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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 & Anor  EWHC 230 (Comm) (11 February 2016)
Cite as:  2 All ER (Comm) 218,  WLR(D) 72,  EWHC 230 (Comm),  3 WLR 659
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QUEEN'S BENCH DIVISION
Rolls Building, 7 Rolls Buildings
London EC4A 1NL
B e f o r e :
| JSC BTA BANK
|- and -
Charles Samek QC and Marc Delehanty (instructed by Hughmans) for the Second Defendant
Hearing dates: 26, 27 & 28 January 2016
Crown Copyright ©
Mr. Justice Teare :
The cause of action
"Abuse of process can very arguably be the unlawful means on which a conspiracy can be founded. …………a conspiracy which had its aim and objective of defeating an order of the court and obtaining the release from a Mareva of assets by persons who were not, I emphasise, parties to the original action, must be a conspiracy to abuse the process very akin to the malicious arrest which was the subject of Roy v Prior. There is no logic in creating an exception for malicious arrest, and not a conspiracy to abuse the process entailing the defeating of something very close to an arrest a Mareva injunction."
The jurisdiction issue
Mr. Ablyazov's domicile
"A person domiciled in a State bound by this Convention may also be sued:
1. Where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings."
"The residence must be voluntarily adopted. Enforced presence by reason of kidnapping or imprisonment, or a Robinson Crusoe existence on a desert island with no opportunity of escape, may be so overwhelming a factor as to negative the will to be where one is. ………Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. And there may well be many others. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled."
The place where the harmful event occurred
Place where the damage occurred
"The search will be for the element of damage which is closest in causal proximity to the harmful event. This is because it is this causal connection which justifies attribution of jurisdiction to the courts of the place where damage occurs: see the Bier case  QB 708, paras 16-17 and the Dumez France case  ECR I-49, para 20."
The place of the event giving rise to the damage
"…it is the representor's negligent speech rather than the hearer's receipt of it which best identifies the harmful event which sets the tort in motion." (see p.568 B)
"That damages are unavailable as a remedy in contempt seems clear from the decision of the Court of Appeal in Chapman v Honig. The decision was based primarily upon the notion that the court's jurisdiction in contempt is concerned with a wrong against the administration of justice rather than against an individual."