Yermek Alimov v Abdumalik Mirakhmedov & Ors

The dispute between the parties in this litigation relates to a bitcoin mining business which is operated in Kazakhstan. These applications constitute the jurisdiction battle between the parties. In short, the Claimant contends the dispute should be heard in England; the Defendants contend it should be heard in Kazakhstan.

The Claimant, Mr Alimov, and the three individual Defendants are all businessmen with substantial links to Kazakhstan.

The Claimant contends that (until he moved to England, which he says was in August 2018) he was a leading specialist in the energy sector in Kazakhstan, and the former head of (a) AstanaEnergoServis JSC (the public holding company which owned all the power companies in Astana), and (b) Karaganda EnergoTsentr LLP (a private energy company which owned the Karagandinskaya TETs 3 power station and provided energy to the city of Karaganda).

The three individual defendants are also businessmen of Kazakhstani origin (albeit the First Defendant (“D1”) was born in Uzbekistan), although they do not currently live there. The Second Defendant (“D2”) was resident in Kazakhstan until 2020 and now lives in the UAE (though still also retains a residence in Kazakhstan). The Third Defendant (“D3”) has been resident in the UAE since 2012, but until 2020 spent most of his time in Kazakhstan (where his family and business activities were based) and still manages the office of D1-D3 in Kazakhstan. D1 lives in the UAE and/or the UK (this is a contentious issue which I deal with below). All three continue to have substantial business interests in Kazakhstan.

The Fourth Defendant (“D4”) is a company incorporated in Cyprus which the Claimant describes as “one of the world’s largest bitcoin-mining companies and operates (through its subsidiaries) from facilities in Kazakhstan and elsewhere.” At one time, between them, the 3 individual defendants owned 50% of the shares in D4.

The factual background is highly contentious between the parties, with numerous issues of fact between them, and allegations on both sides that the other is not giving an accurate or truthful account. There are also allegations of attempts to distort or manufacture the evidential picture. There is little that is common ground between the parties.

I summarise below the Claimant’s case on the background and the facts, taken from his Particulars of Claim and evidence filed for these applications, but noting that much of it is controversial between the parties, and also that the Defendants emphasised that parts of this case were different from the case presented on the Claimant’s behalf in his detailed letter before action.

In summary, the Claimant says that:

Based on the above, the Claimant brings claims governed by the law of Kazakhstan for:

I emphasise that the above is the Claimant’s account of events. No defences have, of course, been served, but it is apparent from the evidence served for the applications and the submissions of the parties that there are very many factual disputes between the parties. By way of example only:

There are also, it is already apparent, numerous issues between the parties in relation to the law of Kazakhstan (which it is agreed is the law governing the claims), including (but not limited to) the validity of the alleged oral agreement under the law of Kazakhstan, whether D1 was able under Kazakhstan law to bind D2 and D3 to the alleged agreement (or whether D2 and D3 ratified the alleged agreement), whether the alleged oral agreement is an agreement on joint activities such that the relationship between the Claimant and D1-D3 constitutes an ordinary partnership under the law of Kazakhstan, what is required for a claim in unjust enrichment in Kazakhstan law, as well as issues as to the availability of certain remedies.

In short, the Defendants describe the Claimant’s claims as fabricated and a “shake-down” – claims contrived simply to try to extract a settlement in circumstances where he believes D4 is considering an IPO such that it is a good period during which to seek to bring pressure to bear. The Defendants describe the Claimant as having engaged in a parallel campaign in the media and through a website. They go as far as to describe it as something they view as “attempted extortion”.

As mentioned above, the Defendants have also drawn attention to the differences in the account of the factual background given in the Claimant’s letter before action compared to that in his Particulars of Claim (and subsequent evidence). In particular, there was no mention in the letter before action of the “London Agreement” or of the meeting on 10 June 2017 at which it is alleged to have been reached. Also, in the letter before action, it was alleged that there was an actionable conspiracy between D1-D3 which, it was there alleged, had been entered into in London in or around September 2018. It was pointed out in responses from the Defendants that the purported factual bases for the inference of a conspiracy formed in London on those dates were not correct (including because D2-D3 were not in London at the relevant time). No claim in conspiracy was subsequently pleaded by the Claimant in his Particulars of Claim.

The Defendants also note that the letter before action suggested that on 13 June 2017 KKS Karagandy signed a preliminary agreement with Hua Tun to sell the assets, i.e. less than 3 days after the evening where the Claimant (now) alleges that he made the oral agreement on which his claim is based, which the Defendants suggest is inexplicable if the Claimant really believed he had made the agreement with D1-D3 he now alleges on the occasion he now alleges. The Particulars of Claim, by contrast, make no reference to that 13 June 2017 agreement, but instead refer to an agreement said to have been made with Hua Tun on 12 March 2017 (the authenticity of which, as I have already noted above, the Defendants do not accept)

The Defendants seek to characterise these sorts of differences as redolent of a litigant willing to fabricate a case for the purpose of trying to get within a gateway for the purposes of founding jurisdiction in England.

On 24 June 2022, the Claimant’s letter before action was sent to the three individual defendants as addressees (to D1 at the 27 Ingram Avenue address in London, as well as by email, and to D2 and D3 at addresses in Kazakhstan, as well as to various email addresses) as well as to D4 “for information” at addresses in Cyprus and New York. Withers (for D1 and D3), and Mishcon de Reya (for D2), both responded on 23 September 2022.

There was no further pre-action correspondence. The claim form (with a general endorsement, but no particulars of claim) was issued on 12 May 2023, and Particulars of Claim were signed by the Claimant on 11 September 2023.

Also on 11 September 2023, the Claimant contends that he served the Claim Form and the Particulars of Claim on D1 at three addresses in London, namely: (i) the Ingram Avenue address referred to above (“27 Ingram Avenue”), (ii) 26 Holne Chase, London N2 0QN (“26 Holne Chase”), and (iii) 5A Falkland Road, London NW5 2PS (“5A Falkland Road”).

The response sent by Withers (for D1) to the Claimant’s letter before action on 23 September 2022 had contended that D1 was not resident in England, but rather now was resident in Dubai, UAE. Withers repeated this in a letter dated 26 September 2023, sent in response to the attempted service on D1 at the three addresses above, contending that service had not been effected and/or was defective.

On 13 October 2023, the Claimant made an application without notice for permission to serve the claim out of the jurisdiction in Dubai on D1 (without prejudice to the Claimant’s primary position that D1 had already been validly served within the jurisdiction), D2 and D3, and in Cyprus on D4. The Claimant also sought permission to serve D1-D3 by alternative methods of service (including email, WhatsApp messenger and LinkedIn message). The order sought was made by Dias J on the papers dated 24 October 2024 (“the Dias J Order”).

The Defendants have all applied to set aside the Dias J Order, and D1 has also made an application contending he was not effectively served within the jurisdiction, or alternatively for a stay of the claim against him on the ground of forum non conveniens.

The principal applications before me at the hearing were as follows:

The above applications are interlinked and many of the same grounds are relied upon. In short:

In truth, the central battle-ground between the parties was whether it was England or Kazakhstan that was the appropriate forum in which these proceedings should be tried (which arises, albeit slightly differently framed and with a different burden of proof, both on the application to stay on grounds of forum non conveniens and on the application to serve out of the jurisdiction). However, given that some of the other issues shape the context for the consideration of those arguments, I will consider first the position regarding D1 and whether he was served within the jurisdiction, then the issues that are raised by D1-D3 in relation to serious issue to be tried and the gateways under CPR PD6B. After that I will deal with the points relating to appropriate forum (both as they arise as a matter of the forum non conveniens argument and as a matter of appropriate forum for the purposes of service out of the jurisdiction). I will deal with the position of D4 separately given that it raises a distinct issue only relevant to D4. After that I will address the application concerning alternative methods of service and the non-disclosure allegations.

There were also the following applications, which I will deal with in the course of this judgment:

There was a large amount of evidence before the court on these applications. This included 29 witness statements and 9 expert reports.

The Claimant relied on the following witness statements:

The Defendants relied on the following witness statements:

The expert evidence (for which the court had given permission in advance, for the Claimant in the Dias J Order, and for the Defendants in an order of Butcher J dated 16 November 2023) comprised:

The Claimant contends that D1 has a residence in England and has been served within the jurisdiction or, alternatively, that D1’s residence in the UK provides a basis for permission to serve on D1 out of the jurisdiction. The legal framework within which the two questions arise is different, although the facts and evidence which relate to the questions very largely overlap.

The legal contexts in which the questions arise (which were not controversial between the parties) are:

I will first set out the parties’ positions on the evidence as to D1’s residence, before moving to the question whether D1 was properly served within the jurisdiction.

The Claimant contended that D1 was served, within the jurisdiction, on 11 September 2023 when the claim form was delivered to and left at one of the three addresses identified above. The Claimant maintained that D1 could be, and was, served at one of those addresses because:

D1, however, contends that, although he was formerly resident in England, that ceased when he moved to Dubai (which D1 says was in September 2021). He therefore says that neither 27 Ingram Avenue nor 26 Holne Chase was his usual or last known residence at the time of service of the claim form in September 2023. He contends that section 1141 of the Companies Act 2006 does not permit service of the claim on him at 5A Falkland Road. That final point, relating to section 1141, gives rise to points of interpretation of the statute, and I will deal with it separately. I will first address the evidence relating to D1’s residence, both in terms of country and particular addresses.

As to the two residential addresses:

The Claimant also pointed out other connections between D1 and 27 Ingram Avenue. These included the fact that D1’s wife had submitted a planning permission application for the property in 2015, and it being the address at which D1 and his wife and son received the Claimant, with his wife and son, for the Iftar meal on 10 June 2017, describing it to the Claimant in a text message as his “home” (to distinguish it from a restaurant). (The Claimant said that, on that occasion, D1 said he had paid for renovations to the house to the tune of around £10 million and described the renovations to him in detail – D1 denied that he had said such things, and I am in no position on this application to take a view on that).

D1’s position is that he moved to Dubai in September 2021, and has since obtained a 10-year residence visa for Dubai. He says his family followed him to live in Dubai in September 2022. He says he intends to remain living in Dubai for the remainder of his visa period. However, much of this is based on what D1 himself has said, with little produced by way of documentary support (with the exception of the travel records I refer to below). For example, no copy of the residence visa has been produced; no records for his family members (in terms of residence or travel) have been produced; no other documentary evidence relating to residence in Dubai have been produced (e.g. utility bills; evidence of school attendance by the children; no evidence about whether he has purchased or is renting accommodation).

It also became apparent, from investigations undertaken on behalf of the Claimant, that D1 is a British citizen. D1 himself did not volunteer this information, and has not said when he obtained British citizenship. He has not produced a copy of any passport. It appears, from the travel records that have been produced for D1 (see below) that he started to use his current British passport around September 2021, and although D1 said nothing about whether that was his first or a renewed/replacement passport, the Claimant assumed this was his first. D1 formerly had Kazakhstani citizenship, but gave that up in March 2022.

D1 has produced some records of his travel over the past few years. These took the form of an “Entry and Exit” report from the immigration authority in Dubai, which recorded his travel in and out of the UAE over the period 2021-2023. These were disclosed in redacted form, so that it was not possible to see where D1 had travelled to or from – only dates of exit from and entry into the UAE. He calculated that he spent around 220 days in the UAE in 2022 and around 250 days in the UAE in 2023. It also appeared that, even though D1 said he moved permanently to Dubai in September 2021, in the period from the start of September to the end of December 2021, he only appears to have spent about 17 days in the UAE. It appears, therefore, that since September 2021, D1 has spent about 40-45% of his time outside the UAE.

Those official records do not disclose how long D1 spent in the UK. However, D1 and his solicitors gave some evidence about that. D1 said in his second statement that during 2022 he spent 50-60 days in the UK, and during 2023 15-20 days. His solicitors subsequently looked at his passport records, and have stated that it was 45 days in 2022 and 16 days in 2023 (though, as mentioned, the passport records on which this was based have not been disclosed). D1 also says in his second statement that the only reason he has travelled to London since his move to Dubai was to visit his mother, although that seems unlikely if it is intended to encompass the period between September 2021 and September 2022, when his wife and children were still living in London. It may be he intended only to refer to the position post September 2022 in saying this, but if so it is redolent of the slightly vague and often uncorroborated manner in which D1 has addressed the question of his residence.

Also relevant is what D1 has said, other than in the context of these proceedings, about his residence. This can be seen from a number of declarations made to corporate registries. The filings on which the Claimant placed particular reliance at the hearing were:

D1 says that most of the filings identified by the Claimant had been completed before he left England in September 2021 and that, since he received permission to stay in Dubai for 10 years, he has not thought about updating them. He says he did not incorporate the companies himself and was not particularly involved in the incorporation process, and that the parties involved in the companies (often, he says, D2, D3 “and others”) would employ agents who, he says, “held my information on file so they would often just process the incorporation without my involvement.” He recognises that two companies (MKM GP SARL and GDA Sweden AB, which was another company referred to by the Claimant in his evidence) were incorporated after he says he moved to Dubai, but he says he was not involved in incorporation and believes “the relevant agents merely used the information they had on file from previous filings.”

He does not, however, say he has made any inquiries with the agents in question to ascertain whether or not his belief in this respect is correct, nor whether he has checked records of his communications to see whether he supplied them with details including an address and, if so, when. Moreover, there was no suggestion in the evidence or at the hearing that D1 has sought to change any of these filings, even having been informed about them, to record his residence as in Dubai.

D1 also set up, in March 2022, a company in the UK called Mirakhmedov Foundation Limited.

The statement in relation to the “service address” for D1 in respect of the Mirakhmedov Foundation Limited is relied upon by the Claimant as the basis for its additional argument about service under section 1141 of the Companies Act 2006. I deal with that separately below. But the filings are also relied upon in support of the broader case that D1 continued to reside in the UK post September 2021.

I should also note that, insofar as there was evidence on the point, it appears that D1 was in the jurisdiction at the date of purported service (on 11 September 2023). That was suggested by the evidence of what was said to the process server by D1’s mother when the claim form was served at 27 Ingram Avenue that D1 “was not in Dubai but was out working”. That was consistent with the travel records, which showed him out of the UAE between 20 and 24 September (although the documents D1 had provided in evidence did not identify where he had travelled to). In any event, no point was taken by D1 to the effect that he was out of the jurisdiction at that point in time or, if he had been, that it would have had an effect on the question whether he had been properly served within the jurisdiction.

To fulfil the requirements of CPR 6.9, in the case of an individual, service must be effected at the individual’s “usual or last known residence”. There was no suggestion that 5A Falkland Road was or had been D1’s residence and, although in the evidence it had been contended that 27 Ingram Avenue might have been D1’s usual or last known residence, by the time of the hearing, the Claimant was placing the emphasis on 26 Holne Chase.

That was the address at which D1 had accepted he had been resident until September 2021, and was the address that had been supplied (by him or, at least, on his behalf) as his residence to the various company registries.

D1’s case is not that he had any other residential address in the UK, but that he had ceased to be resident in the UK at all by the time of the service of the claim form (and indeed of its issue). Whether he had so ceased is therefore the first question to be addressed.

Guidance in addressing when, once an individual is resident in the UK, he ceases to be so resident for jurisdiction purposes was set out in Shulman v Kolomoisky [2018] EWHC 160 (Ch) (Barling J) at paragraph 28:

“i.

The inquiry is a multi- factorial and fact-dependent evaluation, in which all relevant circumstances are considered in order to see what light they throw on the quality of the individual's absence from the UK.

ii.

For residence to cease there should be a distinct break in the sense of an alteration in the pattern of the individual's life in the UK.

iii.

This may well encompass a substantial loosening of social and family ties, but does not require a severance of such ties.

iv.

The individual’s intention to cease residing in the jurisdiction is relevant to the inquiry but not determinative.

v.

Actions of the individual after the material time (here, the issue of the claim form) may be relevant, if they throw light on the quality of the individual's absence from the UK.

vi.

If the individual has in fact ceased to be resident according to the applicable criteria, the fact that his motive for doing so was unworthy or even unlawful will not affect the position.

vii.

One should be careful to avoid the risk of over-analysis in applying what are ordinary English words.”

The issue in that case primarily arose in relation to identifying whether the defendant was resident in England for the purposes of the Brussels/Lugano regime. However, the principles identified remain relevant ones in the current context.

Although D1 contended that he had ceased to be resident in the UK in September 2021, the evidence suggests that is not the case. At that point in time, he had no long-term visa to stay in Dubai (which was a reason he gave in his evidence for not, at that stage, changing his contact details e.g. as listed in the various company registers) and so had no certainty that he would, or could, stay there. Moreover, his wife and children remained in London (at 26 Holne Chase) and he clearly spent time visiting them in the UK. Various declarations were made to company registries in this period. This included the details given in relation to the setting up of the Mirakhmedov Foundation Limited, in March 2022, confirming he was resident in the UK. Any suggestion that the incorporating agents were using “old” details without checking with D1 is flawed where there is no suggestion that he had ever used those incorporation agents before (nor indeed any evidence that he had previously incorporated another UK company). He would have had to confirm his own details. The only conclusion to draw from all of this is that he considered himself still to be resident in the UK (even if also in the process of establishing an additional residence in Dubai) in 2022, at least until he obtained his 10 year residence visa for Dubai and (he says) his family moved to Dubai. I therefore reject his assertion that he had no residence in England after September 2021.

The real issue is whether D1 maintained residence in the England after September 2022, by which point he had a 10 year visa to stay in the UAE, and when he says his family moved to Dubai to join him.

Taking all of the above matters into account, it appears to me that, after September 2022, at least up to September 2023, D1 still maintained residence in the UK, as well as establishing himself in Dubai.

Given my conclusion that D1 had not ceased to be resident in England by the time the claim form was served, it follows on the evidence that 26 Holne Chase remained his residence. There was no other address at which he said he was resident in the UK. It is not a bar to a finding under CPR 6.9 that an address in the UK is a defendant’s “usual residence” when he also has a residence in another country: see Relfo at paragraph 28. It is possible to have more than one “usual” residence.

D1 contends 26 Holne Chase cannot have been D1’s “usual or last known residence” at the time of purported service of the claim form because D1’s solicitors had told the Claimant, in the response to the letter before action (sent in September 2022), that D1 was no longer resident or domiciled in England.

The fact that D1’s solicitors asserted that he was no longer resident in England, of course, cannot make it so. However, what D1 relied upon was the fact of his solicitors having asserted that as a giving the Claimant a reason to believe D1 no longer resided at 26 Holne Chase such that the Claimant should have taken steps to ascertain D1’s current residence (under CPR 6.9(3)) which, D1 says, the Claimant did not do.

It is not entirely obvious to see how that can be an answer to service on a defendant’s “usual or last known residence” where the court has concluded (as I have) that the address in question (26 Holne Chase) was the defendant’s usual residence. It might be thought odd if a defendant was in fact residing at an address, and the fact that his solicitors wrote in advance of service simply saying “we are told he does not live there” meant that he could not be served there without further steps being taken by the claimant. However, I can see that, in those circumstances, it may be that CPR 6.9(3) still requires the claimant to have taken the reasonable steps referred to and (given the findings I have reached) concluded that the defendant does still reside at the address (where he can therefore be served under CPR 6.9(4)). This may be one of the features of the CPR rule 6.9 regime that the court in Relfo had in mind when referring to “difficulties and obscurities” in the wording.

In any event, D1’s point does not take him any further on the facts of this case. The Claimant did take further steps sufficient to satisfy CPR 6.9(3), including instructing an inquiry agent to ascertain whether D1 still resided in England at one of the addresses in question. The information the agent turned up included declarations made to corporate registries that D1 resided at 26 Holne Chase, even after the date when his solicitors had said he no longer lived in England, and a declaration made to the UK companies register in May 2023 that he was resident in the UK. They were not able to find any address in Dubai for D1 given in any publicly available documents. That was sufficient for them to conclude that D1 still resided in the UK and at 26 Holne Chase (or, at least, at one of 26 Holne Chase and 27 Ingram Avenue), or alternatively that 26 Holne Chase was D1’s last known residence.

As a result, service at 26 Holne Chase was service at D1’s usual residence within the meaning of CPR 6.9(2). Even if, contrary to that, it was not his usual residence, it was his last known residence. Service on D1 was therefore validly effected within the jurisdiction.

The Claimant also contended that D1 was validly served with the claim form at 5A Falkland Road, pursuant to section 1141 of the Companies Act 2006. The conclusion I have reached above in relation to service at D1’s usual or last known residence means that the question whether service was validly effected when the claim form was delivered to 5A Falkland Road does not affect the position in relation to jurisdiction. However, given the point was argued on both sides, I will set out my views.

At the date of purported service of the claim form, insofar as material, section 1140 of the Companies Act 2006 provided as follows:

“1140 Service of documents on directors, secretaries and others

(1)

A document may be served on a person to whom this section applies by leaving it at, or sending it by post to, the person's registered address.

(2)

This section applies to—

(a)

a director or secretary of a company;

…

(3)

This section applies whatever the purpose of the document in question.

It is not restricted to service for purposes arising out of or in connection with the appointment or position mentioned in subsection (2) or in connection with the company concerned.

(4)

For the purposes of this section a person's “registered address” means any address for the time being shown as a current address in relation to that person in the part of the register available for public inspection.

(5)

If notice of a change of that address is given to the registrar, a person may validly serve a document at the address previously registered until the end of the period of 14 days beginning with the date on which notice of the change is registered.

(6)

Service may not be effected by virtue of this section at an address—

(a)

if notice has been registered of the termination of the appointment in relation to which the address was registered and the address is not a registered address of the person concerned in relation to any other appointment;

(b)

in the case of a person holding any such position as is mentioned in subsection (2)(b), if the overseas company has ceased to have any connection with the United Kingdom by virtue of which it is required to register particulars under section 1046.

(7)

Further provision as to service and other matters is made in the company communications provisions (see section 1143).

(8)

Nothing in this section shall be read as affecting any enactment or rule of law under which permission is required for service out of the jurisdiction.”

After the date of purported service in this case, section 1140 was amended to insert subsection (2)(aa):

“(aa) a person who is a registrable person or a registrable relevant legal entity in relation to a company (within the meanings given by section 790C)”.

That brought a PSC within the scope of section 1140. It is common ground that, if subsection (2)(aa) had been in force at the date of service in this case, D1 could have been served at his address registered at Companies House as PSC of Mirakhmedov Foundation Limited.

Section 1141 provides as follows:

“1141 Service addresses

(1)

In the Companies Acts a “service address”, in relation to a person, means an address at which documents may be effectively served on that person.

(2)

The Secretary of State may by regulations specify conditions with which a service address must comply.

(3)

Regulations under this section are subject to negative resolution procedure.”

The Claimant acknowledged that D1 did not fall within the scope of section 1140 at the relevant time and he did not seek to rely on it in his argument. Rather, he said that section 1141 was sufficient for his purposes, or at least was sufficient in conjunction with two other sections that he relied upon, namely (i) section 790K(1)(b), which provides (and did so at the material time) that, as the PSC of Mirakhmedov Foundation, D1 was required to provide a service address, and (ii) section 1142, which states that “Any obligation under the Companies Act to give a person’s address is, unless otherwise expressly provided, to give a service address for that person.”

It is important, however, not to view section 1141 in isolation, but to consider it along with section 1140. It has been confirmed in a series of decisions at first instance that a director of a company, who is resident out of the jurisdiction but who has given an address within the jurisdiction as his “registered address” under section 1140, can be served at that address within the jurisdiction and that no permission to serve the proceedings out of the jurisdiction is required. See PJSC Bank v Zhevago [2021] EWHC 2522 (Ch) where Flaux C (at paragraphs 46-56) concluded that the decision to that effect in Idemia France SAS v Decantur Europe Limited [2019] EWHC 946 (Comm) (Richard Salter QC sitting as a Deputy High Court Judge) (and which had been subsequently followed in other cases) was correct. Flaux C concluded (at paragraph 55):

“The whole point of section 1140 is that where a director has provided a “registered address” in the sense set out in subsection (4), which encompasses the “usual residential address” provided for in Form 288a, and that address is within the jurisdiction, the effect of the section is that the director can be served with proceedings at that address even if he is not physically present within the jurisdiction at the time of service. The position is different if the address given on the Form or in the records held at Companies House is an address outside the jurisdiction. As Master Marsh explained in Key Homes that is the situation covered by section 1140(8): if the “service” address provided is outside the jurisdiction, section 1140 cannot be used to effect service and the normal rules requiring permission to serve out of the jurisdiction to be obtained apply”

The detailed provisions of section 1140 are important. Section 1140(3) makes it clear that its provisions apply whatever the purpose of the document being served: “It is not restricted to service for purposes arising out of or in connection with the appointment or position mentioned in subsection (2) or in connection with the company concerned.” Section 1140(8) expressly preserves, as noted in the citation from Zhevago above, the need to seek permission to serve out of the jurisdiction if the address given is an address outside the jurisdiction.

Section 1140 was described in Key Homes Bradford Ltd v Patel [2015] 1 BCLC 402 (Master Marsh) (which was relied upon and followed by Richard Salter QC in Idemia) as a “basis for serving a director which is entirely outside the provisions for service in the CPR. It is a parallel code.” It was said that by section 1140 “[a] new regime for service of documents on directors was introduced and was intended to have a wide effect.”

Part of the important context of these decisions is that in SSL International Plc v TTK LIG Ltd [2011] EWCA Civ 1170, [2021] 1 WLR 1842 (at paragraph 57) Stanley Burnton LJ had identified that: “It is a general principle of the common law that, absent a specific provision, as in the rules for service out of the jurisdiction, the courts only exercise jurisdiction against those subject to, i.e. within the jurisdiction”. It was held (in Key Homes, and Idemia, and confirmed in Zhevago) that section 1140 was such a “a specific provision” such that the “general principle” thus identified did not govern.

I also note that, at paragraph 126 of Idemia, the Judge noted Master Marsh’s reliance on the commentary on clause 747 of the Bill (which eventually became section 1140) as it was going through Parliament:

“This clause is a new provision. It ensures that the address on the public record for any director or secretary is effective for the service of documents on that person. Sub-section (3) provides that the address is effective even if the document has no bearing on the person’s responsibilities as director or secretary.”

It is against that background that one must consider the Claimant’s case in this application, where he contends that he can serve D1 at the address recorded for him at Companies House, even if D1 is resident out of the jurisdiction and even when he does not fall within section 1140, simply in reliance upon the terms of section 1141. In my view, plainly the Claimant cannot rely on section 1141 for that purpose.

As a result, the Claimant fails to establish that D1 was served by delivery of the claim form to 5A Falkland Road.

There was no dispute between the parties that, in order for a claimant to obtain permission to serve a defendant out of the jurisdiction it must satisfy the court that:

As the Defendants emphasised, the fact that permission was granted on the without notice application is largely irrelevant at the inter partes stage. As it is put in Briggs, Civil Jurisdiction and Judgments (7^th ed.) at paragraph 24-04, it “leaves no footprint”. It is for the Claimant to establish these matters, notwithstanding that it is the Defendants applying to set aside the Dias J Order (see Navig8 Pte Ltd v Al-Riyadh Co for Vegetable Oil Industry [2013] EWHC 328 (Comm), [2013] 2 CLC 461, Andrew Smith J at paragraph 10).

As I have noted above, it is for the Claimant to establish that there is a serious issue to be tried, i.e. the claim must have a real, as opposed to a fanciful, prospect of success. That is the summary judgment standard (see Lord Collins in AK Investment, above).

In relation to the question whether there is a good arguable case that the claim falls within one or more of the classes of case for which permission to serve out of the jurisdiction may be given that are listed under paragraph 3.1 of CPR PD6B (often referred to as the “gateways”), the position was addressed by Lord Sumption in Brownlie (above) and in Goldman Sachs International v Novo Banco SA [2018] UKSC 34. In Goldman Sachs, Lord Sumption explained as follows (at paragraph 9):

“For the purpose of determining an issue about jurisdiction, the traditional test has been whether the claimant had 'the better of the argument' on the facts going to jurisdiction. In Brownlie v Four Seasons Holdings Inc [2018] 1 WLR 192 , para 7, this court reformulated the effect of that test as follows: '(i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.' It is common ground that the test must be satisfied on the evidence relating to the position as at the date when the proceedings were commenced."

The Court of Appeal examined that reformulated test in Kaefer Aislamentos SA de CV v AMS Drilling Mexico SA de CV [2019] 1 WLR 3514 explaining how it operates in practice, how it relates to the “good arguable case” threshold and how the various limbs interact with the relative test in Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547 and [2002] 1 AC 1. In his judgment, Green LJ explained:

The Defendants sought to characterise use of limb (iii) as exceptional. For my own part, I do not find it particularly helpful to add that to the analysis set out by Green LJ. It is clear that the court should seek (under limb (ii)) to overcome evidential difficulties and arrive at a conclusion if it reliably can, using those tools that are available in the circumstances (as Lord Sumption put it in Goldman Sachs “the court must take a view on the material available if it can reliably do so” (underlining added)). However, if it cannot reliably do so, then it is into limb (iii). I note that a similar argument was made in Hadi Kalo v Bankmed SAL [2023] EWHC 2606 (Comm) which was dealt with by Foxton J at paragraph 7:

“There was some debate between the parties as to the point at which limb (iii) cut in, the Bank, in particular, being keen to depict it as very much an option of last resort. On the face of things, the idea of the court being “unable to form a decided conclusion” on who has the better case on the evidence appears an improbable one – indeed, both sets of legal advisers are likely to have done exactly that. However, the evidence in some cases will be such that reaching a judicial decision on relative merit will be incompatible with the nature of the hearing, and the injunction not to conduct a mini trial. Further, the limitations of the material may be such that any decision on relative merit will lack the robustness which a judicial decision of this significance requires. Green LJ referred in his discussion of limb (iii) to Teare J’s decision in Antoni Gramsci Shipping Corp v Recoletos Ltd & Ors [2012] EWHC 1887 (Comm), [39] and [45], in which he referred to cases where there is “a conflict of evidence which cannot be resolved without appearing to conduct a pre-trial,” instancing “a stark dispute between opposing witnesses” in a case where “to seek to judge who has the better of the argument on such evidence risks a pre-trial at the interlocutory stage.” Earlier in his judgment, Green LJ had cited Lord Sumption in Goldman Sachs International v Novo Banco SA [2018] UKSC 34, where he described limb (iii) as applying where “no reliable assessment” can be made of relative merit.”

When considering the questions that arise in relation to the gateways (as with the ‘serious issue to be tried’ question) the issues should ordinarily be addressed by reference to the pleaded case (see Okpabi v Royal Dutch Shell plc [2021] UKSC 3, [2021] WLR 1294 at paragraphs 103-105).

Putting the separate position of D4 to one side, there were two points taken by the Defendants in support of their position that there was no serious issue to be tried in relation to the claim against them. Both related to the question whether there was a contract that bound them:

Those two issues only relate to the contract claims. Mr Samek said that the unjust enrichment claim was not dependent upon the existence of the alleged oral agreement, and there was no argument to the contrary by any of the Defendants. I note also that Mr Samek accepted that, as a result, the unjust enrichment claim did not fall within the contract gateway for jurisdiction purposes.

These two issues overlap considerably with the question whether the contract claims fall within the contract gateway for jurisdiction purposes, albeit the test to be applied is different. Given the overlap of evidence and fact (and also, in respect of the authority questions, the law of Kazakhstan) I will deal with these points relating to serious issue to be tried along with the contract gateway issues, below.

The first gateway relied upon by the Claimant was that D1 was domiciled in England within CPR PD6B paragraph 3.1(1):

“(1)

A claim is made for a remedy against a person domiciled within the jurisdiction within the meaning of sections 41 and 42 of the Civil Jurisdiction and Judgments Act 1982.”

Section 41 of the Civil Jurisdiction and Judgments Act 1982 states that an individual is domiciled in the UK if (a) the individual is “resident” in the UK and (b) “the nature and circumstances of his residence indicate that he has a substantial connection” to the UK. Where an individual is resident in the UK and has been so resident for the last three months or more, a “substantial connection” is presumed unless the contrary is proven: section 41(6).

I have already considered the evidence relating to D1’s residence, and have concluded (in the context of the question whether he was properly served within the jurisdiction) that he was resident in the jurisdiction at the time of service. The result is that the issue as to whether permission to serve him out of the jurisdiction should have been granted is redundant. In any event, the answer to the question whether D1 was resident in the UK, for the purposes of the service out application, at the time of issue of the claim form (nothing material having taken place in this respect between issue and the date of purported service) follows from my findings and conclusion above – he was so resident (and, therefore on the facts of this case, domiciled). In fact, the position is, if anything, a fortiori given that the determination of residence for the purposes of the service out application does not require identification of a specific “usual” or “last known” address within the terms of CPR 6.9. In other words, even if my approach to CPR 6.9 in paragraphs 55-60 above was not correct, the findings in paragraphs 52-54 above are sufficient to demonstrate, to the required standard of good arguable case, that D1 was resident within the jurisdiction at the time of issue of the claim form.

As a result, the claims fall within gateway (1) as regards D1.

CPR PD6B paragraph 3.1(3) applies where:

“(3)

A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and –

(a)

there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and

(b)

the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.”

In relation to this gateway, I bear in mind the need to exercise caution in its application, given its “anomalous nature”: see AK Investment at paragraph 73 and the endorsement there of what was said by Lloyd LJ in The Goldean Mariner [1990] 2 Lloyd’s Rep 215 at 222:

“I agree … that caution must always be exercised in bringing foreign defendants within our jurisdiction under [the necessary or proper party gateway]. It must never become the practice to bring foreign defendants here as a matter of course, on the ground that the only alternative requires more than one suit in more than one different jurisdiction.”

However, when considering the position of D2 and D3 and the nature of the claims against them (where they are alleged to be joint parties to the same agreement as D1 and jointly liable to the Claimant), there can be no real suggestion that they are not proper parties to the claim against D1 if there is a serious issue to be tried against them. Neither D2 nor D3 sought to contend to the contrary.

CPR PD6B paragraph 3.1(6) applies where:

“(6)

A claim is made in respect of a contract where the contract –

I will deal first with the issue relating to whether the alleged oral agreement was made, before moving to questions relating to whether D2 and D3 were bound to it.

The question whether the Claimant had a good arguable case that his claim was based on a contract made in the jurisdiction was one that was hotly contested, the particular issue in question being whether there was an oral agreement (made in London) as alleged by the Claimant. Much of the evidence served for the applications went to this point.

The question of whether a contract was formed is governed by the putative law of the contract – here, the law of Kazakhstan. (If there was a contract made, the question of where it was made for the purposes of the contract gateway is governed by English law (see below at paragraph 121), although given that the alleged contract here was an oral contract made face to face in London, there was no separate dispute about that). However, neither party sought to deploy any particular issue of the law of Kazakhstan for this purpose. Whilst it is clear that the parties do join issue on certain aspects of the law of Kazakhstan relating to oral contracts (which is something I come back to in relation to appropriate forum, below) the Defendants did not seek to advance any argument that there was no serious issue to be tried, or good arguable case, going to the existence or validity of the oral agreement based upon such a point. For the purpose of serious issue to be tried, and for the gateway question, the point was argued by reference to the facts and to what extent, on the facts, it could be said that the alleged contract had been made. I explain below the main points taken by the parties that go to that issue.

As set out above, the Claimant’s case is that he made an oral contract with D1 (who he alleges was also acting on behalf of D2 and D3) on 10 June 2017 in a discussion at 27 Ingram Avenue, around the Iftar meal that they and their respective families had met to share. The Claimant says that this was the conclusion of a series of prior discussions between the Claimant and D1-D3, the prior discussions having taken place in Kazakhstan in May 2017.

It is not in dispute that the Claimant, with his wife and son, attended the Iftar meal with D1, and his family, at 27 Ingram Avenue on the evening of 10 June 2017. It is also not in dispute that, after the meal, D1 and the Claimant, with their respective sons, travelled to a mosque for Tarawih prayers. However, that is effectively the limit of the common ground.

In relation to the allegations about the meeting on 10 June 2017, the Defendants draw attention to, and rely upon, the changing nature of the Claimant’s story in this respect, in particular that no mention was made at all of the meeting in the Claimant’s letter before action. I have already referred to this, and other similar points, at paragraphs 13-14 above.

The Claimant also relied upon certain documents and communications, all from the period after the date he says the agreement was made, which he contends support his account but in respect of which there are substantial disputes:

The Claimant also relies on what he says was part performance of the London Agreement by way of payments which D1-D3 accept they made to him by way of bitcoin in a sum equivalent to around US $1.7 million in the period January to August 2018 (the exact sum appears to be disputed – the Claimant puts the figure at US$1.69 million; the Defendants at about US$1.75 (D3 said it was US$1,756,650)). The Claimant contends that these payments were part of his 35% share of the bitcoin received by D1-D3, and that the payments received for the first months totalled exactly 35%. The Defendants deny that calculation, saying it has been carefully constructed so that the amount matches what the Claimant says is 35%, but that in fact if the calculation is done properly it would be 9.8%. The Claimant also draws attention to spreadsheets later given to him (via other individuals including his brother), which he says were drawn up by D3, calculating a 35% share for a later period, but says he was then paid a lower figure. D3 however says he does not recognise the spreadsheets in question, which are not in a style or format he would normally use.

For their part, the Defendants have advanced in their evidence an explanation for the facts they admit (including the payments of bitcoin to the Claimant). They say that they did have an arrangement with the Claimant (though not necessarily a binding agreement) that he would act as some kind of “broker” or “middle man” in relation to finding and acquiring property, in relation to which he was entitled to a commission. D2, for example, says that D1-D3 were looking for sites for their bitcoin mining business, and the Claimant introduced them to a number of potential sites, of which they ended up purchasing Stal and the ABK Buildings. D2 says that, in return for his introductions, the Claimant requested that a fair market value was paid for the assets, as well as a commission fee paid to him in bitcoin to the value of US$1.75 million. D2 says “I am not sure how Mr Alimov decided on this figure, and we never negotiated it with him” though he said they stipulated that the payment was “to be made dependent upon the cashflow position of the business and based on its profitability”.

This account, in turn, is disputed by the Claimant, who points out what he says are certain difficulties with it, including:

As for the transfer of Stal and the ABK Buildings, the Defendants say they were sold at market value, which was the price recorded on the sale agreements for the properties. They say it was an arms’ length sale, in respect of which the Claimant received a commission. The Claimant, on the other hand, says that is not correct, and that the price identified on the sale contracts was simply the “nominal book value” and that the “sales” were really a transfer of the properties to the joint venture by way of his contribution to it, as per the agreement he said had been reached. The Claimant sought to support his position with evidence from Mr Naurzaliev, Ms Soyayeva and his brother, Aydyn Alimov. (Footnote: ³)

To support the Defendants’ position, it was suggested by D3 that KKS Karagandy had only purchased Stal and ABK Buildings relatively recently (in either February 2017 or January 2018), and then sold them on, consistent with his role as an intermediary. However, the Claimant says that he was also the 90% beneficial owner of the company that sold the assets to KKS Karagandy, namely Temirshi LLP, such that he was already effectively the beneficial owner of the assets.

How the potential sale of Stal and the ABK Buildings to Hua Tun fit in is also a source of dispute between the parties.

The Defendants also rely on a number of oddities they say arise from what the Claimant says was agreed. These include:

The Defendants also say it is inherently unlikely that an agreement of such potential significance and intricacy as that alleged by the Claimant would have been made orally, in such brief discussions. They also rely upon the fact that the Claimant did not seek to memorialise in writing the terms of the agreement he alleges was made, even for his own purposes as an aide memoire. (Footnote: ⁵) The Claimant countered this in his witness statement by referring to what he describes as a “common understanding” in Kazakhstan “especially amongst ‘old-school’ businessmen, … that a deal is conducted on a gentleman’s agreement without any written contracts in place.” He also says that there was no need for any more lengthy discussion, because the details had been previously discussed at meetings that had taken place in Kazakhstan.

A notable feature of the submissions at the hearing was that each side spent most of their time when dealing with this issue in seeking to rubbish the other side’s account of the facts, and very little seeking to explain how their own account fitted with the documentary record (such as it was).

I have set out, above, the main points taken by the parties in relation to the factual question whether the alleged oral agreement was made. My description of their positions is not intended to be a comprehensive digest of every one of the points made by the parties, in their evidence and their submissions, on this issue, which were very numerous (although I have considered all of the points in coming to my decision).

However, what is clear even from the above material, is that this is not a case which is suitable for a summary judgment type determination. To seek to resolve the disputes between the parties about whether or not an oral agreement was made, as alleged, would entail conducting what is sometimes referred to as a mini-trial, and would involve the court in an assessment of directly conflicting evidence against an inconsistent documentary background. That is not an appropriate exercise on a summary judgment application, and nor is it when assessing the “serious issue to be tried” question as it arises in an application to serve out of the jurisdiction.

There are certain apparent difficulties or oddities about the Claimant’s case, not least (i) the changing nature of it between the letter before action and the Particulars of Claim, (ii) the fact that a detailed oral agreement is said to have been reached in a relatively short discussion around a family /social /religious occasion, and (iii) the signing of a sale agreement with Hua Tun just three days after the alleged oral agreement is said to have been made. However, none of them are decisive, and the Claimant has tendered explanations which cannot be rejected out of hand. Moreover, the Defendants’ explanations for the reason why the Claimant was paid the bitcoin he was paid (namely, “commission” on the property sales) themselves have their difficulties. There are also a number of documents relied upon by the Claimant which, on their face, support his case – including the August 2017 Spreadsheet (noting “Income of KZ partner (EA)” at 35% of the figure for D1-D3). I entirely take the point that the Defendants do not accept the authenticity of that spreadsheet, but in light of the evidence that has been given to the court about it, on this application I am not in a position to reject the Claimant’s reliance upon it. Other documents that, on their face, support his case include the 23 July email (referring to “Y. Alimov’s facility” as an asset of the joint venture) and the reference to “we’re becoming shareholders” in D3’s Telegram message. The Defendants do not agree with the construction put on those documents, but the Claimant’s position in relation to them is not one that can be sensibly rejected without further exploration of the background which is not possible on an application such as this.

As a result, I cannot conclude that there is no serious issue to be tried in relation to the question whether an oral agreement was made as alleged by the Claimant.

The issue also arises in the context of the contract gateway, where the question is whether the Claimant has a good arguable case on this issue.

I have set out the authorities which identify the legal approach above at paragraphs 76-78. What was described as the first limb in Kaefer is to ask whether there is an evidential basis showing that the claimant has the better argument: a relative test. What was described as the second limb instructs the court to overcome evidential difficulties and arrive at a conclusion if it “reliably” can. The first question, therefore, is whether I can reliably arrive at a conclusion as to who has the better argument on this issue. In my view, in the circumstances of this case, I cannot do so, even using “judicial common sense and pragmatism” as suggested by Green LJ in Kaefer. My reasons for having reached that conclusion are:

In other words, this is one of those cases that it seems to me Foxton J had in mind in Hadi Kalo v Bankmed SAL (above) when he said that “the evidence in some cases will be such that reaching a judicial decision on relative merit will be incompatible with the nature of the hearing, and the injunction not to conduct a mini trial. Further, the limitations of the material may be such that any decision on relative merit will lack the robustness which a judicial decision of this significance requires.” He went on to cite Green LJ’s reference in Kaefer to Teare J’s decision in Antoni Gramsci Shipping Corp v Recoletos Ltd & Ors [2012] EWHC 1887 (Comm), [39] and [45], in which he referred to cases where there is “a conflict of evidence which cannot be resolved without appearing to conduct a pre-trial,” instancing “a stark dispute between opposing witnesses” in a case where “to seek to judge who has the better of the argument on such evidence risks a pre-trial at the interlocutory stage.” Those references are apt to describe the situation here. This is not an issue where a reliable assessment can be made of relative merit.

As a result, resort must be had to limb (iii), which was explained by Lord Sumption in Goldman Sachs in this way: “there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it.”

On the material before the court on these applications, there is a plausible evidential basis for the Claimant’s contention that the oral agreement he alleges was made in London. In particular the key points are:

As a result, the third limb of the test in Goldman Sachs is here satisfied, and I conclude that the Claimant has a good arguable case that his claim in relation to the contract he alleges falls within the contract gateway.

An additional point taken by D2 and D3 was that, even if the Claimant had entered into the oral agreement he alleged he had made with D1, that cannot have been an agreement with D2 or D3 due to D1’s lack of authority to contract on their behalf. The result, contend D2 and D3, is that there is no serious issue to be tried against them in relation to the contract claims and/or there is no good arguable case that the claims against them based on contract fall within gateway (6).

The manner in which it is pleaded in the Particulars of Claim that D2 and D3 were parties to the alleged oral agreement is as follows:

D2 and D3 contend that the issue whether they are bound to the alleged contract is one that is governed by the law of Kazakhstan and that, under the law of Kazakhstan, in order for D1 to have bound D2 and D3, it would have been necessary for D2 and D3 to have granted D1 a power of attorney. They point out that there is no pleading or evidence of any power of attorney, such that the claim against them based on the agreement is fatally flawed.

The Claimant’s position was:

In relation to the first point, I consider Mr Samek was right not to pursue it. It is the Claimant’s case that if the contract was made it was governed by the law of Kazakhstan (and, indeed, there was no dispute about that). As set out at Dicey, Morris & Collins, The Conflict of Laws, Rule 223(1): “The issue whether the agent is able to bind the principal to a contract with a third party, or a term of that contract, is governed by the law which would govern that contract, or term, if the agent’s authority were established.” (The other system of law which might bear on the question is that governing the relationship between the principal and agent (here, D1 and D2/D3), but if anything that also appears likely to point to the law of Kazakhstan, and certainly not to English law). The Claimant’s initial point that the issue was governed by English law was based upon Dicey, Morris & Collins, paragraphs 11-150 and 11-151. However, those paragraphs deal with the issue of where a contract is made (for the purposes of Gateway 6(a)), not whether it was made or the identification of the parties to it. The issue of whether there is a contract for the purposes of the gateway is determined by reference to the rules of English private international law (Amin Rasheed Shipping Corp v Kuwait insurance [1984] AC 50; see e.g. Briggs, Civil Jurisdiction and Judgments (7^th ed.) at page 503). Here, as was agreed, those rules point to the law of Kazakhstan.

The question, therefore, is what is required under the law of Kazakhstan to bind D2 and D3 to the alleged oral agreement. The parties were agreed that the relevant provision is Article 163 of the Code, which states:

“1.

A transaction made by one person (representative) on behalf of another person (represented) by virtue of an authorisation based on a power of attorney, legislation, court decision or administrative act directly creates, changes and terminates civil rights and obligations of the represented.

The authority may also be evident from the environment in which the representative acts (retail salesman, cashier, etc.).

2.

Under a transaction performed by a representative, rights and obligations arise directly with the represented.”

In the expert evidence of the law of Kazakhstan that was placed before the court on the without notice application (the First Report of Mr Konysbayev) there was no evidence about how D1 might have had authority to bind D2 or D3 to any contract. Iatuha 1 stated (without reference to any particular system of law) that the Claimant had a good arguable case that D1 was acting on behalf of D2 and D3 “given that (a) they were in business together since 2015 …, and (b) Mr Mirakhmedov was the most important of the three of them. Thus it [sic] Mr Makhat and Mr Kim would likely follow his directions and would be bound to a contract which he made with Mr Alimov concerning the GM JV (their joint project).”

The point on lack of authority was taken in the Defendants’ evidence in support of the application to set aside the Dias J Order. The statements of both D2 and D3 made it clear that D1 was not authorised to reach any agreement with the Claimant on either of their behalves and D2 said that a power of attorney would have been required for that purpose (and also that such a requirement was “common knowledge amongst experienced Kazakh businessmen”).

This was supported by the expert report of Mr Kaldybayev (for D2), where having set out the terms of Article 163, Mr Kaldybayev stated:

“Therefore, unless authority is evident from the environment in which the representative acts (like in the examples given in the Article), only an authorised representative according to a power of attorney, legislation, court decision or administrative act may conclude contracts on behalf of someone else (the represented party).”

He also drew attention to Article 167(1), which provides:

“1.

A power of attorney is a written authorisation of one person (the principal) to act on his behalf, issued by him to another person (the attorney).”

He followed this with an explanatory paragraph in similar terms to the one I have already set out:

“It is the existence of a written power of attorney that determines a person’s ability to act as a representative of another person, unless the powers of a representative are derived from legislation, a court decision or an administrative act, or are evident from the environment in which the representative acts.”

Professor Karagussov’s report dealt with this issue in less detail, simply saying the position was covered by Articles 163-171, which meant that for D1 to have been able to bind D2 and D3 to the alleged oral agreement, a power of attorney was required.

A response on the law of Kazakhstan was given on behalf of the Claimant by way of the second report of Mr Konysbayev. He recorded the position taken by Mr Kaldybayev, summarising the latter’s position thus: “…he says that а person mау create rights and obligations fоr another only bу power of attorney, bу а court decision, bу an administrative act оr where permitted bу legislation.” Mr Konysbayev, notably, did not refer to authority being evident “from the environment”, even by way of description of what Mr Kaldybayev had said. Mr Konysbayev then said nothing himself about the requirements of Article 163 but instead referred only to Article 165 of the Code, which provides an equivalent to ratification as follows (in the translation supplied by Mr Kaldybayev):

“А transaction made on behalf of another person by an individual not authorized to make the transaction, or exceeding their authority, creates, alters, and terminates civil rights and obligations for the represented party only if they subsequently approve the transaction. Subsequent approval by the represented party makes the transaction valid from the moment it was made.”

Mr Konysbayev then stated that commentaries expressed the view that the necessary “approval” might be “evidenced in any form, including accepting goods or making payments, among other actions.” He referred to two cases seeking to support that view.

Iatuha 3 cross-referred to Mr Konysbayev’s evidence about subsequent approval, and also said that:

“As to showing that Mr Makhat and Mr Kim are parties to the London Agreement, Mr Alimov sets out the evidential basis to show that Mr Makhat and Mr Kim were bound by the agreement because Mr Mirakhmedov was acting on their behalf, as their business partner, they treated Mr Alimov as a partner and Mr Kim even referred to “our partners” (referring to GM) in message to Mr Alimov.”

However, there was no attempt in Iatuha 3 to rely upon the sentence of Article 163 relied upon by Mr Samek at the hearing. (Footnote: ⁶)

In his reply report, Mr Kaldybayev agreed that “approval” might be in any form, and also added that in his view “a Kazakh court would not find that there had been approval/ratification of an agreement unless it was clear that the person approving/ratifying knew what they were approving/ratifying, knew that the possibility of approving/ratifying the agreement in question existed and knew the consequences of approval/ratification, and did something that clearly and unambiguously showed that they were approving/ratifying the precise agreement that is alleged to have been made.”

In the Claimant’s skeleton argument, the only points that were taken were i) the point about governing law, which was not pursued orally and which I have dealt with above, and ii) an argument on ratification based on Mr Konysbayev’s second report. There was no attempt to support any authority case based upon Article 163.

However, in his oral submissions, Mr Samek sought to make a case which had not previously been foreshadowed, based on the second part of Article 163.1 i.e. the words “The authority may also be evident from the environment in which the representative acts (retail salesman, cashier, etc.).”

This was not a point that had been made by Mr Konysbayev, who had not given any evidence about that particular sentence of Article 163 at all or even averted to its existence. Mr Samek, however, referred to Mr Kaldybayev’s report, in which Article 163 was set out, and to what Mr Kaldybayev said about it, as I have set out above. Mr Samek said, referring to the examples given in Article 163.1 (namely, “retail salesman, cashier, etc”) that it covered situations where it was obvious there was authority, and he described it as authority that was “implied” or “to be inferred”. He said the Claimant’s case was that D1-D3 were “all in it together in the project” and that D1’s authority to bind D2 and D3 was “evident from the particular environment in which [D1] was acting in this case, specifically including in London when the agreement was made.”

This was a somewhat unsatisfactory basis to advance the point. The point that D1 had no authority to bind D2 or D3 was clearly taken in the evidence in support of the application to set aside the Dias J Order. Nowhere in the evidence filed by the Claimant, whether on the without notice application, or in response to the Defendants’ evidence, was it suggested that D1’s authority was to be found in this sentence from Article 163. There was no reliance on this part of the Article by Mr Konysbayev, and he gave no opinion of the types of situation (besides “retail salesman” and “cashier”) that might fall within these words, nor whether there was any authority or commentary that bore upon or assisted with their interpretation. As I have said, the Claimant gave no notice that it was going to rely upon this point before Mr Samek’s oral submissions.

As I have noted, this point arises in the context of the question whether there is a serious issue to be tried and whether the Claimant has shown he has a good arguable case. In both situations, the Claimant bears the burden of showing that the requisite standard has been met.

In my view, the Claimant has not demonstrated that there is a serious issue to be tried on this point under the law of Kazakhstan, still less that he has a good arguable case in relation to it. In relation to the latter, this is not a point on which there are conflicts in the evidence which cannot be resolved such that resort must be had to the third limb of the test in Goldman Sachs. On the contrary, as I have noted, there is very little evidence, in terms of the law of Kazakhstan, on this point at all.

Given (i) that the Claimant and his expert did not address this provision at all in the evidence, and (ii) that the Claimant gave no notice of his reliance on the point to the Defendants, such that their experts did not have the opportunity specifically to address it in respect of the facts of this case in their evidence, the only argument Mr Samek was able to make was based on the words of the article (as translated into English) and to say that applied to the situation at hand. However, in my view, on the basis of the evidence adduced on this application, the Claimant does not have a real prospect of success on that point (still less the better of the argument):

As a result, on the current material (which is just the words of Article 163 coupled with the fact that no expert, in particular the claimant’s expert, has suggested the words in question apply to this situation) the Claimant has no real prospect of success. The situation is not equivalent or analogous to the “retail salesman” or “cashier” examples given in the Article, and no attempt has been made to explain what elements of “the environment” are relied upon such that that factual scenario in this case falls within the article. Moreover, as I have noted, even if I had held there was a real prospect of success, I would not have held that the Claimant had the better of the argument on the current material – he plainly does not.

The Claimant also sought to advance a case based upon ratification, contending that even if D1 had not had authority from D2 and D3 to enter into the alleged agreement at the time it was entered into, D2 and D3 later ratified the agreement under Article 165 of the Code.

As I have already mentioned, this was first raised in the evidence served on behalf of the Claimant in response to the applications to set aside the Dias J order. Mr Konysbayev explained that the necessary “approval” might be “evidenced in any form, including accepting goods or making payments, among other actions.” Iatuha 3, having cross-referred to that evidence, stated that “Mr Makhat and Mr Kim’s conduct showed that they approved the contract, and performed it, and so they were bound by it.”

As also mentioned above, in his reply report, Mr Kaldybayev agreed that “approval” might be in any form, and also added his view about some level of knowledge being required. (Professor Karagussov did not say anything about this in his reply report.) However, in his evidence in reply, D2 said he did not understand what conduct was being relied upon by way of approval and what was said to amount to performance. His solicitor, Mr Shambayati, in his reply statement also suggested that what had been said by the Claimant was too vague.

There was no plea of ratification in the Particulars of Claim. The plea of the basis that D2 and D3 were bound to the agreement was, as I have set out above, that D1-D3 acted jointly, each acting for and on behalf of himself and the others and that when he reached the alleged oral agreement, D1 was acting on behalf of all 3 (referred to as “MMK”). Although there was a faint suggestion by Mr Samek that this encompassed a plea of ratification, it seems to me that cannot be right. The words of the Particulars of Claim do not talk of ratification at all. Also, Article 165 (dealing with ratification) applies where a transaction is “made on behalf of another person by an individual not authorized to make the transaction, or exceeding their authority …”. In other words, Article 167 is an alternative case to authority under Article 163 such that one cannot just “read in” to the general pleas of “acting on behalf of” some form of additional or alternative case of ratification (as seemed to be suggested).

Although Mr Samek did not formally concede the pleading point, he appeared to recognise its force, because part way through his oral submissions he sought to make an application to amend the Particulars of Claim to plead a positive case of ratification. This started (towards the end of the morning on the second day of the 2 day hearing) with an attempt to explain a proposed amendment orally, which was then postponed until a proposed draft one paragraph amendment was handed up at 2pm that day.

The text of the amendment sought to be made was:

“New para. 29A.

If (which is denied) Mr Mirakhmedov [D1] did not have authority from Mr Kim [D3] and Mr Makhat [D2] to conclude the London Agreement on their behalf pursuant to Art 163 of the Kazakhstan Civil Code, then Mr Kim and Mr Makhat subsequently approved or ratified the London Agreement so that, pursuant to Art 165 of the Kazakhstan Civil Code, it was valid as against them and they were bound by it from the time it was made on 10 June 2017. Mr Alimov [the Claimant] relies on the following matters as constituting such approval or ratification: i) the request made, in or around December 2017 or January 2018, of Mr Alimov by Mr Makhat and Mr Kim to transfer Stal and the ABK Buildings, as pleaded in paragraph 39 below; ii) the payments of Bitcoin made to Mr Alimov by Mr Kim on behalf of himself, Mr Makhat and Mr Mirakhmedov, as pleaded in paragraph 43 below; iii) the message from Mr Kim dated 16 February 2018 as pleaded in paragraph 50 below.”

Mr Samek emphasised that the particulars given in the proposed new paragraph did not seek to introduce new matters, because they cross-referred to points that were already pleaded elsewhere in the Particulars of Claim, that he was not seeking to introduce new parties or a new cause of action, that the matters in the proposed amendment indicated there was a real prospect of success in showing that D2 and D3 were approving the alleged oral agreement, and that (he said) the defendants would suffer no prejudice from the amendment.

In response, Mr Kitchener (who appeared for D2 with Mr Caplan):

Mr Cumming (appearing for D1/D3) also emphasised that the lateness of the application had deprived the Defendants of the opportunity properly to consider the points that were sought to be advanced by the amendment and that, whilst it could be rejected, it ought not therefore to be permitted at this hearing.

Having considered the parties’ respective positions, including all of the points set out above, I take the view that I should permit the proposed amendment and allow the Claimant to run a case on ratification under Article 165 for the purposes of these applications. The key reasons for this are:

In summary, therefore, the amendment has a real prospect of success, and its lateness is not a reason why the Claimant should not be permitted to make it. As a result, I would permit the amendment for the purpose of this application.

That leads to the question whether the Claimant has a good arguable case in relation to his ratification argument. Similarly to consideration of this issue in relation to the question whether the alleged oral agreement was made at all, I cannot reliably arrive at a conclusion as to who has the better argument on this issue given the factual disputes that permeate here. Of the three particulars given in the draft amendment said to amount to approval or ratification: the first would require a view to be taken on whether the buildings were transferred pursuant to the alleged oral agreement or not; the second a view to be taken on whether the payments of bitcoin made to the claimant were transferred pursuant to the alleged oral agreement or rather pursuant to the alleged commission arrangement; the third a view to be taken on the correct interpretation of the Telegram messages from D3 to the Claimant, including what the reference to “we are becoming shareholders” meant. Those are all disputes which are central to the factual merits of the case, and are all intertwined with each other and with the issue whether the alleged oral agreement was made at all. As I have already set out, those are not issues on which I can reliably arrive at a view as to who has the better argument at this stage.

As a result, the question is whether (under limb (iii) of Goldman Sachs) there is a plausible (albeit contested) evidential basis for the ratification case. In my view, there is such a basis. That follows from what I have said above, as well as my conclusions in relation to the same question arising in the context whether the alleged oral agreement was made. The basis for the case on ratification exists in Kazakhstan law under Article 165. There is a plausible basis to say that the particulars given supporting approval or ratification would fulfil the requirements of Article 165, and there is a plausible evidential basis for the factual allegations supporting those particulars. The Claimant therefore has a good arguable case against D2 and D3 in relation to his contract claims.

As a result, the Claimant’s claims in contract against D2 and D3 demonstrate a serious issue to be tried and are sufficient for the purposes of gateway (6).

There are two contexts in this case in which the issue of appropriate forum arises. First, on the application by D1 for a stay of the proceedings against him on the ground of forum non conveniens, and second on the application to set aside the Dias J Order for service out of the jurisdiction, in which the Claimant must demonstrate that England is the proper place to bring the claims. In the former case, the burden is on the defendant to show that there is another available forum which is clearly and distinctly more appropriate. In the latter case, the burden is on the Claimant to show that England is clearly the appropriate forum.

As is well known, Lord Goff in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 identified (in relation to a stay application) the two stages of the test at 476C – 478E:

“(a)

The basic principle is that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice.

(b)

… in general the burden of proof rests on the defendant to persuade the court to exercise its discretion to grant a stay. … [i]f the court is satisfied that there is another available forum which is prima facie the appropriate forum for the trial of the action, the burden will then shift to the plaintiff to show that there are special circumstances by reason of which just requires that the trial should nevertheless take place in this country (see (f) below).

(c)

… the burden resting on the defendant is not just to show that England is not the natural or appropriate forum for the trial, but to establish that there is another available forum which is clearly or distinctly more appropriate than the English forum. …

(d)

Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors … indicating that justice can be done in the other forum at “substantially less inconvenience or expense”… [I]t may be more desirable … to adopt the expression … the “natural forum” as being “that with which the action had the most real and substantial connection”. So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience and expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction … and the places where the parties respectively reside or carry on business.

(e)

If the court concludes at that stage that there is no other available forum which is clearly more appropriate for the trial of the action, it will ordinarily refuse a stay;

(f)

If however the court concludes at that stage that there is some other available forum which prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless there are circumstances by reason of which justice requires that a stay should nevertheless not be granted. In this inquiry, the court will consider all the circumstances of the case, including circumstances which go beyond those taken into account when considering connecting factors with other jurisdictions. One such factor can be the fact, if established objectively by cogent evidence, that the plaintiff will not obtain justice in the foreign jurisdiction; … on this inquiry, the burden of proof shifts to the plaintiff.”

The first stage requires the defendant to establish that there is another available forum which is clearly or distinctly more appropriate than England. Here, therefore, the burden is on D1 to establish that in respect of Kazakhstan. If D1 is able to establish that, then the burden shifts to the Claimant, under what is sometimes referred to as stage 2, to show that there are circumstances by reason of which justice requires a stay should not be granted.

For the purposes of the service out applications (which fall to be addressed in relation to D2, D3 and D4 in any event, and which would fall to be addressed in relation to D1 if (contrary to the above) I had concluded D1 could not be, or had not properly been, served within the jurisdiction) the burden is on the Claimant under both limbs (including to show that England is the proper place to bring the claim: CPR 6.37(3)).

In both types of service case, the question for the Court ultimately is to identify “the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice”: Spiliada (above) at 480G; Vedanta (above) at paragraphs 66, 68.

In relation to stage 2, where the contention made by the Claimant (as it is in this case) is that there is a real risk that he would not obtain justice in the foreign forum (here, Kazakhstan), it is necessary to distinguish between (a) mere differences in the procedural systems of the two jurisdictions, which will not suffice, and (b) a real risk of substantial injustice to the claimant, which will overcome the prima facie case for a stay (see Dicey, Morris & Collins at paragraph 12-041).

It is not necessary for the Claimant to demonstrate on the balance of probabilities that justice will not be done in the foreign jurisdiction, it is sufficient to show that there is a real risk that justice will not be obtained there: AK Investment at paragraphs 94-95 (though, as Lord Collins there noted, if it can be shown that justice “will not” be obtained that will weigh more heavily in the exercise of the discretion in the light of all other circumstances).

In Vedanta, Lord Briggs said at paragraph 88:

“If there is a real risk of the denial of substantial justice in a particular jurisdiction, then it seems to me obvious that it is unlikely to be a forum in which the case can be tried most suitably for the interests of the parties and the ends of justice.”

However, caution must be exercised before deciding there is a real risk that justice would not be done in the foreign forum, and cogent evidence is required. See Lord Collins in AK Investment at paragraph 97:

“Comity requires that the court be extremely cautious before deciding that there is a risk that justice will not be done in the foreign country by the foreign court, and that is why cogent evidence is required.”

A claimant making this sort of point must assert it “candidly and support his allegations with positive and cogent evidence”: The Abidin Daver [1984] AC 398 at 411C-D.

In Dynasty Co for Oil and Gas Trading Ltd v Kurdistan Regional Government of Iraq [2022] QB 246, Butcher J considered what was required (see paragraphs 173-177), including:

“175.

I was also referred by both sides to, and found helpful, the commentary of Professor Briggs in Civil Jurisdiction and Judgments. At para 4.30, in relation to the second stage of the Spiliada test, he says:

“What is required of the claimant is that he establish, by clear and cogent evidence, the grounds on which he says it would be unjust to leave him to go to a foreign court. An English court will not proceed on the basis of whisper or suggestion, and it will not be at all receptive to a general disparaging of a foreign court’s procedure. Despite the occasional surprising decision, it is only rarely that the strong presumption of a stay will be rebutted on these grounds.”

It is not sufficient for the Claimant simply to say that the foreign system is different and may provide a different outcome. Lord Goff in Spiliada (at 482B-D) made it clear, in considering how to treat “a legitimate personal or juridical advantage”, that “the mere fact that the plaintiff has such an advantage in proceedings in England cannot be decisive.” And:

“…an advantage to the plaintiff will ordinarily give rise to a comparable disadvantage to the defendant; and simply to give the plaintiff his advantage at the expense of the defendant is not consistent with the objective approach…”.

Lord Goff underlined this in Connelly v RTZ Corporation plc [1998] AC 854 at 872G-873A:

“…if a clearly more appropriate forum overseas has been identified, generally speaking the plaintiff will have to take that forum as he finds it, even if it is in certain respects less advantageous to him than the English forum. He may, for example, have to accept lower damages, or do without the more generous English system of discovery. The same must apply to the system of court procedure, including the rules of evidence, applicable in the foreign forum. This may display many features which distinguish it from ours, and which English lawyers might think render it less advantageous to the plaintiff. Such a result may in particular be true of those jurisdictions, of which there are many in the world, which are smaller than our own, and are in consequence lacking in financial resources compared with our own. But that is not of itself enough to refuse a stay. Only if the plaintiff can establish that substantial justice cannot be done in the appropriate forum, will the court refuse to grant a stay…”.

Thus, in Scott v Walker [2024] EWHC 636 (Ch), Adam Johnson J at paragraph 56 said:

“It is not enough to say that the foreign system of law is different, and may provide a different outcome; or that the applicable procedure will be different, and may provide (for example) for more limited or more expansive rules on discovery, as the case may be.”

There is therefore no necessary equivalence between risk of losing in the foreign jurisdiction and risk of injustice. As noted in Dicey, Morris & Collins at paragraph 12-043:

“…if the claimant argues that he will win if permitted to sue in England, but will lose if compelled to sue in a foreign court, there is no justification for a presumption that a claimant is entitled to win or that a defendant must be found to be liable.”

Similarly, Briggs, Civil Jurisdiction and Judgments (at paragraph 22-23):

“…a claimant who can, in essence, say no more than that he may win in England but will lose if forced to go overseas has not done enough to satisfy the court that England is the proper place to bring the claim.”

The claim is brought against D1-D3 jointly, and it would be impractical in the circumstances of this case to assess the factors relevant to this exercise separately in respect of D1, on the hand, and D2/D3, on the other, simply because the appropriate forum issue arises in relation to the claims against them in different contexts, and with a different burden of proof. Indeed, no party suggested that such an approach should be adopted. In a case such as this, the court must look holistically at the issue of appropriate forum for both the stay application and the service out application, whilst keeping well in mind the different burdens of proof that apply.

Here, the matters connecting this dispute with Kazakhstan are numerous and significant:

The Claimant relied on the fact that the alleged oral agreement was made in England (which, as explained above, is a relatively fragile connection with this jurisdiction). He also relied upon the fact that none of the parties is now resident in Kazakhstan and that D1 has given up his Kazakhstani citizenship. However, in terms of their role in the proceedings as witnesses, I have dealt with that above and explained why it does not constitute a factor in either direction. In terms of their roles as litigants, it is clear that all the individual parties are very familiar with Kazakhstan and retain links to Kazakhstan (and the Claimant has expressed his intention to return there), and no-one suggested that instructing Kazakh lawyers from abroad to conduct proceedings would cause any difficulty. The fact that D1 has been served as of right in England is, as I have noted above, a factor connecting the dispute to England, and must not be overlooked. It is also a connecting factor to England that D1 has given up his Kazakhstani citizenship, and now has a British passport. However, in the circumstances of this case, these are not factors, even combined with the fact that the Claimant currently lives in England, of sufficient weight to meet the strength of the connections of this dispute with Kazakhstan.

The Claimant also refers to the fact that the assets which form the subject of his claims are outside Kazakhstan, namely shares in D4 (a Cypriot company) and bitcoin received by D1-D3, which (as Mr Samek’s skeleton argument put it) are “in the ‘cloud’ and in bitcoin wallets, accessible from wherever D1-D3 are located”. It is right that those assets are not located in Kazakhstan. However, this does not give a connection of the dispute to England. Even if the bitcoin are accessible by, for example, D1 when he is in England (where he is sometimes), so are they accessible by the Defendants when they are in Kazakhstan (where they all have business interests, including the business that is generating that bitcoin). This is a neutral factor.

The Claimant also refers to the enforceability of a judgment (which I accept may in principle be a relevant factor), stating that an English judgment could easily be enforced against D4’s shares in Cyprus, against D1-D3 in Dubai (or England, for D1) and/or against the relevant bitcoin exchange or wallets. Mr Samek’s skeleton argument asserted that was likely to be easier than enforcing a Kazakhstan court judgment, but there was no evidence about that at all. The Claimant had not sought to deploy any evidence about the ease of enforcing a Kazakhstan judgment anywhere.

Lastly, the Claimant says D1 has a beneficial interest in two English properties (although that was not clear from the evidence, as the properties were in the name of i) his wife and ii) a Bahamas company) against which a judgment could be enforced, whereas there was no evidence of particular assets in Kazakhstan. However, it is not clear whether or not D1 has such a beneficial interest in property in England (as I have noted), or if he does what its value might be (it seems very unlikely to be anything substantial compared to the sort of amounts claimed in these proceedings). Any enforcement is likely to be elsewhere and against other assets.

Even taking into account all of the Claimant’s points about connections with England, those connections are relatively slight compared to the very substantial connections with Kazakhstan. In summary, this case has very little connection (and none of any substantial relevance) with England, whereas it has very substantial connection with Kazakhstan.

Moreover, it is clear that the courts of Kazakhstan are available to the Claimant to bring his claims there. There has been no suggestion that the Defendants could not be sued there (and D1-D3 confirmed they are prepared to submit to the jurisdiction of the courts in Kazakhstan). It is also clear that the Claimant is able to conduct proceedings before the courts of Kazakhstan, given that he has done so in the recent past. In his third statement, Mr Moruzzi gave examples of such proceedings, including an appeal brought by KKS Karagandy (against Prima) in 2019 in a dispute about the ABK Buildings.

The Claimant contended in his evidence, and in his counsels’ skeleton argument, that Kazakhstan was not a forum that was realistically available to him in this particular case because of a rule of Kazakhstan law contained in Article 153(1) of the Code to the effect that, in the case of an alleged oral contract, the parties cannot prove the existence of the contract by “witness testimony”. The suggestion was that, as a result of that rule, the Claimant would not be able to prove his claim in Kazakhstan for evidential reasons (rather than because of the merits of the claim), with the result that he said Kazakhstan was not an available forum. In his oral submissions, however, Mr Samek dealt with that point not as one going to the availability of Kazakhstan as a forum, but as one that created a real risk of substantial injustice to the Claimant if he had to pursue his claims there (under stage 2 of the Spiliada) test. That is clearly the right place to deal with that argument, which does not go to “availability” at all (see e.g. the discussion in Briggs, Civil Jurisdiction and Judgments at paragraph 22.09). I will, therefore, deal with that point below in that context.

For these reasons, I find that Kazakhstan is an available forum and is clearly and distinctly the most appropriate forum to hear these claims. It is plainly a more appropriate forum than England.

The Claimant contends that, notwithstanding that Kazakhstan is the more appropriate forum, there is a real risk that substantial justice would not be done in Kazakhstan such that the claims in England should not be stayed on the ground of forum non conveniens.

A number of points had been relied upon by the Claimant in the evidence and the run-up to the hearing in this respect, but in his oral submissions Mr Samek confirmed that there were only two points that were now relied upon. First, an argument based upon article 153 of the Code; and second, an argument based on threats that the Claimant alleges have been made to him and to some of his potential witnesses.

Under Article 151 of the Code, Kazakhstan law generally recognises oral agreements (unless the law explicitly requires a written form of agreement). Article 152 requires parties to conclude a written agreement where the agreement concerns business activities (Article 152.1(1)) or where the sums of the agreement are above a certain threshold (Article 152.1(2)). It was common ground that the agreement alleged by the Claimant in this case would fall within one or both of those descriptions and therefore would require written form under Article 152.

However, as was also common ground, the failure to enter into a written agreement does not render an agreement invalid under Kazakhstan law. Article 153(1) of the Code states (in the translation supplied by the Claimant’s expert, Mr Konysbayev):

“…failure to comply with a simply written form of a transaction deprives the parties of the right, in the event of a dispute, to confirm the conclusion, content or execution by witness statements. The parties, however, have the right to confirm the conclusion, content or execution by written or other evidence other than witness statements.”

Article 153(2) of the Code then provides that an agreement will only be void for the failure to use a written agreement in cases expressly specified by the law or the agreement of the parties.

The Claimant contends that the effect of Articles 152(1) and 153 is that there is (at least) a real risk that witness testimony from himself, and from other witnesses supporting his case of an oral agreement, would not be accepted by the Kazakhstan courts with the result (he says) that he would not be able to prove his claim in the Kazakhstan courts. He compares the position that would be reached if the case were to be tried in England where, he contends, this rule of Kazakhstan law would not be applied because it is a rule of Kazakhstan procedure, rather than one of substantive law, such that his evidence (and that of supporting witnesses) would be admissible to prove his oral agreement in an English court (notwithstanding that the agreement would be governed by the law of Kazakhstan). It would therefore be an injustice for him to have to pursue his claim in Kazakhstan because, he says, he would lose as a result of this rule.

In fact, the position is more nuanced than that contended for by the Claimant. The following is the position as appears from the evidence before the court.

First, the effect of Article 153(1) of the Code is not as exclusionary in terms of evidence as the Claimant suggested. It was clear from the expert evidence on Kazakhstan law that:

It is right to say that the experts on Kazakhstan law were of the view (expressed in various ways) that a court in Kazakhstan is likely to be sceptical of uncorroborated witness testimony, or of an uncorroborated statement by a party in his primary case document, as to an oral agreement. However, it might also well be the case in this jurisdiction that the uncorroborated evidence of a self-interested party as to the existence of a complicated oral agreement in a commercial context would be treated with some caution by a judge and may well be afforded relatively little weight, though much would no doubt depend on the circumstances and the available documentary record. This is a question of the weight that a court might attribute to admissible evidence, and it is difficult to see how that could amount to a “substantial injustice” in this context.

It is right that the evidence of a third party as to the making of the agreement would be excluded by the rule, but in the present case one might in any event question the real value of such evidence where the only direct witnesses to the alleged oral agreement were the Claimant and D1, such that the evidence of others as to what was said or agreed is hearsay (such as what the Claimant is alleged to have told his wife and son about the making of the agreement).

Second, the Claimant would also be able, in Kazakhstan, to adduce documentary evidence in support of his alleged oral agreement. This was not controversial: the Claimant confirmed in its skeleton argument that the parties in Kazakhstan “have the right to confirm the conclusion, content or execution by written or other evidence other than witness testimony (witness statements).” The Claimant adduced a number of documents for the purpose of these applications which he contended supported his alleged oral agreement (for example, the spreadsheet and Telegram messages referred to at paragraph 97 above) and he could equally well rely upon those in Kazakhstan.

As a result, much of the evidential picture in the courts in Kazakhstan would be similar to that before a court hearing the dispute in England.

The Claimant’s expert gave examples in his report of previous Kazakh claims where the claimant had alleged an oral contract but the court refused to admit witness evidence to prove the contract and the claim was dismissed for lack of evidence. The Claimant also acknowledged that there were some Kazakh cases where the court had found that an oral contract had been created, based on documents, though suggested that they were generally simple cases with a document that provided clear proof. However, these cases dealt with their own particular facts and do not advance the argument as a matter of principle.

In any event, even if the application of the rule in question were to lead to a different result (or the real risk of a different result) in Kazakhstan to that which might be reached in England, that is not sufficient to constitute a ‘substantial injustice’ for this purpose.

As a result, there would be no real risk of substantial injustice on this ground in the Claimant having to bring his claim in the courts of Kazakhstan.

As noted above, at previous stages (though not at the hearing itself) the Claimant had suggested that the rule in Article 153(1) had the result that the Kazakh Court was not available to him to pursue his claim (relevant to stage 1 of the Spiliada test). As I say, that point was not pursued in oral submissions. For the avoidance of any doubt, I reject any suggestion that is maintained that this point renders the courts of Kazakhstan unavailable to the Claimant to pursue his claim. It plainly does not do so. He is able to bring his claim in the Kazakhstan courts. His complaint is not that the court is unavailable to him, it is that he apprehends he will, or is more likely to, lose there.

As Mr Samek had said in his skeleton argument, the Claimant “does not criticise the Kazakh Courts for having different procedures (or invite this Court to do so); he contends only that this vital procedural difference in this particular case means that a trial in the Kazakh Court is realistically not available.” That demonstrated the point that what the Claimant was trying to dress up as a point about the availability of the foreign court was nothing of the sort. It was a complaint that the rule in question would or may cause him to lose. But that was plainly not a question of lack of availability of the court.

The second issue upon which reliance was placed at the hearing which was said to go to the question of whether there was a real risk of substantial injustice in Kazakhstan was the allegation made by the Claimant that certain of his witnesses and potential witnesses had been threatened not to give evidence for the Claimant. The matters relied upon by the Claimant were as follows.

First, the Claimant relied upon the evidence of Mr Arman Naurzaliev:

Second, the Claimant said that two other potential witnesses – namely Mr Jon Abbas Zaidi and Ms Elena Kaplunovskaya – had been threatened not to give evidence to support the Claimant. They were both involved in preparing technical reports on power stations that the Claimant said may be suitable to offer to investors for a particular project (which the Claimant says was (as he refers to it) the GM JV). Weight was not placed on what it was said they could have given evidence about (indeed, neither of these potential witnesses appear to have evidence which is likely to be central to the key issues in this dispute) but merely the allegation that they had been threatened.

Third, the Claimant said he had received anonymous threats by email (“there are some people who are trying to hurt you … and they have already obtained enough information that can lead to bury you, and get you in a long dark road…”) from someone who offered to “re-obtain the information and help you to get you the people who is responsible for this”. However, there was nothing in the emails in question suggesting any connection to this dispute, or to any of the Defendants, or indeed to anything specific that the Claimant was involved in.

The Defendants entirely denied having anything to do with any “threats” that had been made. Moreover, both Mr Zaidi and Ms Kaplunovskaya gave witness statements on behalf of D2 for the applications saying they had not been threatened at all.

Mr Zaidi said that the Claimant had approached him to provide evidence in around March 2024, but that Mr Zaidi had felt that what he was being asked to provide evidence about was outside his own knowledge or understanding. Mr Zaidi also said that the Claimant had said he would compensate him financially, which Mr Zaidi took to be the offer of some kind of bribe. Mr Zaidi said these were among the reasons he decided not to assist the Claimant. He said the allegations that he was intimidated by or on behalf of any of the Defendants not to provide evidence for the Claimant was entirely untrue, that he had not received any threats or been intimidated by anyone in connection with these proceedings or otherwise and confirmed he had not been pressurised in any way to provide his witness statement.

As to Ms Kaplunovskaya:

The evidence, therefore, presents (at best) something of an unclear picture. Whilst there is some evidence of threats having been made, some of it is confused, the evidence about who made any threats is generally unclear, two of those said to have been threatened have denied, in signed witness statements, that they were threatened, and the Defendants deny having been involved in anything at all relating to threats or intimidation. In relation to the witness statements from Mr Zaidi and Ms Kaplunovskaya, Mr Samek sought to suggest an inference ought to be drawn that those statements had been produced as a result of further threats made against them, but that seems to me to involve something of a circular argument. There is, therefore, relatively little that can be drawn from the evidence about this. Taking the three matters relied upon by the Claimant:

First, the emails received by the Claimant contain no link to anything related to this dispute. No real weight can be placed on them in forming any view about alleged threats to do with this litigation.

Second, the allegations in relation to Mr Zaidi and Ms Kaplunovskaya also are not directly linked by any evidence to the Defendants, as the Claimant recognised in his own evidence. As to the fact of any threats being made to these two individuals:

Third, the allegations made by Mr Naurzaliev were, in contrast, targeted at D2 as the source of the threats (albeit his identification as being behind the threats was not straightforward, it being alleged this message had come through what Mr Naurzaliev referred to as the “bandit committee”). However, there is only the account (unsupported by any other evidence) of Mr Naurzaliev to go on (he being someone obviously close to the Claimant, describing him in his statement as effectively part of his family). D2 entirely denies the allegations. It is also worth noting that, if and insofar as such threats have been made, they did not deter Mr Naurzaliev from providing his statement, and there is no evidence of any repercussion to him in his having done so.

Taking all this into account, it does not appear to me that there is any clear evidence that I can confidently rely upon on an application such as this to say that there is a real risk that the Claimant or his potential witnesses will be subject to threats in connection with this dispute were it to take place in Kazakhstan.

But, in any event, even on the Claimant’s evidence as to the threats alleged to have been made, that does not provide a reason to conclude that there is a real risk of substantial injustice if the dispute was heard in Kazakhstan:

I should also add that there was some evidence in a witness statement from the Claimant’s brother, Mr Aydyn Alimov, who said criminal proceedings had been brought against him in Kazakhstan for money laundering and embezzlement during his time as chairman of a company called “Karagandaliquidshakht”. He said that an (unidentified) contact of his at the anti-corruption agency had told him the case was being brought against him as a “form of pressure” against the Claimant, who he said is also being investigated in Kazakhstan. There were no documents referred to or exhibited in relation to the criminal proceedings or otherwise in relation to these allegations, and I obviously cannot take any sort of view whether they might be well founded or not. Moreover, there was nothing cogent to suggest that the criminal proceedings against Mr Aydyn Alimov were in any way connected to the Defendants (simply a bare assertion by Mr Aydyn Alimov that he believes they are linked). As I have said above, there is no cogent evidence of influence over prosecuting authorities in Kazakhstan. It was notable that this particular allegation was not referred to at all in the Claimant’s skeleton argument, and only barely in passing by Mr Samek orally. It does not come close to suggesting any case that the Claimant would not get substantial justice in Kazakhstan.

The Claimant’s skeleton argument also relied upon the decision of the Jersey Royal Court in MB Services v United Company Rusal plc [2020] JRC 034 as an example of where a real risk of substantial injustice had been found as a result of evidence of threats and intimidation. However, the circumstances there were rather different. That case involved a vehicle in which Mr Oleg Deripaska had a substantial interest and it was said that Mr Deripaska was someone who, because of his wealth and power and his closeness to the Russian State, had influence and who would “not hesitate” to seek to influence a Russian court if he thought it to be in his interests (see e.g. paragraph 127). There was a good deal of expert evidence about the Russian courts and their reliability, and the experts there agreed that the Russian courts were not immune from external or political influence. Nothing of that sort is alleged here. In the Rusal case, the allegations of threats were far more detailed and cogent than those made in this case, including some examples to which there was no effective challenge (see paragraphs 136 and 139 of the judgment). The conclusions reached in that case, on the basis of the evidence before that court, do not translate across to this case and the evidence here. Moreover, there has been no cogent evidence in this case that any of the defendants could exert influence over the courts in Kazakhstan or that the courts in Kazakhstan would be susceptible to any such influence.

Any threats to or intimidation of any witness or potential witness is of course entirely to be deplored. However, in summary, there is simply no sufficient cogent evidence of any such threat or intimidation to make the determination here that the Claimant seeks. Moreover, the alleged threats, even if they were made out, do not relate to the question of forum – they do not suggest that the Claimant would be any less likely to obtain substantial justice in Kazakhstan as he would be in England.

The Claimant has not made out his case that he could not get substantial justice in Kazakhstan. He has not demonstrated a real risk of substantial injustice in Kazakhstan.

I should also record that, in the evidence and in the Claimant’s skeleton argument, there were included other matters said to relate to the question of whether there was a real risk that substantial justice would not be done in Kazakhstan. The Defendants set out their position in response to those points in their evidence and submissions. As I have recorded above, however, Mr Samek made it clear in his oral submissions that the only two points that were relied upon by the Claimant were those set out and dealt with above. I will not, therefore, add to the length of this judgment by also dealing with those other points. I will, however, have to explain one of them in the context of the allegations relating to failure to provide full and frank disclosure on the without notice application.

In relation to the application for a stay on the grounds of forum non conveniens, Kazakhstan is an available forum which is clearly and distinctly more appropriate than England for the trial of the action. D1 has clearly discharged the burden upon him under stage 1 of the Spiliada analysis. Moreover, there are no circumstances by reason of which justice requires a stay of the proceedings in England should not be granted.

To put it another way, if one steps back from the different stages of the test, and recalls that the overall inquiry is one where the court seeks to identify what the interests of justice requires (see Dicey, Morris & Collins paragraph 12-032 as cited by the Court of Appeal in Município de Mariana v BHP Group (UK) Ltd [2022] 1 WLR 4691 at 4788 (paragraph 342)), the answer is that the interests of justice require this case being heard in Kazakhstan, and not in England.

The position is a fortiori in relation to the question whether, for the purpose of the application to serve out of the jurisdiction (where the burden is on the Claimant), England is the proper place to bring the claim. It clearly is not.

As a result, the applications of D1-D3 in this respect succeed. The claim against D1 is to be stayed, and the order of Dias J for service out of the jurisdiction against D1-D3 is to be set aside.

Permission was granted to serve D4 out of the jurisdiction (in Cyprus) by the Dias J Order on the basis that it is a “necessary or proper party” to the claim against the other Defendants. It was accepted by the Claimant that, if the challenges to the jurisdiction made by each of the other Defendants succeeded, then the claim against D4 would suffer the same fate. Given the conclusions I have reached above, therefore, permission to serve D4 out of the jurisdiction should be set aside. The further arguments raised by D4 as to why permission to serve out against it should be set aside therefore are not determinative. However, I set out my conclusions on them below.

The additional grounds on which D4 applied to set aside the Dias J Order against it were that (a) there was no serious issue to be tried against D4, and (b) D4 was not a necessary or proper party to the claim against the other defendants. The gist of D4’s position in both respects is that there is no claim brought against it and no relief sought from it.

The following elements of the background are relevant to this issue:

In my view there is no serious issue to be tried against D4:

The other suggestions made by the Claimant in its evidence do not assist it:

As a result, the Claimant has identified no serious issue to be tried against D4.

In the circumstances, it is not necessary to go on to consider whether D4 is a necessary or proper party to the claim against D1-D3, and indeed given the lack of any pleaded claim it is difficult to do so. In any event, the suggestion that it might prove useful to the Claimant in the future for D4 to be party, whether to be bound to any findings made in this litigation (although no relief, including no declaratory relief, is sought against it) or potentially to seek information or disclosure from it in the future, (Footnote: ¹³) does not seem to me to be sufficient in the circumstances of this case (including where it does not even seek any declaratory relief against D4) to make it a necessary or proper party (in particular in light of the citation set out above from AK Investment and The Goldean Mariner).

The Claimant sought, and obtained on the without notice application before Dias J, permission to serve D1, D2 and D3 in Dubai via an alternative means (the application in relation to D1 being in the alternative to the Claimant’s primary case of service within the jurisdiction). Those means included service by post in Dubai (D2 and D3), by LinkedIn (D1 and D3) and by WhatsApp and email (D1, D2 and D3). The Defendants seek to set aside the grant of that permission.

There is in place a bilateral treaty between the UK and the UAE in relation to judicial assistance in civil and commercial matters, dated 7 December 2006 (“the UK/UAE Treaty”).

Among the relevant provisions of the UK/UAE Treaty are the following:

Expert evidence from UAE lawyers was served in relation to the rules of service in Dubai and the practicalities of service under the UK/UAE Treaty. The key matter that remained in issue by the time of the hearing was the length of time that service might take under the UK/UAE Treaty. The evidence on that point was as follows:

The matters relied upon in support of the application for alternative service in the without notice application before Dias J were:

Those were the only points relied upon. There has, for example, been no suggestion here by the Claimant of any evasion of service or anticipated evasion of service on the part of any of the Defendants, or any other reason why service should not be effected under the UK/UAE Treaty.

The Defendants contended that these matters did not constitute a good reason to permit service by an alternative method.

CPR 6.15(1) states:

“(1)

Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.”

Although there is no express provision in Section IV of Part 6 permitting service of a claim form out of the jurisdiction by an alternative method, it is clear that the court has such jurisdiction, derived from the court’s power to give directions as to service under rule 6.37(5)(b)(i): Cecil v Bayat [2011] EWCA Civ 135; [2011] 1 WLR 3086 and Abela v Baadarani [2013] UKSC 44; [2013] 1 WLR 2043 (at paragraph 20). This authorises the court to make an order for alternative service pursuant to rule 6.15(1).

In a case where the country where service is to take place is a party to the Hague Service Convention, and has stated its objection under Article 10 to service otherwise than through its designated authority, it has been held that permission under Rule 6.15 will only be granted in “exceptional circumstances”: see M v N [2021] EWHC 360 (Comm) Foxton J at paragraph 8(iv) and the cases there cited. It may well be that similar reasoning would apply in a case where that country is party to a bilateral service treaty with the UK the terms of which make its provisions the exclusive manner in which service can be effected.

In relation to what constitutes “exceptional” circumstances, in M v N Foxton J said (at paragraph 8(v)):

“There has been some debate as to what the requirement of “exceptional” or “special circumstances” means, but it has generally been interpreted as requiring some factor sufficient to constitute good reason, notwithstanding the significance which is to be attached to the Article 10 HSC reservation…”.

Beyond those types of situations, there has been some debate in the authorities whether what is required to constitute a “good reason” under rule 6.15(1) to justify an order for alternative service in a service treaty case is “exceptional circumstances”. The parties drew my attention to a number of decisions dealing with the point in the context of the UK/UAE Treaty. D1 relied upon The Libyan Investment Authority v JP Morgan Markets Ltd [2019] EWHC 1452 (Comm), where Bryan J preferred the view that exceptional circumstances are required in a bilateral treaty case, although it did not make any difference on the case before him (see paragraph 164), and it is not clear to what extent the question whether a treaty purported to provide an exclusive means of service bore upon the analysis. Integral Petroleum v Petrogat FZA [2021] EWHC 1365 (Comm) was also a case under the UK/UAE Treaty where Calver J adopted the test of “special or exceptional circumstances”, although (given that he found such circumstances existed in the case before him, which was one of service of a worldwide freezing order) the order would have been made under either test. In Cesfin Ventures LLC v Al Ghaith Al Qubaisi [2021] EWHC 3311 (Ch), Master Kaye concluded, having examined the provisions of the UK/UAE Treaty, that it did not make service through diplomatic channels exclusive such that the court did not need to find exceptional circumstances (it is clear that he had the decision Integral Petroleum in mind, because he referred to it at paragraphs 26 and 28, but he did not refer to The Libyan Investment Authority decision). In Caterpillar Financial Services (Dubai) Ltd v National Gulf Construction LLC [2022] EWHC 914 (Comm) Julia Dias QC (sitting as a deputy High Court Judge), as she then was, adopted that decision (at paragraph 18).

The Defendants here said it was not necessary to resolve the question whether “exceptional circumstances” are required on the facts of this case. D2’s skeleton argument suggested: “What is required is a factor sufficient to override the significance which is to be attached to the existence of the treaty.” I agree with that suggestion, and it resonates with what Foxton J said at paragraph 8(v) in M v N (above) about what constitutes “exceptional circumstances” where they are required to be shown.

There is a consistent theme running through the authorities that the fact there might be delay in the service of process if an alternative method of service is not permitted is normally not by itself sufficient to constitute a good reason to permit service by an alternative method. For example:

In Caterpillar (above) the reason relied upon by the claimant seeking the order for alternative service was that service through the diplomatic route was taking “over eight months” (paragraph 19). The Judge found that not to be an inordinately long period, and that the claimant was unable to demonstrate any particular urgency, and in addition had not been proceeding with any great haste. The Judge said there was no good reason for alternative service.

Of the grounds advanced by the Claimant why an order for alternative service is justified here, the first two grounds were delay, rendered more “acute”, it was said, because D1 had already been served within the jurisdiction.

As I have noted, the Claimant contended service under the UK/UAE Treaty would take 12-18 months (or longer, though there was no real support for “longer”). The main problem with this submission is that it is clear from the authorities, as set out above, that delay itself is not normally a sufficient reason for alternative service to be granted where there is a bilateral treaty.

Mr Samek pointed to the fact that the 12-18 months estimated by the Claimant’s expert was longer than the periods of time anticipated for service in the UAE in the Caterpillar case (“over eight months”), where the anticipated delay was held not to be a sufficient basis for an order for alternative service. However, that itself does not really assist, given that the order sought in that case was not granted. I recognise that 12-18 months is likely to be seen as a lengthy period of delay, although I also note that the 12-18 months referred to by Mr El Daye (which is not disputed by Mr Davidson) is not consistent with Mr Alobeidli’s view, which was that service of UK process in Dubai generally took about 6 months. As noted above, Mr Alobeidli placed emphasis on the fact that service of English process in Dubai was quicker than was typical for the UAE, which is not a point on which Mr El Daye responded with any subsequent report. I am not in a position to decide which of them is right, and both experts in any event are giving evidence from their own experience (which may differ), but that may suggest that there is a greater prospect of speedier service under the UK/UAE Treaty than Mr El Daye suggested.

This is not a case where there has been any particular urgency or prejudice identified by the Claimant. The only point along those lines advanced by the Claimant was the submission that the delay was particularly acute because D1 had been served within the jurisdiction so that the progress of the claim against him would be delayed waiting for service on the other Defendants in the UAE. However, whilst it is right that moving the proceedings against D1 forward would likely have to await service on D2 and D3, in this case that is simply a part of the delay. The Claimant has not advanced any reason why there is any urgency to the proceedings (or why the claim against D1 needs to be concluded within any particular timeframe). This is not a case where any steps in the proceedings (beyond service of process) have already been taken, and there is no existing timetable that is going to be put at risk.

In any event, any consideration of the lack of progress in the proceedings must take into account the Claimant’s own lack of urgency in progressing matters. In particular: (i) despite the responses to the letter before action being sent on 23 September 2022, the claim form was not issued until 12 May 2023; (ii) the Particulars of Claim were only signed on 11 September 2023, and service on D1 within the jurisdiction only attempted on 11 September 2023, on the eve of the expiry of the claim form for such service; (iii) the permission to serve out and alternative service applications were only made on 13 October 2023, over a month later, and in circumstances where the Claimant had then to ask for the applications to be decided urgently (as recorded at paragraph 5 of Iatuha 1) before the claim form expired for service out of the jurisdiction. If, for example, the Claimant had started the process of seeking to serve under the UK/UAE Treaty once he had issued the claim form, it would have been well underway by the time he eventually sought permission for alternative service (on Mr Alobeidli’s evidence, service under the Treaty might have almost been complete by that time). There was no explanation tendered why the Claimant had waited 5 months between issuing the claim form and making the application for service out and alternative service.

There may be some cases where a particularly long period of anticipated delay in the service of process may itself amount to a good reason for alternative service, even where there is a bilateral treaty in place – the authorities cited above state that delay itself will not “normally” or “in general” constitute a good reason, leaving room for such cases. However, given the points I have referred to above, including the Claimant’s own (unexplained) delay since issuing the claim form in seeking the order, I do not consider that this case is one of them. It is not, in the circumstances of this case, a factor sufficient to override the significance to be attached to the existence of the UK/UAE Treaty.

As a result, the period of delay that might be encountered in service under the UK/UAE Treaty does not, in the circumstances of this case, amount to a good reason to permit service by an alternative means.

The third matter relied upon by the Claimant was his contention that D2 and D3 were aware of the claim, had instructed English solicitors, had engaged with the pre-action correspondence via those solicitors and had given no reason for refusing to authorise their London solicitors to accept service. However, these matters do not themselves amount to a good reason for permitting alternative service:

Accordingly, the points relied upon by the Claimant do not amount to a good reason for alternative service, let alone amounting to “exceptional circumstances” (if that is what is required). Whichever view of the law is taken, therefore, the requirements of CPR 6.15(1) are not met. I would therefore set aside the order for alternative service.

For completeness, I note that initially the Defendants had also contended that there was a second reason why the order for alternative service should not have been made, namely because the methods of service provided for in the Dias J Order contravened or were incompatible with UAE domestic law. As a result, the expert evidence on the law of the UAE covered that issue. However, at the hearing, Mr Kitchener (who made submissions on the alternative method of service issue on behalf of the Defendants) made no reference to it, saying he did not think it took matters very much further. I agree. On the evidence that was served, if this point had been pressed by the Defendants (which it was not) it seems to me it would not have availed them. Given, however, that the Defendants did not press this point, and given that I have already concluded there is not a good reason for an order for alternative service, I do not need to deal further with this point.

The Defendants also sought to set aside the Dias J Order on the basis of non-disclosure on the without notice application. Given that I have already determined that the order should be set aside on the ground that England is not the appropriate forum, the outcome of the application does not turn on this point.

The general principles were set out in the well-known judgment of Ralph Gibson LJ Brink’s Mat Ltd v Elcombe [1988] 1 WLR 1350 at 1356-1357 (omitting internal citations):

“(1)

The duty of the applicant is to make "a full and fair disclosure of all the material facts" …

(2)

The material facts are those which it is material for the judge to know in dealing with the application as made: materiality is to be decided by the court and not by the assessment of the applicant or his legal advisers…

(3)

The applicant must make proper inquiries before making the application … . The duty of disclosure therefore applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries.

(4)

The extent of the inquiries which will be held to be proper, and therefore necessary, must depend on all the circumstances of the case including (a) the nature of the case which the applicant is making when he makes the application; and (b) the order for which application is made and the probable effect of the order on the defendant…; and (c) the degree of legitimate urgency and the time available for the making of inquiries….

(5)

If material non-disclosure is established the court will be "astute to ensure that a plaintiff who obtains [an ex parte injunction] without full disclosure... is deprived of any advantage he may have derived by that breach of duty" …

(6)

Whether the fact not disclosed is of sufficient materiality to justify or require immediate discharge of the order without examination of the merits depends on the importance of the fact to the issues which were to be decided by the judge on the application. The answer to the question whether the non-disclosure was innocent, in the sense that the fact was not known to the applicant or that its relevance was not perceived, is an important consideration but not decisive by reason of the duty on the applicant to make all proper inquiries and to give careful consideration to the case being presented.

(7)

Finally, it "is not for every omission that the injunction will be automatically discharged. A locus poenitentiae may sometimes be afforded:" …. The court has a discretion, notwithstanding proof of material non-disclosure which justifies or requires the immediate discharge of the ex parte order, nevertheless to continue the order, or to make a new order on terms.”

The Claimant also relied upon what was said by Slade LJ at 1359C-E that the application of the principle should not be “carried to extreme lengths”, and by Balcombe LJ at 1358 D-E:

“The rule that an ex parte injunction will be discharged if it was obtained without full disclosure has a two-fold purpose. It will deprive the wrongdoer of an advantage improperly obtained…. But it also serves as a deterrent to ensure that persons who make ex parte applications realise that they have this duty of disclosure and of the consequences (which may include a liability in costs) if they fail in that duty. Nevertheless, this judge-made rule cannot be allowed itself to become an instrument of injustice. It is for this reason that there must be a discretion in the court to continue the injunction, or to grant a fresh injunction in its place, notwithstanding that there may have been non-disclosure when the original ex parte injunction was obtained.”

The principle applies to without notice applications for permission to serve out of the jurisdiction. The Claimant emphasised, however, that there is different context compared to other situations in which without notice applications are made. The focus of the inquiry is on whether the court should assume jurisdiction over a dispute, and that the issues that concern the court are whether there is serious issue to be tried, a good arguable case in relation to the gateway(s) and whether England is clearly the appropriate forum, and beyond that the court is not concerned with the merits of the case: see MRG (Japan) Limited v Engelhard Metals Japan Limited [2003] EWHC 3418 (Comm) (Toulson J) at paragraph 26.

The principles were summarised by Bryan J in The Libyan Investment Authority v JP Morgan Markets Ltd [2019] EWHC 1452 (Comm) at paragraphs 92 to 98. He then went on to say at paragraph 120:

“The importance of the duty of full and frank disclosure, on applications for permission to serve out, just as in the context of a freezing injunction, cannot be over-stated. There is a difference in terms of what the disclosure must be directed at, and the matters being considered, but the underlying reason and rationale for the duty remains the same, as is the need to comply with the same. A failure to comply with that duty is by its very nature serious – an individual or entity has been brought into the jurisdiction without having had any opportunity to address the court as to why permission should not be granted, and as demonstrated by the present case, they are then exposed to very considerable costs upon an application to set jurisdiction aside.”

At paragraph 122 Bryan J cited and endorsed the guidance given by Popplewell J in Banco Turco Romana SA (in liquidation) v Cortuk [2018] EWHC 622 (Comm), at paragraph 45, which included noting that: “Such is the importance of the duty that in the event of any substantial breach the court inclines strongly towards setting aside the order and not renewing it, even where the breach is innocent.”

See also what was said by Popplewell J in Fundo Soberano de Angola v Dos Santos [2018] EWHC 2199 (Comm) at paragraphs 51 to 53, including (at paragraph 53):

“…the duty is not confined to the applicant’s legal advisers but is a duty which rests upon the applicant itself. It is the duty of the legal team to ensure that the lay client is aware of the duty of full and frank disclosure and what it means in practice for the purposes of the application in question; and to exercise a degree of supervision in ensuring that the duty is discharged. No doubt in some cases this is a difficult task, particularly with clients from different legal and cultural backgrounds and with varying levels of sophistication. But it is important that the lay client should understand and discharge the duty of full and frank disclosure, because often it will only be the client who is aware of everything which is material. The responsibility of the applicant’s lawyers in this respect is a heavy one, commensurate with the importance which is attached to the duty itself. It may be likened to the duties of solicitors in relation to disclosure of documents (see CPR PD31A and Hedrich v Standard Bank London Ltd [2008] EWCA Civ 905).”

The Defendants made various allegations, in their evidence and submissions, of the Claimant’s failure to provide full and frank disclosure. The Claimant compiled a schedule listing 20 such allegations along with his responses. Many of those allegations were mentioned in one of the witness statements, but were not the subject of submission in the skeleton arguments or developed orally. It is clear that at least some did not amount to a material failure to give full and frank disclosure.

However, amongst the points on which the Defendants placed weight at the hearing there were matters on which there was a material failure by the Claimant to give full and frank disclosure, which I address below. The first of those is more important than the others, and I address it more fully.

The first issue requires some explanation of the background. It is a point in relation to which the Claimant accepted there had been a material non-disclosure (but which the Claimant contended was inadvertent and unintentional).

One of the points relied upon by the Claimant on the without notice application, in support of his contention that Kazakhstan was not an available forum for the Claimant to bring this claim, was the existence of a criminal court judgment that had already been delivered in Kazakhstan referring to some of the same facts. The contention was set out in Iatuha 1 as follows:

As presented on the without notice application, that presented a strong (possibly compelling) case that the Claimant would not be able to get substantial justice in Kazakhstan. However, as the exchange of evidence for these applications demonstrated, it contained a number of important misrepresentations and non-disclosures. (And, for the avoidance of doubt, it was not contended at the inter partes hearing that there was any real risk of substantial injustice in Kazakhstan arising on this basis).

First, the criminal court judgment against Mr Abzhan does not have any res judicata effect against the Claimant. That was pointed out by the Defendants’ experts, Professor Karagussov and Mr Kaldybayev in their respective first reports, where they explained that the criminal judgment could have no res judicata effect against the Claimant as he was not a party to the criminal proceedings against Mr Abzhan. This led to a change of position on the part of Mr Konysbayev. In his first report (filed on the without notice application) he had been clear:

“I believe that all the other Kazakh courts (criminal or civil) or law enforcement agencies may apply a principle of res judicata, i.e. will accept and be bound by the findings of the Criminal Court Judgment, without any further investigation. In other words, it will accept that the information above is false, as found in the Criminal Court Judgment.”

Mr Konysbayev’s second report (served in response to those of the Defendants’ experts) no longer relied on a formal principle of res judicata, but instead suggested that because the circumstances of the criminal case were closely related to the Claimant’s claim, a judge in Kazakhstan would likely not ignore the findings and would rely on them, by way of being “guided” by them even if the judge did not formally refer to the criminal court judgment in the decision. He said that, given the workload of an ordinary judge and the time allocated to complete court proceedings, there was a real risk that a judge would find it easier to take the facts from the criminal court judgment against Mr Abzhan rather than form their own view. That position was not supported by any material or examples, and was strongly rebutted by Professor Karagussov in his reply report (who said that judges in Kazakhstan “would conduct their cases properly and determine the issues put before them in the proper discharge of their judicial duties”). It would have been difficult to accept Mr Konysbayev’s adjusted position if that had been pursued at the hearing on the Claimant’s behalf (which it was not); it certainly did not amount to “cogent evidence” of substantial injustice. However, for present purposes it can be seen that it is not a point based on a formal res judicata at all, which was effectively abandoned in the second report.

Second, it was not disclosed by the Claimant that this very point (on res judicata) had been the subject of an attempted appeal, by the Claimant, of the criminal judgment, and the appeal court had confirmed that the criminal judgment had no res judicata effect against the Claimant:

At the hearing of these applications, Mr Samek accepted that the non-disclosure of the appellate court judgment had been a material one, and apologised on behalf of his client. It was admitted that the appellate judgment had been available at the time of the without notice application, and that if the Claimant’s solicitors had been aware of it, it would have been disclosed. The only explanation given as to how this situation had come about was that contained in a letter from the Claimant’s solicitors (Sterling Law) dated 15 October 2024 (i.e. the first day of the hearing).

This explanation of the Claimant’s own position is difficult to accept. He had instigated an attempted appeal in Kazakhstan on the basis that his position in claims involving him would be prejudiced by the criminal judgment. He knew that he had lost that appeal. He must have thought that the reasons given in the judgment may well likely be relevant one way or another in making a similar point in England (either in support or against it). In any event, he ought to have taken reasonable steps to ensure that material matters were put before the courts, and his solicitors had a duty to explain that to him (see Popplewell J in Fundo Soberano de Angola v Dos Santos, above). If they had done, it is very difficult to understand how the fact that the Claimant had sought to run this point on an appeal in Kazakhstan and lost could have remained “out of his mind”.

If this was not a deliberate failure to disclose something which was obviously material to the point being taken on the without notice application, it displays on behalf of the Claimant a highly cavalier attitude to the obligations upon a party making a without notice application. Those obligations include the making of proper inquiries, and the duty applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made such inquiries (see Brinks Mat, above).

Third, the findings that the criminal court had made do not, on examination, appear to be ones that would stand in the way of the Claimant asserting his claim against the Defendants. The facts said to have been found to be false by the criminal court that were relied upon in Iatuha 1 were:

“(a)

the founders of GDA (i.e. MMK) had close connections to Mr Satybaldy;

(b)

MMK set up a bitcoin mining factory with a Mr Tokhtarov, in the former Karaganday woodworking plant, i.e. the ABK Project;

(c)

other purchasers for Sogrinskaya stepped aside when it was clear that Mr Makhat wanted to buy it; and

(d)

Mr Satybaldy owned an interest in the ABK Project via Mr Makhat (and Mr Makhat avoided transferring those assets to the Kazakh state following Mr Satybaldy’s criminal conviction by transferring them to a third party).”

None of those facts relate to the existence of the alleged oral agreement at the centre of the Claimant’s claim. It is difficult to see how the points at (a), (c) and (d) are relevant (certainly not essential) to the Claimant’s claim at all, and consistently with that nothing was said about them in Iatuha 1. The only point that was made in Iatuha 1 was to say that the Claimant would not be able to advance his claim “without showing that, in particular, MMK established the ABK Project.” However, that is not something that appears to be disputed by the Defendants (and there was nothing in the responses to the letters before action suggesting it was) and, as Mr Kaldybayev explained in his second report, it is far from clear from the judgments that the court in the criminal case against Mr Abzhan had found such a fact to be “false”. The information at (b) above is that the Defendants set up a bitcoin mining factory “with a Mr Tokhtarov”, and there is nothing in the Claimant’s claim that suggests it is dependent upon the Claimant establishing the involvement of such an individual (someone who is not mentioned in the Particulars of Claim at all or in any of the Claimant’s own evidence on these applications).

The paragraph of Mr Iatuha’s statement containing the quotation above about “MMK” establishing the “ABK Project” may itself have been carefully drafted in an attempt not to overstate the position, but the overall impression given (to a judge who, in particular on the without notice application, could not have been expected to delve into the detail of the Kazakh judgments and the hinterland to the claims to appreciate the significance, or lack of significance, of these points) by the section of Iatuha 1 dealing with this is that the findings of the criminal court on these points stood in the way of the Claimant’s claim.

The result of the matters I have set out above is that there was a material non-disclosure and misrepresentation of the position on the without notice application:

That gives rise to the question whether (if I had not already decided it should be set aside on other grounds) I would have held that the Dias J Order ought to be set aside on the basis of these failures to give full and frank disclosure. As to that, I would have so held:

There were also, as I have noted, several other allegations of failure to make proper disclosure on the without notice application which in my view were material. Given not only my decision to set aside the Dias J Order on other grounds, but also my indication above that the serious non-disclosures in relation to the res judicata point alone would have been a basis for my setting aside the Dias J Order, I will not deal with every one of the other points. I will, however, highlight three of them which appear to me particularly notable and briefly describe their nature.

First, in support of the Claimant’s case that D1 remained resident in England, Iatuha 1 stated that, on 26 April 2023, D1’s wife had been seen leaving the 27 Ingram Avenue before being driven away in a Bentley. Mr Iatuha relied on that to draw a conclusion that D1’s wife, along with the rest of D1’s family, were resident at 27 Ingram Avenue. The identification was said to have been made by Raedas Consulting Ltd (“Raedas”), an investigation firm engaged on behalf of the Claimant. Mr Iatuha exhibited a letter from Raedas making the identification and containing two photographs of the woman.

Second, the presentation in Iatuha 1 of the contention that the Claimant had properly served D1 at 5A Falkland Road based on section 1141 of the Companies Act 2006 was incomplete. There was only mention of and a short quotation from section 1141(1) without giving it any context, or explaining that it came immediately after a detailed section dealing with service (section 1140) or explaining that the Claimant could not identify any authority in which service had been validly carried out based only upon section 1141 (which I infer must have been the position because no such authority was cited at the hearing). The Claimant’s response to this non-disclosure allegation that it did not rely on section 1140 in Iatuha 1, but only section 1141, does not meet the point. To suggest that the court could have taken any sort of informed view on the application of section 1141 in this context, based simply on what was said in Iatuha 1, is unrealistic. It would have been highly material to know what section 1140 provided for (and that, at the material time, service on D1 did not fall within its scope), that there had been a series of authorities considering service under 1140, and that none of them had suggested service could be effected simply based on section 1141 where section 1140 did not apply.

Third, the content and effect of Article 153 of the Code (which was, on the without notice application, said to demonstrate that Kazakhstan was not an available forum, but was only pursued as a “substantial justice” point at the hearing) was not properly explained. I have dealt with this issue as it arises in the “substantial justice” argument above, and do not repeat the detail here. However, it is clear that that the effect of the rule was more nuanced than had been presented on the without notice application, and there was no attempt to explain the limited extent to which the rule would actually impact on the presentation of the Claimant’s case in Kazakhstan.

Each of these three additional points constituted a material failure to comply with the duty to give a full and frank presentation on the without notice application. They might well, on their own, have led me to set aside the Dias J Order, and in any event they would have supported the decision I would have reached that it ought to be set aside for non-disclosure based upon the res judicata issue.

This application was made in the same application notice as D2’s application to set aside the Dias J Order and sought to rely upon a letter that had been sent to D2’s solicitors (Mishcon de Reya) by a Luxembourg lawyer setting out his views on some points about witness evidence under Luxembourg law. It was not in the form of an expert report and did not contain the statement required by CPR Part 35 nor did it comply with other requirements of that part. The point made by D2 which it was said to support was that other (non-CIS) civil law systems strike a similar balance in relation to reliance upon witness evidence as that reached in Kazakhstan. As it apparent from my consideration of the Article 153 issue above, I have not relied upon it and do not need to rely upon it in coming to the conclusions that I have reached.

The evidence was referred to in passing in D2’s skeleton argument, and by Mr Kitchener in his oral submission, but the application to adduce it was not presented, whether in the skeleton argument or orally. To the extent that this application was maintained, I refuse it. In summary:

The following is a summary of the outcome of the main applications in light of the conclusions and determinations I have reached above: