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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> JSC BTA Bank v Ablyazov & Anor [2018] EWHC 1368 (Comm) (08 June 2018) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2018/1368.html Cite as: [2018] EWHC 1368 (Comm) |
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BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
COMMERCIAL COURT (QBD)
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
JSC BTA BANK |
Claimant/Applicant |
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- and - |
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(1) MUKHTAR ABLYAZOV |
First Defendant |
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(2) ILYAS KHRAPUNOV |
Second Defendant/Respondent |
____________________
The First Defendant was not represented
Charles Samek QC and Marc Delehanty (instructed by Hughmans Solicitors LLP) for the Second Defendant
Hearing dates: 13 March 2018
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Crown Copyright ©
Patricia Robertson QC:
Introduction
Background
The applicable principles
i) This Court cannot rely upon a bare finding of a prior Court in a matter in which Mr Khrapunov was not a party or privy: Hollington v Hewthorn & Co Ltd [1943] KB 587. The rationale for that rule is that fairness requires that this Court must decide on the basis of the evidence before it, rather than simply adopting the opinion of another Court (including when that other Court was making its findings of fact on the evidence that was before it): Rogers v Hoyle [2014] EWCA Civ 257 at [39]-[40] per Christopher Clarke LJ (approving the reasoning of Leggatt J at first instance, at [2013] EWHC 1409 (QB), in particular at [93], [101] and [104]).
ii) However, this Court can take into account the substance of the underlying evidence as set out in prior judgments (such as the contents of documents or the evidence of witnesses), giving this such weight as is appropriate (and on the basis that it is entirely open to Mr Khrapunov to challenge that evidence and adduce other evidence): Rogers v Hoyle [2013] EWHC 1409 (QB) at [115]-[117]; [2014] EWCA Civ 257 at [54] and [99]; and JSC BTA Bank v Ablyazov and another [2016] EWHC 3071 (Comm) at [24]. Furthermore, as detailed below, some of the same underlying evidence was, in fact, also before me.
Relevant findings in previous judgments
The evidence on this application
i) An email dated "03/05/2012" with the subject line "Ilyas Trust formation and registration" giving instructions to proceed with the preparation of a number of trusts, including the Classic Design Trust. Ilyas is Mr Khrapunov's first name.
ii) An application to form a trust named the Classic Design Trust, with Ms Khrapunova as ultimate beneficiary, and an agreement between Ms Khrapunova, an Administrator and a Nominee for the provision of nominee services to that trust, both dated 26 March 2012, and a Deed of Trust in her favour, dated 27 March 2012. Those dates would fit with the above-mentioned email, assuming the email uses the American dating convention and hence dates to 5 March 2012. The documents are unsigned but that would be consistent with them being the documents prepared by Mr Aggarwal for signature, since of course he would only have had soft copies of signed documents if these had been scanned. (For reasons Mr Aggarwal explained in his affidavit, there are no hard copy documents in his disclosure.)
iii) A flowchart in relation to the "N Project", dated 02.10.2013, which Mr Aggarwal explains as relating to monies he understood to belong to the Petelin family, but which he was managing on instructions from Mr Khrapunov. This shows a substantial flow of funds coming from entities named as Claremont and Sartfield, some $69m of which passed to Vilder Company SA as loans and $5.56m is shown as transferred to Classic Design Trust. Mr Aggarwal explains in his affidavit that the flowcharts may not be the most up-to-date versions, as opposed to what he happened to have on his laptop. He says that he believes the transfer to Classic Design Trust was to fund an investment on behalf of the Petelin family, via various entities, but that this did not go ahead and "from memory" the money was returned to Crownway, the entity which acted as the distribution point for most of the funds shown as coming in. I was also referred to a chart headed "New Project – September 2013" which showed 10m passing to Vilder Company SA and a "gift into trust" of $10m to Classic Design Trust, identified as "Mum". The chart also shows various other transfers from Crownway to others of the trusts named in the email of instructions referred to at (i) above, described as "P's wife" or "P's son".
iv) Another flowchart, headed the A Project, is described by Mr Aggarwal as relating to funds he understood to belong to Mr Amangeldiyev, again managed on instructions from Mr Khrapunov.
v) An email dated "06/04/2012" (which again, may be the American dating convention and hence 4 June 2012) relates to the trustee of the Classic Design Trust being changed, which would appear to confirm that the trust was established.
Developments since the hearing before me
Analysis
Conclusion