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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Joint Stock Company (Aeroflot - Russian Airlines) v Berezovsky & Anor [2012] EWHC 3017 (Ch) (30 October 2012) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2012/3017.html Cite as: [2012] EWHC 3017 (Ch) |
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CHANCERY DIVISION
Rolls Building London EC4A1NL |
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B e f o r e :
____________________
| JOINT STOCK COMPANY "AEROFLOT - RUSSIAN AIRLINES" |
Claimant |
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| - and - |
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(1) BORIS ABRAMOVICH  BEREZOVSKY(2) NIKOLAY ALEXEEVITSCH GLUSHKOV |
Defendants |
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George Leggatt QC and Richard Blakeley (instructed by Addleshaw Goddard) for the First Defendant
Philip Jones QC and Jennifer Haywood (instructed by Boodle Hatfield LLP) for the Second Defendant
Hearing dates: 5, 8-9 October 2012
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Crown Copyright ©
Mr Justice Floyd :
Berezovsky and Nikolay Glushkov, liable to compensate the claimant, Aeroflot, for fraud perpetrated upon it. The fraud in question is called the Andava fraud. Both defendants have been convicted by Russian criminal courts (in the case of the first defendant, in his absence) of crimes based on the Andava fraud. By the two applications which are now before the court, the defendants apply to strike out the action or for summary judgment. The applications are made on the ground that the Russian courts had no jurisdiction over them, or alternatively that enforcement of the judgments would be contrary to public policy and to principles of natural justice.
i) The process begins when the "investigator" acting with the consent of the public prosecutor issues a resolution to institute a criminal case.
ii) A preliminary investigation is then conducted by the investigator.
iii) If the investigator considers there is sufficient proof, the investigator may, in the course of the preliminary investigation, issue a resolution to charge a person with a criminal offence and bring that person to court.
iv) When the investigator has completed the investigation and he considers there is sufficient proof, the investigator must notify the accused of that fact and present the accused and his lawyer with the criminal case materials.
v) When the accused and his lawyer have become acquainted with the case materials, the accused may file requests in relation to the case or the case materials, which the investigator must consider and may grant or refuse.
vi) When the preliminary investigation has been completed, a formal protocol is compiled by the investigator which is required to be signed by all the parties to the investigation.
vii) If the recommendation of the investigator is to bring a prosecution, the investigator compiles a formal conclusion of guilt, which he must sign and forward to the public prosecutor. This document forms the indictment.
viii) If the prosecutor agrees with the conclusion of guilt, he endorses the indictment and forwards the case files to a court. The prosecutor must inform the accused and his representatives that he is doing this and provide the accused with a copy of the indictment.
ix) When the case files are received by the court, a judge decides whether the case is within the court's jurisdiction. If it is, the judge issues a resolution appointing a preliminary or full hearing.
Proceedings involving Mr Berezovsky
Berezovsky under case number 18/277001-99. On 26 April 1999 a further resolution was issued to the same effect.
Berezovsky but to leave others open.
Berezovsky left Russia. He has not returned to Russia since that date. He was granted asylum in the UK on 10 September 2003 and is still living in the UK today.
Berezovsky, on 11 April 2007, the prosecutor issued a resolution to separate from the 1999 proceedings the accusation against Mr Berezovsky that he aided and abetted former managers of Aeroflot in defrauding that company. This resolution was immediately followed by a resolution to charge Mr Berezovsky and take him to court. The case was given number 18/432799/07 ("the 2007 resolution"). On 16 April 2007, the investigator notified Mr Berezovsky's lawyers of the completion of the preliminary investigation, and notified them of their right to inspect the files, a right which they then exercised. This led to a request by Mr Berezovsky's lawyers for additional materials to be added to the case files and an application to the investigator to discontinue the criminal proceedings. Notwithstanding the application, on 8 June 2007 Mr Berezovsky was charged with the offences.
Berezovsky's lawyers acknowledged receipt of the decision to charge him in case 18/432799/07 on 9 June 2007. The case was sent to the Savelovsky District Court of Moscow by letter of 13 June 2007, marked as received by the court on 14 June. Applying Professor Maggs' criterion, the point had then been reached where the Russian court could proceed to assume jurisdiction.
Berezovsky, Mr Berezovsky wrote to his lawyers from London prohibiting those lawyers from participating in the case. On 21 June 2007 this decision, prohibiting involvement in the case, was notified to the court, enclosing the letter from Mr Berezovsky. In the absence of duly appointed representatives, the court appointed a Mr Dudkin to represent Mr Berezovsky without his consent.
Berezovsky jointly liable with Mr Glushkov and others for the same sum. Neither Mr Glushkov, nor any of the other defendants, was a party to these civil proceedings.
Berezovsky gave his registered address at Moscow, Leninsky Prospekt ("the Leninsky address"). However it went on to say that he was residing at a specific address in Down Street, London ("the Down Street address"). There can be no dispute, therefore, that Aeroflot knew at this stage not only that Mr Berezovsky had left Russia, but also that he was living in the UK and could be contacted at the Down Street address.
Berezovsky was convicted of the Andava fraud. In addition, Mr Berezovsky was found liable to compensate Aeroflot on the basis that he was jointly and severally liable with Mr Glushkov and others for the exact sum claimed.
Berezovsky's state-appointed lawyer launched an appeal against the second Savelovsky judgment to the City of Moscow Court. The appeal was dismissed on 4 February 2008. It is common ground that the judgment entered into force on that date.
Berezovsky's assets in Russia in purported execution of the second Savelovsky judgment. So, on 9 December 2010, the enforcement bailiff resolved to foreclose cash owned by Mr Berezovsky in the sum of some $US 4 million in a branch of ZAO Raiffeisenbank in Moscow. The resolution gave Mr Berezovsky's Moscow address at the Leninsky address, but said that the defendant "effectively resides at" the Down Street address. Other attachment proceedings were taken against real property in Russia, by a resolution dated 1 April 2011.
Berezovsky, Glushkov and a number of companies in the Forus Group who were outside the jurisdiction of the English court ("the English Forus proceedings"). Attached to the claim form in the English Forus proceedings was a "Schedule of Defendants and their addresses". Mr Berezovsky's address was given as the Down Street address. In his witness statement in support of service out of the jurisdiction (on the Forus companies) dated 6 April 2011, Mr Michael Fenn, Aeroflot's English solicitor, said that Mr Berezovsky was resident in England and Wales. He went on to explain that Aeroflot had chosen to sue in England because:
"37.1 [Mr
Berezovsky, Mr Glushkov and another. The claim was for an uplift or indexation of the amount of damages awarded by the Savelovsky district Court on 29 November 2007, that is to say the second Savelovsky judgment against Mr Berezovsky.
Berezovsky and Mr Glushkov responded to the English Forus proceedings. This shows that by this date Aeroflot knew how they could successfully bring proceedings to the attention of Mr Berezovsky.
Berezovsky at the Leninsky address on 26 April 2011. However, on 28 April 2011 the court received "failed delivery reports" stating that the telegram had not been delivered, that no one had answered the door and no one had come to the post office to collect the telegram.
Berezovsky and Glushkov:
"did not appear for the court hearing, had been notified at their last known place of residence about the time and venue of the court hearing, did not communicate to the court the reasons for their non-appearance and did not submit any objections to the claim. In accordance with article 167 of the RF Civil Procedure Code, the court ruled that the case should be considered in the absence of the defendants".
Berezovsky at his English address, no doubt based on his domicile in this country.
Proceedings involving Mr Glushkov
Berezovsky, Mr Glushkov remained in Russia until 2006. He was arrested and detained in December 2000. In December 2001 he was charged with the Andava fraud offences in case number 18/24401-01.
"The indexation of the sum stolen has already been carried out during the preliminary investigation in the indictment, as funds were paid into Aeroflot JSC's account in a foreign currency and not in Russian roubles. Therefore Aeroflot JSC requests the recovery of the sum given in the verdict without requiring indexation."
"37.2 Mr Glushkov is also resident in England having claimed political asylum here in January 2010. [Mr Glushkov] is believed to reside at [the Wokingham address]."
Berezovsky. The telegram notifying Mr Glushkov of the hearing was sent to his registered address in Russia at Bagrationovsky Proezd ("the Bagrationovsky address"). It was similarly undelivered, and not collected. Equally, there is no direct evidence that the documents in the case were served on Mr Glushkov at that address. No attempt was made to serve or notify him in England.
Aeroflot's knowledge of the addresses of Messrs Berezovsky and Glushkov
Berezovsky. He maintains that this is shown by the fact the English Forus proceedings were served on Mr Berezovsky at the Down Street and Egham addresses. He accepts that Aeroflot knew that the Wokingham address was Mr Glushkov's correct address from the receipt of Addleshaw Goddard's letter 26th April 2011.
The pleaded case
Berezovsky, and assert that, because Aeroflot was recognised as an injured party in the criminal proceedings on 12 April 2007, it thereby made a civil claim for compensation. The proposition that being recognised as an injured party amounts to the making of a civil claim is, however, refuted by the expert evidence, and no reliance is placed on it in Aeroflot's skeleton argument. Instead, it appears to be common ground that the civil claim by Aeroflot came into existence on 22 October 2007.
Berezovsky was present within the jurisdiction of the Savelovsky court. Paragraph [13] alleges that in the course of "the said proceedings" Mr Berezovsky submitted to the jurisdiction. The pleading relies on a series of steps, the latest of which was on 9 June 2007, said to amount to such a submission.
Berezovsky's criminal and civil liability. Paragraph [18] alleges that the second Golovinsky judgment, which it asserts gives rise to "the Indexed Savelovsky Judgment Debt", was a judgment ancillary to the second Savelovsky judgment.
Law
"To found jurisdiction in the New York Court other than by agreement or submission, did Mr Murjani have to be present or to reside in New York, or both, at the time the proceedings were served? If residence was necessary was he, on the facts, resident at the material time?"
"Those principles seem to me to involve this, first of all the court being a court of competent jurisdiction, has given notice to the litigant that they are about to proceed to determine the rights between him and the other litigant; the other is that, having given him that notice, it does afford him an opportunity of substantially presenting his case before the court"
"The correct approach on applications by defendants is, in my judgment, as follows:
i) The court must consider whether the claimant has a "realistic" as opposed to a "fanciful" prospect of success: Swain v Hillman [2001] 1 All ER 91 ;
ii) A "realistic" claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8]
iii) In reaching its conclusion the court must not conduct a "mini-trial": Swain v Hillman
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63;
vii) On the other hand it is not uncommon for an application under Part 24 to give rise to a short point of law or construction and, if the court is satisfied that it has before it all the evidence necessary for the proper determination of the question and that the parties have had an adequate opportunity to address it in argument, it should grasp the nettle and decide it. The reason is quite simple: if the respondent's case is bad in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the claim against him, as the case may be. Similarly, if the applicant's case is bad in law, the sooner that is determined, the better. If it is possible to show by evidence that although material in the form of documents or oral evidence that would put the documents in another light is not currently before the court, such material is likely to exist and can be expected to be available at trial, it would be wrong to give summary judgment because there would be a real, as opposed to a fanciful, prospect of success. However, it is not enough simply to argue that the case should be allowed to go to trial because something may turn up which would have a bearing on the question of construction: ICI Chemicals & Polymers Ltd v TTE Training Ltd [2007] EWCA Civ 725.
Mr Berezovsky's application to strike out
Berezovsky according to English rules of private international law, and that the judgments should in any case not be enforced against him because to do so would be contrary to public policy and natural justice.
Jurisdiction in relation to Mr Berezovsky
Berezovsky was not present within the jurisdiction of the Golovinsky court when the 2011 Indexation proceedings were commenced there. Moreover, if the Indexation proceedings are to be viewed as legal proceedings independent of the earlier proceedings in the Savelovsky court, Mr Berezovsky cannot be said to have submitted to the jurisdiction of the Golovinsky court. The case put against Mr Berezovsky is that the Savelovsky court had jurisdiction to determine the criminal case against Mr Berezovsky and the civil claim made by Aeroflot in those proceedings, and that the second Golovinsky judgment was ancillary to the second Savelovsky judgment.
i) That the criminal proceedings against Mr Berezovsky began, at the earliest on 13 June 2007;
ii) On that date Mr Berezovsky was not present in Russia: indeed he had left the country some 7 years earlier;
iii) The fact that Mr Berezovsky was present in Russia at the date of the commencement of the criminal investigation in 1999 is irrelevant to the question of whether the Savelovsky court had jurisdiction;
iv) Nothing done before 13 June 2007 by or on behalf of Mr Berezovsky could amount to a submission to the jurisdiction of the Savelovsky court;
v) There was no submission to the jurisdiction after that date: indeed Mr Berezovsky had expressly forbidden his lawyers to participate;
vi) Even if any of the acts relied upon by Aeroflot before 13 June 2007 could be said to amount to a submission to the jurisdiction of the Savelovsky court, any such submission could not have applied to Aeroflot's civil claim as Aeroflot made no civil claim until 22 October 2007;
vii) Even if Mr Berezovsky had submitted to the jurisdiction of the Savelovsky court, this would not provide any basis for holding that he had submitted to the jurisdiction of the Golovinsky court in the separate Indexation proceedings.
Berezovsky's continued residence in Russia. Much of his written and oral argument was directed to showing that, despite having left Russia more than 10 years ago, Mr Berezovsky retained the intention of returning to Russia when political conditions there allowed him to do so. Mr Marshall submitted that he was free to advance such a case, even though the pleaded case made no reference to residence in Russia whatsoever. He referred me a number of 19th century cases and text books in which it was submitted that a foreign judgment could be recognised and enforced without a specific plea that the foreign court had jurisdiction. In answer, Mr Leggatt relied on a short passage in Adams v Cape at 549-550 concerned with the burden of proof. Pleading and burden of proof are of course separate matters to which different rules may apply.
Berezovsky and Glushkov to have to meet a case on jurisdiction on an entirely different footing. On the other hand, given the fact that residence is, at least arguably, an alternative basis for jurisdiction, it would be wrong in principle at this stage to shut Aeroflot out from pleading and seeking to maintain a case based on residence. Neither Mr Leggatt for Mr Berezovsky, nor Mr Philip Jones QC for Mr Glushkov sought to argue that Aeroflot should not have an opportunity to plead such a case.
Mr Berezovsky - presence
Berezovsky's presence in Russia at the time of his formal accusation in 1999. There is no dispute that he was so present. The question is whether it is realistically arguable that any legal proceedings against him commenced at that time.
Mr Berezovsky - submission to the jurisdiction
Berezovsky submitted to the jurisdiction. The point which they most stress is that Mr Berezovsky, through his lawyers, applied for the prosecution to be dismissed. However, I accept Mr Leggatt's submission that there was no submission to the jurisdiction of the court in this way. Whilst of course a defendant may expressly agree, in advance of proceedings, to submit to the jurisdiction of a particular court, the more general position is that acts done by a defendant towards a prosecutor or claimant before legal proceedings are in existence are not likely to amount to a submission to the jurisdiction of any court. It is also true to say that, by invoking the court's jurisdiction, once it is engaged, to dismiss an action on the merits, a defendant may be submitting to the jurisdiction of that court. In the present case, however, by asking the prosecutor to discontinue the case before it was sent to court, Mr Berezovsky was inviting the prosecutor not to invoke the jurisdiction of the court at all. I am unable to see how this can realistically be argued to be a submission to the jurisdiction of the court.
Berezovsky, the fallback arguments concerned with whether there was submission to the jurisdiction of the court in respect of the civil claim and of the 2011 Indexation proceedings. If Aeroflot are to advance a case of jurisdiction in the case of Mr Berezovsky, then they would, in my judgment, have to do so on the alternative, unpleaded basis of residence.
Mr Berezovsky - public policy and natural justice
Berezovsky was not given fair notice of those proceedings.
Mr Berezovsky - finality
"Two policies support the doctrine of res judicata estoppel: the interest of the community in the termination of disputes and the finality and conclusiveness of judicial decisions; and the right of the individual to be protected from vexatious multiplication of suits and prosecutions".
"English law, and it is to safe to say, all legal systems, place high in the category of central principles that which requires that limits be placed on the right of citizens to … reopen disputes… Any determination of disputable fact may, the law recognises, be imperfect: the law aims at providing the best and safest solution compatible with human fallibility and having reached that solution it closes the book. The law knows, and we all know, that sometimes fresh material may be found, which might perhaps lead to a different result, but in the interests of peace, certainty and security it prevents further enquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth, … and these are cases where the law insists on finality. For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time: so the law still more exceptionally allows judgments to be attacked on the ground of fraud: so limitation periods may, exceptionally, be extended. But these are exceptions to a general rule of high public importance, and as all the cases show, they are reserved for rare and limited cases, where the facts justifying them can be strictly proved."
"The right to a fair hearing before a tribunal as guaranteed by Article 6§1 of the Convention must be interpreted in the light of the Preamble to the Convention, which declares, among other things, the rule of law to be part of the common heritage of the Contracting States. One of the fundamental aspects of the rule of law is the principle of legal certainty, which requires, inter alia, that where the courts have finally determined an issue, their ruling should not be called into question."
"the Supreme Court of Justice set at naught an entire judicial process" which had ended in – to use the Supreme Court of Justice's words – a judicial decision that was "irreversible" and thus res judicata – and which had, moreover, been executed.
In applying the provisions of Article 330 in that manner, the Supreme Court of Justice infringed the principle of legal certainty. On the facts of the present case, that action breached the applicant's right to a fair hearing under Article 6§1 of the Convention."
"The procedure for quashing of a final judgement presupposes that there is evidence not previously available through the exercise of due diligence that would lead to a different outcome of the proceedings. The person applying for rescission should show that there was no opportunity to present the item of evidence at the final hearing and that the evidence is decisive. Such a procedure is ... common to the legal systems of many member States."
Berezovsky for the fraud of which Aeroflot complained. It found that the loss amounted to 214,988,879.70 roubles. The judgment entered into force, was final, and the judgment debt had subsequently been recovered. In the subsequent proceedings in the Golovinsky court, commenced several years after the second Savelovsky judgment had become final, the court was asked, by a state owned entity, to find that the loss suffered was ten times greater. No new facts or circumstances were advanced or considered by the court. He submits that this amounts to a glaring shortfall from the necessary standard under the Convention.
Berezovsky could have anticipated that a claim would be made for indexation notwithstanding that no claim had been made in the proceedings. He also submitted that what was in substance being relied on here was an application of the Henderson v Henderson abuse of process principle, which was not the same as res judicata and was not the subject of the principle of finality as recognised in the EctHR cases.
Berezovsky to rely on the Henderson v Henderson principle about claims which could have been brought. He says, in my view rightly, that the claim in the Indexation proceedings was a successful attempt to reopen the final, second Savelovsky judgment. Thirdly, I do not think there is a valid distinction to be made as a matter of policy between cases like Brumarescu, where the decision is set at naught, and a case like the present where a final award of damages is multiplied tenfold. The effect in both cases is that the dispute is reopened, and the defendant is twice troubled with the same litigation. Lastly, I cannot accept that Mr Brezovsky can be deemed to have anticipated that the judgment might be uplifted for indexation. No case was produced by either expert where a Russian court had done this in respect of indexation before the date of judgment. It is unrealistic to say that a party should have predicted a legal novelty.
Mr Berezovsky - notice
Berezovsky in England of the 2011 Indexation proceedings or the date of trial. Aeroflot rely on the fact that an attempt was made to notify him at the Leninsky address, which was his registered address as a matter of Russian procedural law. The evidence showed that, in Russian procedural law, service at the registered address would normally be good service if the defendant's exact place of presence was not known to the claimant. In addition to the telegram (returned undelivered) they also maintain that the court documents were served there.
Berezovsky. It would be wrong to accept assertions in the written evidence as conclusive on this issue, in the absence of disclosure and cross-examination.
Berezovsky maintained the Leninsky address as his registered address in Russia. He could have taken, but did not take, steps to have it de-registered. He relies on the rationale in Adams that what is a breach of natural justice is to be determined by reference to the reasonable expectations of a defendant against the context of the foreign procedural law. A defendant to proceedings in Russia can expect to have proceedings served at his registered address. There is accordingly no breach of the principles of natural justice if proceedings are served there. Furthermore, he says that the question of whether Mr Berezovsky received actual notice is properly in issue, and cannot be resolved without a trial.
Berezovsky's presence at the Down Street address, given that it was this address which was used in the Statement of Claim in the civil proceedings before the Savelovsky Court, and that Mr Fenn gives it as the address in his witness statement for service out. He points out that the registered address is not, as a matter of Russian law, a universally acceptable address for service, but one which the court will accept if the exact place of presence of the defendant is unknown.
Berezovsky's place of presence, the precise inferences to be drawn from the fact that he maintained a registered address in Russia and the question of whether there was actual notice, are all matters which would need to be resolved at trial.
Mr Glushkov's application to strike out
i) The 2011 Indexation proceedings are said to be a variation of the second Savelovsky judgment. Mr Glushkov is not bound by the second Savelovsky judgment and was not party to the proceedings which gave rise to it. I call this "the wrong judgment point";
ii) The second Golovinsky judgment should not be enforced against Mr Glushkov as he was not given adequate notice of it to comply with the rules of natural justice;
iii) The damages due to Aeroflot from Mr Glushkov were finally assessed by the First Golovinsky judgment: to enforce the second Golovinsky judgment would be contrary to public policy by breaching the finality principle;
iv) Mr Glushkov was not susceptible to the jurisdiction at the time of the second Savelovsky judgment or when the 2011 Indexation proceedings commenced.
Mr Glushkov's wrong judgment point
Berezovsky's criminal liability and his joint and several civil liability for the sum claimed. Mr Glushkov was not a party to the judgment. His civil liability had been established by the first Savelovsky judgment. The second Golovinsky judgment indexed the amount found due by the second Savelovsky judgment. It did not index the amount (albeit the same amount) found due by the first Golovinsky judgment. Moreover, given the different dates, it is clear that indexation up to the date of the First Golovinsky judgment would have produced a different sum.
Mr Glushkov - notice
Berezovsky. Although Aeroflot accept that they knew of the Wokingham address as the address for Mr Glushkov on receipt of Addleshaw Goddard's letter of 26 April, they do not accept that they had such knowledge before that date. In any event, as with Mr Berezovsky, the question of whether Mr Glushkov received actual notice could not be resolved without a trial.
Mr Glushkov - finality
Berezovsky. The first Golovinsky judgment finally determined the amount of compensation due to Aeroflot. The re-opening of that issue in the 2011 Indexation proceedings was a breach of the finality principle for the same reasons as I have given in respect of Mr Berezovsky. This court should not enforce it for the same reasons.
Mr Glushkov - jurisdiction
" ... when a person submits to the jurisdiction of a foreign court in respect of a claim made against him by a plaintiff or claimant in those proceedings, the he can also taken to have submitted to its jurisdiction in respect of, first, claims concerning the same subject matter and, secondly, related claims in the sense described above. This is provided, of course, that such claims may properly be brought against him under the rules of procedure in the foreign court, either by the original plan or by others who are parties to the proceedings there at the time when he makes the submission.
Illegality
Berezovsky and Glushkov were lawfully residing in this country. They make grave allegations that Mr Berezovsky made false statements to the immigration authorities and tribunals in order to obtain asylum here. These allegations were never properly spelled out in any pleading, or coherently made in any evidence. Mr Marshall's written skeleton contained the barest outline. In those circumstances I have not thought it right to have regard to the points. I am satisfied, however, that they can have no conceivable bearing on the pleaded jurisdiction case against Mr Berezovsky or on the finality issue in relation to both defendants, the latter of which is a sufficient basis for granting this summary judgment application.
Conclusion