Madison Pacific Trust Limited v Sergiy Mykolayovch Groza & Anor
| Judge | Mr Justice Bryan |
| Neutral Citation | [2024] EWHC 2307 (Comm) |
| Year | 2024 |
| Court | Queen's Bench Division (Commercial Court) |
| Counsel | Nathan Pillow Kc,Mubarak Waseem |
| Date | 30 August 2024 |
Neutral Citation Number: [2024] EWHC 2307 (Comm)
Case No: CL-2023-000005
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
IN AN ARBITRATION CLAIM
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 30 August 2024
Before :
The Hon. Mr Justice Bryan
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Between :
Madison Pacific Trust Limited Claimant
- and -
Sergiy Mykolayovch Groza and
Volodymyr Serhiyovch Naumenko
Defendants
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Nathan Pillow KC and Mubarak Waseem (instructed by Hogan Lovells International LLP)
for the Claimant
The Defendants were not represented and did not appear.
Hearing date: 30 August 2024
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APPROVED JUDGMENT
MR JUSTICE BRYAN:
A. INTRODUCTION
1. There are before me today the hearing of two applications (previously ordered by the
Court to be heard on an expedited basis on this date in August 2024):
(1) The application of Madison Pacific Trust Limited (the “Claimant”), dated 25 June
2024 (the “Contempt Application”) to sanction the Defendants, Sergiy Mykolayovch
Groza (“D1”) and Volodymyr Serhiyovch Naumenko (“D2”), collectively “the
Defendants”, for contempt of court, namely deliberate non-compliance with, and
breach of a Disclosure Order made by, Jacobs J on 19 April 2024 (sealed on 24 April
2024), and endorsed with a penal notice in the usual form (the “Disclosure Order”);
and
(2) The Defendants' (responsive) applications dated 6 August 2024 for a declaration that
the Court has no jurisdiction in respect of the Contempt Application because, in
particular, permission to serve out of the jurisdiction was not obtained by the Claimant
(the “Jurisdiction Application”).
2. Pursuant to the direction of the Court, the Defendants' Jurisdiction Application is to be
considered first. If successful, the Contempt Application would not, of course, proceed.
It is the Claimant's case, however, that the Court does have jurisdiction to determine the
Contempt Application and that the Jurisdiction Application should be dismissed.
3. The Contempt Application is made in relation to what the Claimant says are the
Defendants' deliberate and contumacious breaches of the Disclosure Order which was
made ancillary to a worldwide freezing order (“WFO”) granted by His Honour Judge
Pelling KC (sitting as a Judge of the High Court) on 13 January 2023. The Disclosure
Order was made largely to enforce compliance with the standard form disclosure
obligations in the WFO. It required the Defendants to disclose categories of information
and documents relating to their assets, including nominee arrangements, the recipients of
some US$97 million in dividends, and the identity of lenders to D1's corporate holding
vehicle since the granting of the WFO.
4. The Claimant says that the Defendants have not complied with the Disclosure Order in
any respect at all; nor have they ever purported to do so. To the contrary, on 13 May
2024 at 4.20 pm (20 minutes after the deadline for compliance had passed), the
Defendants wrote (via their representatives in Ukraine) explaining to the Claimant that
they would not be complying with the Disclosure Order. That letter enclosed a Draft
Application to set aside both the WFO (again a prior application to discharge the WFO
having been dismissed by Jacobs J in February 2024) and the Disclosure Order, or to
suspend them pending an award in an underlying arbitration (the “Draft Application”). In
the event, the Draft Application has never been served or fixed for hearing, and does not
fall for determination at this hearing.
1
B. THE POSITION OF THE DEFENDANTS AT THIS TIME
5. The position of the Defendants at the present time is that they are formally litigants in
person. Whilst the evidence before me in the Fourth Affidavit of Oliver Humphrey
(“Humphrey 4”, filed in support of the Claimant's Contempt Application), and in the
Fourth Witness Statement of D2 (“Naumenko 4” - filed in support of the Jurisdiction
Application) is that they have had legal assistance, they no longer have English solicitors
on the record. They are not represented before me today (nor have they appeared before
me today). However, the details provided in their various Notices of Change are relevant
to the issues that arise before me in relation to service and they are as follows:
(1) The Defendants were most recently represented by Hill Dickinson LLP (having
originally been represented by Kobre & Kim). They were represented by leading and
junior counsel at the hearing before Jacobs J in February 2024 when they applied,
unsuccessfully, to discharge the WFO.
(2) Hill Dickinson purported to come off the record shortly thereafter, on 15 March 2024.
However, their Notice of Change was non-compliant in failing to set out an address in
the jurisdiction at which the Defendants could be served (see CPR 6.23(3) and PD 42,
para 2.4). Instead it gave the address in Kyiv of Pavlenko Legal Group LLC
(“Pavlenko”), a Ukrainian law firm.
(3) Following a series of letters between Hogan Lovells International LLP (“Hogan
Lovells”) (representing the Claimant) and Hill Dickinson, an updated Notice of
Change was filed on 15 April 2024. That Notice properly gave an address for service
in the jurisdiction at the UK address of Fortior Law SA (“Fortior”), the Swiss law firm
representing the Defendants in the underlying arbitration proceedings – along with the
Defendants' personal email addresses.
(4) The Claimant issued the Contempt Application on 25 June 2024. It is apparent that
the Defendants took legal advice in relation to the Contempt Application (and which
they were therefore clearly aware of), because a matter of days thereafter on 1 July
2024, Fortior Law UK LLP (“Fortior UK”) wrote to the Court noting that it had been
instructed to act for the Defendants albeit "... solely for the purposes of challenging
the Court's jurisdiction in the committal proceedings and seeking to set aside service
of the same." Fortior UK then filed the Defendants' purported Acknowledgments
of Service dated 9 July 2024 before a further Notice of Change was served on 11 July
2024, stating that Fortior UK had ceased to act for the Defendants, and again
providing an address of Fortior in London (and the Defendants' personal email
addresses) for service. That remains the position as at the date of today's hearing.
6. In terms of the evidence before the Court, at least until late yesterday, the Defendants had
not served any written evidence dealing with the Contempt Application. On 22 August
2024, D1 sent an email to Hogan Lovells stating that "D2 will be submitting evidence to
the Court." It appears therefore that D1 was associating himself with the evidence which
it was contemplated would be served by D2 in due course. That is consistent with
previous evidence served by D2 with which D1 associated himself. No date was given as
to when that evidence would be served and none was received until an eighty-page fifth
statement of D2 (“Naumenko 5”), was filed yesterday, to which I will need to return in
2
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