Kazakhstan Kagazy Plc & Ors v Zhunus & Ors

The 1^st – 4^th Claimants (“the Claimants”) apply for non-party costs orders under s.51 of the Senior Courts Act 1981 against the 4^th Defendant (“Mrs. Arip”) and the 5^th Defendant (“Ms. Asilbekova”), who is Mrs. Arip’s mother.

The application arises from substantive proceedings that were resolved following a 13week trial in the Commercial Court. In December 2017, Picken J handed down a judgment finding that the Claimants had successfully established a very substantial fraud claim against the 2^nd Defendant (“Mr. Arip”) and the 3^rd Defendant (“Ms. Dikhanbayeva”). Mr. Arip is Mrs. Arip’s husband and was effectively CEO of the Claimants. Ms. Dikhanbayeva is not related to either of them, but was effectively the CFO of the Claimants. The trial judge held that both of these Defendants had given extensive dishonest evidence to the court, as well as calling a number of other dishonest witnesses in an attempt to corroborate their false account of events.

The claim against Mr. Zhunus, the first defendant, was settled in 2016 and did not proceed to trial. Neither Mrs. Arip nor Ms. Asilbekova were party to the original proceedings.

On 28 February 2018, in a further judgment on consequential matters, Picken J found that Mr. Arip and Ms. Dikhanbayeva were liable for the sum of US$298,834,593 and ordered them to pay £8,000,000 as interim payment on account of costs. No part of Picken J’s judgment has been satisfied.

The Claimants have pursued various avenues to try to enforce the judgment. These have included steps which have led to the present application. On 27 April 2018, they made a without notice application under section 37 of the Senior Courts Act 1981 against the

The Claimants now seek orders that each of Mrs. Arip and Ms. Asilbekova should pay the costs which they incurred in the proceedings. Up until 17 January 2018, those costs amounted to £ 12,095,278.43, after allowance for a deduction of £ 75,000 in respect of certain costs of applying for a freezing order. Those costs were principally incurred after the Claimants’ present solicitors, Allen & Overy, had replaced Zaiwalla & Co. on 1 April 2015.

Although applications under s.51 are usually determined by the trial judge, the parties were ultimately agreed that it was preferable for the hearing of the application to take place before me, rather than the trial judge. There were a number of reasons for this, including the need to avoid further delay. In addition, there has been a very significant volume of post-judgment applications, and these have been dealt with by a number of

In this section, I describe in broadly chronological order the principal events relevant to the parties’ arguments.

The detailed factual background to the action can be found in the two judgments of Picken J. The more recent procedural background is set out in paragraphs [3] – [18] of my earlier judgment.

In summary, the Claimants are part of a corporate group (the “KK Group”) which is in the business of recycling paper and packaging in Kazakhstan. The 1^st – 3^rd Defendants are former directors and/or shareholders of companies in the KK Group. The claims in the proceedings related to their conduct during their time as directors.

Harbour Fund III, LP (“Harbour”) is a litigation funder that has provided a substantial amount of funding for the Claimants to pursue these proceedings. Harbour was joined as an Additional Party to these proceedings pursuant to Knowles J’s order on 22 January 2018.

In or around July 2007, Mr. Zhunus, Mr. Arip and Ms. Dikhanbayeva left Kazakhstan for Dubai where they worked on a business involving the exploitation of oil assets in Siberia. This business was carried out through an Isle of Man company called Exillon Energy Plc (“Exillon”), which underwent an initial public offering (“IPO”) in 2009.

In January 2009, Mr. Arip arranged for some valuable shareholdings in Exillon to be issued to a trust called the WS Settlement of which Mr. and Mrs. Arip were the beneficiaries. Initially, their children were also named as beneficiaries but they were later removed. Subsequently, the WS Settlement also acquired further shareholdings in Exillon from third parties including Mr. Zhunus. In consequence, the WS Settlement held around 30.17% of the issued share capital of Exillon.

Between June 2010 and December 2013, the trustees of the WS Settlement carried out a sale of the Exillon shares. The shares were sold in three tranches and raised a total amount of around £97 million and a further US$300 million. The sale proceeds were received by the WS Settlement, and then largely distributed to Mrs. Arip (as set out in paragraph 17 below).

In the meantime, on 2 August 2013, the Claimants had commenced proceedings in England alleging fraud against the Defendants. On the same day, His Honour Judge Mackie QC, on a without notice application, granted a worldwide freezing order

In accordance with the WFO, on 12 August 2013, Mr. Arip provided a sworn affidavit which annexed a schedule of his worldwide assets. Two of the most significant assets identified by Mr. Arip were his interests in two trusts: the WS Settlement and another trust known as the Wycombe Settlement, which owned a property in London.

Although Mr. Arip’s interest in the WS Settlement formed a substantial part of his assets, it is now common ground that this trust no longer retains any significant funds over and above the £72 million which was the reduced amount of the WFO. The surplus funds over and above that sum were, save for US$ 1 million, distributed to Mrs. Arip. In particular, Mrs. Arip admits receiving the following transfers from the WS Settlement:

The first two distributions were made prior to the commencement of the present proceedings. The third distribution was made subsequent to the commencement of those proceedings, and after the WFO had been obtained. However, since the sum of £72 million was retained within the WS Settlement, there is no suggestion that this distribution was in breach of the WFO. Mrs. Arip admits that this distribution was made following a request from her to the trustees of the WS Settlement. It is also clear that it was made with the knowledge and approval of Mr. Arip. This is evident from Mr. Arip’s

It was very shortly after this distribution that Mrs. Arip’s funding of the defence of Mr. Arip started. On 25 February 2014, Mrs. Arip paid approximately £1,500,000 to Cleary from her account at one of her banks, LGT Bank Ltd in Liechtenstein. Her evidence was that this payment was made because she was told by her husband that he had run out of money. She said that it was “inconceivable that any wife would fail to support their husband in these circumstances”. Her agreement to do so was, she said, “borne purely out of love and affection, to help my husband. Maksat had run out of money and it seemed natural to me that as his wife I would support him”.

Two further payments to Cleary, totalling £470,000, were made in 2014, although it is possible that some of these monies related to services to Mrs. Arip personally as well as for services to Mr. Arip and Ms. Dikhanbayeva. A number of further payments were made in 2015, 2016, 2017 and 2018. Some of these payments were made following Picken J’s judgment in December 2017. The total amounts paid, according to the evidence of Mr. Gadhia of Cleary, is £5,980,991.77 and US$10,391,228.03. This equates to around £13.9 million, which is more than 50% of the total amount paid to Cleary (approximately £25 million) for the defence of Mr. Arip and Ms. Dikhanbayeva, and in excess of the amounts which the Claimants incurred on the case.

These payments have contributed, but in a relatively small way, to the depletion of almost the entirety of the funds that Mrs. Arip received from the WS Settlement. According to the evidence of Mrs. Arip in response to various orders for disclosure of her assets, her assets are now worth approximately US$25 million, and this includes certain debts whose recoverability is questioned by the Claimants: see paragraph [48] of my earlier judgment. Such assets are less than 10% of the fortune that was transferred to her by the trustees of the WS settlement between 2010 and 2013. The principal reason for this depletion is not the payment of Mr. Arip’s legal bills, but rather the transfer by Mrs. Arip of very significant sums to other individuals or trusts. Most significantly for present purposes, Mrs. Arip paid a total of US$97.5 million to her mother, Ms. Asilbekova, of which US$20 million was repaid. She also paid US$37 million to her brother of which US$20 million was repaid by him.

The Claimants contend that the transfers of funds to her mother and brother were not, as Mrs. Arip and Ms. Asilbekova contend, acts of selfless generosity to close relatives. Rather, they say that Mrs. Arip retains practical control over funds transferred to her mother. They point, amongst other things, to evidence which has emerged from documentation obtained from Bank Julius Baer in Guernsey (“BJB”) and Julius Baer International (“JBI”), the bankers to Mrs. Arip and Ms. Asilbekova. This shows, for example, that by no later than September 2014, Ms. Asilbekova granted a very broad power of attorney over her accounts with BJB to Mrs. Arip. The Claimants rely upon this and other evidence which shows practical control by Mrs. Arip over her mother’s assets. They also contend that the receipt of funds by Ms. Asilbekova was part of efforts made by Mrs. Arip to assist her husband in dissipating his assets and impeding or frustrating the Claimants’ claims, and that Ms. Asilbekova has either been willingly involved in these efforts or been content to allow herself to be used as an instrument or nominee for those purposes. These points were repeated or restated in various ways in Ms Vaswani’s 48^th witness statement, filed on behalf of the Claimants.

In December 2014, Ms. Asilbekova made her only direct payment of monies to Cleary in respect of the fees which were due. This was in the sum of £500,000. However, the

As described above, Mr. Arip and Ms. Dikhanbayeva fought the trial and lost. Neither Mrs. Arip nor Ms. Asilbekova were party to the proceedings. At one stage, Mrs. Arip was joined in relation to a tracing claim which the Claimants sought to pursue. In January 2015, however, Leggatt J set aside her joinder on the basis that the tracing claim had no sufficient prospect of success.

In December 2017, Picken J handed down his judgment in favour of the Claimants. By a further judgment on 28 February 2018, he found that Mr. Arip and Ms. Dikhanbayeva were liable for the sum of US$298,834,593 and ordered them to pay £8,000,000 as an

In January 2018, i.e. after Picken J had handed down his judgment in favour of the Claimants but before he had dealt with consequential matters including quantum, Mrs. Arip commenced without notice proceedings in relation to the WS Settlement (in the Nicosia District Court) and the Wycombe Settlement (in the Larnaca District Court) in Cyprus. These proceedings sought orders from the Cypriot courts prohibiting the Claimants from taking steps to enforce their judgment against the assets of these settlements before any court outside Cyprus. Between January and March 2018, the Cypriot courts granted two interim worldwide anti-suit injunctions in the terms sought by Mrs. Arip. However, neither order is currently in force. The order relating to the Wycombe settlement was discharged in October 2018 and the order in connection with the WS Settlement was abandoned by Mrs. Arip in May 2019. The Claimants contend that these events are significant, because they show Mrs. Arip taking determined steps to prevent enforcement of the judgment which the Claimants had obtained. They say that this is consistent with steps taken to move assets around prior to judgment, again with a view to preventing enforcement. They contend that all of these matters evidence the fact that her provision of funding to Mr. Arip was not motivated by love and affection, but rather her concern to ensure that the claim failed so that assets transferred to her or her mother should not be available for enforcement.

By contrast, Mrs. Arip contends that the proceedings in Cyprus were taken as a result of legal advice following judgment, and with a view to protecting the assets of trusts for the benefit of her children and wider family members. She said that she simply sought to protect assets which, as she had been advised and believed, were not available to the Claimants for enforcement purposes. She did not personally formulate this strategy. She did not believe that any of those measures was aggressive or out of the ordinary.

The subsequent steps taken by the Claimants to enforce Picken J’s judgment include the pursuit of several charging order applications in relation to properties in London which are owned by a number of trusts which are, or alleged to be, Arip family trusts. The Claimants are also applying to commence a tracing claim to identify the proceeds of the sums misappropriated by Mr. Arip. Mr. Arip himself claims to have no material assets with which to meet the judgment against him. He has filed for bankruptcy in Cyprus, but his ability to do so there is contested by the Claimants.

Section 51(1) of the Senior Courts Act 1981 provides that “the costs of and incidental to all proceedings in… the High Court… shall be in the discretion of the court”. Section 51(3) clarifies that this includes the power to determine “by whom and to what extent the costs are to be paid”.

The principles applicable to non-party costs orders are those summarised in the judgment of Lord Brown, delivering the judgment Privy Council in Dymocks Franchise Systems (NSW) Pty Ltd v Todd and others [2004] 1 WLR 2807, in particular at [25]:

“A number of the decided cases have sought to catalogue the main principles governing the proper exercise of this discretion and their Lordships, rather than undertake an exhaustive further survey of the many relevant cases, would seek to summarise the position as follows. (1) Although costs orders against non-parties are to be regarded as “exceptional”, exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The ultimate question in any such “exceptional” case is whether in all the circumstances it is just to make the order. It must be recognised that this is inevitably to some extent a fact-specific jurisdiction and that there will often be a number of different considerations in play, some militating in favour of an order, some against. (2) Generally speaking the discretion will not be exercised against “pure funders”, described in para 40 of Hamilton v Al Fayed (No 2) [2003] QB 1175, 1194 as “those with no personal interest in the litigation, who do not stand to benefit from it, are not funding it as a matter of business, and in no way seek to control its course”. In their case the court's usual approach is to give priority to the public interest in the funded party getting access to justice over that of the successful unfunded party recovering his costs and so not having to bear the expense of vindicating his rights. (3) Where, however, the nonparty not merely funds the proceedings but substantially also controls or at any rate is to benefit from them, justice will ordinarily require that, if the proceedings fail, he will pay the successful party's costs. The non-party in these cases is not so much facilitating access to justice by the party funded as himself gaining access to justice for his own purposes. He himself is “the real party” to the litigation, a concept repeatedly invoked throughout the jurisprudence-see, for example, the judgments of the High Court of Australia in the Knight case 174 CLR 178 and Millett LJ's judgment in Metalloy Supplies Ltd v MA (UK) Ltd [1997] 1 WLR 1613. Consistently with this approach, Phillips LJ described the non-party underwriters in T G A Chapman Ltd v Christopher [1998] 1 WLR 12, 22 as “the defendants in all but name”…(4) Perhaps the most difficult cases are those in which non-parties fund receivers or liquidators (or, indeed, financially insecure companies generally) in litigation designed to advance the funder’s own financial interests.”

In Deutsche Bank AG v Sebastian Holdings Inc [2016] EWCA Civ 23 [2016] 4 WLR 17 at [62], Moore-Bick LJ (delivering the judgment of the Court of Appeal) said that:

“the exercise of the discretion is in danger of becoming overcomplicated by authority. The decision of the Privy Council in Dymocks, which contains an authoritative statement of the modern law, explains and interprets the Symphony guidelines in a way which reflects the variety of circumstances in which the court is likely to be called upon to exercise the discretion. Thus, the Privy Council has explained that an order of this kind is

More recently, in Travelers Insurance Company Ltd v XYZ [2018] EWCA Civ 1099 at [6], Lewison LJ reiterated that whilst the courts had given guidance from time to time, none of it is immutable:

“On an application of this kind the court is not concerned with legal rights and obligations but with a broad discretion which it will seek to exercise in a manner that will do justice. The only immutable principle is that the discretion must be exercised justly… It also follows that previous cases in which judges have or have not exercised their discretion in different ways cannot be regarded as laying down prescriptive rules”.

Some older authorities, predating Sebastian and Travelers, suggest that a spouse who provides funding to a husband or wife is ordinarily to be regarded as, or at least as akin to, a “pure funder” in the sense described by Lord Brown in paragraph [25] (2) of Dymocks. These authorities were reviewed by Coulson J. in Jackson v Thakrar [2007] EWHC 626 (TCC), paragraphs [21] – [29]. In Dweck v Forstater [2010] EWHC 1874 (QB), HHJ Thornton QC said that the expression “pure funder” had no precise meaning, so that it was not easy to state what the interest is that a person needs to have before being considered as an interested party and not a pure funder. He went on to say that those with “an indirect interest, particularly if it is linked to emotional or family involvement with the party being supported, are not to be regarded as interested parties”.

In my view, however, these older authorities cannot (in the light of Sebastian and Travelers) be regarded as laying down any firm rule as to how funding provided by a family member is to be regarded in the context of an application under s.51. I have no doubt that in the majority of cases where a family member has provided emotional and financial support to a close relative who requires funds in order to vindicate his or her rights in litigation, whether as claimant or defendant, a court would be unlikely to consider that the justice of the case made it appropriate to impose liability under section 51. This is really for the same reason that the Court of Appeal in Hamilton v Al Fayed (No 2) [2003] QB 1175 was reluctant to grant a non-party costs order against people who had contributed to Mr. Hamilton’s fighting fund, in an early example of what is now called “crowd-funding”. In such cases, the public interest in ensuring access to justice prevails over the public interest in the successful party recovering their costs. However, I do not consider that this is invariably the case where a family relative has provided funding, since it is always necessary to look at the particular facts in order to

The authorities provide guidance on a number of other matters which are relevant to the arguments of the parties in this case.

(1) Causation. The authorities generally require a causal connection between the involvement of the non-party and the incurring of costs by the successful party. A nonparty will therefore not ordinarily be made liable for costs if those costs would in any event have been incurred even without such non-party’s involvement. The relevant authorities in this area were reviewed by Christopher Clarke J in Excalibur Ventures LLC v Texas Keystone Inc. and others [2014] EWHC 3436 (Comm) and by Snowden J in Davey v Money [2019] EWHC 997 (Ch), paras [39] – [47].

The point is of potential importance in the present case for a number of reasons.

It is important to recognise, however, that causation is not a pre-condition to the making of a s.51 order. This is clear from one of the cases to which I was referred: the decision of the Court of Appeal in Turvill v Bird and others [2016] EWCA Civ 703. The Court of Appeal there approved the approach taken by David Richards J in Total Spares & Supplies Ltd. v Antares SRL [2006] EWHC 1537 (Ch). In Total Spares, the judge said at [54]

“In the light of these recent statements, it cannot in my judgment any longer be said that causation is a necessary pre-condition to an order for costs against [a] non-party. Causation will often be a vital factor but there may be cases where, in accordance with principle, it is just to make an order for costs against a non-party who cannot be said to have caused the costs in question.”

David Richards J made a s.51 order against a non-party (connected with the defendant in that case) who had been involved in a transfer of assets which was intended to make it more difficult for the claimant to recover any damages or costs, and where the nonparty transferor knew and intended the transfer to have this purpose.

It is also therefore clear from Total Spares and Turvill that there can be a relevant causal link to the conduct of the non-party not only where costs have been incurred as a result of the non-party’s conduct, but also where that conduct impeded the winning party’s ability to recover its costs from the losing party: see Turvill at paragraph [28]. This is in accordance with the broad discretion in s.51.

(2) Claimant or Defendant. A relevant factor, in the view of some judges, is whether the funded party was a claimant seeking to advance a claim, or a defendant seeking to resist one. The latter circumstance could be a factor which made it less appropriate to exercise a discretion to make a s.51 order: see Jackson at [44] and PR Records Ltd. v Vinyl 2000 [2008] EWHC 192 (Ch) at [26]. However, it is important not to overstate the importance of this distinction. As Morgan J said in the latter case, this is something which “may be a relevant consideration, this being, after all, a fact sensitive jurisdiction”. In Turvill v Bird, for example, the successful s.51 applicants were the claimants in the underlying proceedings.

(3) Summary process. It is for the applicant for a costs order against a non-party to establish the facts relied upon in support of the application. If the applicant does not establish essential facts, on the balance of probabilities, then the application will fail: see Catalina London Ltd. v Kapsokolis [2018] EWHC 1309 (QB) at [25] (Slade J). Prior to the hearing, the solicitors for Mrs. Arip and Ms. Asilbekova had confirmed in writing that it was “open to the court to reach a conclusion on disputed issues, based on the evidence before it, if it considers that the relevant facts have been proved to the appropriate standard”.

However, the court must be mindful of the constraints of the summary procedure that is usually followed in applications of this nature. In some cases, the trial judge will have had the opportunity of assessing the reliability of a particular witness during the trial, and may have resolved issues which are relevant or important in the context of the s.51 application. This is not the case here, since neither Mrs. Arip nor Ms. Asilbekova was party to nor a witness at the original trial. If there are disputed matters which were not resolved at trial, then it may be difficult or unfair to seek to resolve those in a summary procedure against the non-party, with the result that a very significant liability is imposed in circumstances where there has been nothing equivalent to a trial.

Ultimately, it was common ground that my approach should be in accordance with the statement of Floyd LJ in Sony/ATV Music Publishing LLC v WPMC Ltd [2018] EWCA Civ 2005 at [34]:

“Considerable caution needs to be exercised, in a summary procedure, in rejecting material evidence of a non-party who has not given evidence at the trial, or had his credibility significantly dented. The imposition of a substantial liability for costs by summary procedure in those circumstances risks injustice.”

This means that whilst it is open to me to make findings adverse to the Defendants on the existing evidence, I should proceed cautiously in that regard, particularly if the allegations were of dishonesty or fraud or similar seriousness. Disputed factual issues can, however, in some cases fairly be resolved on a s.51 application, depending on the nature of the evidence put before the court: see Total Spares at paragraph [48].

(4) Warning. Neither Mrs. Arip nor Ms. Asilbekova was warned by the Claimants that she may be the subject of a non-party costs order. The absence of a warning is a relevant factor to be taken into account in exercising the court’s discretion. It is not automatically a determinative factor. As Moore-Bick LJ said in Deutsche Bank at [32]:

“[t]he importance of a warning will vary from case to case and may depend on the extent to which it would have affected the course of the proceedings”.

(5) The ‘Arkin’ cap. In Arkin v Borchard Lines Ltd [2005] 1 WLR 3055, the court was reluctant to hold a professional funder, who had financed a portion of the claimant’s costs, liable for the costs of the opposing party beyond the extent of the funding provided. I do not think, however, the ‘Arkin cap’ is of any real relevance for the present application. The Court’s comments in Arkin were made in the context of professional funders (see [44] of Lord Phillips’s judgment), and neither Ms. Asilbekova nor Mrs. Arip were such. Moreover, recent authority shows that, even in the case of professional funders, the ‘Arkin cap’ is not an inflexible rule. Snowden J said in Davey v Money [2019] EWHC 997 (Ch) at [89]:

“[W]hat has become known as the Arkin cap is, in my judgment, best understood as an approach which the Court of Appeal in Arkin intended should be considered for application in cases involving a commercial funder as a means of achieving a just result in all the circumstances of the particular case. But I do not think that it is a rule to be applied automatically in all cases involving commercial funders, whatever the facts, and however unjust the result of doing so might be”.

The evidence relevant to the present application comprised, principally:

In addition, the parties referred to:

The shape of the evidence in the principal affidavits and witness statements was as follows.

In her 2^nd affidavit, Ms. Vaswani described the circumstances in which her firm discovered that a significant portion of Mr. Arip’s legal representation had been paid for using funds that he had not disclosed in his asset schedule. She provided details of the Claimants’ application against Cleary seeking disclosure of the identity of individuals and companies who had paid their fees and disbursements in connection with the present proceedings and the information that her firm received as a result of that application.

Ms. Vaswani then sought to suggest that Mrs. Arip and Ms. Asilbekova had a personal interest in the outcome of the proceedings against Mr. Arip. She attempted to substantiate that assertion on three bases. First, it was said that a significant proportion of the funds that Mr. Arip misappropriated from the Claimants was ultimately transferred to Mrs. Arip and Ms. Asilbekova. Second, it was suggested that in the light of the close family relationship between Mr. Arip, Mrs. Arip and Ms. Asilbekova, and in view of Mrs. Arip’s extravagant lifestyle, Mrs. Arip had an interest in Mr. Arip avoiding judgment being entered against him. Third, Ms. Vaswani alleged that Mrs. Arip and Ms. Asilbekova were complicit in Mr. Arip’s fraud and in the concealment of his assets, in particular, by acting as nominal holders of his assets.

Ms. Vaswani then went on to assert that Mrs. Arip and Ms. Asilbekova did not have any source of significant wealth apart from the funds that were transferred to them by Mr. Arip. Insofar as Mrs. Arip had made profitable investments, the capital for these investments came from Mr. Arip and they represented the proceeds of Mr. Arip’s frauds against the Claimants. Accordingly, she said, Mrs. Arip would have been aware of the risk that the Claimants might seek to take enforcement action against her assets if they were successful in these proceedings.

As for the fact that the Claimants had not warned Mrs. Arip or Ms. Asilbekova about the fact that they intended to apply for a costs order against them, Ms. Vaswani pointed out that it was only recently that her firm had discovered the third-party funding in relation to Mr. Arip’s defence. In any event, she said, there was a significant risk that had Mrs. Arip and Ms. Asilbekova been warned, they would have attempted to dissipate their assets in order to frustrate the enforcement of a costs order against them.

In response, in her 4^th witness statement, Mrs. Arip explained that she had no ulterior motive in agreeing to help Mr. Arip pay his legal fees. She thought it ‘inconceivable’ that any wife would fail to support their husband in circumstances where he was incapable of funding his own defence. She suggested that her agreement to fund his defence was borne out of love and affection and that she was most certainly not thinking of herself when she agreed to do so. Mrs. Arip also said that she played no role in conducting Mr. Arip’s defence.

Mrs. Arip admitted that she had received substantial funds from the WS Settlement. She said, however, that she was not aware at the time that either the trust funds or historic distributions from the trust would be jeopardised by the outcome of the claims against Mr. Arip. As for the Claimants’ failure to warn her of their intention to seek costs from her, her evidence was that had she been warned, she would have been forced to reassess whether she should provide further funding to Mr. Arip taking into account the possibility of a costs order against her and the risk that this might pose to her and her children’s welfare.

Ms. Asilbekova’s evidence in her first witness statement was that Mr. and Mrs. Arip were travelling at the time when she made the payment of £500,000 towards Mr. Arip’s legal costs. Thus, it was not easy for them to arrange for the payment to be made. This was the reason why she agreed to make it. In doing so, she said, she was only doing her daughter and son-in-law a favour. She also confirmed that she did not involve herself in the proceedings in any way. If she had not made the payment, Ms. Asilbekova was certain that other arrangements would have been made to ensure that Cleary’s request for payment was met. Ms. Asilbekova confirmed that the payment of £500,000 was made from the monies that she received from Mrs. Arip which, in turn, were derived from distributions made by the WS Settlement. However, she denied that she had assisted Mr. Arip in concealing the proceeds of fraud.

The fourth witness statement of Mr. Kakkad, the solicitor in charge of the case on behalf of Mrs. Arip and Ms. Asilbekova, was mainly concerned with responding to the allegation in Ms. Vaswani’s 2^nd affidavit that the Defendants had pursued an aggressive litigation strategy throughout the proceedings which involved taking every point and arguing every issue. He pointed out that the Defendants were represented throughout the proceedings by an experienced and reputable team of solicitors and counsel. He considered it unlikely that members of this legal team would have raised points that

In her 48^th witness statement, Ms. Vaswani responded to the principal points made in the evidence on behalf of Mrs. Arip and Ms. Asilbekova. She made various points arising out of the disclosure received from BJB and JBI. She identified the very substantial assets placed by Mr. Arip into the WS Settlement. The majority of these assets were distributed to Mrs. Arip. Mrs. Arip then transferred a significant amount of these funds to her mother, a part of which was repaid by her mother to Mrs. Arip. Ms. Vaswani sought to make two points by reference to these transfers. First, she said that it was artificial to treat the funding provided by Mrs. Arip and Ms. Asilbekova as separate from Mr. Arip. In practice, she said, the funding was available to Mr. Arip in the same way as it would have been had it been held in his name. Second, she said that in the absence of a satisfactory explanation for the way in which the funds were moved around, the logical conclusion ought to be that Mr. Arip and/or Mrs. Arip were using Ms. Asilbekova to hold money as a nominee.

Ms. Vaswani challenged the explanation in Ms. Asilbekova’s witness statement that she had provided £500,000 because Mr. and Mrs. Arip were travelling at the time. She pointed out that Ms. Asilbekova’s payment instruction was verbally confirmed with Mrs. Arip. Within hours, Mrs. Arip was also able to return a signed form to manage some compliance issues. She contended therefore, that, contrary to Ms. Asilbekova’s evidence, it would not have been difficult for Mrs. Arip to make the payment had she wished to do so.

The Claimants’ main submissions at the hearing were as follows. In recognition of the need to proceed with “considerable caution” in the context of a summary procedure, these were somewhat more limited and refined than those foreshadowed or made in the evidence and written argument which had been served prior to the hearing.

The Claimants submitted that the claim did not depend upon the court making findings of dishonesty, but rested on a number of facts which were either common ground or not capable of serious dispute:

In those circumstances it was fair and just that Mrs. Arip and Ms. Asilbekova, who had received all the monies from which, in substantial part, the defences of Mr. Arip and Ms. Dikhanbayeva were financed, should be required to pay the Claimants’ costs. The Claimants’ primary submission was that the subjective intentions, claimed by Mrs. Arip and Ms. Asilbekova as their reasons for providing the funds, were not relevant. What really mattered was not the natural love and affection from which Mrs. Arip and Ms. Asilbekova claim to have acted, but the objective effect of the arrangements entered into, whereby all of the money that might otherwise have gone to Mr. Arip was “funnelled” instead to Mrs. Arip and then on to Ms. Asilbekova, out of which funds were made available to provide a defence to Mr. Arip who now claims to be in no position to pay anything. The objective effect of the arrangements was to denude Mr.

The Claimants therefore submitted that whatever the subjective beliefs of Mrs. Arip and Ms. Asilbekova as to whether they understood that assets received by them were subject to possible enforcement, the arrangements made were calculated to create and have created a wholly unjust position. Monies originating from Mr. Arip had been given to Mrs. Arip and Ms. Asilbekova and used to fund his defence in circumstances where the Claimants were fully at risk as to costs but Mr. Arip was not. Furthermore, as a matter of objective fact and whether Mrs. Arip or Ms. Asilbekova appreciated it or not, the spending was for their benefit; because there was always a risk that the Claimants would be seeking to enforce against those assets. This meant that they could not properly be described as “pure funders”. There was a clear benefit to them in seeking to avoid the risk that the Claimants would seek to enforce against assets which they had received.

On this argument, it was not necessary to come to any conclusion as to whether or not Mrs. Arip and Ms. Asilbekova had really acted simply out of natural love and affection in providing the funds. However, if it were necessary to explore that issue, the case that this was purely their motivation is incredible and untrue and cannot be reconciled with their conduct. The Claimants say that they must have been motivated, in whole or substantial part, by a desire to protect assets which they had received from possible enforcement by the Claimants, in the event of a successful claim.

The Claimants submitted that the evidence showed that Mrs. Arip had taken systematic and sustained steps, prior to judgment as well as after, to dissipate and conceal the monies which she had received. They had been transferred to, amongst others, her mother, brother and various trusts. The upshot is that Mrs. Arip received the equivalent of around £188 million in total from the WS Settlement, but now has (on a generous view) only US$25 million in assets.

Furthermore, a large amount of the money received had not been accounted for, despite orders of the court for disclosure of information. The Claimants produced a table, based in part on information provided by the solicitors for Mrs. Arip and Ms. Asilbekova, as well as answers given by Mrs. Arip in the cross-examination previously ordered. This identified the main payments made by Mrs. Arip from the £188 million that she had received from the WS Settlement. It showed that of the net sum of £77 million which had been given by Mrs. Arip to her mother, and which had allegedly been invested in properties, assets totalling only just under £20 million had been identified; so that £57 million was “missing”. Additionally, the location of a further £51 million, transferred to Mrs. Arip’s brother and into various trusts, was unknown; so that currently a total of £108 million was either missing or unexplained.

The significance of these matters, on the Claimants’ case, was that Mrs. Arip and Ms. Asilbekova, as well as Mr. Arip, fully appreciated that they needed a plan to try to judgment-proof their assets. Part of that plan involved defending the claim. The backup was to dissipate the assets and tuck them away. The court should reject the suggestion that, without any plan, (i) Mr. Arip was simply behaving very generously to his wife, (ii) Mrs. Arip was behaving very generously to her mother, and (iii) money was then given out of natural love and affection back to Mr. Arip in order to enable him to defend the proceedings.

The desire to protect assets can also be seen from Mrs. Arip’s conduct – subsequent to Picken J’s judgment on liability, but prior to the hearing on consequential matters – in obtaining without notice anti-suit relief from the Cyprus courts which prevented the Claimants from enforcing against certain trusts.

The Claimants submitted that it was just and fair for an order to be made, for the full amount of the costs, against Ms. Asilbekova as well as Mrs. Arip. The money was, they said, simply transferred from one pocket to another, and then passed round the Arip family. It was not appropriate to distinguish between the two Defendants. They had both stood to benefit from the funding, with one of the main purposes of funding the defence being to protect the assets under the family control, including Ms. Asilbekova’s control, from potential claims by the Claimants as a result of the claim against Mr. Arip. Funds were transferred between Mrs. Arip and Ms. Asilbekova indiscriminately and were under the control of either or both of them. Mrs. Arip had a power of attorney over her mother’s assets, and it was not appropriate to draw any distinction between them.

It was not necessary that Ms. Asilbekova should have funded at all, in order for the wide discretion under s.51 to be applied. It would be sufficient if the situation were that Mrs. Arip had simply “funnelled” money on to her in order to insulate her from an order for costs. But the evidence showed that Ms. Asilbekova had allowed herself to be treated as a “pocket for the convenient parking of funds”. If no order were made against her, the effect would be that just as Mr. Arip had successfully insulated himself from an order for costs, so had Mrs. Arip.

During the course of their submissions, the Claimants relied upon a number of other matters which were said to render it just that there should be a s.51 order. In particular:

Mr. Auld QC’s central argument was that Mrs. Arip and Ms. Asilbekova fell within the description of a “pure funder”, so that the general approach was that no s.51 order for costs would be made. They were close family members providing funds to enable a person to meet a serious claim against a husband and son-in-law. Such cases do not warrant a third party order. There were no different or exceptional circumstances in the present case that would lead to a contrary result. He invited the court to accept the evidence of Mrs. Arip and Ms. Asilbekova that the funding had been provided to help someone who was facing major litigation and who could not afford to defend himself otherwise. There was no ulterior motive in so doing. Mrs. Arip believed, based on what her husband told her, that there had been no wrongdoing. Positive advice was given by Cleary.

Mrs. Arip was, he submitted, ‘quite plainly a pure funder, no interest or involvement in the litigation, no benefit from the litigation because she had her own separate assets’ and she was not given any warning.

Ms. Asilbekova’s position was equally straightforward. She made one payment which, in context, was small. She did so because she was asked to help. She too was a pure funder, with no interest or involvement in the case. She had no reason for thinking that the Claimants might come after her assets if Mr. Arip lost the case.

Mr. Auld noted that it was common ground that the money used to pay the costs was ultimately derived from distributions from the WS Settlement, and that the assets of that settlement had ultimately been derived from the shares in Exillon. However, the settlement of the assets into the trust, and the subsequent payments out of the trust were all perfectly proper, lawful arrangements, and there was no basis for concluding otherwise on the evidence before the court. The generosity shown by Mrs. Arip to her mother and brother, with the funds that she had received, was also lawful. It was not appropriate to apply the words “channelling” and “funnelling” to describe what had happened, and there was no basis for doing so. There was nothing in these arrangements which justified a third party costs order. A legitimate trust arrangement was not to be regarded simply as a “family pot”, and expressions used to that effect by bankers in documents were not probative of anything. The Claimants’ case involved using emotive language to describe a perfectly straightforward family trust arrangement, and gifts made within a family following huge business success. Funds were provided by Mrs. Arip and Ms. Asilbekova perfectly lawfully, from their own money.

Nor was there any basis for describing the payments which Mrs. Arip had made, from monies received, as being the dissipation or concealment of assets. Such a conclusion could not be reached in a summary process. Moreover, those payments had started long before the proceedings against Mr. Arip were commenced in 2013. Much money was invested in properties in Central London, which is not typical of a person seeking to dissipate or conceal assets.

Considerable caution also needed to be exercised in drawing any conclusions as to whether the monies paid to Mrs. Arip or Ms. Asilbekova represented the proceeds of Mr. Arip’s frauds. This was the subject of the potential tracing claim, but was manifestly unsuitable for determination at a summary hearing.

Mr. Auld pointed to other factors which should weigh against a discretionary decision to make a s.51 order:

I consider, for the reasons that follow, that the justice of this case requires Mrs. Arip to pay the costs which the Claimants incurred in this litigation. I have considered whether such order should be limited to the costs incurred by the Claimants after 25 February

I consider that there are a number of features of the facts of the present case which are remarkable and which mean that this is far from a typical case where a close relative provides funding out of a sense of affection or familial responsibility.

It is relevant, but principally as a matter of background, that (as is common ground) Mr. Arip was the origin of the monies which Mrs. Arip then used to discharge his legal costs. The monies in the WS Settlement represented the proceeds of sale of Exillon shares which Mr. Arip had settled into the WS Settlement. I do not consider that this in itself would be a sufficient reason for making an order, and I would regard it as positively undesirable for s.51 applications generally to require an investigation as to when and how a spouse acquired assets in the course of a marriage. In many marriages, a spouse may have acquired assets from his or her partner over many years, whether through ordinary gifts, transfers which are made as legitimate tax avoidance measures, or for other perfectly legitimate reasons. The fact that these transfers may be made by the only or principal bread-winner in the family should not, in my view, mean that a s.51 liability should invariably attach when the recipient decides to use his or her assets so acquired in order to assist his or her spouse in pursuing or defending litigation. Indeed, Mr. Howe QC for the Claimants did not suggest that this fact on its own would be sufficient or determinative.

What is more important, in my view, is that the funding of Mr. Arip’s legal costs by his wife, and his mother-in-law, began very quickly after the distribution of approximately US$181 million that took place from the WS Settlement in December 2013. The effect of this distribution was to reduce the assets of the settlement to the £72 million which was the then amount of the WFO which had been granted against Mr. Arip, together with an additional US$1 million which was retained in the trust. The practical effect was therefore to denude the settlement of assets which could otherwise have been paid to the beneficiaries, who at that point in time were Mr. and Mrs. Arip. This was, no doubt, the reason why Mr. Arip’s consent was sought and obtained to the very substantial distribution to his wife that then took place. The effect of the distribution was therefore to put an end to any possibility of the trustees providing funds to Mr. Arip for the purposes of enabling him to defend the substantial litigation which was by then in progress, or indeed to discharge any potential liability to pay the costs of the opposing party in the litigation. Mr. and Mrs. Arip would necessarily have understood that this was the case, with the result that following the distribution – unless Mr. Arip had other funds on which to draw – it would be necessary for Mr. Arip to look to his wife for funds, rather than looking to the trustees.

Within a very short space of time, this is what happened. Mr. Arip’s consent to the distribution was given on 17 December 2013. The distribution itself was made on the following day. Mrs. Arip’s evidence was that she agreed to make the payment after

“Maksat explained to me that he had run out of money and needed help from me to pay his ongoing legal fees.” The first payment was made on 25 February 2014. Accordingly, this is not simply a case where Mr. Arip was the source of the funds which were used to discharge his legal costs. It is a case where those funds (whilst in trust) were potentially available to Mr. Arip to discharge his legal expenses, but arrangements were then made by Mr. and Mrs. Arip which resulted in the monies being no longer available to him – other than via his wife – because they were all paid over to her. Furthermore, this occurred at a time when it was apparent that significant costs were being incurred by Mr. Arip, and would no doubt continue to be incurred in the future. The litigation was commenced in August 2013, and Mrs. Arip’s 4^th witness statement confirms that between October 2013 and December 2013, the amounts paid to Cleary were (i) £2,300,663 plus an additional £500,000, (ii) US$3,834,404.91 plus an additional US$382,871, and EUR 461,501. Legal expenses were therefore being incurred on a rapid and considerable scale.

Moreover, the amount of money paid out to Mrs. Arip in December 2013 was staggering: some US$181 million. No thought appears to have been given by the Arips to leaving any significant money within the trust, over and above the £72 million sum of the WFO, so as to provide for possible distributions to Mr. Arip to enable his legal fees to be met. It would have been very easy to have left sufficient money in this trust to provide for Mr. Arip’s future legal bills (leaving aside provision for the costs of the opposing party in the event that Mr. Arip’s defence failed), but still allow for Mrs. Arip to receive significant funds. Indeed, if US$40 million had been left in the trust to provide for future bills, Mrs. Arip could still have received no less than US$140 million.

I consider that this is all a very long way indeed from the usual and simple case of a wife advancing her own funds, acquired during the course of a marriage, out of natural love and affection. Indeed, standing back from the detail, the practical effect of the arrangements was simply to substitute, as far as the US$181 million is concerned, Mrs. Arip in place of the trustees of the settlement; i.e. as a source to which Mr. Arip could potentially look for the funding of his defence. It is therefore unsurprising in my view that when the time came for funds to be paid to Mr. Arip’s lawyers, Mr. Arip did indeed look to his wife, whereas previously he could have looked to the trustees. When he looked for those funds, they were readily forthcoming and were used to fund a defence which the judge rejected on the basis that Mr. Arip had been dishonest throughout, and which resulted in the awarding of indemnity costs.

I consider that since Mrs. Arip participated in these arrangements, it is in principle just that the Claimants should now be able to look to her for payment of the costs which they incurred. I say “in principle” because I will need to consider below Mrs. Arip’s arguments as to causation, the effect of absence of warning, and other discretionary considerations. Before doing so, however, I return to the question of whether this is, or is akin to, a case of a pure funder providing funds out of natural love and affection. For the reasons which follow, I do not consider that it is. I say this bearing in mind the need to proceed with caution in circumstances where there has been no trial or evidence from the participants.

First, it seems to me to be improbable in the extreme that, at the time of the transfer of US$181 million to Mrs. Arip in December 2013, there was no plan as to how Mr. Arip’s legal bills would be met. This was the major litigation to which Mr. Arip was responding, with substantial sums having been paid to Cleary and, inevitably, further significant expenditure which could reasonably be anticipated. Mrs. Arip’s witness statement suggests that, at some point between December 2013 and 25 February 2014, Mr. Arip revealed to her that he no longer had any funds to meet his legal bills, and that her agreement to provide funding was a response to this development. However, Mr.

Secondly, Mrs. Arip’s evidence – that her funding came about after her husband revealed his inability to pay his legal bills – is inconsistent with the evidence that Mr. Arip did in fact, at least to some extent, fund his legal bills after February 2014. Evidence to this effect was given by Ms. Vaswani in her 48^th witness statement, where she summarised the amounts which had been paid to Cleary by Mr. Arip after February 2014. There were four further payments, made at around the same time each year: on 12 February 2015, 24 February 2016, 3 March 2017 and 27 February 2018. Ms.

Mr. Auld’s only response to the evidence in Ms. Vaswani’s 48^th statement was that it had been served late; that there had been no proper opportunity to respond to the points which she had made and which were derived from the extensive disclosure of banking documents which the Claimants had obtained; and that the Claimants had ‘cherrypicked’ documents from that extensive disclosure.

I did not consider that there was any substance in that argument, particularly in the present context. Ms. Vaswani’s witness statement was served some 2 weeks before the hearing of the s.51 application. There was, therefore, time for some response to be made by Mrs. Arip, even if only to the most important points that Ms. Vaswani had raised. No request was made by Mrs. Arip for an adjournment in order to enable her to respond to that evidence. Mr. Auld explained that her position was that she wanted to get on with the hearing, and that there was limited funding available for a full review of the disclosed documents in any event. Even so, the fact is that Ms. Vaswani’s evidence remained unanswered. Moreover, this particular point, as to Mr. Arip funding his own costs even after February 2014, did not arise from the disclosure obtained from the banks, but rather from evidence served by Mrs. Arip’s former solicitors some time previously.

In any event, the position – as far as concerns the disclosure of banking documents – is that the substance of the points made by Ms. Vaswani in her 48^th witness statement had

Against this background, it seemed to me that, as I indicated at the hearing, the present application should be decided on the basis of all the evidence that had been adduced, and that there was no basis for disregarding any of the evidence of Ms. Vaswani in her 48^th witness statement because it had been served late or because there had been no opportunity to respond.

Thirdly, Mrs. Arip provided funding not simply of the defence of her husband, but also the defence of Ms. Dikhanbayeva. Ms. Vaswani had drawn attention to this fact in her second Affidavit on at least two occasions. But, as Ms. Vaswani pointed out in her 48^th witness statement, neither Mrs. Arip nor Ms. Asilbekova provided any explanation of why they were prepared to pay the legal fees of Ms. Dikhanbayeva. The point is important, because the funding of Ms. Dikhanbayeva cannot reasonably be ascribed to any natural love and affection. Moreover, there was no evidence from Mrs. Arip that Ms. Dikhanbayeva was in similar alleged financial difficulties to those of her husband, or had come to her because she had run out of money. The funding by Mr. Arip of his joint defence with Ms. Dikhanbayeva prior to February 2014, and the subsequent funding by Mrs. Arip of both Mr. Arip and Ms. Dikhanbayeva in February 2014 and thereafter, interspersed with further funding by Mr. Arip himself, indicates that what happened was seamless. It supports the conclusion that the use of the US$ 181 million, distributed to Mrs. Arip in December 2013, for the continued defence of the litigation was a use which was planned, and that there was no watershed moment in or around February 2014 when Mr. Arip told Mrs. Arip that he had run out of money.

Fourth, even if I were wrong in my conclusion that the use of the funds released was planned, I consider it unrealistic to regard the funding as a manifestation of the ordinary love and affection that one would expect in a marriage. Having received, with the consent of her husband and for no consideration, the sum of US$181 million from the trust only a matter of weeks earlier, Mrs. Arip could not reasonably refuse to provide the funding which Mr. Arip needed. Any other decision would involve the most extraordinary display of ingratitude, which in any normal circumstances could be expected to be destructive of the relationship between them. Even assuming no plan, the size of the amount received and its proximity to the request for funding created an overwhelming moral obligation on Mrs. Arip to provide funds for Mr. Arip’s continued defence of the proceedings.

Fifth, the concept of a “pure funder”, as explained by Lord Brown in Dymocks, is a person who derives no benefit from the successful outcome of the litigation. The older case-law suggests that this concept would include a spouse who provides funding from natural love and affection, notwithstanding that a successful outcome to litigation would benefit the spouse in maintaining or even enhancing his or her ordinary standard of living and enjoyment of life. However, there can be no absolute rule to this effect and there may be questions of degree. The evidence in this case suggests that Mrs. Arip, together with her husband, enjoyed an extravagant lifestyle with art collections, numerous properties in different parts of the world (owned by trusts in which they or their children were interested), and various businesses and investments. When an application was made to vary the WFO against Mrs. Arip to allow for expenditure of ordinary living expenses, it was said that Mrs. Arip’s living expenses were an average of US$280,000 per month, equating to around £3 million per year. The money paid to Cleary in this case was for the purpose of defeating very substantial claims which would potentially threaten that extravagant lifestyle. I see no reason why, on the facts of a case such as the present, this factor should be disregarded when it comes to considering whether or not Mrs. Arip was to derive a benefit from the outcome of the litigation.

In the present case, however, the point goes somewhat further as, in my view, the Claimants correctly submitted. Both Mrs. Arip and Ms. Asilbekova were the recipients, for no consideration, of substantial assets ultimately derived from Mr. Arip. In circumstances where Mr. Arip was accused of fraud, there was the obvious potential for such assets to be the object of potential enforcement measures in the event that the claim succeeded. The expenditure on Mr. Arip’s legal costs would, if the defence succeeded, potentially benefit both Mrs. Arip and Ms. Asilbekova because assets which they had received would not be susceptible to enforcement.

Accordingly, for these reasons, I do not regard Mrs. Arip as, or akin to, a pure funder in the sense described or contemplated in Dymocks. This reinforces my conclusion that in principle it is just for an order to be made against Mrs. Arip pursuant to s.51.

In reaching this conclusion, it is not necessary to try to determine matters such as whether or not the Claimants have an entitlement to trace into any particular assets, and in particular whether any such assets represent the proceeds of Mr. Arip’s frauds. There are unresolved issues as to whether it is permissible for the Claimants to pursue such a tracing remedy at the present stage, and these issues have been adjourned and reserved to the trial judge for determination.

Having addressed Mrs. Arip’s principal argument that she was or was akin to a pure funder, I now address the other reasons advanced as to why no order should be made.

Warning. First, reliance is placed on the fact that the Claimants gave no warning as to the possibility of seeking a s.51 order. The cases show that this is a factor to be taken into account. But I do not consider that it is a point of any weight in the present context, particularly when weighed against the facts already described. The Claimants did not know, until after the conclusion of the litigation, that funding was being provided either by Mrs. Arip or Ms. Asilbekova. It was argued in the skeleton argument on their behalf that it would have been obvious from the absence of notifications “from 2014 onwards that Mr. Arip’s legal fees were being paid by a third party”. The “notifications” referred to were the standard notifications of proposed expenditure on legal expenses when a WFO is in place. However, as far as I could tell, the evidence did not clearly establish that no notifications were given subsequent to 2014: I do not therefore know whether notifications were given in respect of the four payments that were made by Mr. Arip subsequent to that date.

Nevertheless, assuming in favour of Mrs. Arip that no such notifications were given, then it is fair to say that the Claimants could, if they had spotted this point, have asked the question as to how Mr. Arip’s legal fees were being funded. However, whilst it is possible to obtain information about funders in order to facilitate an application for security for costs, it is far from clear that Mr. Arip would have been obliged to identify his funder or funders in the absence of any such application and in advance of judgment

Furthermore, even if a warning had been given, I regard it as wholly improbable that Mrs. Arip, or indeed Ms. Asilbekova, would have acted differently. It is in my view fanciful to think that a warning would have led either of them to decide that they were no longer prepared to support Mr. Arip’s defence. Indeed, Mrs. Arip’s evidence was that it was inconceivable that a wife would fail to support their husband in circumstances where he would have lost the ability to defend himself. In fact, Mrs. Arip continued to fund Mr. Arip’s costs after the judge had rejected his case and held him to have acted dishonestly throughout.

Causation. Mrs. Arip’s funding was provided after 25 February 2014. Her funding actions had no causative impact on the costs incurred by the Claimants prior to that date. After that date, there can in my view be no doubt that there was a sufficient causal connection between her actions and the costs incurred by the Claimants to make it just to make a s.51 order. In her 4^th witness statement, Mrs. Arip says that if she had not provided funding after Mr. Arip had run out of money, the “alternative would have been that he would have lost the ability to defend himself”. In his witness statement in response to Ms. Vaswani’s second Affidavit, Mr. Kakkad acknowledged that “it is indeed the case that Mr. Arip would not have been able to defend himself in the proceedings to the same extent without the benefit of funding from, primarily, Mrs. Arip”.

I do not consider that the possibility that Mr. Arip might have defended the proceedings as a litigant in person, if funding had not been forthcoming, is a reason for declining to make an order on the grounds of lack of causation. The factual position is that Mrs.

Ultimately, causation is not a legal pre-requisite to the making of a s.51 order, although I accept that it would not usually be just to make such an order unless the conduct of the non-party caused the applicant to incur the expenditure which he seeks to recover. In the present case, there was such causation in the period after 25 February 2014.

However, even if there were some elements of the Claimants’ costs which were not incurred as a result of Mrs. Arip’s conduct, I consider that a s.51 order is just and appropriate on the facts of the present case bearing in mind that Mrs. Arip has not only funded her husband’s defence, but she has also taken significant steps to make enforcement of a judgment against Mr. Arip more difficult. Even bearing in mind the need for caution, I am satisfied on the evidence that steps have indeed been taken by Mrs. Arip with a view to dissipating or concealing assets and thereby making enforcement of the Claimants’ potential or actual judgment against Mr. Arip more difficult. In my view, the movements of assets described in the evidence have all the hallmarks of an asset dissipation and concealment exercise. In particular:

The importance of providing a good explanation of the transfers from Mrs. Arip to her mother, and back again, was in my view clear from the way in which the Claimants’ case was being advanced in the weeks before the hearing.

2015 Leggatt J judgment. In January 2015, Leggatt J disallowed an amendment which would have resulted in the joinder of Mrs. Arip as a defendant. The amendment concerned an attempt by the 1^st Claimant (rather than the 2^nd Claimant) to trace the proceeds of one of Mr. Arip’s alleged frauds. The principal basis of the judge’s decision to disallow the amendment was the difficulty of the 1^st Claimant pursuing that claim, in view of the fact that there had been a legitimate transfer of certain assets to the 2^nd Claimant. This judgment was relied upon, principally, as supportive of Mrs. Arip’s case that she did not subjectively believe that assets transferred to her were potentially subject to enforcement by the Claimants.

I did not consider that the existence of this judgment provided any good reason for declining to make a s.51 order against Mrs. Arip. The judgment was given some months after Mrs. Arip’s funding had started, and therefore can have had no impact on her decision at the outset. Although Mrs. Arip’s witness statement on the s.51 application referred to this judgment, it did not suggest that her decision-making was influenced by

No consent to payment. Reliance was placed on an argument, similar to that which I rejected in the context of the application for cross-examination, based upon the unwillingness of the Claimants to allow Mrs. Arip to use certain assets to be used as security in place of the WFO. The Claimants had declined to permit this, because the assets were the subject of a tracing claim which asserted proprietary rights to the assets. In my earlier judgment, I declined to criticise the Claimants for this decision: see paragraph [54].

In the present context, Mrs. Arip argues that the Claimants are likely to take the same attitude to any attempt by her to discharge any liability under a s.51 order. She says that since the Claimants will make it difficult if not impossible for her to discharge any order, the court should decline to make it as a matter of discretion. I do not consider that this argument is any better in the present context than it was in the context of the application to cross-examine. I have no reason to consider that, if Mrs. Arip seeks to discharge her liability under the order which I propose to make, the Claimants will act improperly by seeking to prevent her from doing so.

Harbour. Some reliance was placed upon the fact that the litigation has been funded by Harbour, who are therefore the party with the real interest in the recovery of costs and indeed the litigation as a whole. Mr. Howe told me, however, that there were creditors of one or more of the Claimants who had a real interest in the outcome of the litigation. I do not consider that these matters are of any significance to my decision. I do not think that the justice of this case changes because the litigation has been funded by Harbour, which has spent significant sums on the litigation, rather than the Claimants themselves. Litigation funders can provide a valuable benefit in order to enable just claims to succeed, and in the present case the Claimants have obtained a very large judgment in respect of Mr. Arip’s fraud. I think that it would be unfortunate if the involvement of a litigation funder, which has advanced monies to support a valid claim, should be a reason for not making an order under s.51. Just as Harbour’s involvement does not provide a reason against the making of an order for costs against Mr. Arip, it equally provides no reason to exercise a discretion against the making of an order against Mrs. Arip.

I now turn to the position of Ms. Asilbekova, where the facts and arguments were somewhat different.

There is no evidence that Ms. Asilbekova was involved, or instrumental in, the December 2013 transfer from the WS Settlement. Furthermore, Ms. Asilbekova did not, at least directly, fund a large proportion of Mr. Arip’s costs. In Ms. Vaswani’s 2^nd Affidavit in support of the s.51 application, served in September 2018, the Claimants relied upon a payment of £500,000. This was paid in December 2014. The Claimants’ skeleton argument for the hearing similarly asserted that the funding by Ms. Asilbekova was the £500,000 which had been paid, rather than any larger amount.

Towards the end of his opening submissions, however, Mr. Howe said that this was not the complete picture. In November 2016, Ms. Asilbekova transferred back to Mrs. Arip the sums of around US$16 million, comprising US$13.945 million and CHF 2.1 million. This amount was paid over in the run-up to the trial, which started in April 2017. A spreadsheet produced by Mr. Howe shortly after the hearing provided an itemised list of the payments made from Mrs. Arip’s accounts to Cleary. This showed that significant amounts were indeed paid to Cleary in the period up to and around the time of the trial: the amounts paid between January and August 2017 were in the region of US$7 million.

This figure was substantial, but well below the US$16 million which Ms. Asilbekova had transferred. I was not shown any evidence of a direct linkage between the money transferred by Ms. Asilbekova and these amounts paid to Cleary. It was not clear to me, from looking at the lengthy exhibit (Tab 42) comprising Mrs. Arip’s bank statements, that the source of the funds used to pay Cleary was the money which Ms. Asilbekova had transferred in November 2016. Indeed, in a brief post-hearing e-mailed submission, counsel for Ms. Asilbekova drew attention to the fact that between November 2016 and March 2017 there had been transfers from Mrs. Arip to Ms. Asilbekova of approximately US$15 million, which virtually balanced the US$16 million payment which had been made in November 2016. Furthermore, no case was advanced that, in relation to the November 2016 transfers, Ms. Asilbekova knew that the monies were to be used to pay Cleary for their defence of Mr. Arip.

In the light of these matters, I consider that it would be inappropriate to proceed on the basis that Ms. Asilbekova’s funding exceeded the £500,000 which was provided in December 2014.

In relation to that funding, Ms. Asilbekova’s evidence was that this was provided as a result of a phone call from her daughter. Mrs. Arip explained to her mother that a payment of £500,000 had to be made to Mr. Arip’s lawyers in respect of outstanding fees. Mrs. Arip explained that since they were travelling, it was not easy for them to arrange payment themselves. Therefore she asked her mother whether she could help by making the payment. Ms. Asilbekova said that she agreed “purely out of familial obligation and the fact that I was financially able to assist, given the circumstances”. This led Mr. Auld to submit that Ms. Asilbekova was a “clear case of pure funding.”

This explanation in Ms. Asilbekova’s evidence was, however, inconsistent with the documents which the Claimants had obtained from JBI. These indicated that an email

Mr. Djordjevic of JBI then emailed Mrs. Arip, again on 5 December, apologising for

“all the mess this week” and saying that “this time it is Swiss law that is causing problems”. His email explained that the issue “has to do with ‘source of funds’ and ‘beneficial owner of the assets’ and Zurich had small issues about it all”. It was however, easy to resolve. His colleague would email a form that Ms. Asilbekova would have to sign. The form “will also mention your name, NOT as beneficial of the account but assets”. Mrs. Arip was asked whether she could e-mail the scan back to them immediately. Mrs. Arip responded within less than an hour, attaching a scanned copy of the document that JBI wanted.

This “Form A” was headed “Declaration of identity of the beneficial owner”. It was signed by Ms. Asilbekova. The text of the form stated that the “contracting partner”

The form then went on to list both Mrs. Arip and Ms. Asilbekova. The document therefore shows, as Mr. Howe submitted, that Ms. Asilbekova was recognising her daughter as a beneficial owner of the assets which had been deposited in Ms. Asilbekova’s account with JBI. This is of potential significance in relation to the

In addition, the documentation is potentially significant because, as Ms. Vaswani submitted in her 48^th witness statement, the documents clearly showed that it was not, contrary to Ms. Asilbekova’s account, difficult for Mrs. Arip to make the legal fees payment on that day. Thus, Mrs. Arip was able both verbally to confirm this payment and to arrange for Ms. Asilbekova to sign a form and return that form to JBI on 5 December. I consider that Ms. Vaswani’s conclusions were well-founded in the light of the documents, and that they called for some explanation from Mrs. Arip or Ms.

I also considered that there was other powerful evidence to support the conclusion that assets which were held in Ms. Asilbekova’s name were a resource upon which Mrs. Arip could draw in order to fund expenditure which she wished to make, and that (as

First, Ms. Vaswani’s 43^rd witness statement, served on 7 June 2019 in the context of the application to cross-examine Mrs. Arip, identified documentary evidence obtained from JBI which showed Mrs. Arip exercising significant control over her mother’s assets. Various documents dating back to 2010 and 2011 indicated that Mrs. Arip was behind instructions ostensibly given by Ms. Asilbekova to JBI: for example, two email chains showed that Mrs. Arip had access to her mother’s Gmail account and used it to instruct JBI to make payments on her mother’s behalf. Furthermore, by August or September 2014, Ms. Asilbekova had granted Mrs. Arip a broad power of attorney over her accounts at JBI. Thereafter, Mrs. Arip regularly instructed payments on behalf of her mother without any apparent involvement from her. This evidence was then substantially repeated in Ms. Vaswani’s 48^th witness statement, served on 8 July in response to the evidence served by Mrs. Arip and Ms. Asilbekova in opposition to the s.51 application. However, there was no response to the points which Ms. Vaswani made on 7 June and again on 8 July, in particular as to the evidence showing Mrs. Arip’s exercise of control of her mother’s assets. This evidence to my mind refutes Mrs. Arip’s denial in paragraph 108 of her 4^th Affidavit sworn in May 2019 – prior to the documentary evidence from JBI becoming available – that she exercised any measure of control over her mother’s assets.

Secondly, Ms. Vaswani’s 48^th witness statement gave examples of the way in which invoices had been paid, in support of the proposition that Mr. and Mrs. Arip, and Ms.

Thirdly, during the period 2011 to 2018, Mrs. Arip gave her mother sums totalling approximately US$97.5 million, and received back approximately US$20 million. I have previously referred to paragraphs [26] – [30] of my earlier judgment, and my conclusion that the Claimants were justified in their contention that an obvious inference was that these monies were being parked by Mrs. Arip with her mother (as well as with her brother).

Since that time, no additional evidence has been served either by Mrs. Arip or Ms. Asilbekova in order to explain these payments. Mrs. Arip was, however, asked about them towards the beginning of her cross-examination before the deputy judge. Her initial explanation was that her mother thought that she was wasting her money, and her mother “asked for some amount of money to give it to her so she could invest it on her discretion, as she see fit properly, in order to keep this money safe”. This explanation supports the Claimants’ case that Mrs. Arip was, as they put it, “parking” the monies with her mother; a case which is also supported by the declaration of beneficial ownership in Form A.

When asked by counsel, however, whether this answer meant that “she is keeping the money for you, is she?”, Mrs. Arip explained that her mother was “doing it for my children. I am not going to ask her for this money, ever”. There were, however, obvious difficulties with this explanation:

On the materials before me, I considered that the obvious reason for the matters described above (in particular the transfers which Mrs. Arip made to her mother, the return of significant funds by her mother, the use of £500,000 to fund Mr. Arip’s legal expenses, the control which Mrs. Arip exercised over her mother’s accounts at JBI, and the declaration in Form A) was that Mrs. Arip had indeed “parked” assets which she had received with her mother, and that these were available to her as a resource to be drawn upon as necessary. The bank documentation indicated that Ms. Asilbekova was a person lacking in experience, knowledge and sophistication. The idea (as suggested by Mrs. Arip in her cross-examination) that such a person should be given sums of US$97 million in order to make discretionary investment decisions is, in my view, fanciful.

The essential question is whether, against the factual background described above, it is artificial (as Mr. Howe submitted) to distinguish between Mrs. Arip and her mother in the context of the present s.51 application. The practical reason why the Claimants wish to obtain a s.51 order against Ms. Asilbekova is their concern that Mrs. Arip has now divested herself of most of her assets and the Claimants wish to avoid being faced with a lengthy and potentially costly enforcement process, for example against a property in Switzerland or a bank account in Liechtenstein. The Claimants submitted that the justice of the case required that they should not simply look to Mrs. Arip, who had “simply funnelled money on to [Ms. Asilbekova] to insulate herself against an order for costs”. Money had simply been transferred as “pass the parcel around the Arip family”. Money in the “family pot” was used to fund the defence of the family pot, and it did not matter who had ended up with that family pot. Furthermore, it was not a prerequisite to a s.51 order that a person should have provided any funding at all. But here Ms. Asilbekova had provided funding, at least to an extent.

In my view, the starting point is that Ms. Asilbekova can be shown to have caused the Claimants to incur some costs at least “to some extent”: see Turvill paragraph [28], and Excalibur paragraphs [142] – [148]. However, I would not regard this as sufficient on its own to justify the making of a s.51 order against Ms. Asilbekova for a number of reasons.

If these were the only relevant facts, and the Claimants’ case was simply based on funding by the payment of £500,000, then they would reinforce the appropriateness of the order under s.51 against Mrs. Arip, but they would not in my view justify an order against Ms. Asilbekova.

However, for reasons already given, an order under s.51 can be made when this meets the justice of the case, even where the non-party has not caused the applicant to incur costs; including cases where the non-party has taken steps to deprive the applicant of the opportunity of recovering its costs. Here, I consider that the justice of the case makes a s.51 order against Ms. Asilbekova appropriate, substantially for the reasons given by the Claimants and summarised in paragraphs 60 - 69 above. In particular, I consider that the following matters, upon which the Claimants placed reliance, are significant.

In these circumstances, I consider that the justice of the present case is that the Claimants should be able to look to both Mrs. Arip and Ms. Asilbekova for payment of their costs of the litigation.