Loudmila Bourlakova v Oleg Bourlakov
| Jurisdiction | England & Wales |
| Judge | Mr Justice Trower |
| Judgment Date | 26 May 2022 |
| Neutral Citation | [2022] EWHC 1269 (Ch) |
| Docket Number | Case No: BL-2020-001050 |
| Court | Chancery Division |
[2022] EWHC 1269 (Ch)
THE HONOURABLE Mr Justice Trower
Case No: BL-2020-001050
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Royal Courts of Justice
Rolls Building
7 Fetter Lane, London
EC4A 1NL
Helen Davies QC, Matthew Cook QC, Patrick Harty, Georgina Petrova and Daniel Fletcher (instructed by Mishcon de Reya LLP) for the Claimants
Andrew Scott (instructed by Asserson Law) for the 6 th Defendant
James Willan QC and Adam Woolnough (instructed by PCB Byrne LLP) for the 7 th, 8 th, 10 th, 11 th and 12 th Defendants
Hearing dates: 25, 26, 29, 30 November and 1 December 2021
Further written submissions 13 and 23 December 2021, 1 and 8 March 2022
Introduction and the Parties
This judgment is primarily concerned with challenges by some of the defendants to the jurisdiction of the English court. It is contended by those of the applicants who are domiciled outside the EU that orders granting permission to serve out ought not to have been made or that the proceedings ought now to be stayed on the grounds that England is a forum non conveniens. In the case of those applicants domiciled in the EU it is said that stays ought to be granted under article 34 of the Brussels Regulation (Recast) (Regulation (EU) No. 1215/2012) (the “BRR”).
Stays are also sought on case management grounds and by one of the defendants pursuant to section 9 of the Arbitration Act 1996. There are also applications to set aside extensions of the claim form and a challenge by one of the defendants to service on him in Latvia.
The claimants are Mrs Loudmila Bourlakova and two companies of which she is the ultimate beneficiary, one of which (Hermitage One Limited (“H1”)) is incorporated in the Isle of Man and the second of which (Greenbay Invest Holdings Limited (“Greenbay”)) is incorporated in the Seychelles.
The first defendant is Mr Oleg Bourlakov, who died on 21 June 2021, which was after the commencement of these proceedings but before the applications to challenge jurisdiction had been made. The major part of his and his family's wealth derived from the acquisition and subsequent sale of Novoroscement OJSC, a major Russian cement producer, which was sold for US$1.45 billion in 2007.
Both Mrs Bourlakova and Mr Bourlakov are or were Ukrainian, Russian and Canadian nationals. At the material time they were both domiciled in Monaco, although during the course of their marriage they had lived in a number of other jurisdictions including Canada. They were married in Ukraine in June 1972, where their two children were born in 1973 and 1984: Elena who lives in Canada and Veronica who is married to Mr Gregory Gliner and lives in London.
The claimants allege that, since late 2017, there had been an irretrievable breakdown in marital relations between Mr Bourlakov and Mrs Bourlakova. On 19 December 2018, divorce proceedings were initiated by Mrs Bourlakova in Monaco. It was common ground in the Monaco divorce proceedings that the law governing the matrimonial property regime is Ukrainian law and the Ukrainian concept of community property applied to the marriage. The Monegasque courts remained seised of the divorce proceedings at the time of Mr Bourlakov's death.
The second to fourth defendants were all involved in the provision of fiduciary corporate services and advice to Mr Bourlakov, together with companies and foundations owned or controlled by him. The second defendant, Mr Daniel Tribaldos, who is domiciled in Switzerland, owns or controls a substantial proportion (the precise amount of which may be in dispute) of the shares in the third defendant, Leo Services Holding Limited (“Leo Holding”), an English company of which Mr Tribaldos is the sole director. In turn, Leo Holding owns all of the shares in the fourth defendant, Leo Trust Switzerland AG (“Leo Trust”), a company incorporated in Switzerland and Leo Trust Cyprus Ltd (“Leo Cyprus”), a company incorporated in Cyprus. Mr Tribaldos is also a director of both Leo Trust and Leo Cyprus.
The fifth defendant, Mr Reuwen Schwarz, was a director of Leo Trust until February 2020 and is domiciled in Israel. A family trust associated with Mr Schwarz indirectly holds shares in Leo Holding through a Panamanian company, Rudan Business Holdings SA (“Rudan”). He is now in dispute with Mr Tribaldos, apparently as a result of his discovery of some of the matters of which the claimants make complaint in these proceedings. Litigation arising out of that dispute is currently proceeding in England.
The sixth defendant, Mr Semen Anufriev, is a relative of Mr Bourlakov's and a German qualified lawyer. He was managing director of the Bourlakov family office and since 2012 has played a central role in the management of Mr Bourlakov's business interests and personal wealth. He is domiciled in Latvia.
The seventh and eight defendants are Mr Bourlakov's brother-in-law, Mr Nikolai Kazakov and his wife, Mr Bourlakov's sister, Mrs Vera Kazakova. Although Mr Kazakov initially said that he was domiciled outside the EU in Monaco, he has now withdrawn his evidence to that effect and accepts that at the material times he was domiciled within the EU in Estonia. The claimants point to the circumstances in which this evidence was changed in support of a submission that I should not place any weight on evidence from the Kazakovs in the absence of independent corroboration. There is a dispute, which is one of the issues that arises on these applications, as to whether Mrs Kazakova was also domiciled in Estonia as the claimants contend or whether, as she contends, she was domiciled in Russia.
The ninth to thirteenth defendants are all companies incorporated in Panama. It is said by the claimants that Mrs Bourlakova and/or Mr Bourlakov (and now his estate) have been or continue to be the ultimate beneficial owners of each of them through their interest in other Panamanian companies or foundations including Delos Global SA (“Delos”), Tribatline Stiftung (“Tribatline”), Anahill Stiftung (“Anahill”), Wlamil Stiftung (“Wlamil”), Fondacion Merenguito (Merenguito”) and Hemaren Stiftung (“Hemaren”), as to which:
i) Tribatline and Merenguito (“the Foundations”) are said by the claimants to have been in the sole beneficial ownership of Mrs Bourlakova between about March 2014 and the date of their dissolution on about 15 May 2018.
ii) Mr Bourlakov is said by the claimants to have been the controller and ultimate beneficial owner of Anahill and Hemaren at all material times until his death. The claimants believe that Mr Kazakov and Mrs Kazakova may be the nominees through which Mr Bourlakov's control and ultimate beneficial ownership was achieved.
iii) Mr Kazakov is said by the claimants to have been the sole named beneficiary of Wlamil, acting as a nominee for Mr Bourlakov.
The precise ownership of the ninth to thirteenth defendants and how they have come to be owned or controlled by the protagonists to this dispute are amongst the issues with which these proceedings are concerned. For present purposes, it suffices to summarise what the claimants say about their ownership and control as follows:
i) The ninth defendant, Columbus Holding and Enterprises SA (“Columbus”): the claimants allege that Columbus' current shareholder is Anahill and that Columbus was misappropriated from Tribatline (by which it had been owned since March 2014) prior to Tribatline's dissolution on about 15 May 2018.
ii) The tenth defendant, Finco Financial Inc (“Finco”): the claimants allege that Finco was originally in the beneficial ownership of Mr Bourlakov but was transferred to Tribatline in March 2014. They say that its current shareholder is Wlamil, having been transferred to Wlamil in February 2019 via Delos, and therefore that Mr Bourlakov was Finco's controller at all material times between the dissolution of Tribatline on about 15 May 2018 and his death. He exercised that ownership and control through Mr Kazakov as the sole named beneficiary of Wlamil acting as his nominee.
iii) The eleventh defendant, Gatiabe Business Inc (“Gatiabe”): the claimants allege that, having been dissolved in December 2014 and reactivated in June 2018, Gatiabe's current shareholder is Wlamil, to whom it was transferred in February 2019 by Delos. It is said that, as with Finco, Mr Bourlakov was Gatiabe's controller and ultimate beneficial owner at all material times until his death through Mr Kazakov as the sole named beneficiary of Wlamil acting as his nominee.
iv) The twelfth defendant, Edelweiss Investments Inc (“Edelweiss”): the claimants believe that its current shareholder is Hemaren and that it was misappropriated from Merenguito when its shares were transferred prior to Merenguito's dissolution on about 15 May 2018. It is said to have remained under the de facto control of Mr Bourlakov at all times prior to his death.
v) The thirteenth defendant, IPEC International Petroleum Co Inc (“IPEC”): the claimants allege that its shares were held by Tribatline from March 2014. It went into liquidation in December 2015 and was dissolved on...
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