Lyubov Andreevna Kireeva v Alina Zolotova & Anor

This is an appeal by the claimant, Ms Kireeva, from an order of Sir Anthony Mann, sitting in the Insolvency and Companies list of the Chancery Division of the High Court, whereby he declared that the claim stood struck out for failure to comply with an unless order. As explained in more detail below, the unless order required the claimant through her solicitor to give a certificate as to how the trial would be funded. Such a certificate was filed. Sir Anthony found that it was inaccurate and that it was tainted by bad faith and hence could not be allowed to stand as a genuine certificate. He therefore held that the claim stood struck out.

Ms Kireeva appeals with permission granted by Arnold LJ. She appeared by Mr Richard Eschwege KC, leading Mr Bibek Mukherjee. We heard from him this morning. Despite his interesting and well argued submissions, we informed the parties that we did not need to hear from Mr Matthew Bradley KC, who appeared for the respondent, Ms Zolotova, and would dismiss the appeal. I now give my reasons for agreeing to this course.

The background to the present case can be found in previous proceedings brought by Ms Kireeva reported as Kireeva v Bedzhamov, both in this court at [2022] EWCA Civ 35, [2023] Ch 45, and in the Supreme Court at [2024] UKSC 39, [2025] AC 812. Ms Kireeva is the Russian appointed trustee in bankruptcy of a Mr Georgy Bedzhamov. Her position as trustee has been recognised in this country. By this claim, she sought to recover for the bankruptcy estate a luxury villa in Italy known as Villa Niccolini. The registered owner of the villa is the second defendant, Basel Properties Ltd, an English company. The sole issued share in Basel was in about 2016 transferred into the name of the first defendant, Ms Alina Zolotova, Mr Bedzhamov’s long term partner. Ms Kireeva’s claim is that the transfer of the share was ineffective to vest the beneficial ownership in Ms Zolotova and that she either holds the share on trust, initially for Mr Bedzhamov and now for his bankruptcy estate, or that the transfer was a sham, or that the transfer was a transfer at an undervalue within the meaning of section 423 of the Insolvency Act 1986 and should be set aside.

The trial was due to take place at the beginning of July 2024. Just before the trial, Ms Kireeva applied for an adjournment on the basis that herfunder, Mr Lyuboshits, was having difficulty getting funds out of Russia in order to fund her litigation. That application was decided on paper by Sir Anthony Mann on 28 June 2024 for reasons given by him in a written judgment of that date (for which there appears to be no neutral citation number). At paragraph 6, he referred to the facts disclosed in the evidence of Mr Patrick Elliot, the claimant’s then solicitor. The effect was that the claimant’s current litigation funder, an entity belonging to Mr Lyuboshits called Cezar, claimed to have funds available for the litigation but had not managed to establish a route by which those funds could be provided in order to fund the trial and, indeed, to fund a very significant amount of historic costs.

The facts which Sir Anthony drew from Mr Elliot’s evidence included the following. A large sum of money was due to counsel, £250,000 for leading counsel and £150,000 for junior counsel. Apparently, the claimant was relying on the goodwill of counsel while Cezar tried, so far unsuccessfully, to find a route for the payment of funds from Russia to England. It was apparently made clear at some unspecified date that counsel could not continue to trial while substantial sums were owing. There were very few banks in Russia which remained able to make international payments from Russia so Cezar needed to open non-Russian bank accounts to pay money to the English legal team. Applications were made at an Italian and a Hungarian bank to open accounts but those banks were said to be completely overwhelmed. Sporadic payments had been received from the personal account of Mr Lyuboshits in the sum of $30,000 each but it now seemed that that too had dried up as his bank had not been making any further payments.

Sir Anthony concluded from the facts and the general background that a number of significant points emerged which included the following:

“(iv)

The difficulties are of the claimant’s own making in that she has entered into funding arrangements with a funder who apparently cannot provide funds in this jurisdiction. Evidence which I have seen previously indicates (if it is true) that the trustee was not involved in the change of funder and she says she has no knowledge of how the funder is to be remunerated (the agreement with her does not provide for any sums to come from her or from the proceeds of the litigation) but even so she has to take the consequences of the negotiations of others.”

And:

“(x)

It has become less, rather than more, clear what funding route will or can be provided. Two anticipated routes (the Hungarian bank and Mr Lyuboshitz’s personal account have now been closed off). It is not clear what will happen about the Dubai route (Mr Elliot says it has not worked, rather than that it cannot be made to work), so the only possibility is the overwhelmed Spanish bank. No further alternative is suggested. No indication is given as to the prospects of that route bearing fruit.

(xi)

It is not apparent by what date the funding problem can be solved.”

At paragraph 11, he said this:

“The defendant should be safeguarded in relation to costs, and so far as possible against extensive delays arising out of trying to find funding routes.”

Then he said it would not be right to allow a long adjournment and directed that the case should come on on the first available date on or after 7 October 2024.

Then he dealt with the costs of the application and said that:

“The claimant must pay the costs of this application and the costs thrown away as a condition for getting the adjournment. By pay, I mean actually pay. The way of achieving that is by my making an order that those costs, which I shall assess, shall be paid by 31 August, failing which the action will stand dismissed. I appreciate that this means that the (or a) funding route must be available by then but I require it nonetheless.”

Then he said:

“Third, the claimant is not to have an extended time to get the fund routing in place. There must be a date by which it is apparent whether a funding route is in place or not, and there must be a reasonable amount of clarity and transparency about the ability of the claimant to take the case to trial in terms of funding. I shall therefore make an order that the claimant must, by 31 August, certify through her solicitors that funding arrangements are in place to allow the October trial to take place and providing details of the banking route through which it will be provided. I will not allow this trial to be adjourned on a “let’s see what happens by the date of the trial” basis. I appreciate that this is an unusual order but the circumstances of this case justify it. I make it clear that it is the banking route that has to be provided, and a general certificate to the effect that funds are available, not full details of the source of the funding. If that certificate is not provided then again the action will stand dismissed.”

On that basis, he said he would adjourn the trial.

He made an Order on 28 June 2024 which duly provided at paragraph 2 that:

“The Claimant shall, by 31 August 2024, pay (i) the First Defendant’s costs of the Adjournment Application, and (ii) the wasted costs of the Original Trial (together the “Costs”), such Costs to be assessed on paper by Sir Anthony Mann following the filing of the documents set out in paragraph 3 below.”

At paragraph 4:

“The Claimant shall, by 31 August 2024, file and serve a certificate (through her solicitors) stating (i) that funding arrangements are in place to allow the Adjourned Trial to take place and (ii) providing details of the banking route by way of which such funding order will be provided (the “certificate”).”

And at paragraph 5:

“In the event that the Claimant does not, by 31 August 2024, pay the Costs and/or file and serve the Certificate, the claim shall stand automatically dismissed without further order.”

And there was then a provision for costs.

A certificate was in due course provided. It was sent by e-mail, timed at 14.17 on 30 August 2024, by Mr Elliot to Sir Anthony’s clerk and it provided as follows:

“Pursuant to paragraph 4 of the order of Sir Anthony Mann dated 28 June 2024, we certify and confirm on behalf of the Claimant that:

1.

funding arrangements are in place to allow the trial in these proceedings to take place; and

2.

the route for the funding will be provided by Cezar Consulting Law Firm LLC, the Claimant’s funder, using the bank account of its owner, Mr Lyuboshits, at Raiffeissen Bank ZAO (Formerly) 17/1 Troickaya UL, Moscow, Russia to transfer funds directly to this firm.”

The Raiffeisen Bank is an Austrian bank with a Moscow branch. Immediately after the service of the certificate, Ms Zolotova’s solicitors challenged that on the basis that the Raiffeisen Bank had already announced that save for certain transfers for those in large international business, it would cease cross-border transfers in foreign currencies from 2 September (a Monday). No transfers (other than the limited ones referred to) would be effected unless the payments had been accepted by the bank for execution before 16:00 hours Moscow time on 30 August (the previous Friday).

After what Sir Anthony referred to as “a lot of probing correspondence”, the First Defendant issued an application on 10 October 2024 seeking a decision that the action had been, or should be, struck out for failure to comply with the unless order or on the grounds of abuse of process. That came before him on 15 October 2024 and he gave a reserved judgment acceding to the application on 21 October 2024 at [2024] EWHC 2705 (Ch). It is not necessary for the purposes of this judgment to refer extensively to it. I will have to look at some of his reasoning in more detail below but in essence, he first considered whether the certificate was inaccurate. He concluded at paragraph 32 that despite some scepticism:

“I am not prepared to find that the certificate was false and inaccurate in relation to the matters in paragraph 1.”

He then considered paragraph 2 and concluded that paragraph 2 was inaccurate. He said at paragraph 36 that it was false in a very material, if not crucial, respect and at paragraph 37 that he would approach the remainder of the judgment on the footing that the mis-statement in the certificate was very materially inaccurate. That was because the certificate said that funds could be transferred directly and that was, in fact, impossible.

He then considered the question of knowledge of the falsity. As to the knowledge of the claimant Ms Kireeva herself, he said that it was not really suggested that she knew about the bank’s change of position. He then considered the knowledge of Mr Lyuboshits and a Mr Nurtdinov. He described Mr Nurtdinov (at paragraph 39) as follows:

“Mr Nurtdinov is important because he has an important liaison and probably lawyerly role. He has been described by Mr Lyuboshits in the past as “a dispute resolution lawyer with over a decade of experience in leading Russian law firms and family offices” who was “to manage the day-to-day running of the Financial Manager’s litigation and will be responsible for liaising between the Financial Manager [viz Ms Kireeva] and her English solicitors.” He acts for Mr Lyuboshits (or his company) in this respect.”

At paragraph 42, he concluded that Mr Lyuboshitsand Mr Nurtdinov did know of the bank’s change of policy on or after 15 August and before the certificate date. I will have to come back and look at his reasons for that in due course.

At paragraph 43, he considered the knowledge of Mr Elliot. Again, he was somewhat sceptical of Mr Elliot’s evidence but concluded at paragraph 46 that:

“I do not think it quite right to reject his evidence and say that he knew of RB’s change of policy before he signed the certificate.”

Then he continued at paragraph 47:

“However, if that is right then another fact flows from it which is this. If Mr Elliot did not know, it was because he was not told. If that is right then both Mr Lyuboshits and Mr Nurtdinov must have effectively misled him by not telling him, and/or telling him that the direct route would be available, and allowing him to give a false certificate. The significance of this appears below.”

Next, he discussed whether it was sufficient to show that the certificate was false or whether bad faith also had to be shown. In this context, he referred to a certain amount of authority but at paragraph 54, said:

“I do not consider that I have to try to resolve any conflict which might exist between these cases for at least two reasons. First, the cases concern documents and compliance complaints which are different from the document in the present case and second, in any event, I consider that if bad faith is necessary, it has been established.”

At paragraph 56, he said:

“I consider that this document was not honestly provided.”

That was not on the basis of any dishonesty by Mr Elliot but he said that Mr Lyuboshits and Mr Nurtdinov must have known that the certificate, long since required, could not be provided in respect of paragraph 2, but encouraged or allowed its provision and that that conduct amounted to bad faith and he said that such bad faith tainted the certificate. Again, I will come back to his reasoning.

He then dealt with an alternative argument based on the abuse of process and in summary, he said at paragraph 64:

“If, contrary to my finding, the certificate was technically valid for some reason, nonetheless, reliance on it is an abuse of process because it should never have been provided.”

At paragraph 65 he said that he was satisfied that the abuse was so serious that striking out the proceedings because of that abuse was the proper remedy. He therefore concluded that if, contrary to his conclusion that the certificate was invalid or ineffective, it was valid then its provision and reliance on it thereafter was an abuse of process and the action would fall to be struck out for that reason.

By his Order dated 21 October 2024, he therefore ordered at paragraph 1 that the claim stood struck out as of the end of 31 August 2024 and at paragraph 6 refused permission to appeal. Permission to appeal was, as I have said, subsequently granted by Arnold LJ.

There are three grounds of appeal. They can be summarised as follows:

A Respondent’s notice has been served which seeks to uphold his judgment on the following alternative basis, namely that limb 1 of the certificate was also inaccurate.

I propose to address first the question whether Sir Anthony was wrong to find limb 2 of the certificate was inaccurate. It is necessary to refer to his judgment in slightly more detail. At paragraph 17, he says the following:

“17.

…I consider that Mr Eschwege is plainly wrong about that. The word in the certificate [ie “directly”] is not immaterial. It imports that there is to be no intermediate step between the RB account and the solicitors’ account. Passing the monies through what is described as an agent is an intermediate step, and is significant in the context of the certificate. The requirement to specify a “route” for the funding arose precisely because at the time I required the certificate it was apparent there was no clear route for monies to leave Russia. The evidence was that attempts were made to engage an Italian and a Hungarian bank, and they failed. They were to have been part of the route. An attempt to transfer the money via some unspecified entity in Dubai was said to have not borne fruit. That is another route that failed. Some monies have been transferred from RB on a sporadic and limited amount basis, and it was not apparent that those transfers were anything other than bank to bank transfers (without an intermediate bank or other entity) but that was proving a problematic method of transfer. No solution had been proposed for how the money was to get from RB to the solicitors in a sufficient quantity.

18.

It was in that context that I required the “route” to be specified so that it could be made plain how the money was to get from RB (or another account if that was where the money was) to the solicitors in the face of apparent difficulties in achieving that by a direct (I cannot avoid the use of that word here) transfer. What was required was that it be shown how it was that the money could leave Russia and end up in this jurisdiction when the evidence had indicated that that was very difficult, and the purpose of that was to ascertain whether it really was going to be possible to get the funds here for a trial so as to avoid the prospect of there being no funding for the claimant and that becoming apparent at a time when resources would be wasted in the apparent false expectation of a trial. Any intermediate steps would have to be specified as a part of the route.

19.

Accordingly, when the certificate specified that the funds would be transferred “directly” it was making an important statement. It was saying exactly what that word means, which is a direct transfer from bank to bank without any intermediary. An interposed “agent” (whatever that might mean) is not a direct transfer. In fact, the word “directly” is the only thing in paragraph 2 which actually identifies a route at all. If that word were not there, all the paragraph would be doing is specifying a source. The money has to get from that source to the solicitors. That is via a “route”. The word “directly” specifies that route. It is therefore the opposite of an immaterial word; it is a crucial word, without which the certificate would be invalid on its face (unless one implied the word, which would again demonstrate its materiality, not its immateriality).

20.

This means that that part of the certificate has been shown to be false.”

Mr Eschwege said that was wrong in two respects. He said the judge erred in his conclusion as to what “banking route” meant and he erred in whether it was necessary to specify the intermediate steps, if there were any. He said that the requirement for a certificate was sufficiently satisfied by identification of the account from which the transfer was going to be made.

I do not accept either part of this submission. First, as a matter of ordinary language, a “route” is not just a departure point. To say you start from A does not tell you anything about the route. It identifies the source but not a route. Indeed, Mr Eschwege, in answer to questions, accepted that a route means a method of getting from A to B, in the present case, from Mr Lyuboshits’ bank account in Moscow to the account of the English solicitors in London. Again, confirming there is a route means confirming you can effect a transfer from Moscow to London.

In my judgement, therefore, it is not sufficient simply to identify the account from which the transfers are going to be made. One needs to say how one is going to get from there to here.

On the second point, it seems to me plain that by using “route” Sir Anthony meant not just specifying that one starts with Mr Lyuboshits’ bank account in Moscow and ends up with the solicitors’ bank account in England. Everyone knew there was said to be money in Russia. Everyone knew the problem was getting it into the hands of the English solicitors in London. The problem was how to do that. Various routes had been tried and had not proved successful. Simply saying it was going to come from Mr Lyuboshits’ bank account in Moscow to the solicitors’ bank account in London does not confirm the route at all. That is why Sir Anthony said the word “directly” is so material. It shows that what Mr Elliot was concerned with was a transfer direct from Moscow to London rather than opening an account with some other bank in Hungary or Spain or Italy or somewhere else and transferring funds there first, or using a payment agent in Dubai or elsewhere. These are ways of getting money from Moscow to London that are different from a direct transfer.

Indeed, Sir Anthony had made this clear in his June judgment when he had said that what was required was the details of the banking route. I read from paragraph 11 in which he said that he would make an order that the claimant must certify that funding arrangements were in place to allow the October trial to take place “and providing details of the banking route through which it will be provided”, and he contrasted that with the requirement not to provide full details of the source of funding.

Mr Eschwege said that in inter-bank transfers, no money is ever actually transferred. It is just a series of debits and credits: see what Lord Millett said in Foskett v McKeown [2001] AC 102 at 127 to 128. That I accept. Mr Eschwege also said that such transfers may in practice involve a series of correspondent banks. Again I accept that. But all that is concerned with the mechanics of a direct transfer. It does not, to my mind, mean there is no difference in substance between (i) a payment from bank A to bank B directly, even if that is achieved by netting off credits and debits of one or more correspondent banks, and (ii) a transfer from bank A to bank B via bank C or via a payment agent.

Mr Eschwege also had a timing point. That was this. The certificate was given, as I referred to, at 14.17 on 30 August 2024. That was London time which was BST. Mr Eschwege said that it was not inaccurate at the time it was given as we can see from the evidence that other money was in fact paid direct from Moscow to Ms Kireeva’s new solicitors, Steptoe, on the same day at 15.13 London time. That is consistent with the Raiffeisen Bank announcement that said the payments would stop on (Monday) 2 September, rather than (Friday) 30 August and that payments accepted up to 16.00 Moscow time would be processed.

I do not accept this point either. What was required by Sir Anthony’s Order was a route by which “such funding” would be provided, where “such funding” means “funding arrangements to allow the adjourned trial to take place.” That must have included at least sufficient funds in respect of counsel’s fees to persuade counsel to appear at trial. So Mr Elliot’s certificate saying that “the route for the funding will be provided by Cezar … using the bank account of its owner, Mr Lyuboshits, … to transfer funds directly to this firm” is a forward looking statement. That could only be accurate if instructions had already been given and accepted by the Raiffeisen Bank by 16.00 Moscow time on 30 August (which was the equivalent of 14.00 BST). It is obvious that no such instructions had in fact been given and accepted. If they had been, someone would have said so by now and, indeed, one would expect the funds to have been transferred. But it has never been suggested that such instructions had been given, let alone accepted.

I therefore agree with Sir Anthony Mann that the certificate was indeed inaccurate and inaccurate in a very material respect, when given. In those circumstances, I would dismiss this ground of appeal.

That means that it is not necessary to consider limb 1 of the certificate. Sir Anthony Mann was very sceptical as to whether limb 1 was accurate. What he said at paragraph 32 of his judgment was:

“I confess to having a very significant degree of scepticism as to whether adequate arrangements were in place. There is more than a strong whiff of uncertainty. However, I do not find the certificate is false in this respect.”

That is challenged by the Respondent’s notice but it is not necessary to consider the various points urged on behalf of the respondent. It is sufficient to say, as Sir Anthony did at paragraph 37, that the mistake in the certificate, that is in paragraph 2, was very materially inaccurate.

Mr Eschwege said that the certificate would nevertheless only be invalid if given in bad faith or illusory. I am very doubtful if this is so. Mr Eschwege relied on a series of cases dealing with the provision of Further and Better Particulars (or Further Information as it now is) or discovery (or disclosure as it now is), dating back to a decision called Reiss v Woolf [1952] 2 QB 557. I do not myself find the analogy with those cases at all persuasive. In both the case of Further and Better Particulars / Further Information and discovery / disclosure, there is a problem which arises if there is some purported compliance by provision of particulars or a list of documents but it is said to be, or shown to be, incomplete. The problem in the present case is an entirely different one. The unless order in the present case does not require pages and pages to answer; it only needs a very short answer to two very short questions. “Do you have funding arrangements in place for trial? What is the route by which you can get the money to London?” The question here, therefore, is not the adequacy or completeness of the answer so there is no question, as there is in those cases, of whether a genuine but incomplete attempt at answering is sufficient or not. The problem here is a quite different one. It is one of the accuracy of the answer.

My own view is that bad faith does not in those circumstances come into it. In June 2024, Sir Anthony Mann gave the claimant one last chance to save her trial if she could get a funding route in place by 31 August. The purpose of the requirement for the certificate was not to confirm the claimant’s (or her solicitors’ or anyone else’s) state of mind but to confirm whether there was in fact such a route in place. It is now plain that there was not. As Sir Anthony said at paragraph 63:

“There was no route which had been ascertained, within the meaning of the certificate. Even at the date of the hearing before me no proper route has been specified other than a generalised statement about an allegedly standard route via an unspecified agent. It is plain that the certificate could not have been properly and accurately provided in terms which would fulfil the requirements of the order as at the date that it was required.”

Once that had been demonstrated beyond doubt, that was to my mind sufficient to invalidate the certificate and mean that the unless order took effect. That does not mean that any inadvertent minor inaccuracy in such a certificate would always lead to the claimant being struck out and losing her trial as a claimant can always apply for relief from sanctions and the court can exercise its discretion in accordance with the overriding objective and do what is just in the circumstances of the particular case. But here no such application has been made and the inaccuracy is not a minor one that was overlooked, but absolutely crucial, as Sir Anthony said.

Nevertheless, I am conscious that this was not actually the basis for his decision and technically it is not the subject of the Respondent’s notice. Sir Anthony saw the force of it, as he said at paragraph 55:

“There is something to be said for Mr Bradley’s case that the validity of such a document should be tested by a “true or false” test without more, but I do not need to decide that because it is plain that bad faith will invalidate the document.”

I agree with that. A fortiori, bad faith would invalidate the certificate.

On this point, two questions were argued by Mr Eschwege. The first was whether the judge was entitled to conclude that Mr Lyuboshits and Mr Nurtdinov knew the true position and acted in bad faith. The second was whether that affected the validity of the certificate. I will say straightaway that in my judgement the judge was entitled to reach the decision he did on both points.

On the first point, Mr Eschwege reminded us by reference to a passage in the judgment of Newey LJ in this Court’s decision in Kireeva v Bedzhamov at paragraph 34 that:

“It is well-settled practice that if a court finds itself faced with conflicting statements on affidavit evidence, it is usually in no position to resolve them, and to make findings as to the disputed facts, without first having the benefit of the cross-examination of the witnesses. Nor will it ordinarily attempt to do so.”

Although, as is there pointed out:

“This is not an inflexible principle: it may in certain circumstances be open to the court to reject an untested piece of such evidence on the basis that it is manifestly incredible, either because it is inherently so or because it is shown to be so by other facts that are admitted or by reliable documents …”

Pausing there, Mr Eschwege said that was not actually borne out by the document in question, pointing to a document from a publication called The Insider which he said did not actually include the words that Sir Anthony Mann had suggested it had, namely, that “the bank’s support services told its customers” of the change. I agree that one cannot find those words in that report but they are to be found in another report, also in evidence, the name of which is not immediately apparent but seems to be in Russian Банки.ру (banki.ru), and which starts:

“Outgoing transfers in foreign currency at Raiffeisen Bank will become unavailable to all individual clients from September 2, 2024, the bank’s support service told its customers.”

That is clearly where Sir Anthony took that phrase from. It is also fair to say that the Insider report does report an official statement from the bank as saying “We try to warn you” which must mean its customers “as far in advance as possible.” So Sir Anthony seems to have conflated two announcements. That does not invalidate the substance of the point.

Reverting to what he said at paragraph 42:

“It would be particularly pertinent to give notice to Mr Lyuboshits and/or Mr Nurtdinov because they had been actively involved in getting funds out of the country to fund the litigation, and in particular the funds sent out in the last week of August. The need to get funds out of Russia must have been a frequent topic of contacts between the bank and those two individuals, and in that context it is inconceivable that the bank did not tell them that from the end of August it was not going to be possible. Mr Elliot’s evidence, in a witness statement of 11 October, says that in the two months following my order about the certificate, he regularly chased Cezar for funds, reminding them to pay the wasted costs, and he told them that they had to pay his costs by 31 August 2024. It is not surprising that they were chased for funds. Mr Lyuboshits and Mr Nurtdinov must have been investigating how they could have been paid. The assertion of Mr Lyuboshits as to his knowledge, conveyed purely in a hearsay statement, cannot sensibly stand against the overwhelming likelihood of their being told, especially in the context of the August payments which look very much as though they were paid so as to meet the deadline (particularly the £403,000 paid right up against that deadline).”

Mr Eschwege said that was not a safe inference because there was not only the deadline for the closure of the bank’s transfer route but the deadline for payment under Sir Anthony’s order and that is sufficient explanation why payment was made on 30 August. There may be something in that but it does not affect the main point that Sir Anthony made which is that when investigating how funds could have been paid, they must have been told that the bank had already announced on 15 August that the window would close unless the payment instructions were processed and accepted by 16.00 on 30 August.

Sir Anthony concluded, as I have already referred to, that Mr Lyuboshits and Mr Nurtdinov must have known that the certificate, long since required, could not be provided in respect of paragraph 2 but nevertheless allowed its provision, and that that conduct amounted to bad faith. I think both parts of that conclusion were undoubtedly open to Sir Anthony on the material that was before him.

The second point taken by Mr Eschwege was that even if that was so, it did not affect the validity of the certificate. On that, Sir Anthony said this:

“I also consider that it taints the certificate. Cezar (and Mr Lyuboshits and Mr Nurtdinov) are not the client, but they are the people apparently authorised by the client to negotiate matters of funding, and compliance with the order, by the client and to act on behalf of the client in that respect. Their conduct therefore taints the certificate and the act of the client’s solicitors. The certificate was a very important document with serious consequences. It and its purpose are fundamentally undermined by such conduct and it cannot be allowed to stand as a genuine certificate.”

I entirely agree. Can a litigant rely on a certificate when those responsible for the arrangements know that it cannot properly be given? The answer must be No. Mr Eschwege pointed us to a passage in Bowstead & Reynolds onAgency (23rd edn) at paragraph 8-183 which includes the proposition that:

“The principal, P, is not liable if P makes a false representation innocently and notwithstanding that an agent knew the true facts.”

But that was said in the context of liability for the tort of deceit. The present case is not one of liability in the tort of deceit. The question is whether the certificate can be relied on. I agree, for the reasons given by Sir Anthony, that it cannot.

I would therefore dismiss ground 2 of the appeal, and with it the appeal.

Ground 3 does not therefore arise and it is not necessary for me to say anything about it but I will just very briefly say that I am entirely in accord with Sir Anthony’s conclusions that I referred to at paragraphs 64 and 65, namely that even if the certificate was technically valid, nonetheless, reliance on it was an abuse of process because it should never have been provided, and that striking out the proceedings because of that abuse was a proper remedy. I have no doubt that those were conclusions that were open to him.

For the reasons I have given, I would dismiss the appeal.

I agree.

I also agree.