Nataliya Golubovich v Alexey Golubovich
| Jurisdiction | England & Wales |
| Judge | Master Marsh |
| Judgment Date | 30 July 2021 |
| Neutral Citation | [2021] EWHC 2099 (Ch) |
| Docket Number | BL-2020-000671 |
| Court | Chancery Division |
and
[2021] EWHC 2099 (Ch)
DEPUTY Master Marsh
BL-2020-000671
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF
ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building
Fetter Lane
London EC4A 1NL
Laurence Emmett QC (instructed by Enyo Law LLP) appeared for Claimant and the Part 20 Defendant
Rupert D'Cruz QC and Douglas James (instructed by Withers LLP) appeared for the Defendant/Part 20 Claimant
HEARING (by Teams)
June 2021
Judgment:
In this judgment I will, for convenience, refer to the parties using their given names. Alexey is the defendant and the Part 20 claimant. He was married to Olga who is the Part 20 defendant. They were divorced by a decree of a court in Moscow in 2012. Nataliya, their daughter, is the Claimant. She is aged 27 and lives in London at 28 Upper Mall, Hammersmith, London W6, and in Moscow. Both Alexey and Olga are resident in Moscow.
The claim concerns a substantial and valuable art and antiques collection focussed on Buddhist Art and Chinese Antiques which was acquired during the course of the marriage between Alexey and Olga and held at 28 Upper Mall when it was the family home in London. There is now a dispute about who owns the collection. Nataliya has brought this claim against her father seeking an order for delivery up of a significant proportion of the art and antiques. Alexey has defended the claim, counterclaimed against Nataliya and issued an additional claim against Olga. He obtained permission to serve the additional claim on Olga out of the jurisdiction in Russia by an order of Deputy Master Lloyd made on 21 July 2020. This judgment concerns Olga's application to set aside that order.
It is convenient to set out here, in brief form, the chronology of events from the date of issue of this claim that are relevant to Olga's application:
(1) Nataliya issued this claim against her father in London in April 2020. He has not disputed the jurisdiction of this court to try the claim. Her claim is founded upon a ‘Deed of Gift’ dated 30 September 2019 under which Olga assigned the collection of art and antiques to Nataliya.
(2) Alexey served a defence and counterclaim on 2 June 2020 and on the same date issued the additional claim against Olga. Alexey relies inter alia upon a ‘Deed of Settlement’ dated 27 September 2013 between him and Olga under which Olga transferred her interest in the art and antiques to him.
(3) On 21 July 2020 Deputy Master Lloyd made an order giving Alexey permission to serve the additional claim on Olga in Russia. The order was made at an ex parte hearing.
(4) The additional claim was deemed served on Olga on 30 July 2020.
(5) On 18 August Olga commenced proceedings in the Presnenskiy District Court of Moscow (“the Presnenskiy Proceedings”) seeking a declaration that the 2013 Deed of Settlement between her and Alexey is a forgery.
(6) On 1 September 2020 Nataliya served a reply and defence to Alexey's counterclaim.
(7) On 28 September 2020 Alexey applied for an anti-suit injunction in London restraining Olga from pursuing the Presnenskiy Proceedings.
(8) On 23 October 2020 Olga filed an acknowledgement of service saying she intended to dispute the jurisdiction of this court.
(9) On 3 November 2020 Charles Morrison, sitting as a Deputy Judge of the High Court, dismissed Alexey's application for an anti-suit injunction.
(10) On 6 November 2020 Olga issued an application notice disputing the court's jurisdiction on the basis that Olga is not a necessary or proper party to the claim and/or that England is not the natural forum for the claim. The application also disputed the validity of service of the additional claim, but that point is no longer pursued.
(11) On 23 December 2020 the Presnenskiy District Court ruled that Olga did not sign the Deed of Settlement and therefore it is invalid.
(12) On 30 April 2021 an appeal court in Moscow upheld the decision of the Presnenskiy District Court.
(13) On the same date Alexey issued further proceedings against Olga in Russia alleging that money held in banks outside Russia are marital assets.
(14) On 15 June 2021 Olga's application issued on 6 November 2020 was heard before me.
Olga relies upon events that post-date the hearing before Deputy Master Lloyd on 21 July 2020 as being relevant to the determination of her application:
(1) She says the judgment of the Deputy Judge on Alexey's application seeking an anti-suit injunction determined that England is not clearly or distinctly the most appropriate forum and it would be an abuse of the court's process for Alexey to contend otherwise on the hearing of Olga's application.
(2) She also relies upon the decisions of the Russian courts relating to the Deed of Settlement and the fact that Alexey has issued fresh proceedings against her in Russia.
There is no dispute between the parties that the core tests to be applied on an application for permission to serve out of the jurisdiction are those derived from the decision of the Privy Council in Altimo Holdings v Kyrgyz Mobile Tel Ltd [2011] UKPC 7 delivered by Lord Collins at [71]. For the English court to take jurisdiction and give permission to serve out in the circumstances of this case where Alexey relies on ground set out at paragraph 3.1(4) of Practice Direction 6B (“Gateway 4”) it must be satisfied that:
(1) There is a serious issue to be tried on the merits applying the same test as the first limb of CPR rule 24.2;
(2) Alexey has made out a good arguable case that Olga is a necessary or proper party to the claim or the additional claim;
(3) England is clearly or distinctly the most appropriate forum for the trial of the claim and that in all the circumstances the court ought to exercise its jurisdiction to permit service out of the jurisdiction.
Mr Emmett who appeared for Olga submitted that where the court is faced with an issue of law on an application for permission to serve out of the jurisdiction, and the question of law goes to the existence of the jurisdiction, the court should decide it. The proposition is not in itself controversial. The notes at 6.37.14 (on page 376) of Civil Procedure 2021 discuss the point fully. It is worth recording, however, that the approach is not an absolute invariable rule. First, the facts upon which the issue of law is to be decided must be clear. Secondly, there are exceptions, in the same way as under CPR rule 24.2, where the point is particularly difficult. It is uncontroversial that the more doubtful the point of law, the more cautious the court should be about deciding the point for the purposes of a jurisdiction application.
Before proceeding to consider the relevant facts there are two points that can be dealt with at this stage. The first is what is the correct approach to considering the proper party test? The second is to what extent is the court entitled to have regard to events taking place after the original grant of permission to serve out of the jurisdiction? I will deal with them in turn.
As to the first point, the correct test can be found in judgment of the Privy Council delivered by Lord Collins in Altimo Holdings at [87] under the heading: “One investigation”/ “closely bound up”:
“87. … the question whether D2 is a proper party is answered by asking: “Supposing both parties had been within the jurisdiction would they both have been proper parties to the action?”: Massey v Heynes & Co (1888) 21 QBD 330 at 338, per Lord Esher MR. D2 will be a proper party if the claims against D1 and D2 involve one investigation: Massey v Heynes & Co at 338, per Lindley LJ; applied in Petroleo Brasiliero SA v Mellitus Shipping Inc (The Baltic Flame) [2001] EWCA Civ 418, [2001] 1 Lloyd's Rep 203, at [33] and in Carvill America Inc v Camperdown UK Ltd [2005] EWCA Civ 645, [2005] 2 Lloyd's Rep 457, at [48], where Clarke LJ also used, or approved, in this connection the expressions “closely bound up” and “a common thread”: at [46], [49].”
The terms “necessary” and “proper” are not synonymous. A necessary party will always be a proper party but the reverse is not so. They are, however, alternatives and it suffices to consider whether Olga is a proper party, always bearing in mind that caution is needed when bringing a party into this jurisdiction. 1
Mr D'Cruz, who appeared for Alexey submitted that if the court determines that it is proper for the additional claim to be tried in England, because it is closely bound up with the main claim and/or there is a common thread between the two claims, it is a short step to conclude that England is the appropriate forum. He relies upon dicta to that effect in Credit Agricole Indosuez v Unicof [2003] EWHC 2676 (Comm) at [19] where Cooke J said that to establish Gateway 4 “virtually concludes the question” of appropriate forum and went on to say:
“… “if proceedings are going on in this jurisdiction on the self-same or linked issues, this is clearly the most appropriate forum for those common and connected issues to be tried between all relevant parties.”
I respectfully adopt those observations noting, however, that “virtually concludes” does not obviate the need for the issue of forum to be considered. A determination that the additional party is a proper party to either the main claim or the additional claim is likely to be very influential on the subject of forum, but it is not conclusive.
The second point concerns the nature of the hearing when an application is made to set aside an order granting permission to serve out of the jurisdiction. Here it suffices to refer to the short discussion at [91] in the judgment of Marcus Smith J in Microsoft Mobile Oy v Sony Europe Ltd [2017] EWHC 374 where he cites with approval a passage in Briggs Civil Jurisdiction and Judgments 6 th ed. at p460. An...
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Nataliya Golubovich v Alexey Golubovich
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