foreign Law: the Experts | 200 |
| Ukrainian Law: general | 202 |
| Ukrainian law: Article 1166 and the elements of the cause of action | 203 |
| Article 1166: Unlawful Conduct | 204 |
| Unlawful conduct: breach of the fiduciary duties | 205 |
| Unlawful conduct: scope and context of the fiduciary duties | 208 |
| Is a criminal offence an unlawful act? | 211 |
| Acts of procurement as unlawful acts | 214 |
| Breaches of Articles 3 and 13 as unlawful conduct | 215 |
| Ukrainian law: the scope of Article 3(1)(2) | 222 |
| Article 1166: Harm | 224 |
| Article 1166: causal link between unlawful conduct and harm | 225 |
| Article 1190: Joint liability | 230 |
| Article 1166: fault | 233 |
| Void and voidable contracts: an introduction | 236 |
| Void and voidable contracts: the principles of Ukrainian law | 240 |
| Were the Relevant Loans, RSAs, Intermediary Loans and New Loans void? | 249 |
| The Repayment Defence: Outline | 253 |
| The original Repayment Defence and the Bank's answer to it | 255 |
| The Repayment Defence: genesis of the Defendants' case on choice | 266 |
| The Repayment Defence: the Defendants' case on choice | 268 |
| Facts on which the Defendants rely to establish the Bank's choice | 271 |
| The Use of Funds Defence and the bigger fraud argument | 279 |
| The Repayment Defence: Asset Transfers | 289 |
| The ownership of the Transferred Assets | 294 |
| Relevance of the Valuation of the Share Pledges | 301 |
| Asset Transfers: the expert valuation evidence | 303 |
| Asset Transfers: value of the Petrol Stations | 306 |
| Petrol station valuations: fuel volumes | 307 |
| Petrol station valuations: RONIC | 315 |
| Petrol station valuations: country risk premium | 318 |
| Petrol station valuations: the market approach | 320 |
| Asset Transfers: value of the OSFs | 325 |
| Asset Transfers: value of Hotel Zirka | 338 |
| Asset Transfers: value of Hotel Mir | 340 |
| Asset Transfers: value of Kyiv Office | 343 |
| Asset Transfers: value of the Dnipro Office | 345 |
| Asset Transfers: value of the Stadium | 347 |
| Asset Transfers: value of the Training Centre | 353 |
| Asset Transfers: value of the Airfield | 358 |
| Asset Transfers: value of the Aircraft | 361 |
| Unlawful conduct of the Individual Defendants: Article 1166 | 367 |
| The liability of the Individual Defendants under Article 1166: harm and causation | 370 |
| The liability of the Corporate Defendants under Article 1166: harm and causation | 375 |
| Relevance of the English Agency Agreements | 382 |
| Claims in Restitution | 383 |
| Unjust Enrichment: Ukrainian law: Introduction | 387 |
| Unjust Enrichment: Ukrainian law: causation and indirect enrichment | 389 |
| Unjust Enrichment: Ukrainian law: insufficient legal grounds | 393 |
| Unjust Enrichment: Cypriot law | 394 |
| Unjust Enrichment: Cypriot law: section 70 of the Contract Law | 395 |
| Unjust Enrichment: Cypriot law: section 65 of the Contract Law | 399 |
| Unjust Enrichment: Cypriot law: an independent cause of action | 402 |
| Unjust Enrichment: Cypriot law: change of position and remedy | 404 |
| Unjust Enrichment: applying the law to the facts | 405 |
| The Limitation Defence: Overview | 407 |
| The Limitation Defence: Construction of the Civil Code | 412 |
| Limitation: the requirement for knowledge | 414 |
| Article 261(1): Of what must the claimant be actually or constructively aware? | 417 |
| Limitation: burden of proof | 423 |
| Limitation: attributing knowledge to the Bank | 426 |
| Limitation: attribution of knowledge: the Charter | 432 |
| Limitation: attribution of knowledge through individuals performing a duty | 434 |
| The relevance of Article 267(5) to awareness under Article 261 | 439 |
| Article 267(5): disapplying the limitation period | 442 |
| 447 | |
| Limitation: findings on knowledge and awareness | 449 |
| Limitation: the 2014 Ukrainian Proceedings as a source of the Bank's knowledge | 452 |
| Limitation: the Glavcom Article as a source of the Bank's knowledge | 453 |
| Limitation: other records as a source of the Bank's knowledge | 459 |
| The Bank's answer to the extent of its awareness pre-21 December 2014 | 460 |
| Application of Article 267(5): the position of the Bank | 465 |
| Application of Article 267(5): the position of the Defendants | 469 |
| Limitation: the claims against the Corporate Defendants | 475 |
| Limitation: the Cypriot Borrowers and Prominmet | 477 |
| Foreign Limitation Periods Act 1984 and Article 26 of Rome II | 483 |
| Currency of the Bank's claim | 485 |
| Disposition | 490 |
Introduction to the claims
At the time of the events with which these proceedings are concerned, the claimant, JSC Commercial Bank Privatbank (the “Bank”), was Ukraine's largest bank. It was declared insolvent by the National Bank of Ukraine (“NBU”) on 18 December 2016 and was nationalised over the course of the following days. These proceedings have been brought by the Bank against two of its founding shareholders, the first defendant, Igor Kolomoisky and the second defendant Gennadiy Bogolyubov (together the “Individual Defendants”), and six companies said to be owned or controlled by them (the third to eighth defendants (the “Corporate Defendants”)) seeking compensation for harm caused by what the Bank alleges to have been their participation in a fraudulent scheme carried out prior to nationalisation.
The Bank also seeks relief against the Corporate Defendants in unjust enrichment. The
It is...
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