Vis Trading Company Ltd v Nazarov and Ors
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple |
| Judgment Date | 18 November 2015 |
| Neutral Citation | [2015] EWHC 3327 (QB) |
| Docket Number | Case No: HQ10X00876 |
| Court | Queen's Bench Division |
| Date | 18 November 2015 |
[2015] EWHC 3327 (QB)
Mrs Justice Whipple
Case No: HQ10X00876
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr A Gunning QC and Mr R Chatterjee (instructed by Watson Farley & Williams LLP) for the Claimant
Mr A Milner (instructed by Pillsbury Winthrop Shaw Pittman LLP) for the Defendant
Hearing dates: 6 November 2015
Introduction
This is the Claimant's application for the First Defendant to be committed to prison for contempt of court. The Claimant's application is dated 17 September 2015. The contempt relied on is the First and Second Defendants' failure to comply with the order for disclosure made by Singh J on 21 May 2015.
Background
The underlying proceedings arise out of claims made by the Claimant against the first two Defendants. The Second Defendant is a company controlled by the First Defendant, through which the First Defendant conducts his business activities.
The underlying action was brought by the Claimant for repayment of loans made by the Claimant to companies controlled by the First Defendant; the Claimant argued that the First Defendant was personally liable for repayment of those loans, as well as the relevant company. In March 2013, Leggatt J gave judgment for the Claimant against the First and Second Defendants (and others), in the amount of US$ 15.4 m and US$ 27.2 m respectively, following a 7 day trial. Leggatt J did not accept the First Defendant's evidence, which he found lacked credibility.
Neither Defendant has yet paid a penny towards satisfaction of that judgment debt, although the Claimant has received around US$5.9m from the Third Defendant, which satisfies a part of the amount outstanding.
It is now over 2 years later, and there is interest to add to the judgment debt, as well as continuing and mounting legal costs. The overall amount due to the Claimant is substantial, and increasing.
On 14 March 2013, a post judgment freezing order was made by Supperstone J. That has been continued on a number of occasions by Court order. The Claimant's efforts to obtain information about the Defendants' assets and means, in order to enforce judgment against them, have led to a series of ancillary orders.
Ultimately, the Claimant applied for an oral examination which was directed by Court order and which took place before Mr David Donaldson QC (sitting as a deputy High Court Judge) on 13 June 2014, before subsequently being restored to be heard before Singh J (pursuant to CPR Part 71) in May 2015 (the examination hearing having been adjourned by Mr Donaldson QC and an order for disclosure of documents having been made by Supperstone J on 27 November 2014).
During the hearing, which lasted two days, the First Defendant was called to give evidence by video link from Uzbekistan. I have been shown extracts from the lengthy transcript of that hearing, and it is clear that the questions and answers ranged widely over the First Defendant's business interests. At the end of the hearing, Singh J made the "21 May 2015 Order".
The 21 May 2015 Order
By the 21 May 2015 Order, which was endorsed with a penal notice, Singh J required the First and Second Defendants to disclose the following documents:
"2. Save where the same have already been disclosed by the First or Second Defendant to the Claimant, the First Defendant and the Second Defendant do by 4.00pm on 31 July 2015 disclose to and serve copies on the Claimant's solicitors of any documents in their possession, custody or control which are in one or more of the following categories:
a) documents recording the details of any bank account held by the First Defendant or Second Defendant, or held by any company which is owned legally or beneficially by the First Defendant or the Second Defendant;
b) documents recording the entitlement of the First Defendant or the Second Defendant, or of any company which is owned legally or beneficially by the First Defendant or the Second Defendant, to receive payment from any third party;
c) documents recording the details of any real property owned legally or beneficially by the First Defendant or the Second Defendant, or owned by any company which is owned legally or beneficially by the First Defendant or the Second Defendant;
d) documents recording the details of any other property owned legally or beneficially by the First Defendant or the Second Defendant, or owned by any company which is owned legally or beneficially by the First Defendant or the Second Defendant;
e) documents recording the entitlement of the First Defendant or Second Defendant, or the entitlement of any company which is owned legally or beneficially by the First Defendant or the Second Defendant, to real property;
f) documents recording the entitlement of the First Defendant or Second Defendant, or the entitlement of any company which is owned legally or beneficially by the First Defendant or the Second Defendant, to any other property;
g) documents referring to any of the following entities:
i) Chemical Consult Corp.
ii) Energy Machine LLP.
iii) Thornfield Enterprises Limited.
iv) Lorgo Holding Inc.
v) Opic Holdings Limited.
vi) Rafico Engineering Limited.
vii) Douglas Company Services Limited.
viii) Commonwealth Trust Limited.
ix) Jaxware Holdings Limited.
x) Topiczone Holdings Limited (or Tropiczone Holdings Limited).
xi) Synecta holding a.s.
xii) Synecta holding a.s. (Czech Republic)
xiii) Synecta holding a.s. (Slovak Republic)
h) documents referring to any of the following addresses:
i) 44A The Green, Warlingham, Surrey, CR6 9NA.
ii) Regent House, 316 Beulah Hill, London, SE19 3HF.
iii) Drake Chambers, P.O. Box 3321, Road Town, Tortola, British Virgin Islands.
i) documents referring to any of the following people and which relate to the ownership of any of the entities in sub-paragraph (g) above:
i) Mr Albert Galimov.
ii) Mr Farrukh Fayzulloev.
iii) Mr Juris Savickis.
iv) Mr Baxtiyor Qayumovich Choriyev.
v) Mr Henry Alexander Rosas Morales.
In respect of e-mails, the First Defendant and the Second Defendant shall disclose and produce all e-mails within the above categories dated on or after 1 January 2012. This is to include, in particular, e-mails sent from or to the e-mail address shamuradovrustam@gmail. com."
Thus the disclosure ordered was wide-ranging, and extended to documents in the possession, custody or control of the First or Second Defendant, which fell within any one of those categories. There was no test of relevance incorporated into the 21 May 2015 Order.
Subsequent Events
The 21 May 2015 Order was served on the Defendants' solicitors, Pillsbury Winthrop Shaw Pittman LLP ("Pillsbury") on 22 May 2015 in accordance with the provision for alternative service contained at para 8 of the 21 May 2015 Order. I am satisfied, and so I find, that the 21 May 2015 Order was properly served.
However, no disclosure was provided by 31 July 2015. On 31 July 2015, the last day for compliance, the Defendants issued an application for a 28 day extension of time. That application was heard by Master Leslie on 7 August 2015 and dismissed by him with indemnity costs. Still no disclosure was provided, even beyond the date sought for the extension.
The Claimant issued the application for committal for contempt on 17 September 2015, and the hearing was fixed for 6 November 2015, as was noted on the application notice. The application was served on the Defendants' solicitors by order dated 25 September 2015 (and again I am satisfied that the application was properly served).
On 30 October 2015, with the hearing scheduled for 6 November 2015, just 5 working days later, Pillsbury served evidence on the Claimant. That evidence consisted of the First Defendant's Fifth Affidavit dated 29 October 2015 (in Russian, accompanied by a translation into English) together with exhibit ASN5, and five witness statements from friends and colleagues of the First Defendant.
The Claimant examined the further disclosure contained in ASN5, and concluded that it contained only four documents additional to the disclosure which the Defendants had already made. A critique of the First Defendant's Fifth Affidavit was set out in the ninth affidavit of Tiana Marie Morales dated 2 November 2015 (solicitor of Watson Farley & Williams LLP, solicitors for the Claimant). Her affidavit was sworn on 2 November 2015, the first working day after receipt of the First Defendant's Fifth Affidavit and accompanying documents. Ms Morales attached a table showing the various categories of disclosure ordered, listing compliance to date (both before and since the 21 May 2015 Order), referred to as TMM9.
On 4 November 2015, Katerina Woolhouse, solicitor at Pillsbury acting for the First and Second Defendants, filed her third witness statement addressing certain issues arising out of the recent exchange of evidence.
The Defendants' skeleton was filed on 4 November 2015, taking the line that in light of the recent affidavit and witness statements, the First Defendant had now complied with the 21 May 2015 Order (at least, to the extent that he was able to do so). The Claimant's skeleton was filed on 5 November 2015, maintaining the Claimant's case that there had not been compliance with the 21 May 2015 Order, despite the recent disclosure and evidence, and seeking committal of the First Defendant for contempt.
The way in which the contempt was put in the application notice, and maintained by the Claimant in their skeleton and at the hearing before me, was as...
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