Ojsc Tnk-Bp Holding and Another v Igor Lazurenko
| Jurisdiction | England & Wales |
| Judge | The Chancellor,The Chancellor of,The High Court |
| Judgment Date | 16 October 2012 |
| Neutral Citation | [2012] EWHC 2781 (Ch) |
| Date | 16 October 2012 |
| Court | Chancery Division |
| Docket Number | Case No: HC12C02678 |
[2012] EWHC 2781 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Chancellor of the High Court
Case No: HC12C02678
Nicholas Stewart QC, Jonathan Price and James Ramsden (instructed by Bryan Cave) for the Claimant
Neil Kitchener QC and Owain Draper (instructed by Mishcon de Reya) for the Defendant
Hearing dates: 9—10 October 2012
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic. THE CHANCELLOR OF THE HIGH COURT
The High Court The Chancellor Introduction
TNK-BP Group is a leading Russian oil company. It was formed in 2003 in consequence of the merger of the oil and gas interests in Russia of BP with those of the Alfa, Access and Renova group. The claimants (TNK-BP) are respectively the holding and management companies within the group. The defendant, Mr Lazurenko, has been employed by the second claimant on the terms of an employment contract made between them on 1st September 2003, until January 2010 as head of logistics and thereafter, until 27th April 2012, as head of the Department of New Business, Development and Processing. The contract ("Employment Contract") contains two material provisions, namely:
1. "During and after termination of the employment a Manager shall keep in strict secrecy and confidence all matters and/or documents, which he may be aware of, regarding the affairs, interests or operations of the Company or any of its employees, clients or any other persons or business contacts, connected with the Company, and will not disclose such matters or documents, unless properly authorised to do so by the Company, and will not use them for personal purposes or on behalf of third parties;" (clause 2.1.7)
2. "If the parties are unable to settle disputes or differences between them by means of direct negotiations, such disputes or differences shall be resolved in Russian courts of common jurisdiction in accordance with the laws of the Russian Federation." (clause 7.1)
In March 2012 Mr German Khan, the executive director of the second claimant, instituted an internal inquiry into the propriety of the alleged receipt of substantial sums by Mr Lazurenko in the course of his employment. Mr Lazurenko sought and was granted unpaid leave. He left his office on 26th March 2012 and submitted his resignation to Mr Khan by letter dated 27th April 2012. Proceedings ("the Fraud Claim") to recover the allegedly corrupt receipts from Mr Lazurenko and others were instituted by TNK-BP in England on 6th August 2012.
In the meantime, on 26th June 2012, Mr Lazurenko met Mr Egorov, the Vice-President, Legal Affairs of the second claimant, and Mr Maydannik, the Chief Legal Officer, Executive Vice-President for Legal Support of the second claimant, in the offices in London of his solicitors, Mishcon de Reya. There, in circumstances of the strictest security and confidence, Mr Lazurenko showed to Mr Maydannik the contents of 2 A4 Files ("the Documents"). Each file contained a draft statement of Mr Lazurenko followed by the papers relating to that statement. The first file covered events occurring in 2003/04, the second with relations between TNK-BP and a number of other organisations including Skilton, Hawar, Divers Reinsures, Eastonberry and OilMax. Mr Maydannik correctly understood that Mr Lazurenko considered that these documents "would be damaging to TNK-BP if disclosed because they purport to reveal high-level personnel engaging in corrupt behaviour".
On 10th July 2012 TNK-BP applied to Roth J, sitting in private, for an interim without notice injunction restraining Mr Lazurenko until 17th July 2012 or further order from disclosing the Documents or any of them. The application was made on the basis of witness statements from Mr Egorov and the solicitor for TNK-BP, Mr Dougans. The latter exhibited a witness statement of Mr Maydannik. Roth J duly made the order sought. The claim form in this action ("the Documents Claim") was issued the same day. The particulars of claim served on 17th August 2012 allege, so far as material, as follows:
"6. The Defendant's employment with the Second Claimant was governed by a written contract of employment dated 1 September 2003 which contained the following express provision:
"2.1.7. During and after termination of the employment [the Defendant] shall keep in strict secrecy and confidence all matters and/or documents, which he may be aware of, regarding the affairs, interests or operations of the Company or any of its employees, clients or any other persons or business contacts, connected with the Company, and will not disclose such matters or documents, unless properly authorised to do so by the Company, and will not use them for personal purposes or on behalf of third parties."
The Defendant's employment with the Second Claimant gave rise to a further implied duty to keep confidential the Claimants' confidential information.
Further and alternatively the Defendant owed and owes to the Claimants an equitable duty of confidence in respect of information which:
8.1 has come into his possession in consequence of his employment with the Second Claimant; and/or which
8.2 he knows or ought to know is confidential to the Claimants.
The Defendant's duties set out hereinabove include the following:
9.1 a duty not to disclose the Claimants' confidential information;
9.2 a duty not to make personal or other improper use of any such information;
9.3 a duty to deliver up to the Second Claimant any of the Claimants' confidential information immediately upon termination of the Defendant's employment; and
9.4 a duty to account to the Claimants for any use made by the Defendant of any relevant confidential information.
As the Defendant knew or ought to have known, the following categories of information, amongst others, are and were confidential to the Claimants:
10.1 the terms upon which TNK-BP contracted with third parties for the provision of services;
10.2 the terms upon which TNK-BP negotiated the purchase of shares in third party companies;
10.3 details of the bank accounts used by TNK-BP, its subsidiaries and its commercial counterparts;
10.4 personal data relating to employees and/or contractors of TNK-BP, its subsidiaries and its commercial counterparts;
10.5 TNK-BP's due diligence reports; and
10.6 boilerplate clauses belonging to the Claimants."
On the return date, 17th July 2012, TNK-BP sought from Vos J the continuation of the order made by Roth J and an additional order for delivery up of the Documents. The applications were adjourned until 24th July 2012. On the former date Vos J varied the order made by Roth J so as to permit disclosure of the Documents to law enforcement agencies in the UK, US or Russia. Copies of the Documents were duly supplied to the solicitors for TNK-BP on 31st July 2012. On 29th August 2012 Mr Dougans made a further witness statement for TNK-BP. He expressed the view, on the instructions of Mr Egorov, that the Documents did not contain prima facie evidence of any wrong-doing but that their disclosure "may prove damaging" to TNK-BP.
On 14th September 2012 Mr Lazurenko issued an application for a declaration pursuant to CPR 11(1) that the court has no jurisdiction or should not exercise any jurisdiction it might have over him and for orders to set aside service of the claim on him and the orders of Roth and Vos JJ. That application is supported by a witness statement of Mr Lazurenko. He asserts in paragraph 3 that:
"The Documents contain the details of wrongdoing between TNK-BP and companies beneficially owned and controlled by the most senior officers of Transneft and officials of the Ministry of Energy responsible for regulating and monitoring the oil industry in Russia."
In subsequent paragraphs he elaborates on that allegation in considerable detail. In paragraph 125 he denies that any of the Documents contains any information of any possible commercial use to a third party or of any detriment to TNK-BP. Although TNK-BP filed a good deal of evidence in reply no one, with actual knowledge of the facts, denied the detailed allegations made by Mr Lazurenko.
In those circumstances the issues for my determination in logical, as opposed to chronological, order, are (1) whether to accede to the application of Mr Lazurenko; and if not (2) whether to continue the orders made by Roth and Vos JJ. In order to deal with either of them it is essential first to ascertain which system of law, Russian or English, is the applicable law to the claims made in this action and, if Russian, what are the relevant principles to be applied.
The Applicable Law
I have already set out the terms of paragraphs 6 to 10 of the Particulars of Claim. Paragraphs 11 to 16 contain allegations of the alleged threatened misuse of the confidential information on which TNK-BP relies. In paragraphs 11.1 and 12 it is alleged that a Russian lawyer acting for Mr Lazarenko asserted that unless TNK-BP ceased to prosecute the Fraud Claim, amongst others, against Mr Lazarenko he, Mr Lazurenko, would disclose the Documents to third parties, including the press and/or sell them to a competitor of TNK-BP. In paragraph 15 it is alleged that Mr Lazarenko intended by this means to put pressure on TNK-BP to settle the proceedings against him. But the claim is clearly based on the duties of confidence alleged in paragraphs 6, 7 and 8. Thus paragraph 17 asserts:
"17. In the circumstances the Defendant is in breach his duties of confidence to the Claimants, as specified in paragraphs 6, 7 and 8 above, by:
17.1 retaining the Confidential...
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