Otkritie International Investment Management Ltd and Others v Yevgueni Jemai and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hamblen |
| Judgment Date | 09 November 2012 |
| Neutral Citation | [2012] EWHC 3739 (Comm) |
| Docket Number | Case No: 2011 Folio 1182 |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 09 November 2012 |
[2012] EWHC 3739 (comm)
The Honourable Mr Justice Hamblen
Case No: 2011 Folio 1182
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
MR JAMES WILLAN (instructed by ogan Hogan Lovells) appeared on behalf of the CLAIMANT
MR TOM WEISSELBERG (instructed by Byrne & Partners) appeared on behalf of the 2 nd DEFENDANT
Approved Judgment
This is an application by the claimants for judgment in default of acknowledgment of service. By the time of the hearing matters had moved on. It was originally an application against four defendants: Mr Jemai, his sister, Ms Jemai, and the companies Jecot and Vantax.
The position now is that an Acknowledgement of Service has been lodged on behalf of Jecot and Acknowledgements of Service have purported to be lodged on behalf of Mr Jemai and Ms Jemai, although not with a valid address for service.
No Acknowledgement of Service has been lodged by Vantax.
The background to this matter is that the claimants allege that they were the victims of serious frauds involving misappropriation of some US $180 million from the claimants by former employees, including a Mr Uromov, a Mr Kondratyuk and Mr Jemai.
The background is set out in the claimant's skeleton argument for this hearing. It is not necessary to go through the background in detail, but essentially as far as the present defendants are concerned Mr Jemai is alleged to be one of the principal conspirators. He was a trader employed by one of the claimant companies at the time. Jecot is said to be a Swiss company, beneficially owned and controlled by Mr Jemai and/or members of the Jemai family and a vehicle through which it is said Mr Jemai laundered the proceeds of the fraud.
Ms Jemai is Mr Jemai's sister and the beneficial owner it is said of Vantax and it is alleged she assisted in the laundering of the proceeds of fraud through Vantax. Vantax is a Belize company and it is said that some US $20 million out of US $35 million which had been transferred from Jecot was transferred to Vantax and then out to the sister of Mr Kondratyuk.
As far as the application against Vantax is concerned, the application made under CPR rule 12.3.1 is made by way of application because under CPR rule 12.4.2 the claimant seeks remedies other than payment of monies, such as proprietary relief. In those circumstances, the court needs to be satisfied that the formal requirements of CPR 12.3.1 are met. If they are, then the claimants are entitled to such judgment as it appears the court they are entitled to on their statement of case: see CPR rule 12.11(1).
In relation to that issue I have been referred to the case of Football Dataco Limited [2011] FSR 25. In that judgment Briggs J explained that the role of the court in these circumstances is to tailor the precise relief so that it is appropriate to the cause of action asserted. It is not required to consider whether facts alleged are made out or whether a particular cause of action exists. It takes the Particulars of Claim as read and simply considers whether the relief claimed is appropriate to the claim.
In relation to Vantax and Mr Jemai it is said that no Acknowledgement of Service was served as required by the rules. The position in relation to Vantax is that it was served in Belize with the claim form and Particulars of Claim in accordance with an order made by Gloster J by delivery of the documents in person to Vantax's registered agents. There is a certificate of service in the exhibited documents; the deemed date of service was 23 May 2012.
The Acknowledgement of Service was required by 15 June 2012. Vantax has not responded to the claim or indeed this application. As explained in Mr Dooley's 17 th witness statement, this application was served on Vantax at its registered address in Belize on 16 August 2012. In those circumstances I am satisfied that the formal requirements for default judgment under CPR 12.3.1 are satisfied.
The claimants claim that they are entitled to damages and/or equitable compensation, compound interest and proprietary relief, all as set out in the draft order which has been provided. I am satisfied that based on the claimants' statement of case they are indeed entitled to relief as there set out. In the circumstances, this is a case in which the Claimants are entitled to default judgment against Vantax in the terms of the draft order before the court.
As far as Mr Jemai is concerned, he was served in Switzerland with the claim form and Particulars of Claim in accordance with the order of Flaux J by judicial channels pursuant to the Hague Convention. The certificate of service and the Hague Convention certificates are before the court and the deemed date of service is 23 April 2012. Acknowledgement of Service was required by 14 May 2012. Mr Jemai did not respond to the claim form or the application until very shortly before this hearing.
The application notice for this application was served on Mr Jemai in Switzerland on 12 September 2012 via the Hague Convention. Again, the formal requirements for default judgment are satisfied, subject to the question of the Acknowledgement of Service which has been filed on Mr Jemai's behalf. That Acknowledgement of Service does not set out, in the box requiring an address, an address which is either within the UK or within a European economic area state. It sets out an address in Switzerland. Formally, therefore, the position is that it is not a valid Acknowledgement of Service and if Mr Jemai wishes to acknowledge service, he must...
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