B e f o r e :
THE HONOURABLE MR JUSTICE SUPPERSTONE
|| SEAN DALEY
||- and -
Joel Donovan QC and Nathan Roberts (instructed by Saunders Law) for the Claimant
Angus McCullough QC and Matthew Donmall
(instructed by Hickman & Rose, Solicitors) for the Defendant
Hearing dates: 22 June – 04 July 2016
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Table of contents
||The Factual Background Relating to the Jerooy Mine
||Relevant Legal Principles
Standard of proof
Weighing evidence and drawing inferences
||The Claimant's Evidence
Sir Tony Baldry
Mr Trew and Mr Wilkins
Mr Sin Beti
||The Defendant's Evidence
||Closing Submissions of the Parties
||Findings of Fact
||Ruling of 29 June 2016
Mr Justice Supperstone :
- In the early hours of the morning of 7 July 2006 Mr Sean Daley, the Claimant, was shot by an unidentified assailant outside his residence in Bishkek, the capital of the Kyrgyz Republic. Of four shots fired, three missed, but one struck him, damaging his internal organs. He was taken to hospital and received life-saving surgery. Some days later he was transferred back to the UK, via a hospital in Istanbul, where he received further treatment. Fortunately he appears to have made a good recovery from his injuries, but the medical evidence indicates that there are continuing psychiatric and physical effects from the attack.
- By his claim issued on 25 November 2014 the Claimant seeks damages in respect of the injuries he sustained in the attack. He alleges that the attempted murder was "organised and arranged by the Defendant" (Particulars of Claim, para 1).
- The Claimant is a British businessman who was representing the interests of a British mining company, Oxus Gold plc (formerly Oxus Resources Corporation) ("Oxus Gold"). Oxus Gold, through its local entity, was the former licensee of the Jerooy gold mine in the Talas region of the Kyrgyz Republic. It was the second largest confirmed gold deposit in the country. Mr Maksim Bakiyev, the Defendant, is the son of the then President of the Kyrgyz Republic.
- The Claimant's case is summarised at paras 4-6 of the Claimant's opening skeleton argument:
"4. [The Claimant] alleges that his shooting was an attempted murder arranged by [the Defendant] in order to prevent [the Claimant] from jeopardising a fraudulent scheme to obtain the Jerooy mining licence for a shell company, Global Gold Holding GmbH ('Global Gold'), at Oxus Gold's expense.
5. [The Claimant's] case is that the ultimate beneficial owners of Global Gold were close associates of [Kurmanbek Bakiyev, the then President] and [the Defendant], the late Russian businessman Boris Berezovsky and Badri Patarkatsishvili; that the Jerooy licence was repayment for their assistance in raising [Kurmanbek Bakiyev] to power; and that [the Defendant] and his associates stood to (and did) reap massive financial rewards on re-sale of the licence. This gave [the Defendant] the motive for the attempted murder.
6. As the President's son, [the Defendant] had the means to arrange the shooting: wealth, unparalleled influence, and the use of the State security apparatus. [The Claimant] also relies on evidence of [the Defendant's] propensity to use or threaten violence and extortion; on the close temporal connection between [the Claimant's] Oxus Gold activities and the shooting; and the perfunctory police investigation thereafter."
- On 4 April 2014 the Defendant was convicted in absentia by the Pervomaisky District Court of Bishkek of organising the Claimant's attempted murder, along with his father, his brother, Marat, and Zhanysh, his uncle. That conviction is not admissible in these proceedings as truth of the facts and matters recited therein pursuant to the rule in Hollington v F. Hewthorn & Co. Ltd  KB 587 (see Ruling of 29 June 2016 at Appendix hereto).
- The Defendant denies that he had any involvement in the shooting of the Claimant, whether by organising it, arranging it, or in any other way (Defence, para 3.2). Further, he denies that he had "any financial interest or involvement in the Jerooy gold mine, whether through Global Gold or otherwise" (First witness statement, para 32).
The Factual Background Relating to the Jerooy Gold Mine
- The relevant facts relating to the grant of licences to develop the Jerooy mine are not materially in dispute.
- The Jerooy gold deposit was discovered in 1968. Initial steps were taken to exploit it, but these ceased in 1991 with the collapse of the Soviet Union. In 1993 Kyrgyzaltyn, the State-owned company which was responsible for the Kyrgyz gold-mining industry, entered into a joint venture with Morrison Knudsen Corporation, an American mining company, to develop the Jerooy mine. That joint venture broke down in late 1996. Kyrgyzaltyn agreed to make a deferred $2.5m termination payment to Morrison Knudsen.
- In around 1997 Oxus Gold went into Kyrgyzstan with the objective of mining the Jerooy gold deposit. On condition that a well-known mining company co-invested with Oxus Gold, Kyrgyzaltyn agreed to form a joint venture with Oxus Gold. Oxus Gold therefore formed a company called Norox Mining Company ("Norox") with one of its shareholders, Normandy Mining, a substantial Australian mining concern. In September 1998 Norox and Kyrgyzaltyn entered into a joint venture agreement and formed Talas Gold Mining Company ("Talas Gold"). Ownership was shared between Norox (67%) and Kyrgyzaltyn (33%). In 1999 Normandy Mining withdrew from Norox and transferred its shares to Oxus Gold which then became 100% owner of Norox. On 6 March 2000 Talas Gold was issued with a licence for the right to use sub-surface mineral resources for the purpose of development of mineable reserves of Jerooy gold deposit ("the Jerooy licence").
- On 16 March 2001 the licence was suspended by the State Geological Agency of the Kyrgyz Republic ("the SGA") and on 8 May 2002 the SGA annulled the licence on the basis that Talas Gold was in default of their obligations.
- On 19 April 2003 the licence was reinstated. However the SGA claimed that Norox again failed to discharge its obligations to develop the Jerooy deposit and on 3 August 2004 it annulled the licence a second time.
- On 11 August 2004 the Government of the Kyrgyz Republic made Decree No. 597 confirming the decision by the SGA to annul the licence.
- Talas Gold requested reinstatement of the licence and on 15 November 2004 the Government of the Kyrgyz Republic ("the Government") wrote to Talas Gold setting out conditions on which it would continue negotiations on the licence restitution. However negotiations did not proceed: Talas Gold claimed they agreed to the proposal; the Government claimed that the conditions specified in the letter were not fulfilled.
- On 27 January 2005 the Government by Decree No.46-p employed an international law firm Le Boeuf, Lamb, Greene & MacRae to consider the legality of its decision not to reinstate the licence. The law firm confirmed that the actions of the prime minister and the Government did not oblige them to do so.
- In March/April 2005 the "Tulip Revolution" led to the resignation of President Akayev and Kurmanbek Bakiyev became President ("the President").
- On 8 August 2005 by Decree No.358-p the Government instructed a law firm Davenport Lyons to conduct a legal evaluation of the actions of the prime minister and the government in not reinstating the licence. They also confirmed the lawfulness of the actions of the prime minister and the government and that they were not obliged to reinstate the licence.
- By a letter dated 14 November 2005 Mr Kulov, the Prime Minster of the Kyrgyz Republic, confirmed the Government's decision not to restore the licence. In order to speed up the implementation of the Jerooy project, the Government issued Decree No.619 dated 28 December 2005 "On accelerating the development of the Jerooy gold ore field" in accordance with which a search for a potential investor was carried out.
- On 10 January 2006 Mr Blair, the British Prime Minister, wrote to the President expressing his hope that there would be restitution of the licence to Oxus Gold. The President replied on 1 February 2006 informing him that the licence would not be reinstated.
- On 10 March 2006 Mr Kulov wrote to the President (referring to a letter the Government had received dated 21 February 2006 from Clifford Chance on behalf of Oxus Gold giving notice of a claim arising from the termination of the licence) requesting the President
"to choose one of the two possible options of our further activities:
(1) unconditional refusal from further co-operation with Oxus Gold Plc and employment of an international law firm in order to protect the interests of the Government of the Kyrgyz Republic in relation to the project, which will lead to inevitable international arbitration proceedings,
[(2) further negotiations with Oxus Gold]."
- On 16 March 2006 the President replied to Mr Kulov:
"I hereby approve the first option of our activities (unconditional refusal from co-operation with Oxus)."
- On 18 May 2006 the inter-district court of the city of Bishkek dismissed the claim by Talas against the annulment of the licence on 3 August 2004.
- On 23 May 2006 by Decree No.377, signed by Prime Minister Kulov, the Government decreed that approval be given to a draft Joint Activity Agreement between Kyrgyzaltyn and Global Gold to develop the Jerooy gold field.
- On 29 May 2006 the Kenesh (Parliament) of the Kyrgyz Republic by Decree No.1009-III noting that "a tense situation has arisen currently at the Jerooy gold field, which is of importance for the future economy of the Kyrgyz Republic", decreed that the Government should abolish Decree No.377 as it contravened the law of the Kyrgyz Republic; and further that the General Prosecutor's Office be instructed "to carry out an investigation and to bring to justice those individuals who concluded general agreements to develop the Jerooy goldfields that did not take the interests of the Republic into account and were in violation of the law of the Kyrgyz Republic".
- On 12 June 2006 by Decree No.422, signed by Prime Minister Kulov, the Government responded to the Kenesh Decree No.1009-III. The Government Decree stated, inter alia:
"It must be noted that due to the lack of experience and funds, Norox Mining Company has repeatedly breached its obligations relating to the development of the Jerooy gold ore field. …
The new Government of the Kyrgyz Republic, formed after 24 March 2005, tried twice (May 2005 and April 2006) to strengthen the Kyrgyz side's position. However, despite the substantial increase in gold prices on the global market, the company Oxus Gold plc did not agree with the main demands put forward by the Kyrgyz side. Talas Gold Mining Company's latest commercial proposals, submitted on 23 May 2006, arrived after the contract with the new investor had already been concluded, and in addition to that, they weren't even explicit. …
Taking into account the lack of funds in the state budget for covering the costs of an international law firm to defend the interests of the Government of the Kyrgyz Republic and the open joint-stock company Kyrgyzaltyn, against the claim demands lodged by the companies Oxus Gold plc, Norox Mining Company and their affiliates, as well as the company MK Gold in relation to the Jerooy project, and with the aim of preventing a delay in the commencement of works on the Jerooy gold ore field due to the announcement of an investment tender, in accordance with the order of the President of the Kyrgyz Republic and the decrees of the Government of the Kyrgyz Republic which had been passed previously, the Government of the Kyrgyz Republic instructed the open joint-stock company Kyrgyzaltyn – the project operator – to search for potential investors having improved the commercial terms previously signed with Norox Mining Ltd.
Applications from the companies Barrick Gold Corporation and Centerra Gold Inc. were examined. Since the said companies' applications did not contain specific commercial proposals, they were not considered.
Open Joint-Stock Company Kyrgyzaltyn chose Global Gold Holding GmbH, which proposed the best terms of project implementation, to act as a partner in the joint venture.
With the aim of accelerating the development of the Jerooy gold ore field, by its Decree No.377 dated 23 May 2006, the Government of the Kyrgyz Republic approved the draft Joint Activity Contract between the open joint-stock company Kyrgyzaltyn and Global Gold Holding GmbH for the development of the Jerooy gold ore field. Moreover Global Gold Holding GmbH undertook to meet the aforementioned demands to settle the matter of compensation of funds amounting to US$2.5m to the company MK Gold, and to pay salaries to the joint venture's former employees prior to the commencement of construction works on the site. …
It should be particularly noted that in relation to the Jerooy and the Taldy-Bulak Levoberezhny projects, the contracts clearly stipulate that in the event of a breach of the completion deadline or failure to keep within the approved budget for the development of the gold ore fields, the contracts with investors shall be dissolved and no costs incurred by them will be compensated. These terms compare favourably with the terms of the contracts with the previous investors.
In accordance with Article 73(2)(5) of the Constitution of the Kyrgyz Republic and Article 12(15) of the Constitutional Law of the Kyrgyz Republic… the Government of the Kyrgyz Republic has decreed that:
2. The Zhogorku Kenesh of the Kyrgyz Republic be requested to withdraw its Decree No.1009-III 'On the condition and prospects for development of the Jerooy gold ore field' dated 29 May 2006."
- On 5 July 2006 the Jerooyaltyn Joint Venture was registered in the Ministry of Justice of the Kyrgyz Republic (Kyrgyzaltyn 40%, Global Gold 60%). On 19 July 2006 Global Gold was issued with licence number 639 authorising development of the Jerooy gold field.
- On 28 November 2006 the Kyrgyz Supreme Court upheld the legality of the annulment of the Talas licence on 3 August 2004.
Relevant Legal Principles
Standard of Proof
- Lord Nicholls, in a well-known passage in his speech in In Re H and Others (Minors) (sexual abuse: standard of proof)  AC 563 at 586, stated:
"Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability…
The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. …
… this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In Re Dellow's Will Trusts  1 WLR 451, 455: 'The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it'."
- Section 4 of the Civil Evidence Act 1995 provides:
"(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following—
(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;
(b) whether the original statement was made contempor-aneously with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved had any motive to conceal or misrepresent matters;
(e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose;
(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight."
- In Welsh v Stokes  1 WLR 1224 at para 23 Lord Dyson MR stated:
"The decision what weight (if any) to give to hearsay evidence involves an exercise of judgment. The court has to reach a conclusion as to its reliability as best it can on all the available material. Where a case depends entirely on hearsay evidence, the court will be particularly careful before concluding that it can be given any weight. But there is no rule of law which prohibits a court from giving weight to hearsay evidence merely because it is uncorroborated and cannot be tested or contradicted by the opposing party."
- In Breslin v McKevitt  NICA 33 the Court of Appeal in Northern Ireland (Higgins, Girvan and Coughlin LJJ) observed:
"It should be borne in mind that no evidence can be properly weighed in a vacuum divorced from the totality of its evidential context. Apparently weak evidence may gain strength or indeed considerable strength when considered in the light of other evidence."
Weighing Evidence and Drawing Inferences
- Where fraud is alleged, the Privy Council in Central Bank of Ecuador v Conticorp SA  UKPC 11 recently endorsed the approach of Robert Goff LJ in The "Ocean Frost"  1 Lloyds Rep. 1 at 56-57, where he said:
"I found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witness's motives and to the overall probabilities can be a very great assistance to a judge in ascertaining the truth."
(See also observations of Sedley LJ in Anya v University of Oxford  ICR 847 at para 14 in respect of inferences to be drawn from primary findings of fact in the discrimination context).
The Claimant's Evidence
- The Claimant said that from August 1999 to 7 July 2006 he was Chief Executive Officer of Environmental Recycling Technologies plc, formerly named Camco plc, whose primary investments were in textiles, design and printing, and paper manufacturing, employing over 2,000 workers in the emerging markets of the former Soviet Union, particularly Kyrgyzstan. Conduct and day to day management of these investments was from his office in Bishkek. He spent the majority of his time in Kyrgyzstan over these years and developed good working relationships with the Kyrgyzstan people and senior members of the government.
- In February 2006 he was approached by Oxus Gold. He was informed that Oxus Gold was the majority controlling shareholder in a joint venture with the Kyrgyz government for the development of the Jerooy gold mine, and that Oxus Gold had invested substantial funds into the gold mine but the government had revoked its operating licence. In late 2005/early 2006 Oxus Gold had filed arbitration proceedings against the Kyrgyz Republic in relation to the licence. Oxus Gold requested his involvement to mediate and negotiate for the return of the licence. He enlisted the assistance of Sir Tony Baldry, who he knew through his work with Camco/ERT. He considered that, as a public figure and Member of Parliament in the UK, Sir Tony's assistance could be invaluable in obtaining the co-operation of the Kyrgyz parliament and government. He and Sir Tony formed a company by the name of Enterprise Development International Capital Ltd ("EDIC"), and entered into an agreement with Oxus Gold. He was appointed Oxus Gold's senior negotiator and mediator supported by the appropriate power of attorney.
- From around March to 6 July 2006 his work for Oxus Gold involved meeting with Parliamentary ministers, government ministers, trade unionists, employees and journalists, and lobbying for the return of the licence.
- The Claimant said that it came to his attention in May 2006 that a company called "Global Gold" had been given the licence for Jerooy. He was informed by the Directors of Oxus Gold that Global Gold was formed in Austria in March 2006 with a share capital of just €1,000 and that the trail of owners led to two companies registered in the BVIs, and to the Russian oligarchs, Boris Berezovsky and Badri Patarkatsishvili. He was told the company had no experience of gold mining. He said it was common knowledge in Bishkek that the President and his son, the Defendant, were believed to have close relations with Mr Berezovsky. He was informed by Bill Trew, the CEO of Oxus Gold, that he had a meeting with the Defendant during which he told Mr Trew that Mr Berezovsky had paid him for the licence and asked Mr Trew to pay to have the licence returned to Oxus Gold.
- The Claimant said that he was consistently informed by Parliamentary ministers that the President and the Defendant had personal interests in the Jerooy gold mine and were the only ones who could return the licence to Oxus Gold. He was informed by one of the Prime Minister's advisers that the President had personally instructed Mr Kulov in writing to give the Jerooy gold licence to Global Gold and not to negotiate with Oxus.
- He said he was aware from living in Kyrgyzstan that the Defendant had developed a reputation as an aggressive, uncompromising and demanding commercial personality and that he was rapidly building his own business empire off the back of his father's presidency, and that he was lobbying for various commercial interests including for Global Gold to be granted the licence for Jerooy.
- The Claimant said that he assisted in putting together a deal between Oxus Gold and the State for the return of the licence. This included increasing the State share, increasing Oxus Gold's investment, and for Oxus Gold to undertake a work programme. This, he said, was far better than the deal that had been agreed with Global Gold. He brought these substantially improved proposals, which he said had been ignored by the government, to the attention of the Kyrgyz parliament and he attended the Kyrgyz parliament debate which led to the parliament issuing its Decree No.1009-1111 on 29 May 2006. Around that time, he said, the Jerooy dispute was becoming increasingly high profile and he was being photographed by media and television cameras when he was in public. He already had an armed security officer at his premises, 24 hours a day, and around May or June 2006 he hired three close protection officers.
- In June 2006 The Claimant said he was approached by Mr Erkin Bekbolotov, a friend of his, who informed him that he had been approached by the Defendant, who had told him to tell the Claimant to stop fighting with him over Jerooy as they were too strong. The Claimant told Mr Bekbolotov that the Defendant should speak to him directly.
- From 3-6 July 2006 he and Sir Tony attended many meetings in Kyrgyzstan that he had arranged with senior ministers, trade unionists and employees. He said that Parliament and the trade unionists and employees were in favour of the licence being returned to Oxus Gold. Though scheduled to have a meeting with the Prime Minster, the latter cancelled the meeting at the last moment. On around 5 July they attended a meeting at the White House (Government buildings) with Mr Zamir Bekboev, an adviser to the President. They discussed Oxus Gold's position with Jerooy and the new deal. Mr Bekboev confirmed that only the President and the Defendant could decide who would be granted the licence for the Jerooy gold project. In his interrogation on 23 January 2011 Mr Bekboev stated:
"I told them, that that is not in my competence to arrange such a meeting and also added that the President's son (Maksim Bakiyev) had interest in Jerooy project, as he represented a group of companies controlled by the fugitive oligarch Boris Berezovsky. I, just as everybody else, was aware of Maksim's capabilities and knew that any attempts to resolve the matter behind his back would lead to failure."
Mr Bekboev promised to report to the President the nature and detail of their conversations with a request to meet the President on 10 July.
- The Claimant said that on 5 July Oxus Gold applied to "the Kyrgyzstan court" (witness statement, para 16) to prevent the Jerooy gold operating mining licence being transferred to any third party. The application was successful, he said. However he did not recall seeing actual documents or a sealed court order.
- Sir Tony had to leave the country in the early morning of 6 July but planned to return for the meeting with the President. The Claimant said that given the improved deal offered by Oxus Gold, the substantial support for Oxus Gold by ministers, employees and trade unionists, and the high amount of public pressure in the media for the return of the licence to Oxus Gold, he expected that Sir Tony and he would meet the President for him to sign off the new improved deal with Oxus Gold and sanction the return of the licence.
- On the evening of 6 July when returning home accompanied by his close protection officers, after a meal at a local restaurant, he exited his car and started walking the short distance to the entrance of his home. He heard four gunshots and was struck by one bullet in his lower back. After 40 minutes he was taken by ambulance to Bishkek Surgical Hospital, trauma unit, where he underwent an eight-hour emergency laparotomy operation.
- On around 11 July whilst he was in hospital in Bishkek he was visited and interviewed by investigating police officer Anarbek Suleimanov and another officer with a translator. Mr Suleimanov informed him that the President's family was suspected to be behind this murder attempt but the police had been ordered not to investigate and moreover to close the investigation. The Claimant said that around three or four days after the shooting there was significant police security put in place at the hospital which included officers outside his room.
- A few days after the shooting the deputy general director of the hospital, Dr Sydygaliev informed him that he had received a personal phone call from the Kyrgyz minister for health asking what condition the Claimant was in and stating that if he died he would not have a job.
- On 14 July 2006 the Claimant was interviewed by Mr Suleimanov as part of his criminal investigation.
- On 15 July the Claimant was taken by air ambulance to Istanbul International Hospital and received further treatment. A week later he was transferred to the John Radcliffe Hospital in Oxfordshire.
- Under cross-examination the Claimant accepted that he did not refer to the potentially highly significant suggestion from the investigating officer, Mr Suleimanov, that the Bakiyev family was suspected to be behind the shooting until his witness statement of 9 October 2015.
- The Claimant also accepted that although he understood the investigation was stopped in September 2006, the resolution on stoppage was annulled on 7 November 2006, the investigation was stopped again on 14 December 2006 after his second more protracted interview, and it was opened again in 2008, this did not sit well with what he said he was told by Mr Suleimanov that the investigation had been ordered to be closed down from the outset.
- The Claimant further agreed that the fact that significant police security was put in place at the hospital around three or four days after the shooting is hard to reconcile with the idea that the President or his family had it in for him. Similarly, the telephone call to Dr Sydgalyev that if the Claimant died, he would not have a job on the face of it could not be reconciled with the idea that the President with all his power wanted him dead.
- After his recovery in 2006 the Claimant returned to the Kyrgyz Republic, principally, he said, to organise the move of his young son, who was still there, to the UK. During one of those visits he was interviewed a second time by Mr Suleimanov on 23 November 2006.
- In 2010 the Chief Prosecution Office re-opened the investigation after the revolution resulting in a government change, which led to President Kurmanbek Bakiyev and his family leaving the country. The Claimant was interviewed as part of that investigation on 8 December 2010.
- The Claimant said that around late autumn 2012 he attended Westminster Magistrates' Court as he was aware that the Defendant was in court for an extradition application by the Government of the USA on allegations of insider trading and securities fraud. He sat in the public gallery. He said at one point the Defendant caught his eye and went pale and looked shocked. He understood that many people in Kyrgyzstan had assumed that he had died of his injuries after he arrived back in the UK in 2006. He said that he noticed another man sitting in the gallery close to him and he approached him afterwards to ask who he was and what was his interest in the case. He gave him the impression of being a police officer so he asked him if that is what he was. He introduced himself as Michael O'Keefe and said that he was a retired police officer. He told the Claimant he was unable to divulge why he was there. The Claimant introduced himself and explained that he had been working in Kyrgyzstan when he had been shot. Mr O'Keefe took the Claimant's telephone number. The following day the Claimant said he received a phone call from Mr O'Keefe. He said he was instructed by Mr Bertii Sin Beti in relation to a fraud matter, that Mr Sin Beti was sitting with him, and that he had some information that he felt he should share with him. He passed the phone to Mr Sin Beti and the Claimant and Mr Sin Beti arranged to meet the following day in Mr O'Keefe's office. The Claimant said that he knew of Mr Sin Beti as he was a businessman who had been involved in business in Kyrgyzstan who he had met at business events once or twice.
- The Claimant said he attended Mr O'Keefe's office the following day and met with Mr O'Keefe and Mr Sin Beti. Mr Sin Beti explained that he had been shocked when Mr O'Keefe had mentioned his meeting with the Claimant as he had assumed that he had died of his injuries in 2006. Mr Sin Beti said that he had saved the Claimant's life and explained that he had been at the Defendant's office when he had overheard an argument with others and that Maksim was angry and berating them as they had only fired two shots instead of ten and would have to finish the job at the hospital. The Claimant informed Mr Sin Beti that the investigation had been re-opened in Kyrgyzstan and asked him to contact the Kyrgyzstan embassy and police.
- The Claimant said that in around September 2013 Mr Sin Beti contacted him to say he had given evidence to the Kyrgyzstan investigating authorities.
- The Claimant said he had no further contact with Mr Sin Beti from then until March 2014 when he saw him in Bishkek during the criminal trial.
- The Claimant said that earlier this year, that is 2015, he contacted Mr Sin Beti to ask if he would provide a witness statement in his case.
- The Claimant said that he believed that the attempted assassination was as a direct result of his involvement with the Jerooy gold mine. He said that by the time Sir Tony left Kyrgyzstan on 6 July 2006, they had created real support for Oxus Gold and were jeopardising the chances of Global Gold in obtaining the mine. He believed that the Defendant organised the attempted murder and that he had the motive and means to do it.
- In cross-examination the Claimant agreed there was a dispute involving Camco and a company by the name of Kelishim concerning proceeds of sale of the fabric factory, Joint Stock Kasiet, a company that he represented, that originated in 1998 and was still going on in 2006. The Claimant was adjudged as having administrative responsibility for non-compliance with court decisions, as the director of Camco. In mid-June 2006 letters were received at Camco's offices stating that a debt was outstanding and that the writer had information about the Claimant which could damage his reputation. He believed he worked for Kelishim. They were not threats of violence; they were what he described as "credibility-type threats". Nevertheless he accepted that he did tell the new bodyguards he recruited at the time that he had received anonymous letters in the office with threats of blackmail. As at July 2006 there remained ongoing disputes relating to Kasiet and Kelishim (Transcript, 23 June, pp.21,36,38 and 40).
- Asked as to whether he was aware of the difficulties that had beset the licence and Oxus Gold's involvement in the gold mine, he said not in detail but in general terms. He agreed that in the negotiations he faced considerable difficulty because Oxus Gold had a credibility problem in seeking to restore its licence, given its past performance. He accepted as correct that there were genuine and legitimate doubts on the part of the Kyrgyz authorities, as to Oxus Gold's ability to deliver, as a partner in the gold mining project. He said he was not aware that the Prime Minister had confirmed the decision that the Norox licence would not be restored again, or of the December 2005 Decree accelerating development of the Jerooy gold deposit and affirming the decision to refuse restitution of the licence. He agreed that if he had known the full history he would have appreciated just what a huge challenge he had been given in trying to restore a licence that the government had repeatedly and on legal advice been determined to annul. He said that he was aware that the relationship was less than not good, and his approach, for right or wrong, was to take a broad stroke to this and try to get both sides to forget about all the history and move forward.
- He said that he knew that by the time his detailed proposals were submitted on 29 May Global Gold's proposal had already been accepted, so he was trying to displace an agreement that the Government had already reached with Global Gold. He accepted that on its face the agreement with Global Gold was on terms that were substantially better than Oxus Gold had provided at the time. Further, in his proposal he did not include the provision in the Global Gold agreement whereby Global Gold agreed to settle all outstanding litigation and claims in respect of previous investors. He said he was not aware of that detail. He was also not aware that subsequently it in fact happened that Global Gold settled Oxus Gold's claim that arose out of the transfer of the licence.
- The Claimant said he was not aware that the joint venture with Global Gold had been registered in the Ministry of Justice on 5 July 2006. He accepted Mr McCullough's words that it appeared from the documents that Global Gold had "landed their prize" before the shooting (Transcript, 24 June, p.9).
Sir Tony Baldry
- Sir Tony Baldry is a barrister of England and Wales, in practice since 1975. He was a Member of Parliament between 1983 and 2015. In 1999 he became Chairman of Camco plc and in that capacity he visited Kyrgyzstan about three to four times a year. He said he was involved in complex policy and commercial decisions with ministers and officials in the Kyrgyz government. He got to know the Claimant as a consequence of their working relationship with Camco. Sir Tony ceased to be a Director of Camco in late 2005.
- Sir Tony confirmed that having agreed to attempt to mediate on behalf of Oxus Gold with the Kyrgyz government to try to restore the mining licence for Jerooy, between 2 and 6 July 2006 he and the Claimant attended meetings with government officials in Bishkek. During his visit he met with a number of members of the Kyrgyz parliament, various ministers and advisers to the President, and with Trade Unionists and employees from Jerooy, along with members of the press and civil society. He said he was scheduled to have a meeting with the Prime Minister, but he cancelled the meeting at the last moment (see para 40 above).
- Sir Tony said that there was nothing else that he discussed during his time in Bishkek between 2 and 6 July other than the return of the licences to Oxus Gold. Mr Sultanov, who at the material time was the Speaker of the Kyrgyz Republic Parliament, said in the witness statement he made in the criminal investigation on 9 February 2013 that the main topic of discussion he had with Sir Tony at the beginning of July 2006 was Jerooy. However Sir Tony was referred to the statement of the Claimant made on 23 November 2006 in the course of the criminal investigation when the Claimant referred to them having meetings "concerning economic and political ties between Kyrgyzstan and Great Britain" and that "Besides other issues, Jerooy topic was touched [upon] during those meetings as well". The Claimant made a statement in similar terms in his interview on 8 December 2010. The Claimant's description of the meetings appeared odd to him.
- Sir Tony said that by 6 July they had made considerable progress and "had put together a package that would be difficult to refuse" (witness statement, para 17). He said that when he flew out of Bishkek he "was feeling confident that our work was succeeding as there was widespread support for the licence to be returned to Oxus Gold. All we needed was a formal sign off from the President. When I left Bishkek, I fully expected to return within a week to ten days to meet the President and finalise the deal to return the licence to Oxus Gold" (witness statement, para 18).
- Sir Tony said that he would have made some notes of the meetings he had in Bishkek at the time, but as nothing happened for a number of years after the shooting he did not keep his notebook.
- Sir Tony said that it was his understanding that by the time of his visit to Bishkek that the licences had been sold to a Russian company, but nothing had happened so he was not concerned about them. He was seeking to get the restoration of the licences to Oxus Gold (Transcript, 24 June, p.108).
- However he agreed with Mr McCullough that what he and the Claimant were doing "may have constituted [Oxus Gold's] last throw of the dice" (Transcript 24 June, p.86).
Mr Trew and Mr Wilkins
- Mr Trew was appointed the Chief Executive Director of Oxus Gold in 2003. He said that Oxus Gold had been involved with the Jerooy mine for many years before he became its CEO. When he joined in 2003 they started negotiations to begin constructing the mine. Oxus Gold had a licence to construct the mine and a licence to operate the mine. The licence to operate the mine was annulled on at least two occasions. He said at the time the licence was annulled for a second time Askar Akayev was President of Kyrgyzstan. His son Aidar was looking to extort a large amount of money from Oxus Gold, but Oxus Gold refused to pay and continued building the mine in accordance with the construction licence. The annulling of the licence was, he said, essentially a political negotiating tool used to improve the leverage of the state. When Akayev was succeeded as President by Kurmanbek Bakiyev in 2005, the licence still had not been restored. He said that they were told by a number of parties involved that this would be forthcoming in the near future, otherwise they would not have continued to commit large amounts of funding to the project. He said that Oxus Gold was the biggest investor in the country at that time and they could not understand why the licence was not being renewed, despite the negotiations that he personally conducted and meetings he attended with the Prime Minister, the President and various other senior ministers.
- Mr Trew said it then emerged that the licence had been given to another company called Global Gold. He said (at para 7 of his witness statement) on their investigations "it became apparent that the main parties behind Global Gold were Boris Berezovsky and Badri Patarkatsishvili". He added:
"Enquiries suggested that Maksim Bakiyev, the President's son, was also involved and had a commercial interest in Global Gold. I was not surprised to hear this as it was well known that Maksim was building a business empire in reliance on his family's influence in Kyrgyzstan."
- Mr Trew's witness statement continues:
"8. I arranged a meeting with Maksim Bakiyev at the Hyatt hotel in Bishkek. One of his assistants turned up and drove me to a private residence nearby. Maksim and I sat in an office upstairs. Nobody else was present. Maksim made it clear to me that he had the power to return the licence; there was no doubt about this. We discussed the terms under which the licence would be returned to Oxus. Maksim asked for payment of USD15m into his private BVI bank account, in return for which the licence would be immediately returned to Oxus. He told me that he had been paid USD5m by Boris Berezovsky for the licence to be given to Global Gold, and so the USD15m would be used to pay back Berezovsky along with some profit and he would keep the balance. I made it clear that, as CEO of a public company, I was unable to partake in extortion.
9. After that, it was clear that we were going to need the Government to be embarrassed by the lack of progress with the mine and for public pressure to facilitate the return of the licence. We continued negotiating with Sean and Sir Tony's assistance. We offered terms that were far more favourable [than] the previous deal and those offered by Global Gold. I believed that the licence was going to be returned. …"
- Under cross-examination Mr Trew said that by "a commercial interest" (see para 71 above) he meant "monetary interest". What he was referring to by "monetary interest" was the USD5m that the Defendant told him Berezovsky had given him. When asked how that allegation of him receiving a bribe constituted him "building a business empire", Mr Trew replied "they are two different statements". Mr Trew said that he did not suggest that the Bakiyev family had an interest, aside from the bribe, in Global Gold. In addition to the Defendant, Mr Trew said that President Bakiyev, Roza Otunbayeva (who was the ex-ambassador to the UK and foreign minister) and others told him that Berezovsky was behind Global Gold.
- Asked about paragraph 8 of his witness statement (see para 72 above), Mr Trew said that he did not know the date of the meeting. If he had to guess he would say it was between November 2005 and February 2006. He said he met President Bakiyev in New York the night before the United Nations meeting that he was there for, and that at that meeting the President told him to carry on constructing the mine and everything would be sorted out and not to worry about it. The next day the President asked for a private meeting with him. At that meeting he told Mr Trew "Someone will contact you and arrange a meeting, and then everything will get sorted out". Then someone contacted him and asked him to go to Bishkek. He flew there and stayed at the Hyatt Hotel, when he was contacted by one of the Defendant's assistants and he then attended the meeting that he describes in paragraph 8 of his witness statement. He has been to Bishkek probably twenty, thirty times. However he does not know where he was taken.
- Mr Trew says that he reported the meeting with the Defendant back to the Board at Oxus Gold, to Mr Wilkins and to Johnny Kipps. Mr Wilkins was a founding Director and shareholder of Oxus Gold, which he set up in 1996. Mr Trew said he told them what the Defendant wanted. Mr Wilkins said that they had "extremely strong suspicions" that the Defendant was involved in Global Gold and Jerooy (witness statement, para 13). However he does not say that he was told by Mr Trew about his meeting with the Defendant and the request for a bribe. Mr Trew had said that Mr Wilkins was one of the two senior persons in Oxus Gold dealing with Oxus Gold's interests in Kyrgyzstan.
- Mr Trew said that he did not tell the Claimant. He did not know him. He had never spoken to him before he was shot.
- Mr Wilkins said that the letter of 29 May may have been the first time Oxus Gold's improved offer was set out in a letter to the Prime Minister. However various proposals were set out to Kyrgyzaltyn prior to that. Negotiating with Kyrgyzaltyn, Oxus Gold agreed 50%. They were then advised to write to the Prime Minister. In the first letter of 23 May Oxus Gold told him it would be 50%. That was followed up by the letter of 29 May which gave more detail. Mr Trew said that he personally discussed improved terms with President Bakiyev and that was before the letter of 30 May 2006 from the Claimant setting out improved terms.
- Mr Trew said that on 5 July 2006 Oxus Gold won a ruling in the Kyrgyzstan Supreme Court upholding an injunction restraining the Government from pursuing discussions with Global Gold. Asked about the Supreme Court ruling, he said it was a ruling by one of the senior courts, and possibly the Supreme Court. He was referred to a press release dated 7 July 2006 (put out by Oxus Gold after the Claimant was shot) which included the following:
"The company would also like to report that on Wednesday 5 July 2006 it won a Supreme Court ruling upholding an injunction restraining the Government from pursuing discussions with Global Gold GmbH, a recently formed Austrian-based company which is reported to be interested in acquiring the Jerooy Gold Project."
Mr Trew said if there was a press release, then there must have been such a ruling.
- After the shooting of the Claimant, Mr Wilkins said that Oxus Gold put out a press release in which it linked what had happened to the Claimant to Alexander Turkot and Global Gold. Almost immediately Mr Turkot commenced legal proceedings against Oxus Gold, and they were advised that without any firm evidence they should retract the statement. Reluctantly they did so and agreed to pay Mr Turkot's legal costs (witness statement, para 26).
- Mr Trew said that the defamation proceedings that resulted from the statement that he made after the Claimant was shot were resolved by him and Oxus Gold making an apology to Mr Berezovsky after having accused him of being behind the shooting, with Global Gold. However it was pointed out to Mr Trew that the apology that was made was to Mr Turkot.
- Nevertheless Mr Trew still maintained that Global Gold was, and still is, a corrupt organisation that was put together by Berezovsky and Patarkatsishvili to steal Jerooy. He described Global Gold as "a fake, it's a front" (Transcript 29 June p.58) and said that there had been an absolute fraud.
Mr Sin Beti
- On 13 October 2015 Mr Sin Beti made a short witness statement, which he signed. In that witness statement he refers to two statements dated 5 June 2013 and 6 August 2013 that he provided to the General Prosecutor of the Kyrgyz Republic in the criminal investigation which led to the prosecution of the Defendant. At paragraphs 6 and 7 of his witness statement he clarifies two matters that are of no significance for present purposes.
- In the record of his evidence of 5 June 2013 (at page 3 of the English translation) he states:
"On 12 July, 2006, I was on a visit to the city of Bishkek where I had an appointment with Maksim Bakiyev to solve some production issues related to Ak-Tuz operation. I came to Maksim's office, whose whereabouts I don't remember as he had several offices. We talked business and found a solution to my business issue. Right after that, there came into the office Maksim's brother Marat, who worked in the Council of National Security, and Kurmanbek Bakiyev's brother – Zhanysh. There was a quarrel among them three, the exchange of warm words lasting for some 10 minutes. It was then that I managed to grasp the name of Sean Daley who was known to me as the director of CAMCO. Maksim was telling the other two off for failure to cope with him. They were speaking Russian, which was more or less understandable to me, so I was able to make out what it was all about.
When the other two took their leave, I asked Maksim what had happened to Sean. He said that those two idiots had only shot Sean twice instead of making ten shots so as to kill him. Then I asked Maksim why he wanted to kill Sean and what he had in common with CAMCO. Maksim told me that Sean was a representative of the company OKSUS and that he had gotten to windward of Maksim in the Dzheruy gold-field development licence issue. In response to my surprise – 'how could that be' – he said that Sean had appealed to (Kyrgyz) Parliament and solved the Dzheruy issue in favour of OKSUS. He went on to say that Sean was now in hospital in a very bad condition and that he would not be able to get away with it and depart from Kyrgyzstan alive – Maksim would take care of the matter and have Sean finished while in the hospital. He also added that such would be the lot of anyone who dared come his way and try to dash him round. Since I was well familiar with Sean, I decided to help him and save his life. Therefore, on leaving Maksim's office, I made a phone call to Kurmanbek Bakiyev and asked for an appointment. I was only able to see Kurmanbek in a day in his home, located in Zhibek Zholu Str., not far from a church.
When we met, I told Kurmanbek Bakiyev that his son Maksim had gone mad and instructed Marat and Zhanysh to kill Sean and, once the first attempt had failed, to ultimately kill him in the hospital. I also warned him that should Maksim fulfil his threat and get … Sean in the hospital, it would be all too clear as to who was behind the scenes and also that, Sean being a British subject, this whole affair would cause a huge international scandal, the British being able to conduct a thorough investigation into the case and trace the one who was blood-guilty.
When President Bakiyev heard my story, he was really upset. He told me that Maksim was getting out of control and even threatened him, his father, with a gun. He then made a phone call to Marat, Zhanysh and Bakyt Kaliyev. Some time afterwards, all of those invited did arrive, Zhanysh and Marat coming first. President Bakiyev took them outside to have a word with the two of them. When they left, Bakyt Kaliyev soon came. President Bakiyev took him outside too to have a word with him. Upon his leave, Kurmanbek Bakiyev informed me that he had told them three to not obey Maksim's orders and encharged them with a task of assuring Sean's personal security and arranging his safe departure from Kyrgyzstan."
- Mr Sin Beti's statement of 5 June 2013 concludes:
"… I bear responsibility for every single word I said and I am ready to confirm this testimony in the high courts of Kyrgyzstan and Great Britain."
- The date of 12 July 2006 referred to in the record of the Claimant's evidence purportedly of 5 June 2013 (see para 83 above) does not appear in the transcript of the criminal trial before the Pervomaisky District Court. The transcript reads "At the beginning of July 2006…". It was only the version appended to his witness statement of 13 October 2015 in these proceedings that referred to the date 12 July 2006.
- Mr Sin Beti was served with a witness summons on 18 February 2016. He has refused to attend court. A Bench Warrant has been issued for his arrest.
- Ms Nia Williams of Saunders Law, with conduct of this matter on behalf of the Claimant, made a fifth witness statement in support of the Claimant's application for permission to rely on the witness statement of Mr Sin Beti as hearsay evidence. Her statement includes the following:
i) On 6 November 2015 Mr Sin Beti attended at the offices of Saunders Law and stated that he no longer wished to give evidence and wished to withdraw his statement. Ms Williams informed him that his statement had already been served and could not be withdrawn (para 6).
ii) On 3 March 2016 the Claimant informed her that Mr Sin Beti had told him that he was in contact with the Defendant who had made offers to him not to give evidence or attend trial, and that those offers needed to be matched or he would not attend court (para 12).
iii) Mr Sin Beti, by his solicitor's letter of 17 June 2016 alleges that improper pressure has been put on him to give evidence to benefit the Claimant (para 17).
iv) A further letter from the Claimant's solicitors of 20 June 2016 states that Mr Sin Beti was out of the country and would not attend trial, and alleging that the Claimant has "lied and misled" Mr Sin Beti to bring him to give evidence and offered him a large amount of money (para 20).
v) Further Mr Sin Beti has claimed, through his solicitors by their letter dated 17 June 2016, that he never agreed to give evidence, and that he felt under pressure from the Claimant and Saunders Law to give evidence, which his solicitors believe "may be construed as partial or incomplete to say the least".
- Mr O'Keefe said that he is a retired police officer, his final position being that of Detective Chief Inspector for the Metropolitan Police. Since 2010 he has been a private investigator with a company called Community Safety Development ("CSD"). In 2012 CSD was instructed by Mr Sin Beti in relation to a fraud investigation relating to the valuation of old mines in Kyrgyzstan. Mr Sin Beti said that the fraud had been committed by Mr Lev Leviev, who had major gold extraction rights in Kazakhstan and the licences in respect of which Mr Sin Beti had an interest were sold on to Mr Leviev's company, the sale of the licences being facilitated by the Defendant.
- Mr O'Keefe confirmed the Claimant's evidence about their meeting at Westminster Magistrates' Court at the hearing of an extradition application by the USA against the Defendant. He said that he thinks it was the following day that Mr Sin Beti attended his office during a visit to London. He mentioned his meeting with the Claimant. He said Mr Sin Beti looked shocked and was momentarily lost for words. Mr Sin Beti said that he had assumed that the Claimant was dead and said that he, Sin Beti, had saved the Claimant's life. At paragraph 7 of his witness statement Mr O'Keefe states that Mr Sin Beti
"explained that he had been in Maksim Bakiyev's office when he overhead an argument between Maksim Bakiyev and others mentioning Sean Daley. He said that Maksim Bakiyev was annoyed that only two shots had been fired, whilst ten more had not been fired, and said that they would have to go to the hospital and finish the job. Sin Beti explained to me that he was shocked and worried for Sean Daley, who he knew of, and felt that he had a duty to speak to the President and tell him to stop Maksim Bakiyev and to help get Sean out of the country."
- Mr O'Keefe said he had no reason to disbelieve Mr Sin Beti. He suggested to Mr Sin Beti that he may want to tell the Claimant. He agreed. Mr O'Keefe called the Claimant from the office and passed the phone to Mr Sin Beti. It was arranged that the Claimant would come in the following day. Mr O'Keefe said the following day he met with the Claimant and Mr Sin Beti at his office. Mr Sin Beti once again relayed his story and the Claimant asked him to provide evidence in the Kyrgyz proceedings.
- Mr O'Keefe said that Mr Sin Beti made no secret of the fact that he did not like the Defendant as he felt he had reneged on their friendship.
- Mr O'Keefe said that he had not taken notes of his attendance at Westminster Magistrates' Court (and did not know the precise date of the visit to the court) as this was a purely speculative visit. The date of the extradition hearing was 7 December 2012. It was pointed out to him that was a Friday. Mr O'Keefe said that did not affect his evidence as he worked fairly irregular hours and often worked weekends in his line of work.
- He had no notes either of the meeting, which would have been on the Sunday, with Mr Sin Beti and the Claimant. However he said that he was asked at the end by the Claimant "If necessary, could you come along?", and he said "yes", to give evidence about what he had heard. He said that he did not know what particular proceedings the Claimant had in mind, but he was under the impression that there was a possibility of him attending to give evidence in proceedings brought by the Claimant.
- In 2010 Mr Ismailov was the Senior Investigator of Special Cases under the General Public Prosecutor of the Kyrgyz Republic. During the period from October 2010 to January 2014 he conducted a criminal investigation into the assassination attempt on the Claimant.
- He said that in the course of the original criminal investigation three possibilities were considered: (1) a crime connected with the Claimant's professional activity; (2) a crime committed by persons who had personal aversions; and (3) a crime of passion. He said that the investigation authority conducted a full investigation regarding possibilities (2) and (3), however any investigation into possibility (1) was not conducted. The reason for this omission is unknown. He said that the investigation authority unreasonably suspended the process of investigation into the crime being connected with the Claimant's professional activities.
- Mr Ismailov said that the Government of the Kyrgyz Republic, through Prime Minister Kulov and in fulfilment of the direct written instructions of President Bakiyev, in May 2006 approved the agreement with Global Gold for the development of the Jerooy mine "despite the fact that the agreement was obviously disadvantageous to the country and contrary to the current law" (witness statement, para 13).
- He said that during the period 2-6 July 2006 the Claimant and Sir Tony Baldry had a number of meetings with country leaders and deputies of the Parliament at which "only one question was discussed: the return of the licence to the company 'Oxus Gold'. Within the same period an appeal of the Prime Minister of Great Britain, Tony Blair, with a similar request was directed to Kyrgyz President Kurmanbek Bakiyev" (witness statement, para 15).
- Mr Ismailov referred to the investigation in which he was involved obtaining data from the Russian mass media that the company Global Gold was included as part of a group of companies controlled by Boris Berezovsky, and also regarding his interest in the Jerooy gold mine in Kyrgyzstan. Mr Ismailov's witness statement continues:
"22. In this regard, on the instructions of the investigating officer, his colleagues from the Investigative Committee of the Russian Federation established and interrogated the following heads of the companies belonging to Boris Berezovsky and connected with the company 'Global Gold':
(i) Irina Ponomareova, President of the Company 'Global Gold GmbH'.
(ii) Jack Barbanel, Chairman of the Board of Directors both of the holding 'Global Gold', and the company 'Strategic investment company', which had its representation in Moscow, and in Russia carries out functions of an administration company of the Fund 'Salford Capital Partners', which was Boris Berezovsky's main financial assets.
(iii) Raphael Filinov, the Chairman of the Board of the joint-stock company 'Jerooyaltyn', the co-owner of the Joint-Stock Company 'Cityline'.
(iv) Alexander Turkot, the IT adviser in the Fund 'Salford Capital Partners' and the founder of the company 'Global Gold Holding GmbH'.
(v) Glenn Calleney, the Head of the legal firm 'Salans', serving the above-stated companies and now Maksim Bakiyev.
23. The above-mentioned persons stated that it was Maksim Bakiyev who represented the interests of the 'Global Gold' companies in relation to the 'Jerooy' gold mine in Kyrgyzstan, and that it was a joint project of Maksim Bakiyev with Boris Berezovsky and Badri Patarkatsishvili."
- Cross-examined about paragraphs 22 and 23 in his witness statement, Mr Ismailov said he believed the contents of paragraph 23 to be true. However, the minutes of the witness interrogations of the persons named in those paragraphs record as follows:
i) Ms Ponomareova said "I know nothing about relations between B.A. Berezovsky and his personal companies with [the Defendant], and with Jerooy deposit located in Kyrgyzstan".
ii) Mr Barbanel said "Global Gold is a special purpose company that was set up for the Jerooy project. I do not know the ownership structure of this company. I do not know who the beneficiary of this company was". Mr Barbanel did however say that Mr Turkot told him that the Defendant "was going to lobby for the Jerooy project. I understood from the context that this meant supporting the company Global Gold. I do not know what the terms were under which M. Bakiyev promised to lobby for the project". Later in his statement, when asked what he knew about links between Mr Berezovsky and companies under his control, and the Defendant and the Jerooy gold field, he said "I know nothing about this".
iii) Mr Filinov said that he and Mr Turkot were registered shareholders on behalf of Badri Patarkatsishvili who was sole beneficial owner of Global Gold until he passed away (on 12 February 2008). He said that it was his understanding that Mr Berezovsky did not participate in the Jerooy project. He was "not aware if there were any relations between M. Bakiyev's and B. Berezovsky's companies".
iv) Mr Turkot said "Regarding Jerooy deposit I am completely sure that B.A. Berezovsky did not take part in financing the project. Badri Patarkatsishvili was sole investor in this project".
v) Finally, Mr Kolleeny said as follows:
"Global Gold was registered in the city of Vienna in Austria. I worked out the ownership structure of this company. An arrangement was chosen in order to avoid double taxation. Global Gold was owned by Vitiano Holding, a company registered in Cyprus. In turn the founders of Vitiano Holding were two offshore companies. The ultimate beneficiary of the whole scheme was Badri Patarkatsishvili. At least that is how I understood it. I did not communicate directly with Badri Patarkatsishvili on this matter. Alexander Turkot was his representative and I held talks with him. I also discussed matters involving the Jerooy gold field with the second project manager Raphael Filinov.
I am aware that Boris Berezovsky is trying through the courts in London to prove his ownership of half of the beneficial interest in the scheme described above, referring to his having had an oral agreement with Badri Patarkatsishvili. I do not know whether or not such an agreement existed between these two people. I repeat that as far as I am concerned Badri Patarkatsishvili was the sole beneficiary of the project."
In relation to the Defendant, Mr Kolleeny said: "I cannot exactly define what M. Bakiyev's role was with respect to the Jerooy gold field. I know that M. Bakiyev helped to find a new investor for the project (after Global Gold), which was the Kazakh company Vizor".
- Mr Ismailov said that in April 2013, during an official visit to London, he established a witness, Bertii Sin Beti, who had stated that he was a witness to the participation of the Defendant in the assassination attempt on the Claimant in July 2006. He agreed to give evidence in exchange for guarantees of his safety.
- Under cross-examination when asked about how he established the existence of Mr Sin Beti as a witness, Mr Ismailov said that the Claimant organised a meeting with Mr Sin Beti in the Kyrgyz embassy in London. That was the first he heard of Mr Sin Beti. He said that during his three visits to London in 2013 he met Mr Sin Beti two or three times during his April and May visits. He said the Claimant, most likely, was present at the meetings. The Claimant was present at the beginning of the conversation and at the end. He only took a statement from Mr Sin Beti after he had checked what he had said about a dispute in relation to a mine at Ak-Tyuz. He also wanted to check what Mr Sin Beti had said about his business connections in Kyrgyzstan.
- On 5 July 2013 Mr Sin Beti was questioned in Bishkek and gave direct evidence of the participation of the Defendant, Zhanysh Bakiyev and Marat Bakiyev in an attempt upon the life of the Claimant on 7 July 2006, and regarding the connection between the crime and the Claimant's activity concerning the Jerooy gold mine.
- Asked about the words "At the beginning of July 2006" in the record of the interview with Mr Sin Beti, he said that after Mr Sin Beti read the interview record he asked Mr Ismailov to amend the date to 12 July in order to give the exact date.
- Mr Ismailov said that "similar evidence concerning the connection between the crime, Sean Daley's activities regarding the Jerooy mine, and [the Defendant's] involvement were obtained from Richard Wilkins, a representative of the company Oxus Gold" (witness statement, para 27).
- Asked about this statement that Mr Wilkins' evidence was "similar evidence" Mr Ismailov said he was talking about the witness evidence of Mr Sin Beti, who gave direct evidence about the participation of the Defendant in an attempt upon the life of the Claimant. He said Mr Wilkins never gave direct evidence regarding the Defendant.
- In his oral evidence (in chief) Mr Ismailov said that representatives of the close circle of the Defendant had contacted him with an offer to stop the investigation of the Defendant in relation to the shooting of the Claimant. Under cross-examination he said it was not an offer as such, it was just a request not to carry on any investigation regarding the Defendant. He said it was not a threat. He would not say who made the request. He said the person who approached him is close to the Defendant and his family and he has fears about his safety.
- Mr Ismailov accepted that the court does not have all the documents that were produced in the criminal investigation. For example, he said that he interviewed Sir Tony Baldry in the summer of 2013. We do not have a copy of that interview.
- Mr Kulov was Prime Minister of the Kyrgyz Republic in 2006. He confirmed the truth of two witness statements that he provided in the criminal investigation. In explaining the Government decree of 23 May 2006 Mr Kulov said that his position, as the Prime Minister, was that the licence that had been annulled by the former government should not be transferred back to Talas Gold Company and that Kyrgyzaltyn was assigned to find another appropriate solution.
- With regard to the decree of 29 May 2006 of the Parliament in response to the Government's decree of 23 May 2006, Mr Kulov said that such disputes are not uncommon between the Parliament and the Government of the Kyrgyz Republic. In the present case he said, in effect, that this dispute was concluded when the Government approved the decree of 12 June 2006.
- Mr Dzhakypov was President of Kyrgyzaltyn between July 2005 and August 2010. He gave two statements in the criminal investigation, the contents of which he confirmed were true.
- In the statement made on 19 June 2013 he said that he had several meetings with President Bakiyev when he reported to him the situation regarding Jerooy. During these meetings the President ordered him to intensify efforts for "the quickest conclusion of agreement with Global Gold. I should say that Bakiyev did not give direct orders regarding Global Gold. However he knew that there were no other companies in the project, so his every order was seen as the order with regards to Global Gold".
- Mr Dzhakypov added that in February 2008 Aleksey Eliseev was appointed to the post of Chief of the Board of Directors of Kyrgyzaltyn. He said Elisev was "the Defendant's man. Starting from this point all the questions were discussed between them". Asked about this by Mr McCullough he said, "I don't know whether he was reporting to him or not, but he was mentioning him during conversations".
- Mr Dzhakypov was not aware who the ultimate investor behind Global Gold was.
The Defendant's Evidence
- The Defendant was born on 27 October 1977. He studied law at university and completed his law degree in 1999. He said he has been a very successful businessman from an early age.
- His father, Kurmanbek, became the President of the Kyrgyz Republic in March/April 2005. The Defendant accepted that it probably did no harm to his business activities being known as the son of the President, but he denied that he used his status in any fraudulent or corrupt way. The Defendant said that the only official role he had in government was as the head of the Central Agency of the Kyrgyz Republic for Development, Investment and Innovation, tasked with the economic development of the country, from 29 October 2009 until his departure from the country in April 2010 when his father was deposed in a military coup.
- He said that since that time he has been a victim of political persecution. This has been recognised by the UK government in granting him political asylum. He considers that all of the criminal prosecutions against him in the Kyrgyz Republic since 2010 have been politically motivated, including the wrongful conviction in absentia of him for the attempted murder and conspiracy to murder the Claimant. The Defendant said that since the coup there has been a steady stream of criminal allegations made against himself, his father, members of his family and a whole range of people associated with the Bakiyev administration. They were "politically motivated show trials, based on fabricated evidence and false accusations" (First witness statement, para 19). He completely denies that he is guilty of any of these "trumped up charges". Specifically he denied any involvement in the attempted murder and/or conspiracy to commit murder of the Claimant.
- The Defendant said that he now knows that Mr Daley was a businessman who was working in the Kyrgyz Republic in 2006. At that time he did not know anything about the Claimant's business dealings. The Defendant said that to the best of his knowledge he had never heard the Claimant's name until he heard about the shooting from news reports. When he saw his photograph in the spring of 2014, at the time of the criminal proceedings, he recognised him as a person he had seen in Bishkek a decade or so earlier, but he never knew him personally. The Defendant said that he did not see the Claimant at any court hearing during his extradition proceedings.
- The Defendant knew about the Jerooy gold mine in general terms; as it is a well known mine in the Kyrgyz Republic. He said that it is quite possible that he would have had conversations with individuals in which passing reference was made to the Jerooy mine, but he had no dealings, business or otherwise, in relation to the mine. He said that he had never had any financial interest in the Jerooy gold mine, either directly or indirectly, and he had no dealings with Oxus Gold. The Defendant accepted that he would anticipate that Mr Dzhakypov, as director of Kyrgyzaltyn, which was closely connected with the licensing process for Jerooy, would be familiar with what was going on. However Mr Dzhakypov was not correct in what he said (see paras 111-112 above). As for Mr Bekboev's allegation that the Defendant had an interest in Jerooy, that was no more than a general rumour and he had challenged his account in general terms, saying that he had no involvement in the licence.
- Asked to comment on his knowledge of and any involvement with a company known as Global Gold and Mr Turkot, the Defendant said:
"I can state with certainty that I did not have any commercial dealings with this company or any of its representatives and to my knowledge no member of my family did so either." (First witness statement, para 30).
He said that in general terms he was aware at the time that Global Gold had an interest in obtaining the licence to operate the Jerooy gold mine, but he had no detailed or inside knowledge of this, nor any particular interest in it.
- The Defendant had a hazy recollection of meeting a Mr Turkot at an investment forum in 2006, and of meeting him in his office soon afterwards. He may have known at the time that he was involved in Global Gold. It is quite possible that Mr Turkot mentioned the plans of Global Gold. He said it would not have been surprising if Mr Turkot had wanted to sound him out about the best way to deal with local people in Jerooy, but he had no independent recollection of any such conversation and he certainly did not recall ever offering to help him in any way on behalf of Global Gold. The Defendant said that he did not get involved in lobbying for Global Gold or helping Mr Turkot with this matter in any way. He repeated that he did not have any financial interest or involvement in the Jerooy gold mine, whether through Global Gold or otherwise. He said that he did take an interest in the Jerooy project, but he did not give Mr Dzhakypov specific directions (7/36). He did not remember any conversations with Mr Dzhakypov when he expressed doubts about Global Gold.
- The Defendant said he did know a Mr Sin Beti. He was in contact with him between 2000/2001-2003, mostly to practise his English. He never conducted business with him or received any help from him. The only commercial arrangement they had was when he lent him about USD10,000-15,000 on two occasions to ease his cash flow difficulties when he was struggling to pay the salaries of his employees. The monies were repaid.
- The last time the Defendant remembered meeting Mr Sin Beti was in 2005. He was at Istanbul airport, waiting to board a flight to Bishkek when Mr Sin Beti approached him. Later, on the aeroplane, Mr Sin Beti approached him again and mentioned a problem with Oxus Gold and its licence and asked if he could help as a "middle man" between Oxus Gold and the government. He said, if so, that he could arrange "benefits" for him. The Defendant said it was not clear what sort of "help" he was requesting or "benefits" he was offering, but he did not have the impression that what he was asking was legitimate and he wanted nothing to do with it.
- The Defendant said that the account given by Mr Sin Beti of an alleged meeting with him on 12 July 2006 (or at any time in July 2006) is totally untrue, a total fabrication. Further, as for Mr Sin Beti's allegation that he met with his father in July 2006 "in his home, located in Zhibek Zholu Str", the Defendant said that his father did not live at any address in Zhibek Zholu at the time, as he lived at the Presidential residence.
- The Defendant denied Mr Sin Beti's allegation that he had met with Gulzat Kaliyeva and Sergei Kim on his behalf at the Hyatt Hotel in Bishkek on 27 January 2009 and that subsequently he and Mr Sin Beti had a conversation on the telephone about the Ak-Tuz mine in which the Defendant stated that he had got USD200m unofficially from the Jerooy deal with Visor. The Defendant said, again, this is a total fabrication. He had no such conversation with Mr Sin Beti.
- The Defendant said that the first he heard of the allegation that Mr Bekbolotov had informed the Claimant that he (the Defendant) had told him to tell the Claimant to stop fighting with him over Jerooy was when he read the Claimant's statement in October 2015. He said he could not conceive of Mr Bekbolotov ever saying such a thing. He had never approached Mr Bekbolotov as alleged and never asked him to tell the Claimant to stop fighting with him.
- The Defendant said that to his knowledge he had never met Mr Trew. He said that the meeting described by Mr Trew (see para 72 above) never happened, and he never asked for any payment in return for the licence being returned to Oxus Gold.
- The Defendant said that he had no business dealings with Mr Berezovsky of any kind before they met in the UK after June 2010. In London he became a close friend. Prior to that time he had met him only twice. On neither occasion did they discuss or carry out any commercial business. He knew nothing about any interest that Mr Berezovsky is said to have had in Jerooy.
- Cross-examining the Defendant about Mr Berezovsky's involvement in Global Gold and the licence Mr Donovan put the following questions:
"Q. Mr Berezovsky gave your family USD5m of financial backing when your father was running for President?
A. No, it's never happened.
Q. And the Global Gold licence was payback for that, wasn't it?
A. Never, no." (Transcript 29 June p.140).
- The Defendant had met Mr Patarkatsishvili no more than three times, always socially. He did no business with him, but he was aware that he was a successful businessman. He did not believe that he had had any discussions with him about the Jerooy gold mine or any interest that he had in Global Gold.
- The Defendant was asked about a document published by Wiki-leaks dated 13 November 2009, with the subject heading "Maksim Bakiyev's influence becomes official". Alexander Voinov (who was Director of the State Agency of Sport and Youth for a short period) is reported as having told a US Embassy official that he had seen the Defendant screaming at his father on multiple occasions and even pulling a gun on him once, and that the Defendant had bragged that he had shot his father in the hip. The Defendant said that this account attributed to Voinov is completely untrue, but not untypical of the sort of wild and ridiculous rumours that would circulate about him. He said that in 2008 his father went to Germany for surgery to his hip. He believed he had a joint replaced. He subsequently returned to Germany on a second occasion for further surgery to replace the other joint. The Defendant said that he did not think it would be a problem to request his father's medical history from the hospital which did the surgery, which would show that he had not been shot in the hip (Transcript 29 June p.119).
- The record of the search of the Defendant's office dated 22 April 2010 recorded that a Margolin pistol and 50 rounds of ammunition was found in the Defendant's office. The Defendant denied that he kept a pistol and ammunition in his office. It was suggested to him that he kept the pistol to shoot at or scare people.
- The Defendant was asked about a statement made by Ms Klara Kabilova, following her resignation as chairperson of the Central Election Commission in 2008. She said she was resigning because of pressure and intimidation from the Defendant. The Defendant denied the allegations.
- The Defendant was asked about another document containing the transcript of conversations between the Defendant and his uncle which had been posted on the internet on YouTube relating to the financing of ethnic clashes in 2010. It was suggested to the Defendant that what was being discussed was recruiting people to try to form a government and that the reference to a force of 300-500 people being "very well equipped" meant armed with firearms. The Defendant said that the recordings had been falsified. He believed they had been spliced together from many hours of illegally-recorded phone conversations and two different contexts with the obvious purpose of seeking to discredit him.
- Questioned about other allegations, the Defendant denied that he had attempted to extort money from Ken Huston of Talas Gold or from Mark Jones.
- Cross-examining the Defendant about a motive for the attempted killing of the Claimant there was the following exchange between Mr Donovan and the Defendant:
"Mr Donovan: Mr Bakiyev, Sean Daley had become an inconvenience, hadn't he?
A. I wasn't aware of him.
Q. He had got in the way of the plan to give Global Gold a licence, hadn't he?
A. I wasn't aware of it.
Q. And you were concerned that he was jeopardising their plan?
A. To my concern he wasn't jeopardising anything.
Q. On 5 July 2006, Oxus Gold obtained a Supreme Court order, a court order, restraining the Government from pursuing further discussions with Global Gold. That's right, isn't it?
A. I am not aware of it. I have never seen this. I don't know.
Q. And that was another reason you wanted Mr Daley out of the way?
A. No, I never wanted him out of anything." (Transcript 29 June pp.158-159).
- The Defendant said he never authorised or asked anyone to talk with Mr Ismailov with an offer to stop the investigation of the shooting.
- Kurmanbek Bakiyev said that from April 2005 until April 2010 he was President of the Kyrgyz Republic.
- He said that investment decisions relating to gold mines in the Kyrgyz Republic, including the grant or termination of licences, were exclusive to the Government and to Kyrgyzaltyn, the state-owned mining company. He never interfered in the functional activities of either.
- In 2006 he was aware that the Government was engaged in looking for investors in the Jerooy gold mine. He knew of the involvement of Oxus Gold and he said he was aware that there were some negotiations with Global Gold. However he was not involved in the decision-making process that led to the Government's adoption of Decree 377 dated 23 May 2006, or of the decrees of the Kenesh of 29 May and of the Government of 12 June 2006.
- Mr Kurmanbek Bakiyev denied the suggestion that Global Gold was a reward for backing his 2005 election campaign. He said that the suggestion that Mr Berezovsky gave USD5m for that campaign was nonsense (Transcript 30 June p.39).
- Mr Bakiyev said, as far as he knew, no member of his family had anything to do with the granting of the licence to Global Gold. Further there was no question of him or any member of his family personally having any financial interest or involvement in any personal capacity in that company or the Jerooy gold mine (or any gold mine). Mr Bekboev was not correct to state that the Defendant had an interest in the Jerooy project. No member of the Bakiyev family had any such interest. He said that he did not know who was behind Global Gold or any of the other companies. That was not a matter of interest to him (Transcript 30 June p.45).
- He said that the Claimant was totally unknown to him at the time. The criminal case regarding the Claimant was, he said, part of a campaign of political persecution of himself and his family following the military coup that forced him to resign as President of the Kyrgyz Republic. He denied knowing anything about the shooting of the Claimant at the time it happened or being involved in the shooting in any way.
- He does not know anyone by the name of Bertii Sin Beti. However he does recall an encounter with an Israeli businessman once in 1999 or 2000, who introduced himself as "Beni". At the time he was the Governor of Chui Oblest and was in the settlement of Ak-Tyuz on a working visit. Beni told him about his plans and investments in gold mining in Ak-Tyuz. He said that as far as he was aware he had not met this person since that encounter.
- He said that Boris Berezovsky was a well-known Russian politician but he had never met him personally. He said he knows nothing of Badri Patarkatsishvili and as far as he is aware he has never met him. He had no dealings with Mr Berezovsky or Mr Patarkatsishvili before or after he became President.
- In cross-examination he was asked about a meeting with Mr Trew in 2005 at the UN. He could not recall any such meeting, but if there was one he could have told Mr Trew in general terms that investments in the mining industry were welcome but he could not have given any reassurances to Mr Trew as had been suggested. Knowing that the Oxus Gold licences had been withdrawn twice, he could not have made any promises that the licence would be sorted out in Oxus Gold's favour. He emphasised that it is only the Government who can make this decision.
- He also denied that he told Mr Trew that anything that happened in Kyrgyzstan had to go through the Defendant. He described his son as being a "very clever, intelligent and educated person" (Transcript 30 June p.41). However he said "Maksim was nobody". He did not allow him to be anywhere near to politics at that time.
- Asked about his response to the letter from Mr Kulov of 10 March 2006 to which he responded "I hereby approve the first option", he said that was his "personal opinion" (Transcript 30 June pp.30-31). It was not a decision; a decision could only be made by the Government. If he had given an order or enactment with his seal and signature then it would have been legally binding and the Prime Minister would have had to follow it, but that was not this case. As for the seal of the President on his response, he said that any letter sent to a private person or the Government from the President would contain a seal of the President.
- He said that the suggestion that the Defendant shot him in the hip was "absolute nonsense" (Transcript 30 June p.42). He said the shooting never happened: "You can ask for medical records for both my hip replacements from Germany. They will confirm to you that it was just joints and hip replacements and no shooting" (Transcript 30 June pp.42-43).
- On 7 July 2016, after the conclusion of the trial, the Defendant applied for permission to submit and rely upon late evidence, namely a medical record pertaining to Kurmanbek Bakiyev. Having, at the invitation of Counsel, looked at the document de bene esse and considered the Note of Mr McCullough which set out Mr Donovan's objections at paragraph 3, I allowed the application. The report of Prof. Dr. Med. Rhett (Wiesbaden, 21/2/2008) informs Mr K. Bakiyev of the results of an examination carried out in February 2008 and recommends hip replacement surgery scheduled for 4 March 2008. The specialist examination included MRI scans. The results show no indication that Mr Bakiyev was shot in a hip.
- Marat Bakiyev, the Defendant's brother, said that he had no financial interest or any involvement in the development of the Jerooy gold mine. In July 2006 he was serving as an assistant to the Chairman of the National Security Council of the Kyrgyz Republic. His uncle, Zhanysh, was the Deputy Head of the National Security Council at the time.
- He said he had not heard of the Claimant before the media reports about the criminal proceedings in 2014. He said the charges that were brought in those proceedings were fabricated. To the best of his recollection he has never met Mr Sin Beti and any suggestion that he was involved in the shooting is a total lie. He had no discussion about it with the Defendant or any other family member before or after the shooting.
- He denied having any conversation with the Defendant and Zhanysh as alleged by Mr Sin Beti. He said he did not know Mr Sin Beti. He knew nothing about Mr Sin Beti having spoken to his father. It was not correct that his father told him and Zhanysh that the Claimant must live. Any suggestion that he was involved in the shooting, he said, is a total lie.
- Mr Turkot said that from September 2006 until early 2008 he was Managing Director of Global Gold, but his involvement with the Jerooy project began in late 2005 when Badri Patarkatsishvili approached him with an offer to participate in the project. During negotiations for the new licence in 2006 he acted on behalf of Global Gold, working with Rafael Filinov.
- Mr Turkot said that he and Mr Filinov were not investors in the project. The sole owner of Global Gold was a Cypriot company called Vitiano Holdings Ltd which was equally owned by Lagoon Global Investments Ltd and Iman Financial Services Ltd. Initially Mr Turkot was the sole legal (but not beneficial) owner of both those companies. In due course Mr Patarkatsishvili became the main legal (as well as beneficial) owner of both Lagoon and Iman with a 90% share in each of them. Mr Turkot was allocated a 10% share in Lagoon, while Mr Filinov had a 10% share in Iman. These 10% shares were, Mr Turkot said, a sort of remuneration for taking part in the project as managers. Money to finance the project was transferred to Global Gold directly from the bank accounts of companies under Mr Patarkatsishvili's control. The total amount of financing comprised more than USD30m for the period from 2005 to mid-2007.
- Mr Turkot said that the Bakiyev family generally and the Defendant had no involvement in Global Gold, or to the best of his knowledge stood to benefit if Global Gold was successful in obtaining and retaining the licence to operate the mine. None of the Bakiyevs had any role in the founding of Global Gold, nor in its activities, nor anything to do with the decisions concerning the licence to exploit the Jerooy gold mine. They also had nothing to do with the sale of Lagoon and Iman to Visor in 2008 and no financial benefit accrued to them from any such transactions. He said that Boris Berezovsky had nothing at all to do with Global Gold. Mr Turkot said that as managing director of Global Gold he was intimately involved in these transactions and activities.
- Mr Turkot said that he first met the Defendant in about May or June 2006. Around that time he recalled that he had one, maybe two, meetings with him. He met him at his office and raised the subject of Jerooy for what he described as reasons of "courtesy" on his part. Mr Turkot said that he was born and raised in the region and when you start working in some new territory it is customary to go and introduce yourself to local, influential people. He knew that the previous licence owner of the gold mine had serious complications involving local and regional government and it was essential in order to start Global Gold's operations properly to understand better the nature of the trouble and to get some advice on how to approach the problem. The Defendant was already a very well-known businessman in the region and internationally, and he was an influential member of the Bakiyev family. Mr Turkot did not remember telling Mr Barbanel that the Defendant was going to lobby for the Jerooy project. He felt that it would be "good politics" to seek the opinion of a member of the President's family as to how best to get the local population of Jerooy "on side".
- When interviewed in connection with the criminal investigation on 11 November 2011, Mr Turkot said that he knew that the Defendant met Mr Patarkatsishvili in London "in order to agree upon Jerooy project". However he said that he had no knowledge of any such meeting and that the notes do not accurately record what he was saying and he failed to correct it at the time. He would not be surprised if Mr Patarkatsishvili and Mr Bakiyev had met in London, and if they had met it would not have been surprising if the Jerooy project had been discussed, much on the same basis and for the same reason that he raised it with the Defendant. He was not though aware of any such meeting actually having taken place, and if it had he did not believe that it would be on the basis of "agreeing" anything in relation to the project.
- Mr Turkot agreed that Global Gold was a new company in March 2006 and that it had no mining experience or trading record. It had no assets other than whatever money its owners chose to transfer to it. Mr Turkot said it was a special purpose vehicle for organising and managing an investment project in Kyrgyzstan. Mr Patarkatsishvili committed to provide necessary funds to support the Global Gold project. Global Gold provided the guarantees that were requested. Mr Turkot rejected any suggestion that Global Gold was engaged in a fraudulent scheme in relation to the Jerooy gold mine. Global Gold, he said, guaranteed financing.
- Mr Turkot said that Global Gold performed very serious work. The technical project was completed and a lot of machinery was ordered and purchased. He did not accept that the purpose of getting the licence for Global Gold was to sell it on.
- Mr Turkot was referred to Mr Filinov's interview record, where he stated that Mr Patarkatsishvili's total investment in the project comprised approximately USD18m. Mr Turkot did not know why Mr Filinov got the figure wrong, but he confirmed that it was around USD30m, a minimum of USD30m investment. (In the Summary of Information dated 8 November 2010 it is stated that during its existence Global Gold invested more than USD48m in Jerooyaltyn).
- The Global Gold licence was sold on to Visor for USD130m. Mr Donovan suggested to Mr Turkot that the Defendant received a huge commission (USD200m) on the sale to Visor. Mr Turkot said he had no information whatsoever about that.
- Mr Turkot said that he knew for sure that the amount invested by Global Gold in the Jerooy project was around roughly USD30m "because every single payment went through a lot of paperwork and justification" (Transcript 30 June p.92).
Closing Submissions of the Parties
- Mr Donovan submits that the Claimant and his live witnesses should be found to be essentially honest and credible. On all the disputed issues of importance, he submits, the Claimant's witnesses were far more convincing than any evidence advanced on behalf of the Defendant. Indeed, Mr Donovan submits that the evidence of the Defendant and his witnesses was demonstrably dishonest.
- Mr Donovan accepts that there are unmistakeable indications that Mr Sin Beti has told lies, including his explanations (such as they are) for not attending to give evidence. His evidence, viewed in isolation, he concedes, would carry little weight. However that is not the position; it gains major corroboration from other sources, and in particular the post-shooting events.
- Mr Donovan submits that the Defendant had the motive, the capability, the opportunity and the propensity to organise the shooting of the Claimant; and there is formidable evidence of the Defendant's involvement.
- As for motive, the Claimant and Oxus Gold were raising unwelcome questions, inside and outside the Kenesh, about Global Gold's funding, mining experience and ability to deliver. The Defendant's evidence of his lack of connection to Global Gold was demonstrably untrue. The idea of a genuine competition between Oxus Gold and Global Gold is nonsense.
- Mr Donovan submits that Mr Berezovsky's involvement is not an essential feature of the Claimant's case. It does not, he said, greatly matter whether the Defendant wanted to pay back Mr Berezovsky, Mr Patarkatsishvili, or both. Nonetheless Mr Berezovsky's involvement in Global Gold is compellingly evident.
- As for capability, the Defendant was one of very few people in the Kyrgyz Republic at the time not only able to arrange the shooting of an inconvenient expatriate, but to do so with complete impunity. The Defendant had much to gain in arranging the Claimant's killing, and little to lose.
- As for propensity, the Defendant had a proven willingness to use intimidation, extortion and violence.
- As for the Defendant's involvement, there is, Mr Donovan submits, powerful direct and indirect evidence of the Defendant's participation in the Claimant's shooting from:
"a. His confession/boast to Mr Sin Beti;
b. The Bekbolotov warning;
c. The close temporal connection;
d. The exclusion of Global Gold from the police investigation;
e. [The Defendant's] lack of credibility;
f. The absence of any plausible alternative suspect".
(Claimant's outline closing submissions, para 53).
- Mr McCullough submits that absent any reliable evidence that the Defendant organised or was involved in the shooting of the Claimant, the claim must fail. The only specific evidence of the Defendant's involvement in the shooting is from Mr Sin Beti. Mr McCullough submits that Mr Sin Beti's evidence in substance constitutes the hearsay evidence of the witness statements given in the Kyrgyz criminal investigation. Set against that evidence is the denial given in the sworn oral testimony of the Defendant, his father and brother. In addition there is the conduct of Mr Sin Beti that is recorded in Ms Williams' fifth witness statement (see para 87 above). Further Mr McCullough makes the following submissions on the basis of the evidence: (1) when Mr Sin Beti provided evidence to the criminal proceedings in the Kyrgyz Republic he had proceedings in this jurisdiction in contemplation; (2) the circumstances in which Mr Sin Beti emerged as a prospective witness are strikingly odd; and (3) the circumstances which led to Mr Sin Beti giving a witness statement in Bishkek on 5 June 2013 are also not satisfactorily explained and give rise to suspicion. In any event Mr Sin Beti's evidence is wholly implausible and contradictory on its face.
- As for the specific matters set out in section 4(2) of the Civil Evidence Act 1995 (see para 28 above) Mr McCullough makes the following observations: (a) the Claimant's inability to call Mr Sin Beti is entirely due to the stance that Mr Sin Beti has chosen to adopt; (b) the matters referred to were far from contemporaneous; (c) there is no multiple hearsay in relation to the principal conversation (although there is in relation to the broader allegations made by Mr Sin Beti of, for example, the Bakiyev connections to Mr Berezovsky, and their interests in Global Gold and Jerooy); (d) it is clear from subsequent events that Mr Sin Beti had a motive to misrepresent matters, arising, in particular, from his subsequent attempts to extract an advantage from the Claimant in return for his evidence (see para 87(ii) above); (e) the circumstances in which the statement was given give rise to substantial concerns that it was made in collaboration with Mr Ismailov (and possibly the Claimant, on Mr Ismailov's account of the Claimant's presence before and after the meetings with Mr Sin Beti, see para 101 above) for the purpose of ensuring the conviction of the Defendant and other Bakiyev family members; and (f) the circumstances indicate overwhelmingly that the evidence of Mr Sin Beti has been adduced as hearsay by the Claimant as a result of an attempt by Mr Sin Beti to prevent proper evaluation of its weight.
- Having regard to all these matters Mr McCullough submits that no weight can be attributed to the hearsay evidence of Mr Sin Beti.
- In relation to the other evidence Mr McCullough's submissions include the following:
i) In the present case there are particular difficulties that arise from the extremely fragmentary nature of the available records in relation to the licensing of the Jerooy mine. In these circumstances it is very hard for the court to reach a reliable determination of the respective merits of the Global Gold and Oxus Gold proposals with a view to determining whether the Global Gold proposal was indeed a corrupt sham, as the Claimant alleges.
ii) Whilst plainly the Claimant, Sir Tony Baldry, Mr Wilkins and Mr Trew considered that Oxus Gold had lost out to a phony rival, leading each to infer that there must have been corruption behind the Global Gold bid, none could give any direct evidence to support their respective beliefs of the Defendant's financial interest in the Global Gold proposal (save for Mr Trew's account of having had a bribe solicited by the Defendant), Mr Berezovsky being behind the proposal, or Global Gold not having any financial backing or expertise to develop the mine.
iii) The Kyrgyz investigation material needs to be approached critically, in the light of the nature of the investigation of Mr Ismailov, and then the District court proceedings. Mr McCullough describes Mr Ismailov as an unimpressive witness.
iv) As for the Defendant's alleged motive, Mr McCullough submits:
a) there is no reliable evidence that the Defendant had an interest in Global Gold obtaining the licence stemming from a debt to Mr Berezovsky as repayment for providing funds of USD5m in raising his father to power in 2005, or because the Defendant stood to make financial gain in due course from the re-sale of the licence. Mr McCullough submits that there was no firm evidence that Mr Berezovsky was behind Global Gold or that the Bakiyevs were somehow in debt to him arising out of the 2005 revolution. Further, the allegation that the Defendant made USD200m on the acquisition by Visor of Global Gold shares is entirely dependent on Mr Sin Beti's evidence to which no weight should be attached; and the allegation made by Mr Trew that the Defendant sought a bribe is not credible; and
b) there is no credible evidence that the Claimant's activities were putting Global Gold's prospects of obtaining or retaining the licence in jeopardy. By the time of the Claimant's shooting, the licence had been awarded to Global Gold.
- As for propensity, Mr McCullough submits that there is no evidence to show a propensity to use lethal force for monetary gain.
- Mr McCullough submits there can be no basis for inferring, even if motive, means and propensity were established, that the Defendant did in fact commit the crimes. He submits that there are numerous flaws in the logic of the Claimant's case. First, if Kurmanbek Bakiyev was the ultimate decision-maker in relation to the grant of the licence, then there was no purpose in him, or indeed the Defendant, organising the shooting of the Claimant. Second, there can be no basis for seeking to infer that the Defendant and his family were behind the Claimant's shooting because no-one else was. Mr McCullough submits that in fact the evidence shows that he may have been shot for reasons quite separate from lobbying on the part of Oxus Gold over the Jerooy mine. As of July 2006 there remained ongoing disputes relating to Kasiet and there was an ongoing dispute with Kelishim (see para 59 above); the Claimant may have had a substantial sum of money in the Camco office that was on the same plot as his house, outside of which he was shot; and there was the fact of rumours of a few illegal business transactions, and that the Claimant owed some Russian mafia some money; whether or not such rumours were true, if others believed them that may have given rise to a motive to shoot him (generally see Transcript, 23 June pp.24-28). Further there was an armed security officer employed outside the Claimant's premises in Bishkek from the outset of its existence, which Mr McCullough submits can only reflect a general perceived level of threat of violent attack.
Findings of Fact
- The only specific evidence of the Defendant's involvement in the shooting of the Claimant is from Mr Sin Beti.
- For many reasons I do not consider that evidence to be reliable.
- First, I agree with Mr McCullough that the evidence is wholly implausible on its face. I consider this to be so for a number of reasons:
i) The reason Mr Sin Beti says the Defendant gave for wanting to kill the Claimant was that
"[The Claimant] had appealed to (Kyrgyz) Parliament and solved the Dzheruy issue in favour of OKSUS," (para 83 above).
The Claimant had not "solved" the Jerooy issue in Oxus Gold's favour. On 23 May 2006 the Government had decreed that approval be given to a draft Joint Activity Agreement between Kyrgyzaltyn and Global Gold (para 22 above); on 12 June 2006 the Government responded to the Kenesh decree of 29 May 2006 requesting that it be withdrawn (para 24 above); and on 5 July 2006 the Jerooyaltyn Joint Venture was registered in the Ministry of Justice of the Kyrgyz Republic (para 25 above) (which led inevitably to the issue of the licence to Global Gold on 19 July). As the Claimant accepted it appeared from the documents that Global Gold had "landed their prize" before the shooting (para 62 above).
ii) I do not consider it credible that the Defendant would have told Mr Sin Beti that he had arranged to have the Claimant murdered and that his brother and uncle were the ones who fired the shots, even if Mr Sin Beti was on "friendly relations" with the Defendant as he alleges (which is denied by the Defendant).
iii) It is not credible that such a conversation would have taken place on 12 July, five days after the shooting. If the Defendant had ordered the shooting he would have known that the Claimant had survived long before 12 July. He would also have known of the security that had been put in place to protect the Claimant at the hospital a few days after the shooting. The adoption of the date of 12 July which does not appear in the transcript of the Kyrgyz hearing (see para 85 above) may, as Mr McCullough suggests, have come about through Mr Sin Beti's realisation that it could be shown that he was not in the Kyrgyz Republic before that date.
iv) Mr Sin Beti's evidence in respect of President Bakiyev is also contradictory. He says that when the President heard his story "he was really upset", the inference being that he knew nothing about the matter, yet later in his interrogation on 5 June 2013 he said that the President (together with the Defendant, Marat and Zhanysh) participated in the attempt on the Claimant's life.
- Despite being served with a witness summons, and being warned of the potential consequences of failing to attend, Mr Sin Beti has refused to give evidence in this case.
- I consider that no weight can be given to Mr Sin Beti's evidence. In reaching this conclusion I have had regard in addition to the matters to which I have referred (see paras 179-180 above), in particular to the following:
i) Mr Sin Beti has sought to withdraw his statement; he has made demands for money from the Claimant in return for attending court; he has alleged that the Claimant has "lied and misled" him to give evidence and "offered him a large amount of money"; he has alleged that improper pressure has been put on him to give evidence to benefit the Claimant; and he has alleged that he felt under pressure from the Claimant and his solicitors to give evidence which may be "partial or incomplete to say the least" (see para 87 above).
ii) There is evidence that suggests that at the time Mr Sin Beti provided evidence for the criminal proceedings in the Kyrgyz Republic he and the Claimant may have been contemplating Mr Sin Beti assisting in a claim to be brought by the Claimant. (See para 84 above, and Mr Ismailov's evidence, at para 101 above, that the Claimant was present at his meetings with Mr Sin Beti, despite the Claimant's evidence to the contrary).
iii) I agree with Mr McCullough that the evidence as to the circumstances in which (a) Mr Sin Beti emerged as a prospective witness and (b) which then led to him giving a witness statement in Bishkek on 5 June 2013 is unsatisfactory: neither Mr O'Keefe, a retired police officer, nor Mr Ismailov, a criminal investigator, took any notes or produced any record of the discussions and meetings they had with Mr Sin Beti, which I find surprising.
- Finally, in assessing what weight is to be given to the hearsay evidence of Mr Sin Beti I have had regard to the matters set out in section 4(2) of the Civil Evidence Act 1995 (see para 28 above). I agree with the observations made by Mr McCullough (see para 172 above). In particular I consider the Claimant's inability to call Mr Sin Beti to be entirely due to Mr Sin Beti's deliberate decision for no good reason not to attend court; the circumstances in which the statement was taken give rise to real concerns that it was made in collaboration with Mr Ismailov for the purpose of ensuring the conviction of the Defendant and other Bakiyev family members; and subsequent events suggest that Mr Sin Beti had a motive to misrepresent matters, arising from subsequent attempts to extract a financial advantage from the Claimant in return for his evidence.
- I now turn to consider the other evidence.
- In closing submissions Mr Donovan contended that Mr Berezovsky's involvement is not an essential feature of the Claimant's case (see para 167 above). However the Claimant's case was advanced on the basis that Mr Berezovsky and Mr Patarkatsishvili were the ultimate beneficial owners of Global Gold, and that the Jerooy licence was repayment for their assistance in raising Kurmanbek Bakiyev to power (see para 4 above).
- There was rumour and speculation in the press and elsewhere that Mr Berezovsky was behind Global Gold and about the relationship between the Defendant and Mr Berezovsky (see evidence of the Claimant, Transcript 23 June, pp.82 and 88). However there is no hard evidence that is so.
- Mr Bekboev referred in his witness interrogation on 25 January 2011 to the Defendant having an interest in the Jerooy project "as he represented a group of companies controlled by the fugitive oligarch Boris Berezovsky" (see para 40 above). However Mr Bekboev did not attend court. As Mr Donovan accepts, the reasons for his non-attendance are unclear. The fact is that as a result of his non-attendance there is no explanation as to the basis of his knowledge for this statement. (Different considerations apply in relation to matters within Mr Bekboev's knowledge, see para 196 below).
- Mr Trew also alleged that Mr Berezovsky was behind Global Gold, however he accepted that he could not give "the hard evidence" that this was so (Transcript 29 June, p.29). I consider Mr Trew's bribe allegation below. Suffice to say, in this context, in so far as there was any difference between the evidence of Mr Trew and Mr Wilkins, I prefer the evidence of Mr Wilkins. He did not consider there was any firm evidence of Mr Berezovsky being behind Global Gold. He said "we couldn't find out who Global Gold were" (Transcript 24 June, p.143). Moreover whilst Mr Trew asserted that he had accused Mr Berezovsky in the press of being behind the shooting through Global Gold, it was in fact Mr Turkot that he had accused (Transcript 29 June, pp.53-56).
- I found Mr Ismailov's evidence on this issue to be unsatisfactory. Mr Ismailov asserted that a number of persons (Ms Ponomareova, Mr Barbanel, Mr Filinov, Mr Turkot and Mr Kolleney) had all stated that it was the Defendant who represented the interests of Global Gold in relation to the Jerooy gold mine and that it was a joint project of the Defendant with Mr Berezovsky and Mr Patarkatsishvili (see para 98 above). However, the minutes of the witness interrogations of those persons do not support this assertion, or that Mr Berezovsky was behind Global Gold or that he participated in the Jerooy project (see para 99 above).
- I accept the evidence of Mr Turkot, who had direct knowledge of who was behind Global Gold, that Mr Berezovsky did not take part in financing the project and that the sole investor was Mr Patarkatsishvili. He said that Mr Berezovsky had nothing at all to do with Global Gold (see para 155 above).
- I also accept the evidence of Mr Kolleeny that Mr Patarkatsishvili was the ultimate and sole beneficiary of Global Gold, despite the fact that he was aware that Mr Berezovsky was trying through the courts in London to prove his ownership of half of the beneficial interest in the scheme through an alleged oral agreement with Mr Patarkatsishvili (see para 99(v) above).
- I have similarly reached the conclusion that there is no reliable evidence that Kurmanbek Bakiyev or the Defendant were somehow in debt to Mr Berezovsky arising out of the 2005 revolution. Mr Kurmanbek Bakiyev denied any such debt.
- If the interest that the Defendant had in Global Gold obtaining the licence was not connected to a debt to Mr Berezovsky, then the Claimant's case appears to be that he had some other commercial interest in Global Gold and the Jerooy mine either (a) because the Defendant stood to make financial gain in due course from the sale of the licence, or (b) because he had been paid USD5m by Global Gold for the licence and wished to obtain a larger sum (USD15m) from Oxus Gold.
- Before considering either of these two scenarios it is necessary to consider the evidence relating to the involvement of the Defendant and his family in the Jerooy gold mine.
- The Defendant's evidence is that he had no dealings, business or otherwise, in relation to the mine; he had no dealings with Oxus Gold; he had never had any financial interest in the Jerooy Gold Mine, either directly or indirectly; and he did not have any commercial dealings with Global Gold (see paras 118-119 above).
- Similarly Mr Kurmanbek Bakiyev said that neither he nor any member of his family had any financial interest or involvement in any personal capacity in Global Gold or the Jerooy gold mine (para 141).
- I do not accept the Defendant's evidence that he had no dealings in relation to the Jerooy gold mine. There are various strands of evidence that suggest that the Defendant was more involved in the grant of the Jerooy licence than he is willing to accept. First, there is the evidence of the Claimant that Mr Bekboev confirmed to him and Sir Tony that only the President and the Defendant could decide who would be granted the licence for the Jerooy gold project (see para 40 above). Second, Mr Barbanel said that Mr Turkot told him that the Defendant "was going to lobby for the Jerooy project" (see para 99(ii) above), albeit Mr Turkot did not remember telling Mr Barbanel this (see para 156 above). Third, when interviewed in connection with the criminal investigation on 11 November 2011 Mr Turkot said that he knew that the Defendant met Mr Patarkatsishvili in London "in order to agree upon Jerooy project", albeit that in his oral evidence he said that he was not aware of any such meeting having taken place and, if it did, he did not believe that it would be on the basis of "agreeing" anything in relation to the project (see para 157).
- I similarly had the impression that Kurmanbek Bakiyev was seeking in his evidence to distance himself from any involvement in the Jerooy project. Mr Dzhakypov said that he had several meetings with President Bakiyev when he reported to him the situation regarding Jerooy, and during these meetings the President ordered him to intensify efforts for "the quickest conclusion of agreement with Global Gold" (see para 111 above). I found Mr Kurmanbek Bakiyev's evidence that his response to the letter from Mr Kulov of 10 March 2006 was his "personal opinion" (see para 147 above) difficult to follow. The written communications between the Prime Minister and the President were plainly conducted in their official capacities. I was also surprised by Mr Kurmanbek Bakiyev's evidence that who was behind Global Gold was no matter of interest to him (see para 141 above). In the light of the problems that there had been with Oxus Gold in relation to the issue and revocation of the licence in the past I would have thought that the President would have been concerned to ensure that Global Gold had a sound financial basis. I have little doubt that the President was involved in the grant of the licence to Global Gold.
- However there is no reliable evidence to support the allegation that the Defendant stood to make financial gain from the resale of the licence. For the reasons I have given I attach no weight to Mr Sin Beti's evidence that the Defendant received USD200m on the sale of Global Gold's shares to Visor (over and above the sale price of USD130m, see the record of Mr Sin Beti's evidence of 5 June 2013). There is no other evidence in support of this allegation. Mr Turkot said that he had no information whatsoever about any such payment to the Defendant (see para 161 above).
- I am also not satisfied that there is reliable evidence to support the allegation that the Defendant asked Mr Trew for payment of USD15m for the return of the licence (see para 72 above). The first reference to this allegation is in Mr Trew's witness statement made on 19 September 2015. Mr Trew said that he made it clear to the Defendant that as CEO of a public company he was unable to partake in "extortion" (witness statement, para 8).
- Mr Trew said that he made no notes at or after the meeting with the Defendant but that he reported back to the Board of Directors, to Mr Wilkins and Mr Kipps, what had been asked for (Transcript 29 June, p.40). However Mr Wilkins gave no such evidence. If Mr Trew had told Mr Wilkins about what he considered to be "extortion" Mr Wilkins would have mentioned it. The Claimant said that he was informed by Mr Trew that he had a meeting with the Defendant during which he had told Mr Trew that "Berezovsky had paid him for the licence and asked Bill to pay to have the licence returned to Oxus" (see para 35 above). However Mr Trew said that he could not have told the Claimant that because he did not know him at the time. He said that the first time he met him was in London after he had been shot (Transcript 29 June, p.40).
- I am also not satisfied that the evidence shows a propensity on the Defendant's part to use lethal force for monetary gain. Plainly the statement made by Ms Kabilova, if true, shows that the Defendant was capable of pressurising and intimidating a civil servant (see para 133 above). Further the transcript of conversations between the Defendant and his uncle in 2010 (the year his father was deposed) suggests that he was considering recruiting an armed force to try to form a government (see para 134 above). However the Defendant maintained that the recordings had been falsified, and there is no evidence establishing their veracity.
- The evidence upon which the Claimant placed particular reliance in support of the contention that the Defendant had a propensity to use violence was the document published by WikiLeaks reporting that the Defendant had bragged to Mr Voinov that he had shot his father in the hip (para 131 above). The Defendant and his father said this was completely untrue. They both said that Mr Kurmanbek Bakiyev's medical records would show this to be so. The report of Prof. Dr Rhett refers to an examination of Mr K. Bakiyev in February 2008 which shows no indication that he had been shot in the hip (see para 149 above). Mr Donovan makes the point that the letter pre-dates any hip surgery; it does not describe the findings at operation, or immediately pre-operatively. Accordingly it does not, Mr Donovan submits, "tell anything like the whole story". Nevertheless the fact remains that there is no evidence that the Defendant did shoot his father in the hip (other than the report in the WikiLeaks document).
- Finally, in relation to propensity, the Claimant relies upon the record of the search of the Defendant's office in April 2010 that records the finding of a pistol and ammunition. The Defendant denied that he kept a pistol and ammunition in his office. He denied the suggestion that he kept the pistol to shoot at or scare people (see para 132 above). Mr Donovan makes the point that the Defendant did not deny that the pistol and ammunition was his before he gave evidence at this hearing. However it has never been suggested that the pistol was in any way connected with the shooting of the Claimant, and the Claimant's pleaded case expressly relied upon the evidence in the criminal trial (see Response to Defendant's Part 18 Request, answer 1(a)).
- I consider that there is no reliable evidence that the Defendant had an interest in Global Gold obtaining the licence stemming from a debt to Mr Berezovsky as payment for providing funds of USD5m in raising his father to power in 2005, or because Mr Berezovsky had paid USD5m to the Defendant for the licence, or because the Defendant stood to make financial gain in due course from the re-sale of the licence.
- By the time of the Claimant's shooting, the licence had been awarded to Global Gold (see para 25 above). There is insufficient material before this court in relation to the licensing of the Jerooy mine to reach a reliable determination of the respective merits of the Global Gold and Oxus Gold proposals. However the Claimant agreed that in the negotiations he faced considerable difficulty because Oxus Gold had a credibility problem, given its past performance. He accepted as correct that there were genuine and legitimate doubts on the part of the Kyrgyz authorities, as to Oxus Gold's ability to deliver, as a partner in the gold mine project (see para 60 above). Further the Claimant accepted that the agreement with Global Gold, on its face, was on terms that were substantially better than Oxus Gold had provided at the time (see para 61 above). He acknowledged that he was not aware that the joint venture with Global Gold had been registered in the Ministry of Justice on 5 July 2006; and he accepted that it appeared from the documents that Global Gold had "landed their prize" before the shooting (see para 62 above).
- It appears that Sir Tony Baldry similarly did not know of these matters because he said that by 6 July when he left Bishkek he fully expected to return within a week to ten days to meet the President and finalise a deal to return the licence to Oxus Gold (see para 66 above). Mr Wilkins also conceded that he had not been aware of the decision to grant Global Gold the licence in May 2006. The fact is that the improved offer from Oxus Gold (see para 38 above) was, as Mr McCullough observed, too little, too late. It is understandable that Oxus Gold was suspicious about Global Gold but the evidence does not support the contention that the Global Gold proposal was a sham. The Government's decree of 12 June 2006 sets out in detail the merits of the Global Gold proposal (see para 24 above). Global Gold was a newly created company in March 2006 and it had no mining experience or trading record. However I accept Mr Turkot's evidence that Mr Patarkatsishvili provided the necessary funds to support the Global Gold project (see paras 158 and 160 above), and Global Gold performed work following the grant of the licence (see para 159 above).
- The Claimant said that on 5 July 2006 Oxus Gold successfully applied to "the Kyrgyzstan Court" to prevent the Jerooy gold mine licence being transferred to any third party (see para 41 above). Mr Trew said it was a ruling by one of the senior courts, possibly the Supreme Court, upholding an injunction restraining the Government from pursuing discussions with Global Gold (see para 78 above). On 7 July, after the Claimant was shot, Oxus Gold put out a press release referring to such a Supreme Court ruling (see para 78 above). However no documentary evidence of this decision has been produced and there is no reference to it in the Supreme Court judgment of 28 November 2006. The Claimant did not recall ever seeing any actual document or sealed court order (Transcript 23 June, p.64). I am not satisfied there was any such ruling.
- In any event I consider that there is some force in Mr McCullough's submission that if Mr Kurmanbek Bakiyev was the ultimate decision maker in relation to the grant of the licence, then there was no purpose in him, or the Defendant, organising the shooting of the Claimant.
- I am not satisfied as to the reliability of the evidence in support of the Claimant's claim that Mr Suleimanov told him that the President's family were suspected to be behind the murder attempt but that the police had been ordered not to investigate and to close the investigation. The allegation is not mentioned in either of the Claimant's statements taken in 2006 by Mr Suleimanov. When Mr Suleimanov was interviewed on 24 November 2012 he said that he did not receive any such instruction directly, but he noticed "strange behaviour of the senior management of the Main Department of Internal Affairs". He said "the fact that the assassination attempt against [the Claimant] was linked to Jerooy could possibly have been taken into account; however, I did not receive any information in this regard". However the evidence does not support the contention that there was not any consideration in the investigation into the possibility that the shooting was connected with the Claimant's professional activity (see para 49 above and Transcript 24 June, pp.14-28).
- I attach little weight to the Claimant's evidence that Mr Bekbolotov passed on a message from the Defendant to "stop fighting with him over Jerooy" (see para 39 above). The Claimant did not refer to this in either of his 2006 statements. Indeed in his statement given on 23 November 2006 he said "There were not any direct threats related to the Jerooy project against me before the [shooting]". The first time he referred to it was in his witness statement of 9 October 2015. The Defendant denies it and there is no evidence from Mr Bekbolotov. It would appear that the Claimant treated it as no more than 'an incidental remark' at the time.
- I accept Mr McCullough's submission that it cannot be inferred that the Defendant was behind the Claimant's shooting because it cannot be shown that anyone else was. On the evidence the possibility that he may have been shot for reasons unconnected with his activities on behalf of Oxus Gold in relation to the Jerooy licence cannot be ruled out (see para 59 above).
- In view of the conclusions I have reached as to the merits of this claim, it is not necessary to deal with this argument. It is sufficient for me to say that if, contrary to my view, the claim had merit I would have allowed the claim to proceed.
- The Defendant contends that the claim is statute-barred under the Limitation Act 1980. The primary limitation period for a personal injury claim is 3 years: section 11. The claim was issued more than 8 years after the cause of action arose, on 25 November 2014.
- Mr Donovan in his closing submissions accepted that the Claimant had sufficient knowledge of the Defendant's involvement for the purposes of section 14(1)(c)/(d) by April 2010. However he submits that there are overwhelming reasons why the court should exercise its discretion under section 33 to disapply the primary limitation period under section 11.
- If the claim had merit I would have considered that "it is fair and just to expect the Defendant to meet the claim on the merits, notwithstanding the delay in commencement" (applying the test in Cain v Francis  QB 754 at para 73, per Smith LJ).
- In my judgment the Claimant has failed to establish that the Defendant "organised and arranged" (see para 2 above) his shooting. Accordingly this claim is dismissed.
APPENDIX to the Approved Judgment of Mr Justice Supperstone handed down on 29 July 2016
IN THE HIGH COURT OF JUSTICE Claim No: HQ14P04904
QUEEN'S BENCH DIVISION
Neutral Citation Number:  EWHC 1979 (QB)
MAKSIM KURMANBEKOVICH BAKIYEV
Wednesday, 29 June 2016
MR JUSTICE SUPPERSTONE:
- Various issues have arisen as to the admissibility of evidence in this trial.
- Broadly, there are three issues. The first concerns the witness summary of Ms Surabaldieva.
- The second is the admissibility of the record of convictions and criminal proceedings in Bishkek.
- The third relates to a number of other disputed documents.
- I shall deal with each in turn.
- First, the witness summary. It is unsigned. Mr Donovan informs me that Ms Surabaldieva is not now willing to attend court to give evidence.
- At the second pre-trial review on 14 June 2016, Mr Justice Foskett considered certain further evidence sought to be relied upon and how to handle the consequences of some recent documentary disclosure by the claimant.
- One issue was whether the witness summary of Ms Surabaldieva, who as Mr Justice Foskett stated at paragraph 7 of his judgment:
"... had recently volunteered to give evidence on behalf of the claimant but now appears to be reluctant to do so, should be admitted. Whether she does give oral evidence is an open question, but there are circumstances in which a summary of the evidence that it is understood she would have been prepared to give, can be received: CPR 32.9."
- The judge, at paragraph 10, said that he found it impossible to say that the evidence may not be relevant and at paragraph 11 he said:
"I agree that there is no true basis for excluding the witness summary now."
- The order following the hearing before the judge, recorded at paragraph 1:
"The claimant is granted permission to rely on the served witness summary of Elvira Surabaldieva at trial."
- Mr Donovan submits that the judge has, accordingly, decided the issue of the admissibility of the summary, and that the summary of Ms Surabaldieva's evidence continues to be admissible, despite the fact that she will not be attending to give evidence.
- I reject this submission. CPR 32.9(1) provides that:
"A party who:
"(a) is required to serve a witness statement for use at trial; but
"(b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead."
- The commentary in the White Book, volume 1 of 32.4.3, makes clear the distinction that the CPR draws between "witness statements" and "witness summaries".
- A witness statement is, in effect, a full proof of evidence. A witness summary, on the other hand, merely identifies the witness and indicates the issue with which their evidence will deal.
- A witness summary may be appropriate where, for one reason or another, there has not been sufficient time to take a full witness statement.
- In the present case, the judge noted that the witness had only recently volunteered to give evidence.
- CPR 32.9(5) provides that:
"Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary."
- Rule 32.4(1) provides that:
"A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally."
- A party to proceedings cannot be in a better position by obtaining a witness summary from a potential witness, than he would have been in if a witness statement had been obtained.
- I am satisfied that Mr Justice Foskett did not decide to the contrary. He merely noted that he was determining the issue of the potential admissibility of the witness summary, at a time when it was not clear whether the witness would attend to give evidence at trial.
- In the circumstances that have now arisen, where the witness does not intend to give oral evidence, the same rules apply in respect of the witness summary as would have applied if Ms Surabaldieva had given a witness statement.
- The second issue is whether the findings and conviction of the defendant of organising Mr Daley's attempted murder by the Pervomaisky District Court of Bishkek are admissible. The same issue arises in relation to the record of other convictions referred to in documents 9, 10 and 11 of the claimant's list of disputed documents intended for use in cross-examination.
- Mr Donovan submits that notwithstanding the rule in Hollington v F. Hewthorn & Co. Ltd  KB 587, the convictions and factual findings are admissible. He submits that the district court's decision amounts to quasi-expert evidence comparable to that of the AAIB report in Rogers v Hoyle and admissible on that basis.
- Mr Donovan notes that the decision runs, in translation, to 12 closely typed pages. It contains a detailed recitation and analysis of the evidence, lay and expert; and the court addressed at length the motive for the shooting, the means available to the defendants, and their opportunity.
- I do not accept this submission. The factual findings of a court, subject to the statutory exception, are not admissible as evidence of the facts so found. I agree with the conclusion of Mr Justice Leggatt in Rogers v Hoyle (confirmed by the decision of the Court of Appeal) that unless and until it is reconsidered by the Supreme Court, the rule in Hollington v Hewthorn must, except insofar as it has been reversed by statute, be taken to represent the law (para 90).
- The position as regards domestic convictions was changed by section 11 of the Civil Evidence Act 1968. There is no comparable statutory provision relating to foreign convictions.
- Lord Justice Christopher Clarke, in his judgment in the Court of Appeal in Rogers v Hoyle, noted that as the Hollington case recognised in terms, different considerations apply to scientific or expert witnesses.
- In Rogers v Hoyle, Mr Justice Leggatt and the Court of Appeal concluded that the rule that the findings of courts, tribunals and inquiries were inadmissible in subsequent proceedings, did not apply to the report produced by the Department of Transport's Air Accident Investigation Branch, since it contained not findings but statements of fact and expressions of the opinion of its authors, who, it was to be inferred, were experts in their respective fields.
- The findings of the judge in the District Court decision (and in the other decisions listed in documents 9 to 11 in the claimant's list of disputed documents) are not comparable to the AAIB report. The rationale for the rule in Hollington's case was summarised by Lord Justice Christopher Clarke at paragraph 39 of his judgment in Rogers v Hoyle:
"As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it ('the trial judge'), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard."
- It is convenient at this stage to deal also with document 13 in the list of disputed documents, that is the report of the Subcommittee on National Security and Foreign Affairs, Committee on Oversight and Government Reform of the US House of Representatives, dated December 2010.
- Mr Donovan relies on two findings set out at pages 20 and 29 of the report which he contends are relevant to the relationship between Mr Bekbolotov and the defendant.
- I agree with Mr McCullough that these are findings of fact made by a non-expert decision maker and are, accordingly, caught by the rule in Hollington's case and to be excluded. They are comparable to the findings of fact made by Lord Bingham in his report in relation to BCCI which the House of Lords in Three Rivers District Council held to be inadmissible on the basis that Lord Bingham was not acting as an expert but in a judicial or quasi-judicial role.
- I turn, finally, to consider the other disputed documents.
- Mr Donovan makes three overarching points in relation to these documents. First, that some of them go to the issue of means, that is the defendant's capability to commit certain acts.
- Second, that they illustrate the defendant's impunity to investigation and punishment.
- Third, that many of them go to the overall picture of what is inherently plausible or implausible in the defendant's evidence, and some go to the issue of the defendant's credibility.
- I consider all the disputed documents listed, other than documents 1 and 8, to be irrelevant and inadmissible. In any event, I do not consider that these documents will assist me to determine the issues that I have to decide.
- Document 2, the defendant's 2009 tax return, has no relevance to the issues in these proceedings.
- Documents 3 to 6 and 12 consist of WikiLeaks cables relating to events three years or so after the events with which we are concerned and do no more than illustrate the defendant's role behind the scenes in his father's regime.
- Document 7 is a report of the International Crisis Group on Kyrgyzstan, dated 27 April 2010, that Mr Donovan contends evidences the involvement of the Bakiyev family in unsolved killings. It goes to the issue of impunity. However, Mr Donovan accepts that it does not assist him unless the foreign convictions on which he sought to rely are admissible in evidence which, as I have ruled, they are not.
- That leaves documents 1 and 8. I cannot say that they may not be relevant. Document 1 may evidence the defendant's propensity to use physical intimidation. Document 8 may evidence the willingness of the defendant to use armed men and acts of violence. The defendant's response to this recording, at least in part, has already been dealt with by the defendant in his third witness statement. However, I say nothing about the weight, if any, to be given to the evidence.