PJSC National Bank Trust v Boris Mints
| Jurisdiction | England & Wales |
| Judge | Mr Justice Bryan |
| Judgment Date | 25 November 2020 |
| Neutral Citation | [2020] EWHC 3253 (Comm) |
| Court | Queen's Bench Division (Commercial Court) |
| Date | 25 November 2020 |
| Docket Number | Claim Nos: CL-2019-000412 & CL-2020-000432 |
[2020] EWHC 3253 (Comm)
IN THE HIGH COURT OF JUSTICE
BUSINESS & PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Royal Courts of Justice
The Rolls Building
7 Rolls Buildings
London, EC4A 1NL
THE HON. Mr Justice Bryan
Claim Nos: CL-2019-000412 & CL-2020-000432
Mr Nathan Pillow QC (instructed by Steptoe & Johnson UK) for the Claimants
Ms Tetyana Nesterchuk (instructed by Quinn Emanuel Urquhart & Sullivan LLP) for the First Defendant
Mr Charles Bear QC and Simon Paul (instructed by Simmons & Simmons LLP) for the Second and Third Defendants
Mr Duncan Matthews QC and Matthew McGhee (instructed by Stephenson Harwood LLP) for the Fourth Defendant
November 2020
APPROVED JUDGMENT
Mr Justice BryanA INTRODUCTION
The parties appear before me this afternoon, and now this evening at 6.30pm by the time of the start of this judgment, so some four and a half hours after this application began, on a short notice application by the Claimants for permission to enable them to comply with an order of the Russian criminal Court (the “Russian Order”), empowering the Russian criminal Investigator (“the Investigator”) to seize and said to require Bank Otkritie to provide to the Investigator asset disclosure documents including affidavits (the “Asset Disclosure Documents”) served and/or filed in these proceedings by the First to Third Defendants pursuant to a Worldwide Freezing Order (“WFO”) granted against them by Moulder J in June 2019.
The application is said by the Claimants to be urgent and is made on short notice to the defendant Bank Otkritie. The evidence before me is that it is presently expected that the Investigator will attend at Bank Otkritie's premises in Russia to execute the Russian Order this Thursday, i.e. tomorrow 26 November. It is said that unless the application was heard and permission sought granted before the Investigator does so, Bank Otkritie and its officers will be faced with the invidious dilemma of risking either (i) a breach of the Russian Order and, as a consequence, potential criminal liability and risk of severe sanctions, both for Bank Otkritie itself and those of its individual officers with notice of the Russian Order; or (ii), a breach of the undertaking given by the Claimants to this Court not to use, without the Court's permission any information obtained as a result of the Worldwide Freezing Order for the purpose of any civil or criminal proceedings other than this claim (the “Relevant Undertaking”). It is said that the purpose of this application is to avoid this Catch-22 situation which it is said the authorities recognise would give rise to a “grave injustice” of “ a person who has been granted relief to redress the wrong done [finding] himself compelled to choose between breaking the undertaking or breaking the law where he resides or carries on business, and suffering a penalty abroad because of this” (see Gee on Commercial Injunctions 6 th edn. at para 25-008).
I was satisfied that it was appropriate to hear this application on short notice because of the identified urgency, it being urgent because of the contemplation that an Investigator will attend at the premises of the Claimant tomorrow, 26 November. I was therefore satisfied that it was appropriate within the CPR to effectively abridge time and hear the application this afternoon.
It is, in one sense, on more than notice to the other parties because in fact the Order sought is opposed today (both in writing and orally) on behalf of the First Defendant Mr Boris Mints, who is represented by Tetyana Nesterchuk, by the Second and Third Defendants, Dmitry Mints and Alexander Mints, represented by Mr Charles Béar QC and it is opposed by Mr Igor Mints, the Fourth Defendant, who is represented by Duncan Matthews QC.
There is before me quite a large volume of evidence which includes the Seventh and Eighth witness statements of Mr Dooley, also a witness statement on behalf of the Second and Third Defendant from a Mr Stephen Moses. There is also a legal opinion on Russian law from a Mr Korshunov on behalf of the Claimants. There is also an opinion on Russian law from a Dmitry Andreev on behalf of the Second and Third Defendants.
The Russian law evidence goes to the nature of the order that has been obtained in Russia by the Investigator and what the consequences of not complying with the Russian Order are. Regrettably, the two Russian law experts are not ad idem as to what those consequences are.
In addition to appearing before me today, I have skeleton arguments not only from the Claimants represented by Mr Nathan Pillow but also skeleton arguments from Ms Nesterchuk on behalf of D1, a skeleton argument from Mr Béar on behalf of D2 and D3, and a skeleton from Mr Duncan Matthews on behalf of D4. I have given careful consideration to the contents of all the matters addressed in those skeleton arguments, and the evidence before in the witness statements and the exhibits thereto.
There was an issue between the parties as to whether the nature of this application was an ex parte application which would carry with it a duty of full and frank disclosure. That would be the case if this were a short notice application in relation to an injunction, but I am satisfied that Mr Pillow is right in his submissions that if I am satisfied — and I am — that it is appropriate for this hearing to go ahead on a short notice basis to vary the existing order, that this is not a without notice application but is to be treated as an inter partes application, so there is no duty of full and frank disclosure. Mr Pillow made clear to me that he has not sought to comply with the obligation of full and frank disclosure, although obviously he has complied with his duties to the Court as counsel.
I am satisfied that all parties have had a fair opportunity to address this Court and indeed have done so both in writing and orally at some length. Whilst the Claimants gave an estimate for listing this hearing of two hours which proved to be an underestimate, Mr Matthews on behalf of the Fourth Defendant identified in his Skeleton that four hours would be required. I imposed no time limitations on the parties, and in the event the oral hearing took four hours thirty minutes, so I was able to accommodate the Defendants' time requirements.
B THE LEGAL PRINCIPLES
B.1 RELEASE OF UNDERTAKINGS
As I say, the application is to release undertakings given to the Court. Those undertakings gave the Court control of the documents and information obtained by the Claimants “in support of due administration of justice” see Marlwood Commercial v Kozeny [2015] 1 WLR 104 at [56] per Rix LJ.
In terms of the approach to taken by the Court, the leading case remains Crest Homes plc v Marks [1987] AC 829 at 859G to 860C. In that case, Lord Oliver formulated the general principle that while each case will turn on its facts, the Court will not release or modify the implied undertaking given on disclosure as now found in CPR Rule 31.22, save in special circumstances and where the release or modification will not occasion injustice to the person giving disclosure. Case law on releasing express undertakings have treated analogous principles as applying to such a situation (see, for example the Skatt litigation currently proceeding before the Commercial Court, including at [2019] EWHC 2807 (Comm)).
In Cobra Golf Inc v Rata [1996] FSR 819, Laddie J stated at 830 as follows:
“The case law I have reviewed above illustrates the variety of considerations which have been taken into account by Courts in the past. They emphasise the importance of preserving the undertaking but not blindly. In the end the interests of justice must prevail and that will sometimes mean that documents must be released for collateral use. In deciding how to exercise discretion the Court must also bear in mind, as Lord Denning MR said in Riddick v Thames Board Mills Limited [1977] QB 881 that
‘The reason for compelling discovery of document lies in the public interest in discovering the truth so that justice may be done between the parties. That public interest is to be put into the scales against the public interest in preserving privacy and protecting confidential information. The balance comes down in the ordinary way in favour of the public interest in discovering the truth, i.e. in making full disclosure’.
That principle operates in favour of releasing relevant documents from hub into satellite proceeds as long as no significant injustice is done to the disclosing party.”
In the Bank of Crete SA v Koskotas (No 2) [1992] WLR 919:
(1) At 924H Millett J (as he then was) said as follows:
“That was the basis on which I extended paragraph 5 of Morritt J's original order to permit material to be used in civil proceedings brought anywhere in the world for the recovery of the Bank's misappropriated funds. Civil proceedings are not an end in themselves. In the present case the purpose of the English proceedings was to obtain the restoration of funds alleged to have been misappropriated from the Bank. For that purpose, it may be necessary to bring proceedings in many different jurisdictions. The use of material obtained in the course of English proceedings for the purpose of similar proceedings in other jurisdictions would not infringe the general principle, and accordingly I gave leave.”
(2) At page 925G, he continued:
“There are of course wide policy considerations in the present case. There is a need for international co-operation between the Courts of different jurisdictions in order to deal with multi-national frauds. Ferris J recognised the pressing need to prevent a foreign Court from wrongly...
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The Confidential Information Disclosure Act, 2016 and the Kuwait Ports Authority
...to open justice principle Walkers were permitted to inspect the Court file. 23 see PJSC National Bank Trust v Mints Bryan J at §§10 – 14 [2020] EWHC 3253 24 In the Matter of Ansbacher (Cayman) Limited [ 2001 CILR 214] at § 25 Safeguard ibid Parker J at §9 citing CODELCO [1999] CILR § 42 Sme......
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The Confidential Information Disclosure Act, 2016
...to open justice principle Walkers were permitted to inspect the Court file. 23 see PJSC National Bank Trust v Mints Bryan J at §§10 – 14 [2020] EWHC 3253 24 In the Matter of Ansbacher (Cayman) Limited [ 2001 CILR 214] at § 25 Safeguard ibid Parker J at §9 citing CODELCO [1999] CILR § 42 Sme......