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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Navigatgor Equities Ltd & Anor v Deripaska [2022] EWHC 1637 (Comm) (06 May 2022) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2022/1637.html Cite as: [2022] EWHC 1637 (Comm) |
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BUSINESS AND PROPERTY COURT
OF ENGLAND & WALES
COMMERCIAL COURT (QB)
Fetter Lane London, EC4A 1NL |
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B e f o r e :
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| (1) NAVIGATGOR EQUITIES LTD (2) VLADIMIR ANATOLEVICH CHERNUKHIN |
Claimants/Respondents |
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| - and - |
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OLEG VLADIMIROVICH DERIPASKA | Defendant/Applicant |
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Official Court Reporters and Audio Transcribers
5 New Street Square, London, EC4A 3BF
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MR G. PIPE (instructed by RPC) appeared on behalf of the Defendant/Applicant.
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Crown Copyright ©
MRS JUSTICE COCKERILL:
Deripaska
that a fair trial is not possible in May 2022.
Deripaska
at the trial. What is said:
"29. The current position is that RPC are on the record and (so far as the Claimants are aware) RPC have not made any application to come off the record. As such, they are professionally obliged to continue acting for MrDeripaska.
30. It is equally difficult to identify any basis for theDeripaska
Counsel Team to withdraw from the case unilaterally, particularly at this late stage."
Deripaska
cannot pay RPC for legal representation. It is true that RPC has not yet applied to come off the record, but has sought to do something rather different, to manage an orderly transition. So it is on the record and I accept the submission that it does at the moment remain bound to continue to represent Mr
Deripaska,
but it only remains bound to continue to represent Mr
Deripaska
until it comes off the record.
Deripaska
is unable to pay the professional fees of RPC, there would prima facie, seem to be, in the usual way, good cause for solicitors to come off the record. While there may well be a fight, it certainly cannot be said at this stage that RPC would be obliged to stay on the record. The fact that they have, it might be said, properly and constructively sought to manage the transition rather than force the issue on coming off the record, should not count against them.
Deripaska
at the trial without counsel. So, in the final analysis, when one looks at the question of solicitors and counsel, I regard the question of counsel as being more of a killer point.
Deripaska
to show that they were entitled to withdraw, and they can only withdraw if reasonable notice is given, and no such notice was given. So, there was no positive invitation to me to rule that the counsel team were in breach, but rather a question of pointing out the obligations and suggesting that the RPC evidence was not sufficient to enable me to reach a ruling that they were entitled to withdraw.
Deripaska's
liberty is at stake. In those circumstances I do accept that even if it were the case that RPC were obliged to continue, even if RPC did get a licence or Peters and Peters got a licence, there would be no time for counsel to read-in and prepare, even if it were the counsel who were already involved.
Deripaska
is going to be subjected to doubtless detailed and searching cross-examination based on very detailed understanding of the factual position. The counsel representing him will need to be in a position to understand the facts sufficiently to understand on what re-examination is necessary and indeed possible. This can have very serious consequences because of course the number and extent of breaches, if any found, will have an impact on the question of sentence, which is naturally a serious consideration. Counsel will also need to be able to deal with certain points which, albeit construction points, depend on the factual underpinning to the construction case. They will need to be able to deal with difficult issues as to whether the steps taken are ones taken by Mr
Deripaska.
They will need to be able to satisfy themselves as to whether the skeleton argument which, I doubt not, is extremely long and complicated really does represent the correct way to go at things post the Court of Appeal judgment. So I do not accept that it is possible for counsel to get into this case and prepare it so as to ensure that Mr
Deripaska
has a fair trial.
Deripaska
is entitled to choice of counsel within limits, and it would be highly odd for him to be publicly funded when he is more than happy to pay himself. This in a sense dovetails into what I have already said about the legal aid team against the established team, I do not based my decision in relation to legal aid on the construction arguments. I would not tend to accept the arguments that legal aid is plainly available. I can see that the point is arguable, and that itself may carry with it difficulties and likely delays in terms of if legal aid were to be applied for, it not being forthcoming in the blink of an eye. So far as that is concerned the way that the Counter-Terrorism (Sanctions) (EU Exit) Regulations position was treated with a general licence is perhaps indicative.
Deripaska
and an application for the licence has now been made. What is sought is for the trial to be adjourned for a short period so that the defendant's new legal team can be instructed and prepare his defence accordingly.
Deripaska
must expect his application to be scrutinised very closely, but I am indeed approaching this application on a sceptical basis, bearing in mind the background to this case, because I do accept that there is an unfortunate history there, which means that the position cannot entirely be taken on trust.
Deripaska
is entitled to the benefit of the correct legal principles, even if it were the case that he has in the past cynically tried to delay the hearing of the committal application. The suggestion that this is another attempt to delay is not a position which I can conclude on the basis of the evidence before me is borne out on the facts. The bottom line is that the fact of sanctions is indisputable.
Deripaska
because it would still be the case that they would be entitled to apply to come off the record, and it would still be the case that counsel would have returned the brief. We are looking at a situation which has come along at a most unfortunate time and a situation where the only way out of this is to get an OFSI licence, and that that will inevitably take some time. Until that is done payment cannot be made, in particular, to counsel.
"49(4) Fairness involves fairness to both parties. But inconvenience to the other party (or other court users) is not a relevant countervailing factor and is usually not a reason to refuse an adjournment.
This is again established by the authorities. As to fairness involving fairness to both parties, see Dhillon at [33(a)], Solanki at [35]. As to the requirements of a fair trial taking precedence over inconvenience to the other party or other court users, see Teinaz at [21]. But Mr Scorey acknowledged, as can be seen from the earliest cases, that uncompensatable injustice to the other party may be a ground for refusing an adjournment."
Deripaska
have been exhausted. The highest the point is put on delay is that the case has taken two years to come on since the application was launched, but this is not a question where what is being sought is time critical. This is essentially a question of an attempt to bring home to roost, in the form of some punishment on Mr
Deripaska,
breaches of orders in the past. There is no time criticality to that.
Deripaska's
past actions. That in itself provides an indication that the trial date should be vacated. This is the more so when there is no prejudice and what is contemplated is an adjournment for a relatively short period, and the issues in question are by no means time-critical.
Deripaska's perspective extremely fortunate. But that does not change the facts, which are that on the evidence before me I cannot but conclude that a fair trial is not possible, and it would be appropriate, in the exercise of my discretion, to adjourn this trial.