JSC BTA Bank v Ablyazov & Ors

This is an application by the Second Defendant to set aside an order made by Christopher Clarke J. on 21 June 2011 which extended time for service of the Claim Form and the Particulars of Claim in this action and gave permission for alternative service of the Claim Form and the Particulars of Claim on Olswang. The application involves consideration and application of the principles governing extensions of time for service and alternative service set out by the Court of Appeal in Cecil v Bayat [2011] EWCA Civ 135.

The Claimant is a Kazakhstan bank which has chosen to sue its former chairman, the First Defendant, alleging fraud on an immense scale. Several actions have been commenced against him in this court and the trial of three of them, Drey, Chrysopa and Granton, is due to commence in November 2012 and is scheduled to last for many weeks, indeed months.

The Second Defendant, a Russian national aged 30, has found himself in the unfortunate position of being a defendant to the Chrysopa action and to one of the other actions, Tekhinvest. The Claimant alleges that he assisted the First Defendant in connection with the frauds alleged against the First Defendant. Olswang accepted service of those proceedings on behalf of the Second Defendant and he has participated in those actions. He has also been sued by the Claimant in the BVI.

The Second Defendant has said that he is a man with limited means and that his father is funding his defence to the proceedings brought against him. He speaks only basic English and so cannot realistically give instructions without the assistance of an interpreter. An international arrest warrant has been issued against him as a result of which he cannot come to London. This has further hindered his ability to give instructions to Olswang.

In March 2011 there was a CMC in several of the actions brought by the Claimant. Miss Tamsin Blow, a solicitor at Olswang, submitted on behalf of the Second Defendant that the Chrysopa action should be heard first on its own on the grounds that the Second Defendant was not financially able to defend properly both the Chrysopa and the Tekhinvest actions. He was anxious that he should be able to clear his name and believed that if he did so in the Chrysopa action the Bank would not continue the Tekhinvest proceedings against him. The other parties to the several actions made different submissions as to what actions should be heard and when. In the event, as I have indicated, I ordered that Drey, Chrysopa and Granton be heard together.

The present action is known as the Paveletskaya action. The Claimant alleges that the First Defendant fraudulently misappropriated US$269m. from the Claimant in the form of loans to companies controlled by the First Defendant allegedly for the construction of a substantial underground shopping and entertainment mall in Paveletskaya Square, Moscow. No or no adequate security was put in place and substantial sums remain outstanding. Certain of the loans were diverted to entities with no connection to the Paveletskaya project but which are controlled by the First Defendant. The Claimant’s right to recover the loans was purportedly assigned to two BVI companies also controlled by the First Defendant. The Bank alleges that the loans were related-party actions which are liable to be set aside as invalid. The Bank further alleges that the Second Defendant, who was employed by the Claimant in its Moscow office, assisted the First Defendant by voting in favour of resolutions approving the loans and security arrangements passed by the Claimant’s Regional Credit Committee for Russia, implementing decisions concerning the loans and security arrangements and executing numerous documents on behalf of the Claimant under wide powers of attorney pursuant to which the fraudulent scheme was put in place.

Pursuant to an order of Christopher Clarke J. dated 14 December 2010 leave was given for service of the Claim Form out of the jurisdiction on the Second Defendant and others. On 17 December 2010 the Claim Form was issued. Its six month period of validity would therefore end on 17 June 2011. By letter dated 17 December 2010 Hogan Lovells, on behalf of the Claimant, asked Olswang whether it was instructed to accept service of the Claim Form on behalf of the Second Defendant. By letter dated 23 December 2010 Olswang requested Russian translations of certain documents and informed Hogan Lovells that the Second Defendant had broken his hand and on account of that and the Christmas period Olswang did not anticipate being able to take instructions until the week beginning 10 January 2011. By letter dated 29 December 2010 Hogan Lovells provided a Russian translation of the Particulars of Claim and asked Olswang to say whether it had instructions to accept service. Chasing letters were sent on 18 and 25 January 2011 and on 1, 10 and 28 February 2011. On 1 March 2011 Olswang stated that it was not instructed to accept service of the Paveletskaya proceedings.

By letter dated 23 March 2011 from Olswang to myself in connection with the CMC due to be heard on 29 March 2011 and copied to Hogan Lovells, Olswang said, with regard to the Paveletskaya proceedings, that the Second Defendant had not voluntarily accepted service in this jurisdiction because “he is no longer able, either financially or practically, to continue to conduct properly this heavy volume of litigation, which our client finds oppressive.”

At the CMC the First Defendant submitted that the Paveletskaya proceedings and all actions other than Drey, Chrysopa and Granton should be stayed. The Second Defendant supported that submission. I did not order a stay but directed that the other actions should continue to the close of pleadings at which stage further directions for trial could be considered.

During this period certain without prejudice discussions took place between the Claimant and the Second Defendant. There was a preliminary meeting between lawyers on 4 February 2011 and a meeting on 11 April 2011 attended by the Second Defendant. In a letter dated 27 April 2011 concerning the Tekhinvest proceedings Olswang referred to the without prejudice discussions as “continuing”.

At some time before 15 June 2011 (when Hogan Lovells applied for an extension of time for service and an order for alternative service) the Claimant took steps to prepare notarised Russian translations of all relevant documents for service on the Second Defendant in Russia under the Hague Convention. I have not been told when such steps commenced save that it was “as soon as the Bank realised that Mr. Khazhaev was not prepared to meaningfully engage with the without prejudice discussions”. Hogan Lovells anticipated (on 15 June 2011) that they would be ready to submit the relevant documents to the Foreign Process Section of the RCJ by the end of June 2011 for service under the Hague Convention. The work of providing such documents has been described as “time consuming and costly”. On 7 June 2011 the Foreign Process Section advised Hogan Lovells that service would normally be carried out within one to two years of the documents being sent to the Foreign Process Section.

The application for an extension of time and for an order for alternative service was supported by the First Witness Statement of Mr. Sciannaca which ran to some 22 pages and 90 paragraphs. There were 93 pages of exhibits.

The application was also supported by a Skeleton Argument prepared by counsel. In support of the application for alternative service it was submitted that difficulties might be encountered in effecting service and that there was a genuine risk that the Second Defendant may seek to evade service. In support of the application for an extension of time it was submitted that the six month period for service had been taken up with ascertaining whether or not the Second Defendant would instruct Olswang to accept service as well as with without prejudice discussions. It was said that as a result “the Bank has thus far refrained from commencing the process of service under the Hague Convention in Russia, albeit that the Bank has taken certain preparatory steps in that regard”. An extension of time for service under the Hague Convention until June 2013 was sought because it had been indicated by the Foreign Process Section that service might take that long. If alternative service were permitted an extension of time was still required because the 6 month period would have run out by 17 June 2011. Detailed submissions on the law, including Cecil v Bayat, were made. On 20 June 2011 Christopher Clarke J. enquired why an extension of time until 2013 was required if alternative service were permitted. Counsel replied on 21 June 2011 saying that such an extension was sought so as to forestall certain risks that would arise if the Second Defendant subsequently applied to set aside the order for alternative service. In particular the Claimant wished to avoid having to apply, in the event that the order for alternative service were set aside, for an extension of time after the validity of the Claim Form had expired.

On 21 June 2011 Christopher Clarke J. extended the validity of the Claim Form until June 2013 and gave permission for alternative service on Olswang.

The Claim Form was served on Olswang on 23 June 2011.

On 30 June 2011 the Second Defendant applied to set aside the order of Christopher Clarke J. Having regard to the difficulties in giving instructions referred to by the Second Defendant this application was issued with remarkable speed. The application was supported by the Second Defendant’s witness statement dated 30 June 2011. Although in English its contents had been explained to the Second Defendant in Russian. He denied any wrongdoing. He confirmed that he had limited resources but said that he had taken the decision to instruct leading counsel to seek to set aside the order of Christopher Clarke J. because it was causing him unfair and substantial prejudice as it would affect his ability to defend properly all of the proceedings which had been brought against him.

He said that defending the proceedings required a vast amount of resources and he was concerned as to his ability to defend the proceedings properly. Accordingly at the end of 2010 and the start of 2011 he discussed with Olswang a structure for defending the proceedings which would allow his limited resources to last until trial. It was decided that Olswang would continue to act in the Chrysopa and Tekhinvest proceedings but subject to a monthly financial cap. The commencement of the Paveletskaya proceedings raised the possibility that he would have to defend three sets of proceedings simultaneously. But he wished to stagger the costs which he spent on his defence so that he was at least able to see the Chrysopa proceedings through to trial. He said he had not instructed Olswang to accept service of the Paveletskaya proceedings because “I do not have sufficient funds to meaningfully fund the defence of the Paveletskaya proceedings simultaneously with the other proceedings.” So far as the application for an extension of time was concerned he said that neither Olswang’s delay in saying that it had no instructions to accept service nor the without prejudice discussions justified Hogan Lovells’ failure to have made any attempt to serve him through the Hague Convention before 17 June 2011. Further, the extension might prejudice limitation points which he wished to take. So far as the application for alternative service was concerned he was “extremely angered” by the suggestion that there was a genuine risk that he would seek to evade service of proceedings in Russia. The order prejudiced him because he would lose the important right that under the Hague Convention he was entitled to receive Russian translations of the documents and so would be saved the considerable expense of translating them. Further, it would mean that the proceedings were accelerated and he would be obliged to deal with his defence to the Paveletskaya proceedings at a time when his resources were entirely caught up in defending the other proceedings. He wished to use his limited time and resources to focus on the first trial. If he has to divert time and resources to the Paveletskaya proceedings it will be even more difficult for him to defend the Chrysopa proceedings.

On 30 August 2011 the Claimant provided Olswang with Russian translations of a number of English documents which had previously been provided to Olswang in connection with the Paveletskaya proceedings. It was therefore said that the Second Defendant had Russian translations of all the documents which would have been required to have been served on him under the Hague Convention.

In support of the application to set aside the order of Christopher Clarke J. Mr. Hollander QC has submitted that there was no good reason for an extension of time because from 1 March 2011 the Claimant took no steps to serve under the Hague Convention and the application was issued just two days before the validity of the Claim Form expired. The without prejudice discussions did not justify failing to embark on the process of service. Moreover, an extension of time would potentially deprive the Second Defendant of a limitation defence. With regard to the order for alternative service Mr. Hollander submitted that there was no valid reason to believe that there would be any difficulty in serving under the Hague Convention. The mere fact that service in Russia might take a considerable period of time is not a good reason for an order for alternative service; otherwise such an order would be made in every case where the defendant was in Russia; see Cecil v Bayat.

The application for an extension of time was made pursuant to CPR 7.6(2).

In Cecil v Bayat Stanley Burnton LJ endorsed at paragraph 43 an earlier decision of the Court of Appeal to the effect that the court is unlikely to grant an extension of time under CPR 7.6(2) if no good reason has been shown for the failure to serve within the validity of the claim form. At paragraph 48 he said that at the very least the claimant must show that he has taken reasonable steps to serve and at paragraph 49 that “the general rule is that the good reason that must be shown for the exercise of the discretion under CPR r.7.6(2) must be a difficulty in effecting service”. At paragraphs 52 and 53 he referred to earlier authoritative statements to the effect that where a limitation defence may be prejudiced by an extension of time that is a matter of “considerable importance” when deciding whether or not to extend time and indeed that an extension should not be granted where the defendant can show that he might be deprived of a limitation defence were time for service extended. Rix LJ gave a judgment to the same effect but emphasised that where there is a limitation issue the good reason must “surmount” that difficulty by directly impacting on it as for instance where the claimant can show that he has been delayed in service for reasons for which he does not bear responsibility; see paragraphs 108-109. Wilson LJ agreed with both judgments.

In the present case there is a possibility that if the validity of the claim form is extended the Second Defendant might be deprived of a limitation defence. There are two potential limitation defences. The first is a one year limitation period in respect of employment related claims from the date on which the Claimant became aware of the breaches alleged or on which the damage was discovered. December 2010 (when the claim form is issued) may or may not be less than one year from the relevant date but if a second claim had to be issued in 2011 (following the setting aside of Christopher Clarke J.’s extension of time) there must be a greater possibility that the limitation period will have expired before the date on which the second claim form is issued. Thus the extension of time sought by the Claimant may prejudice that limitation defence. The second limitation defence is a three year Kazakh law limitation period applicable to the Bank’s affiliation claims. Mr. Hollander drew my attention to the dates of several material events in the Particulars of Claim. They were in 2008. Thus if a second claim form had to be issued in 2011 there might be a limitation defence which would be prejudiced if time for service of the first claim were extended. The Claimant maintains that it is entitled to a reasonable time after February 2009 (when the Claimant ceased to be under the control of the First Defendant) to discover the alleged wrongdoing before the limitation period commences and also seeks to argue that the Kazakh law limitation periods ought to be disapplied by the English Court as being contrary to public policy. However, it is clear from Cecil v Bayat and the other authorities cited in that case that the validity of any limitation issue cannot be resolved at this stage.

I must therefore consider whether the Claimant has established a good reason for not serving the Claim Form on the Second Defendant by 17 June 2011 and if so, whether that good reason “surmounts” the limitation issue.

It is clear that the Claimant had good reason for not serving before 1 March 2011. The First Defendant had instructed Olswang to accept service in the Chrysopa and Tekhinvest proceedings and the Claimant could therefore reasonably expect that he would so instruct Olswang in the Paveletskaya proceedings. Olswang did not say that it had no such instructions until 1 March 2011.

In the remaining three and half months before the claim form expired the Claimant did not forward the relevant documents to the Foreign Process Section at the RCJ with instructions to serve under the Hague Convention. However, the Claimant was entitled to some time in which to consider what to do following Olswang’s unexpected notification that it had no instructions to effect service. At the same time there were on going without prejudice discussions though they themselves would not have prevented Hogan Lovells from taking steps preparatory steps to serve under the Hague Convention or from making an application for alternative service. It was suggested by Mr. Sciannaca that “service of the proceedings” might be counter-productive whilst the without prejudice discussions were taking place but I do not understand why taking preparatory steps, of which the Second Defendant would not know, would be counter-productive. It seems that at some time Hogan Lovells determined that it would seek permission for alternative service but in parallel with that application it would take steps to prepare notarised Russian translations of the relevant documents. It is unclear when those steps were commenced. However, even if the preparatory steps had been commenced very shortly after 1 March 2011 service would not in fact have been effected under the Hague Convention before the expiry of the claim form on 17 June 2011. The Second Defendant accepts that service would take in the region of 9 months and the Claimant says 12-24 months. So an extension of time would have been required in any event.

I have been troubled by the fact that I have not been told when Hogan Lovells commenced the work of preparing of notarised translations. Allowing for some time after 1 March 2011 to consider what action should be taken it is difficult to see why the work of preparing notarised translations should not have been commenced by 1 April 2011. Although I was told the work was time consuming (which I do not doubt) I doubt whether it would take from 1 April to 30 June (the date when, on 15 June 2011, it was expected that the documents could be forwarded to the Foreign Process Section). Mr. Sciannaca has not said that it takes as long as three months. Since the without prejudice discussions were continuing as at 27 April 2011 and since I have been told that the Claimant commenced the preparatory work as soon as it realised that Mr. Khazhaev was not prepared meaningfully to engage in the discussions it seems likely that the preparatory work did not commence until sometime in May 2011. Had it been commenced at the beginning of April 2011 as it ought to have been it seems to me likely that the notarised documents would have been forwarded to the Foreign Process Section before the expiry of the Claim Form on 17 June 2011.

In circumstances where the Claim Form had to be served in Russia it is not to be expected that the Claimant would have been able to serve before 17 June 2011. However, it is, I think, to be expected that the Claimant would have been able to forward the notarised documents to the Foreign Process Section within that period. It seems that the Claimant did not do so because it delayed commencing the necessary work until it was clear that the without prejudice negotiations were going nowhere.

In Cecil v Bayat Rix LJ emphasised (at paragraph 90) the “strictness with which the jurisdiction to extend time is viewed” and that a good reason is required to extend time. In the present case the Claimant can say that the length of time required to effect service in Russia is a good reason to extend time. However, whilst that is true, the Claimant appears to have delayed in commencing that process by a month or more for no good reason. Mr. Sciannaca’s only reason for that delay is that “service of the proceedings …..could be counter-productive” whilst without prejudice discussions were continuing. But that, for the reason I have given, does not seem to me a good reason for failing to commence the process of preparing notarised translations. Mr. Marshall QC, counsel for the Claimant, also said that so long as there was a real prospect of the negotiations succeeding the costs of the exercise could be avoided but this was not a reason identified by Mr. Sciannaca as one which affected the actions of Hogan Lovells. It is therefore arguable that the Claimant has not taken “reasonable steps” (the phrase used by Stanley Burnton LJ in Cecil v Bayat) to serve within the period of the Claim Form’s validity. However, the Claimant did commence the costly and time consuming process of preparing notarised translations within the period of the Claim Form’s validity, which was a reasonable step to take, such that the documents would have been ready to be delivered to the Foreign Process Section just two weeks after the expiry of that period. Further, even if the delay of a month or more in commencing that process had not occurred there would have been a very much longer period of delay before service would be effected in Russia.

Overall I consider that there is good reason to extend time, namely, the long period of time required to effect service in Russia, notwithstanding the small period of delay in commencing the process.

However, the present case involves limitation issues which are of considerable importance and may lead to a refusal of an extension even though there may be grounds for an extension. It is therefore necessary to consider whether the good reason in this case is sufficient to “surmount” those limitation issues. I consider that it is. Once Olswang had stated on 1 March 2011 that it was not instructed to accept service an extension of time for service in Russia would inevitably have been required. The long delay in serving in Russia (a matter for which the Claimant does not bear responsibility) makes it just that the remaining period of the claim form’s validity, three and half months, which was very much shorter than the time required to serve in Russia, should be extended. Were that reason not sufficient to “surmount” the limitation issues time could never be extended for service in Russia where there were limitation issues.

For these reasons I must dismiss the application to set aside the order for an extension of time.

Mr. Hollander criticised the long period of the extension, until June 2013, but in view of the evidence from the Foreign Process Section that service could take up to two years I do not consider that the extension was too long.

It is common ground that the court’s jurisdiction to permit alternative service out of the jurisdiction stems from CPR r.6.15. This was assumed by Stanley Burnton LJ and Rix LJ in Cecil v Bayat whose view has been followed by Tugenhadt J. in Bacon v Automatic Inc. & Others [2011] EWHC 1072 (QB). Thus the court may order alternative service where there is “good reason” to do so.

Although the observations of both Stanley Burnton LJ and Rix LJ in Cecil v Bayat as to how this jurisdiction should be exercised are strictly obiter dicta they were made after hearing full argument and therefore are of very persuasive authority. It is necessary to note the following observations in particular. Stanley Burnton LJ said, at paragraph 66, that whilst the fact that proceedings served by an alternative method will come to the attention of a defendant more speedily than proceedings served under the Hague Convention is a relevant consideration, it is in general not a sufficient reason for an order for service by an alternative method. He further said, at paragraph 67, that in general the desire of a claimant to avoid the delay inherent in service under the Hague Convention cannot of itself justify an order for service by alternative means. Service by alternative means may be justified by facts specific to the defendant, “as where there are grounds for believing that he has or will seek to avoid personal service where that is the only method permitted by the foreign law” or by facts relating to the proceedings, “as where an injunction has been obtained without notice”; see paragraph 68. Rix LJ agreed that the mere desire for speed was unlikely to amount to good reason. However, he left out of account those cases where service can take very long periods and observed that “it may be that some flexibility should be shown in dealing with such cases, especially where litigation could be prejudiced by such lengthy periods”; see paragraph 113.

In the present case it is said that there are grounds to believe that the Second Defendant might seek to avoid personal service in Russia. Mr. Marshall QC, on behalf of the Claimant, submitted that such grounds were as follows:

Against this must be placed the evidence of the Second Defendant that he is “extremely angered” by the suggestion that there is a genuine risk that he would seek to evade service. He says “the very opposite is true”. He points out that he has voluntarily accepted service of the Chrysopa and Tekhinvest proceedings and also of the BVI proceedings. He says that he anticipates that the Claimant would be able to serve him at either his address or that of his parents.

I do not consider that much reliance can be placed on the fact that service was voluntarily accepted in three sets of proceedings when the Second Defendant has refused to accept service of the Paveletskaya proceedings and explained why. He does not wish to incur the expense of defending both the Chrysopa and the Paveletskaya proceedings at the same time. Since there is no reason why he should change his mind in that regard he would have every incentive not to accept service of the summons from the court bailiff in Moscow. That would appear to be “grounds for believing” that he will seek to avoid personal service. However, the tenor of the Second Defendant’s response (“extremely angered…….the very opposite is true ……would anticipate that the Bank would be able to serve”) points to the possibility that he will accept personal service.

Mr. Hollander submitted that in those circumstances leave to permit alternative service should be refused but he recognised that if the Second Defendant did refuse to accept service in Russia an application could then be made for alternative service.

Mr. Marshall also pointed to the likely delay in serving in Russia. The process of service involves the forwarding of documents from the Ministry of Justice to the relevant district court, the issue of a summons by that court to the defendant, the service of that summons on the defendant by a court bailiff and the attendance of the defendant at the district court to accept service of the Claim Form. It may take between one and two years, though the Second Defendant has been advised by his Russian lawyer that it usually takes about 9 months. This is a long period of time. Mr. Marshall said that in the context of these proceedings that is a significant and relevant matter because four of the defendants to the Paveletskaya proceedings have served defences and such a long period of time to serve the Second Defendant risks holding up those proceedings. This is the sort of point which Rix LJ had in mind in Cecil v Bayat when observing that in case of long delays some flexibility might have to be shown when “litigation could be prejudiced”. There is however a limit to that risk in this case because three other defendants have yet to provide defences and the proceedings are not going to be tried until after the trial of the Drey, Chrysopa and Granton proceedings in any event. Mr. Hollander submitted that the appropriate way of dealing with this point is to recognise that if the time came when delay in Russia risked interfering with the proper disposal of the Paveletskaya proceedings then an application for alternative service could be made at that time.

Before reaching a decision on this matter it is necessary to note that, although the Second Defendant said that he did not want to lose the procedural safeguard of receiving under the Hague Convention procedure translations of the relevant documents, the Second Defendant has had a Russian translation of the Particulars of Claim since the end of December 2010 and does not require service under the Hague Convention to obtain Russian translations of the other documents because these were voluntarily supplied in August 2011 (though that was of course after he launched his challenge to the alternative service order). Thus what remains is the Second Defendant’s wish to avoid “acceleration” of the proceedings which would force him to spend some of his limited resources on defending the Paveletskaya proceedings when he wishes to use those resources on defending the Chrysopa proceedings.

It is clear from Cecil v Bayat that “a mere desire for speed” is not likely to amount to a good or sufficient reason for permitting alternative service. In the present case the Claimant does not rely upon a mere desire for speed. Instead there are grounds for believing that the Second Defendant may refuse to accept service in Russia and there is a risk, though not a great risk, that the delay in service may impede the proper disposal of the Paveletskaya proceedings which involve seven other defendants. Furthermore the Second Defendant has known of the details of the claim sought to be made against him since the end of December 2010 when a Russian translation of the Particulars of Claim was provided to Olswang. This was almost 6 months before the order for alternative service was made. I consider that this is a relevant matter to be borne in mind though it could not itself justify an order for alternative service. Also, the Second Defendant has accepted service of other proceedings in this court brought by the Claimant against him in connection with frauds allegedly committed by the First Defendant. The reason he has not accepted service of the Paveletskaya proceedings is that he does not wish to have to defend those proceedings now. I consider that this is a relevant matter to be borne in mind but it could not itself justify an order for alternative service because it is the converse of the principle that a mere desire for speed on the part of the Claimant is not a good reason for alternative service.

I have concluded, for the reasons summarised in the last paragraph, that there is good reason in the present case for an order for alternative service. I recognise that the Second Defendant’s desire to use his limited resources on defending the Chrysopa action is, from his point of view necessary and understandable but I consider that it is outweighed by the reasons favouring an order for alternative service. In view of those reasons I consider that it is appropriate to make an order for alternative service now rather than acceding to Mr. Hollander’s favoured response of waiting and seeing whether the Second Defendant submits to service in Russia. The Claimant, through Mr. Sciannaca, recognises that the limited nature of the Second Defendant’s resources, if true, is a matter to be considered in the context of case management.

For these reasons I must dismiss the application to set aside the order for alternative service.

I dismiss the application to set aside the order of Christopher Clarke J. dated 21 June 2011.