|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
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 2702 (Comm) (06 November 2017)
Cite as:  EWHC 2702 (Comm)
[New search] [View without highlighting] [Printable RTF version] [Help]
BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION
7 Rolls Building, Fetter Lane, EC4A 1NL
B e f o r e :
(sitting as a Deputy High Court Judge)
| JSC BTA Bank
- and -
|(1) Mukhtar Ablyazov
(2) Ilyas Khrapunov
Mr Marc Delehanty (instructed by Hughmans Solicitors LLP) for the Second Defendant
Hearing dates: 21 and 22 September 2017
Crown Copyright ©
Sir Andrew Smith:
i) I would refuse the stay application, but would direct that witness statements of fact and hearsay notices be exchanged by 4.30pm on 30 June 2018 (rather than by 4.30pm on 30 April 2018, as previously ordered); and
ii) I would permit the proposed amendment (subject to a minor and uncontroversial change in the draft pleading).
I said that I would give my reasons later.
The stay application
i) The parties make disclosure by 15 December 2017;
ii) Witness statements be served by 30 April 2018; and
iii) The trial be fixed to start not before 1 November 2018.
In the event, the trial has been fixed to start on 21 January 2019, the first "reading day" being 16 January 2019.
i) That, if his appeal to the Supreme Court is wholly or even partly successful, he and his advisers will have been put to trouble and expense unnecessarily preparing for the trial (which might be labelled "wasted preparation" prejudice);
ii) That he will be required to disclose to the Bank confidential and possibly sensitive information, exposing himself to a real risk that it or the Government of Kazakhstan might improperly use it to his disadvantage and that of his family ("disclosure" prejudice); and
iii) That he would be unfairly hampered from obtaining evidence from potential witnesses if their identities were made known to the Bank and their statements served on the Bank although the proceedings might not go to trial ("witness" prejudice).
i) A Ms Elena Tyschenko (or Ms Olena Tyschenko, according to Mr Matthew Jenkins, a solicitor and member of Hughmans Solicitors LLP, who act for Mr Khrapunov) was imprisoned to procure her co-operation with the Bank. At a hearing on 2 May 2017 HHJ Waksman QC was sufficiently persuaded that there was "information of concern" about this to allow Mr Khrapunov to rely on the allegation in support of his application to set aside the WFO.
ii) A Norwich Pharmacal order and a writ ne exeat regno was obtained by the Bank against a Mr Eesh Aggarwal.
iii) In the case of Ukraine v Kononko,  EWHC 1420 (Admin), the Administrative Court upheld a decision to refuse on the grounds of abuse of process an order to extradite to the Ukraine the respondent, Mr Kononko, who was alleged to have defrauded the Bank, the abuse being that the Bank's Ukrainian lawyers were improperly involved with the Ukrainian authorities.
The amendment application
i) That it was "unclear whether the claim underlying the proposed amendment had been compromised" in a settlement agreement with third parties (the "compromise" point); and
ii) That there "may be an overlap between the allegations made in the proposed amendment and proceedings which the Bank has brought against Mr Khrapunov in the United States such that it would not be appropriate to try these allegations [in these proceedings]" (the "overlap" point).