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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> PJSC National Bank Trust & Anor v Boris Mints & Ors [2020] EWHC 204 (Comm) (06 February 2020) URL: https://www.bailii.org/ew/cases/EWHC/Comm/2020/204.html Cite as: [2020] EWHC 204 (Comm) |
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BUSINESS AND PROPERTY COURTS
OF ENGLAND AND WALES
QUEEN'S BENCH DIVISION (QBD)
COMMERCIAL COURT
Rolls Building Fetter Lane, London, EC4A 1NL |
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B e f o r e :
____________________
(1) PJSC National Bank Trust (2) PJSC Bank Otkritie Financial Corporation |
Claimants |
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- and - |
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(1) Boris Mints (2) Dmitry Mints (3) Alexander Mints (4) Igor Mints |
Defendants |
____________________
Duncan Matthews Q.C. and Richard Greenberg (instructed by Stephenson Harwood LLP) for the Fourth Defendant
Hearing dates: 18 December 2019
____________________
Crown Copyright ©
Mrs Justice Cockerill :
i) There is no good arguable case against IM and/or the evidence against him is extremely thin;
ii) There is no (or no sufficient) evidence of a real risk of dissipation;
iii) The Return Date Undertakings against IM serve little practical purpose and are disproportionate; and at the same time the Return Date Undertakings are doing significant, disproportionate and irremediable harm to IM's business (and associated third party interests), namely those of EG Capital Advisors Cayman Islands ("EGCA") and its group of companies ("EGCA Group"), including in particular EGCA UK Limited ("EGCA UK");
iv) The Claimants failed to comply with their duty of full and frank disclosure at the ex parte hearing before Moulder J.
Background
i) The written submissions served on behalf of the First to Third Defendants were adopted by those then acting for IM;
ii) His legal team initially participated in that substantive hearing including making concessions through counsel as to good arguable case and advancing arguments on risk of dissipation;
iii) During the course of submissions, they "suggested that if the WFO was not immediately discharged, the Fourth Defendant would then prepare a "full discharge application with evidence"; something which would occupy a month."
iv) That prompted a debate about whether this course was open to IM, given that the hearing was the return date hearing and there had been no request for an adjournment;
v) The Judge "enquired whether the Fourth Defendant wished to press his opposition to the continuation of the injunction, or by contrast wished to reserve the possibility of making the foreshadowed full-scale discharge application in due course";
vi) On reflection IM's team then withdrew opposition to the continuation because they wished to preserve the possibility of making a fuller discharge application at a later date.
The abuse of process argument
"The phrase "good cause" was used in Pet Plan Limited by Nicholls LJ at p.41. Nicholls LJ said that what are "good grounds" will depend upon all the circumstances of the case; see p.40. Although Buckley LJ in Chanel v Woolworth had not put the matter as broadly as this, instead saying (at p.492-3) that there had to be a significant change of circumstances or the discovery of some new facts which could not reasonably have been known about when the undertaking was given, I accept, following Pet Plan Limited, that what is "good cause" will depend upon all the circumstances of the case, though typically a change of circumstances or the discovery of some new fact will be required. In Secretary of State for Trade and Industry v Bell Davies Trading [2005] 1 AER 324 at §104 the Court of Appeal put the matter this way:
"The normal procedure would be for the party, who had given the undertaking, to apply to the court, to which he had given the undertaking, on a specific ground, usually changed circumstances making the continuation of the undertaking unnecessary, oppressive or unjust."
"Care must be taken if a defendant consents to give undertakings but wishes to preserve his right to apply to be released from them at a later date. Where a defendant chooses not to seek an adjournment of an application for an interim injunction, but instead accepts that it should be dealt with there and then by his offering undertakings until trial or further order, there must be good grounds before he can apply to modify or change them."
"the Fourth Respondent may make any application to modify or release the Return Date Undertakings without showing good cause for making any such application, without prejudice to the Applicants' right, as expressly reserved at the hearing, to assert that any such application would be an abuse of process."
Conclusions
The substantive arguments
i) No good arguable case against IM;
ii) No risk of dissipation against IM;
iii) The Undertakings are not of value and are causing disproportionate prejudice;
iv) There was a failure to make a fair presentation of the application at the without notice hearing.
No Good Arguable Case Against IM
"Thin evidence"
i) The Claimants' case against him was extremely thin to begin with, noting issues that Moulder J had with the alleged good arguable case against IM at the without notice hearing;
ii) Mr Matthews QC for IM draws attention in particular to the fact that there are other closely related people who are more demonstrably involved, whereas IM's role appears different and lesser than theirs;
iii) The central pillar of the Claimants' case against IM, namely the hearsay evidence of Ms Tartakovskaya (on which the Claimants relied heavily at the ex parte hearing), was then undermined by Ms Tartakovskaya's own evidence as to the circumstances in which it was obtained;
iv) In support of his Release Application, IM has now been able to provide his own evidence in answer to the Claimants' case against him, which deals fully with the evidence on which the Claimants have relied; and
v) The Claimants' evidence in reply has almost nothing to say in response to the explanations IM has provided as to why the allegations advanced by the Claimants against him do not pass the threshold for a good arguable case.
Conclusions
"All this is complex, and we need to write it all up quickly and calmly, we're really tilting at windmills, I think, to be frank. Because, well, I think that there will be no problems overall. Respectively, we have a proposal, that if our terms in the amendments to the offer not the issue are not accepted through no fault of ours, then we will extend for a maximum of 6 months to rectify the problem, and if that does not happen, we will take it back."
Article 1068 of the Russian Civil Code
Risk of dissipation
"(1) Where the court accepts that there is a good arguable case that a respondent engaged in wrongdoing against the applicant relevant to the issue of dissipation, that holding will point powerfully in favour of a risk of dissipation.
(2) In such circumstances, it may not be necessary to adduce any significant further evidence in support of a real risk of dissipation; but each case will depend upon its own particular facts and evidence."
The Return Date Undertakings
Failure to comply with the duty of full and frank disclosure
i) IM's status as an employee of O1 GOL and the corresponding Russian Law defence;
ii) The circumstances of obtaining Ms Tartakovskaya's evidence;
iii) The investigative committee material;
iv) The bank accounts.
Article 1068
i) The Claimants' claims are governed by Russian law and they had access to and obtained Russian law advice. IM says that the Claimants relied on IM's role as a Managing Director of O1 GOL in their evidence and skeleton in support of the WFO where he was referred to as a "Managing Director in Moscow of the representative office of O1 Group Overseas ". He is also pleaded as having a "senior executive management role" in the O1 Group, which could only be a reference to his role as a Managing Director of the Moscow representative office of O1 GOL.
ii) From this it follows that the Claimants knew that IM worked in Moscow for the Moscow representative office of O1 GOL. Mr Matthews also showed me documents which appear to demonstrate that one of the Claimants was itself paying IM's salary (from a bank account held by O1 GOL).
"2. What arguable causes of action arise against the Mints family as a matter of Russian civil law and what are the ingredients for establishing those causes of action?[ ]"
The Tartakovskaya evidence point
"Rix J. was careful to limit his remarks to legal professional privilege and it is far from obvious that these concerns should be added to the heavy responsibilities already undertaken by lawyers who are making a without notice application, except perhaps in circumstances where the evidence in question is of central importance to the application. Even when the evidence is of central importance (for example, evidence as to the sale of contraband goods in a case of piracy of intellectual property rights) "trap orders" and other conduct involving impersonation or deception have been commonplace in the Chancery Division for a century or more, and do not seem to have attracted censure."
The Investigative Committee material
IM's bank accounts the error