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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> JSC BTA Bank v Ablyazov & Ors  EWCA Civ 602 (14 May 2014)
Cite as:  EWCA Civ 602,  WLR 1287,  1 WLR 1287,  WLR(D) 221
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (COMMERCIAL)
MR JUSTICE FIELD
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE CHRISTOPHER CLARKE
| JSC BTA Bank
|(1) Mukhtar Ablyazov & 16 Ors
(1) Lapointec Ventures Limited
(2) Limia Holdings Limited
(3) Dregon Land Limited
Third Parties/ Appellants
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Stephen Smith QC and Tim Akkouh (instructed by Hogan Lovells International LLP) for the Respondent
Hearing dates: 25th and 26th March 2014
Crown Copyright ©
LORD JUSTICE CHRISTOPHER CLARKE:
The freezing and receivership orders against Mr Ablyazov
"Anyone other than the Respondents served with or notified of this Order may apply to the court at any time to vary or discharge this Order (or so much of it as affects that person), but they must first inform the Applicant's solicitors. If any evidence is to be relied upon in support of the application, the substance of it must be communicated in writing to the Applicant's solicitors in advance."
A similar provision was made in a post judgment freezing order: see  below.
Mr Sait Gutseriev
The Receivership Order
The assignment of the Original Finance Agreement.
The enforcement of the Pledge
The amendment of the original freezing order and the Receivership order
The three issues
"a good arguable case for challenging the applicants' contention that Lapointec and Limia are beneficial owners of the Dregon Land shares and are otherwise entitled as against the Bank to exercise full rights of ownership in respect of those shares".
Beneficial ownership the rival contentions
Good arguable case
a) S.C.F. Finance Co Ltd v Masri  1 WLR 876 where the third party wife was joined as a defendant;
b) T.S.B. Private Bank International S.A. v Chabra  1 WLR 231 - where the third party was joined by the judge as a defendant of his own motion under Order 15, r.6 (2) (b) (ii);
c) Mercantile Group (Europe) A.G. v Aiyela  QB 366 third party a defendant;
d) C Inc plc v L  2 All ER (Comm) 446 permission sought and granted to join the third party husband (out of the jurisdiction) to the proceedings as a necessary and proper party to the issue as to whether a Receiver should be appointed in respect of the wife's right of indemnity against her husband;
e) Revenue & Customs Commissioners v Egleton  1 All ER 606 the third parties were defendants; and
f) Parbulk II AS v PT Humpuss Intermoda Transportasi TBK  All ER (Comm) 513 - where the third party was precluded by its conduct from disputing in personam jurisdiction (although Gloster J did not consider that there were any substantial grounds for service out of the jurisdiction).
She also referred us to Cardile & Ors v LED Builders Pty Ltd  HCA 18 and its oft cited exposition of Chabra like principles at . In that case the third parties were not made actual parties to the litigation; and in the judgment four members of the court referred to that fact and one (Kirby J) said that those who were traditionally spoken of as "third parties" in this context ought not to be so described since they were, at any rate in that case, non parties.
" 31 I agree with Mr Smith's first submission on jurisdiction. The Receivership and the Freezing orders and their predecessors having been properly made when they were granted -- at which time the Dregon Land shares were beneficially owned by Mr Ablyazov -- and the applicants having brought their application before the court, the only question is whether it is just and appropriate to order that there be a determination of the issue of where lies the beneficial ownership of the Dregon Land shares.
32 Is it just and appropriate to make such an order? In my opinion it is since I find that the Bank has established on the evidence a good arguable case for challenging the applicants' contention that Lapointec and Limia are the beneficial owners of the Dregon Land shares and are otherwise entitled as against the Bank to exercise full rights of ownership in respect of those shares.
34 I am accordingly of the view that it is just and appropriate that there be a trial of the competing claims made by the Bank and the applicants as to where lies the beneficial ownership of the Dregon Land Shares and that, if it be necessary for the Bank to establish it, the court has territorial jurisdiction over the applicants in respect of such a trial.
35 Thus, for the reasons I have given, I dismiss the applicants' application to have the Receivership and Freezing Orders amended so as not to apply to the Dregon Land shares and I order instead that there be a trial of the competing claims made by the Bank and the applicants as to where lies the beneficial ownership of the Dregon Land Shares."
It should be pointed out that in refusing permission to appeal the judge observed that the conclusion that the case advanced by the bank "as to whether there has been a collusive breach of the order, gave rise to a good arguable case, was a conclusion in the nature of an assessment of the evidence before the court" which he thought there was no prospect of displacing.
LORD JUSTICE ELIAS
LORD JUSTICE MOORE BICK