WWRT Ltd v Serhiy Tyshchenko
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Bacon |
| Judgment Date | 24 April 2023 |
| Neutral Citation | [2023] EWHC 907 (Ch) |
| Docket Number | Claim No: BL-2020-001416 |
| Court | Chancery Division |
[2023] EWHC 907 (Ch)
Mrs Justice Bacon
Claim No: BL-2020-001416
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
Rolls Building
Fetter Lane
London, EC4A 1NL
Andrew Ayres KC and James Mitchell (instructed by Rosling King LLP) for the Claimant
The Second Defendant appeared in person
Hearing dates: 20–22 March 2023
Approved Judgment
This judgment was handed down remotely at 10 a.m. on 24 April 2023 by circulation to the parties or their representatives by email and by release to the National Archives.
Introduction
This is the adjourned hearing of an application by the claimant ( WWRT) to debar the second defendant ( Mrs Tyshchenko) from defending the claim, and striking out her defence. In the alternative, the claimant seeks an unless order requiring Mrs Tyshchenko to comply with certain orders, with the sanction of debarring and striking out her defence if she does not do so.
The application is brought on the basis of WWRT's contention that Mrs Tyshchenko has repeatedly breached the worldwide freezing order that was made against her (and her ex-husband, the first defendant Mr Tyshchenko) in September 2020 and continued in April 2021. WWRT's application is not, however, made against Mr Tyshchenko.
WWRT's application was filed on 18 February 2022 and was originally listed to be heard on 20 June 2022. At that hearing I expressed concerns about whether Mrs Tyshchenko – who then, as now, was acting in person – had had time to prepare for the hearing, not least given the war in Ukraine, and the need to relocate relatives from that country. Having heard submissions from both parties I adjourned the hearing to the first available date after 1 September 2022. I also strongly encouraged Mrs Tyshchenko to try to get legal representation for the adjourned hearing.
In the event, this hearing has not been able to come on until now, not least because of the intervening hearing on 20–21 December 2022 of four applications by Mr and Mrs Tyshchenko to strike out or stay the claim, or otherwise revoke the worldwide freezing order imposed on them. I gave judgment on 25 January 2023 dismissing all of those applications (the January 2023 judgment).
As at previous hearings, WWRT was represented by Mr Ayres KC and Mr Mitchell. Mrs Tyshchenko again appeared in person.
WWRT has repeatedly contended that Mrs Tyshchenko is a litigant in person by choice. I reject that submission. As I will discuss in more detail below, the evidence before me supports Mrs Tyshchenko's submission that she is financially dependent on her ex-husband (and his mother), and does not have any significant income of her own. It appears that at Mrs Tyshchenko's recent bankruptcy hearing, funds were made available for her to be represented by solicitors and counsel. She said, however, that this had not been extended to the present hearing, and I have not seen anything to cast doubt on the veracity of that statement. It is also inherently unlikely that Mrs Tyshchenko would choose to defend in person the present very serious application, if she did in fact have the means to obtain legal representation.
Having said that, it is fair to record that Mrs Tyshchenko is a qualified Ukrainian lawyer, and also has an English law degree and completed the LPC. While English is not her mother tongue, her command of the language is excellent. While she struggled to find document references in the hearing bundles, and her submissions were sometimes somewhat unclear, she addressed the key factual points in the case, and also made submissions on the case-law, in her oral submissions and skeleton arguments for the hearing.
By the end of the hearing, I had a clear understanding of Mrs Tyshchenko's position. For the reasons which I set out below, I consider her submissions to be substantially well-founded. My conclusion is that WWRT's application should be dismissed.
Factual and procedural background
The January 2023 judgment sets out the factual background to these proceedings, and the chronology of the freezing orders and the various hearings since those freezing orders were made. I will not repeat that here. For present purposes, the following summary of the material events suffices.
Initial worldwide freezing order and its continuation
The initial freezing order was made at a without notice hearing on 4 September 2020. The defendants were then served (in the jurisdiction) and the application to continue the freezing order came back before the court on 10–12 March 2021. In the meantime, there were three consent orders (in September 2020, February 2021 and March 2021) varying the terms of the freezing order. In particular, the February and March 2021 consent orders contained provisions enabling Mrs Tyshchenko to access a TSB account (the First TSB account) and make transfers to that account from a second TSB account (the Second TSB account) as well as from two Nationwide accounts (the First and Second Nationwide accounts). As part of those orders, however, Mrs Tyshchenko agreed to provide WWRT's solicitors Rosling King with bank statements for the TSB and Nationwide accounts on a weekly basis, along with explanations of the direct and indirect sources of money paid into those accounts.
Following the March 2021 hearing, for the reasons given in my judgment of 21 April 2021: [2021] EWHC 939 (Ch) ( the April 2021 judgment), the freezing orders were continued and orders were made for the defendants to be cross-examined on their assets. The defendants were ordered (jointly) to pay WWRT's costs of the application to continue the freezing order, with a payment on account of £150,000.
The worldwide freezing order contained the following provisions, in particular:
i) A prohibition on the defendants removing from England and Wales or in any way disposing of, dealing with or diminishing the value of any of their assets whether they are in or outside England and Wales, up to the value of £65 million.
ii) A provision confirming that the above prohibition applied to all of the defendants' assets, whether or not in their own names, whether solely or jointly owned, and whether the defendants were interested in them legally, beneficially or otherwise. The defendants' assets were, for the purposes of the order, defined as including any asset which they had the power, directly or indirectly to dispose of or deal with as if it were their own, including where a third party holds or controls the asset in accordance with their direct or indirect instructions.
iii) Provisions recording that the above prohibition included in particular the family home at Tanglewood Villa in Surrey, a French property in the village of Mougins near Cannes (the Mougins property), or the net sale money after payment of any mortgages if the properties were sold; the shares, stock, warrants or any other like interests in any of the corporate bodies set out in Schedule B to the order; and any interest under any trust or similar entity. The companies listed in Schedule B included Golden Arrow Europe Limited ( Golden Arrow), Factor Capital Limited ( Factor Capital) and Factor Petroleum Limited ( Factor Petroleum).
iv) Provisions continuing Mrs Tyshchenko's obligations to provide weekly bank statements for the First TSB account and the First and Second Nationwide accounts. The obligation to provide statements for the Second TSB account remained for the period covered by the March 2021 consent order (19 January 2021 to 14 March 2021) but was not continued thereafter.
v) A weekly spending allowance of £10,000 between the defendants for their ordinary living expenses, plus a reasonable sum on legal advice and representation, provided that before spending any money the defendants were to tell WWRT's legal representatives where the money was to come from.
Cross-examination on assets hearings
The cross-examination order provided for both defendants to be cross-examined on their assets on the first available date after 21 August 2021. The order also required the defendants to provide to Rosling King copies of the documents listed in the schedule to the order by 21 July 2021.
The schedule listed a total of 56 categories of documents, including company documents, accounts and bank statements for 12 different companies (including Golden Arrow, Factor Capital and Factor Petroleum); bank statements for the last three years for all bank accounts (whether in or outside Russia or Ukraine) in which either of the defendants had a direct or indirect interest, regardless of the amount held in each bank; documents showing the source of the defendants' funds during the six month period preceding the grant of the worldwide freezing order; and documents showing the sources of funds from which Mr Tyshchenko's mother, Motrona Tyshchenko ( Motrona), is said to have supported the defendants and their family since the grant of that order.
Mrs Tyshchenko provided various documents by way of disclosure during July – September 2021, and was then cross-examined on her assets on 16–17 September 2021. During the hearing, she agreed to provide various further documents and information.
Mr Tyshchenko's cross-examination was initially listed to take place at the same hearing, but was repeatedly adjourned due to his failure to attend on the basis of purported reasons described in the January 2023 judgment. Eventually a bench warrant was issued for his arrest, and Mr Tyshchenko was arrested and brought before the court on 29 June 2022, with his cross-examination taking place over the next two days.
Debarring application
Meanwhile, contending that Mrs Tyshchenko was in such serious breach of her obligations under the freezing order and disclosure orders, the debarring application was...
To continue reading
Request your trial