Patokh Chodiev and Others v Kirill Ace Stein
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,LORD CHIEF JUSTICE |
| Judgment Date | 04 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1256 |
| Docket Number | A3/2015/1946 |
| Date | 04 November 2015 |
| Court | Court of Appeal (Civil Division) |
[2015] EWCA Civ 1256
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION, COMMERCIAL COURT
(MR JUSTICE BURTON)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Thomas
(LORD CHIEF JUSTICE OF ENGLAND AND WALES
Lord Justice Tomlinson
A3/2015/1946
Mr E McQuater QC and Mr C Wright (instructed by Hogan Lovells International LLP) appeared on behalf of the Claimants/Applicants
Mr D Oudkerk QC (instructed by Eversheds LLP) appeared on behalf of the Respondent
This is a renewed application for permission to appeal in respect of a determination by Burton J made in the course of a judgment delivered on 20 May 2015 which arose in the following circumstances.
The previous year, that is to say in February and March 2014, the judge heard a long 10 or 12 day trial, in the course of which he determined that the claimant in those proceedings, a Mr Kirill Stein, who is a lawyer qualified in the United States, was entitled to a success fee from the defendants, or at any rate from some of them, in relation to monies that were raised both by him for the claimants and subsequently in the course of an initial public offering for the purpose of promoting which the initial sum was raised by Mr Stein.
It was common ground at trial that Mr Stein had been exceptionally successful in raising funds, I think he raised some US $1.48 billion, and thereafter the IPO itself raised a sum in excess of US $3 billion. The issues which the judge had to decide at trial were first whether or not there had been an oral agreement made between Mr Stein and the relevant claimants for the payment of a success fee, and, secondly, if so, was that fee a half per cent fixed fee or a discretionary success fee up to a maximum of half a per cent. There were various other issues but the only other relevant issue I need mention was an issue whether or not the parties had agreed a compromise of Mr Stein's claims in respect of some part of the success fee to which he was otherwise entitled.
The judge determined those issues essentially in favour of the claimant, Mr Stein, and gave judgment for a very substantial sum of money.
An application was made for permission to appeal against that judgment, which application was refused by Aikens LJ when it came before him on the oral application. The sole ground upon which an application for permission to appeal was made was that the judge should have found that the relevant entitlement to the success fee lay not with Mr Stein but with a company called Aurdeley, which was a company with which on any view Mr Stein was associated.
That application for permission to appeal failed, not least because the suggestion that the contracting party was Aurdeley was not a suggestion that was either pleaded or pursued at trial.
Having failed in that endeavour, the defendants then, in 2015, sought to set aside the judgment and issued proceedings to that end, seeking to set aside the judgment of Burton J on the grounds that it had been procured by fraud. They said that Mr Stein had given dishonest evidence at the trial as to the beneficial ownership of Aurdeley. He had asserted that that was a company owned by a Mr Zakharov, whereas the true position was that the company was beneficially owned by Mr Stein himself.
Mr Stein responded to that allegation by inviting the judge to determine summarily the question whether or not the judgment had been procured by fraud and should be set aside.
The judge heard that application over 4 days in April of this year and delivered a second long and reasoned judgment on 20 May. An application was made for permission to appeal against that judgment and the order made by the judge, which I refused on the paper application. This is the renewed application.
Mr Ewan McQuater QC, who has appeared for the defendants (as I will call them, they having been the defendants in the original trial) on this application today, has made, essentially, two points, although both arise out of his reliance upon the recent decision of the Supreme Court in Sharland v Sharland [2015] 3 WLR 1070. As is well known, that was a case concerning matrimonial proceedings, but Mr...
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