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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 783 (Comm) (16 March 2012)
Cite as:  EWHC 783 (Comm)
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QUEEN'S BENCH DIVISION
London EC4 1NL
B e f o r e :
| JSC BTA BANK
|- and -
|(1) MUKHTAR ABLYAZOV
(2) ILDAR KHAZHAEV
(3) ANTON RYBALKIN
(4) CHRYSOPA HOLDING BV
|(5) USAREL INVESTMENTS LIMITED
(6) LUX INVESTING LIMITED
165 Fleet Street, 8th Floor, London, EC4A 2DY
Tel No: 020 7421 4046 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: firstname.lastname@example.org
(Official Shorthand Writers to the Court)
Crown Copyright ©
MR JUSTICE HAMBLEN:
"The burden of proof is on the claimant. The standard of proof to which the court must be satisfied by the claimant in respect of the conditions set out in CPR Pt 25.7(1)(c) is that of the balance of probabilities….
"Where a plaintiff makes alternative claims against a defendant, for example for rent with an alternative claim for mean profits, or for the price of goods with an alternative claim for damages, the court can order an interim payment without reaching a conclusion at that stage as to which of the alternative claims against the defendant will succeed at trial, provided that the plaintiff will recover a substantial sum under one head or the other – see the Shearson Lehman case  1 WLR 480."
1. That no repayment of interest has ever been made pursuant to the loan.
2. That the bank has no record of any security ever being granted in support of the loan, contrary to the terms of the loan agreement.
3. That the terms of the loan were amended to disadvantage the bank after the loan had been drawn down.
4. That Chrysopa was ultimately owned and/or controlled by Mr Ablyazov, but that, in breach of the relevant disclosure obligations, such interests were never disclosed to the bank's board of directors.
5. That Chrysopa was at the material time a shell company having no substantial assets and carrying on no or no material business.
6. That no proper due diligence was conducted in relation to the loan, that such risks as were identified were not heeded, and that the loan was entered into at the height of the credit crunch when the bank was in a precarious financial position.
"Chrysopa admits that it is in default as to payment of interest due under the loan agreement as varied."
"No admissions are made as to the actual amount due."
Then at paragraph 62(b):
"As admitted above, Chrysopa has breached the terms of the loan agreement. In the premises, Chrysopa admits that sums are due and owing from it to the bank pursuant to the terms of the loan agreement."