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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> JSC BTA Bank v Ablyazov & Ors  EWHC 2840 (Comm) (12 November 2009)
Cite as:  EWHC 2840 (Comm)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| JSC BTA BANK
|- and -
DREY ASSOCIATES LIMITED
ANTHONY EDWARD THOMAS STROUD
JOHN DOMINIC WILSON
SARAH JULIET WILSON
Brian Doctor QC and Adam Tolley (instructed by Clyde & Co LLP) for the First to Third Defendants
Daniel Tatton-Brown (instructed by Magrath LLP) for the Fourth to Seventh Defendants
Hearing dates: 3, 4, 5 and 6 November 2009
Crown Copyright ©
Mr. Justice Teare:
"In essence the Bank brings claims against the Defendants in respect of their involvement in what the Bank says is a huge misappropriation of funds belonging to it during the course of 2008, which totalled in excess of US$295m. D1 was the chairman of the Bank at the time, D2 was a fellow main board director and chairman of the Bank's management board, and D3 was a director of the management board. D4 – an English company – was secretly established and controlled by or for Ds 1-3 (or one or more of them) and received the $295m. Ds 5-7, English resident individuals, were or had been nominee directors of D4 and other companies which secretly held valuable assets of Ds 1-3 (or one or more of them)."
i) there is and was no sufficient risk of dissipation;
ii) there was material non-disclosure;
iii) it is not just and convenient to grant a Freezing Order.
i) There is a history of "politically motivated charges".
ii) State owned organisations have no independence from the state. Information given to a government owned bank would be accessible by the police and prosecuting authorities. "Even if the documents were given to apparently innocent and independent persons in Kazakhstan, the lack of any proper civil law safeguards in Kazakhstan, dependent as they are on judicial independence would mean that the authorities could obtain that information by one or other means."
The Freezing Order against the First to Third Defendants
(i) Risk of dissipation
(a) The context of the dispute
"38. [The First Defendant] has been quoted as saying that the allegations that are being made about his wrong-doing are without foundation and are politically motivated. He has also been critical of the Government's action in taking a 75% stake in the Bank though Samruk-Kazyna, accusing the Government of Kazakhstan of "corporate raiding", an "abuse of power" and "an illegal takeover by the State which conflicts the interests of both the bank's shareholders and management."
Mr. Varenko then gave a short account of the First Defendant's business career from 1998 to 2005, including his arrest and release.
(b) The alleged criminality of the First Defendant
(c) The role of the Kazakhstan prosecuting authorities
(d) The reliability of the Bank's undertakings
(e) Other proceedings by the Bank against the First to Third Defendants
(iii) Just and convenient
Conclusion as to the continuance of the Freezing Order as against the First to Third Defendants
The Freezing Order against the Fourth to Seventh Defendants
i) There was no risk of dissipation.
ii) The Freezing Order was not proportionate.
iii) There was no need for a Freezing Order in circumstances where the assets of the First Defendant provided adequate security for the Bank's claim.
Disclosure of information