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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 470 (Comm) (24 February 2011)
Cite as:  EWHC 470 (Comm)
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QUEENS BENCH DIVISION
B e f o r e :
|JSC BTA BANK||Claimant|
|(1) MUKHTAR ABLYAZOV|
|(2) ZHAKSYLYK ZHARIMBETOV|
|(3) GRANTON TRADE LIMITED|
|(4) BRANDEN & ASSOCIATES LIMITED|
|(5) ALDRIDGE VENTURES LIMITED|
|(6) ZAFFERANT PARTNERS INC|
|(7) FOREST MANAGEMENT LIMITED|
|(8) LOGINEX PROJECTS LLP|
|(9) INCOMPRO MANAGEMENT LIMITED|
|(10) PERSPECTIVE COMMUNICATIONS LIMITED|
|(11) AUSTIN UNIVERSAL INC|
|(12) MADEN HOLDING INC||Defendants|
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
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"A power of attorney in favour of the Bank authorising the Bank to request from the Latvian bank information as to what has become of the monies paid by the Bank to Maden (that may require some tighter definition) and any document which shows such a disposition."
"By 4 pm on Wednesday 5 January 2011 the Twelfth Defendant do execute a power of attorney permitting the Bank's lawyers, Hogan Lovells International LLP in London and/or Sorainen in Latvia, to obtain on that Defendant's behalf and in his name information and documentation from JSC Trasta Komercbanka of Riga, Latvia as to what has become of those monies paid into the account of the Twelfth Defendant which derived from the Claimant and which have not otherwise been accounted for by the Twelfth Defendant (being US$2,516,000 in total). The Clamant shall produce a draft of the said power of attorney for agreement by the Twelfth Defendant and, in the event the same cannot be agreed, then the parties shall have permission to apply in writing. In the event that the execution of the power of attorney by 5 January 2011 is not possible due to matters beyond the Twelfth Defendant's control, the Claimant shall agree a reasonable extension of time for execution of the power of attorney or alternatively the Twelfth Defendant shall have liberty to apply, provided the Twelfth Defendant can show that it has employed its best endeavours to ensure the timely execution of the power of attorney."
"In addition, Hogan Lovells also require the power of attorney to be legalised and apostilled. We understand that unless Mr Timichev was to travel to the BVI for this purpose it will be necessary for:
"1 A BVI lawyer to obtain a certificate of good standing for Maden and a copy of the register of directors.
"2 Those documents to be legalised/apostilled and the documents would then be taken to the Deputy Governor's office where it would fix the apostille. This could take up to 48 hours.
"3 The documents then have to be sent to Mr Timichev in Belarus. He will have to attend a notary with the documents and the power of attorney.
"4 The documents would then need to be sent from Belarus to Hogan Lovells.
"Clearly it is impossible to comply with these steps before 4.00 pm tomorrow and, to be fair, neither party was aware of this when before Mr Justice Clarke on Friday of last week. Had they been aware, the parties would have explained to the court that the seven-day deadline was impossible to comply with due to the above.
"If the deadline were extended for 28 days, however, this would give the parties an opportunity to hopefully resolve the matter and for Maden to comply. We would be grateful if you could put this request before Mr Justice Clarke."
"Turning to the status of the execution of the power of attorney, we are in the process of having a certificate of good standing and register of directors in respect of Maden apostilled and notarised by our BVI lawyer. The documents will then be couriered to Mr Timichev so that they can be scheduled to the power of attorney. We are also in the process of having the power of attorney translated for the purpose of Mr Timichev having it notarised."
"With regard to paragraph 5.2, the deadline for Maden to provide the claimant with a power of attorney was set at 4.00 pm today. We are instructed that due to Mr Timichev's ill-health, coupled with public holidays in the CIS which run until 11 January 2011, Mr Timichev has not yet been able to execute the power of attorney.
"By way of evidence of Maden's good faith and that it is not simply attempting to 'drag' this matter out earlier today Maden offered to the claimant to disclose information it has now obtained which shows where 2,329,000 of the unaccounted monies went after they left Maden's account.
"Our client also offered to provide information with regard to the final $187,000 together with documentary proof of all of these payments within the next seven days. The offer was made as a more efficient alternative for the claimant compared with providing the executed power of attorney."
"We note that you state in your letter to the judge that you are 'instructed to provide information Maden has obtained which shows where 2,329,000 of the unaccounted monies went after they left Maden's account to the claimant as soon as possible'."
"Unaccountably, however, we have not yet heard further from you in this regard. Our client is entitled to see this information under the terms of both the 9 June 2010 freezing order and the 24 August 2010 Unless Order. Without prejudice to our client's rights to be provided with the power of attorney in accordance with the terms of the 10 December order and to apply to enter judgment against Maden for its unremedied breach of the Unless Order, we ask that you (1) provide us with the said information and (2) confirm whether it remains Maden's intention to provide the power of attorney by 12 January."
"... now order that all conditions of the order dated 10 December have been complied with by our clients and that the power of attorney need not be executed and provided to the claimant's solicitors."
"... to order that all conditions of the order dated 10 December 2010 have been complied with since they have not. If iLaw seek to persuade me to vary my order or to make a further one, that should be dealt with in an inter partes application which I anticipate could be brought on in short order."
"However, we are now able to send you the power of attorney and therefore enclose it by way of service upon you. We have requested that the client send to us an original notarised copy. We then intend to issue an application requesting that it be ordered that all conditions of the order dated 10 December 2010 have been complied with by our clients."
"If you wish the document in addition to be apostilled we understand that it may be necessary for it to be sent to the BVI for that purpose."
"Maden should comply within such time as the court may appoint with such further conditions, if any, as the court shall determine to be appropriate, in order to obtain for the Bank a power of attorney permitting ..."
"... permitting the Bank's lawyers, Hogan Lovells, and/or Sorainen ... to obtain on [Maden's] behalf and in its name information and documentation from Trasta."
"... as to what has become of those monies paid into the account of the Twelfth Defendant which derived from the [Bank] and which have not otherwise been accounted for by Twelfth Defendant (being UD$2,516,000 in total)."