Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MRS JUSTICE THIRLWALL DBE
Between :
Ms ANASTASIA GONCHAROVA | Applicant |
- and - | |
(1) Ms NATALIA ZOLOTOVA (2) PENNTRUST LIMITED (as administrator of the estate of Mr Kakha Bendukidze) (3) Dr FIONA WILCOX (Senior Coroner for Westminster Coroners District) | Respondents |
Mr Watson Pringle (instructed by Judge Sykes Frixou Solicitors) for the Applicant
Mr John Wardell QC and Ms Laura Newton (instructed by Forsters Solicitors LLP) for the 1st Respondent
Hearing dates: 14th and 20th October 2015
Judgment
MRS JUSTICE THIRLWALL DBE
Mrs Justice Thirlwall:
The applicant, Ms Goncharova, seeks an order which will permit the Westminster Coroner to release blood and other samples taken from the body of Mr Kakha Bendukidze, who she says was her father, so that they may be sent for DNA testing at the Bureau of Forensic Medical Examination in Moscow in accordance with an order of the Gagarinsky District Court in Russia. Ms Zolotova, Mr Bendukidze’s widow, resists the application.
Background
Kakha Bendukidze, was a Georgian businessman. He died in a London hotel in November 2014, a short time after undergoing heart surgery in Switzerland. In accordance with the law of this jurisdiction the coroner arranged for the taking of samples from his body in order to establish the cause of death.
Some of the samples were tested. As a result of the testing the coroner was satisfied that Mr Bendukidze died of natural causes. The rest of the samples are held to the order of the coroner at Imperial College, London.
Mr Bendukidze was enormously wealthy. At the time of his death he was married to Ms Zolotova who says they had been married for 16 years. Ms Goncharova says that the couple had been living apart for some years. This is disputed by Ms Zolotova.
The applicant is in her mid twenties. She asserts that she has known Mr Bendukidze since childhood. He played a part in her life for many years. She knew him as her godfather. In recent years he told her she was in fact his daughter. Ms Zolotova asserts that she had no knowledge of Ms Goncharova until the latter announced who she was at the funeral of Mr Bendukidze. Ms Zolotova does not accept that Ms Goncharova is the daughter of Mr Bendukidze.
Mr Bendukidze’s massive estate is in Georgia and Russia. There may be assets elsewhere. Mr Bendukidze died, it appears, intestate. Ms Zolotova is bringing proceedings in the Gagarinsky District Court, Moscow. Although she was aware of Ms Goncharova’s claim to be the daughter of Mr Bendukidze, Ms Zolotova sought and obtained a declaration certifying that she was the sole heir to Mr Bendukidze’s estate. The applicant has intervened in those proceedings. She seeks a declaration that she is the daughter of Mr Bendukidze. She is also intervening in other proceedings brought by Ms Zolotova in Georgia. On 28th May 2015 the Tbilisi Municipal Court granted Ms Goncharova’s application for an injunction preventing the distribution of Mr Bendukidze’s assets in Georgia to Ms Zolotova. On 28th September 2015 the Georgian court held that it would abide by the decision of the Russian court on Ms Goncharova’s claim to be the daughter of Mr Bendukidze.
The fundamental question in the resolution of the dispute between the two parties is whether or not Ms Goncharova is the daughter of Mr Bendukidze. With modern techniques this can be resolved quickly and easily by way of analysis of blood or tissue taken from the deceased, identifying the DNA and comparing it with the DNA of Ms Goncharova. Ms Goncharova is willing to provide a sample for testing and comparison. There is a very large quantity of material some of which could be used for DNA testing:
a) 15 ml stomach contents
10 ml plain blood
5 ml urine
1 ml blood preserved with fluoride oxalate
2 ml urine preserved with fluoride oxalate
Despite the availability of samples from Mr Bendukidze and the willingness of Ms Goncharova to submit a sample for DNA testing this obvious step has not been taken in the 11 months since Mr Bendukidze’s death.
DNA Solutions
Some time between the death of Mr Bendukidze and January 2015 Ms Zolotova sent other samples taken on her behalf from Mr Bendukidze’s body to DNA Solutions Ltd, a company that carries out DNA testing. It is Ms Goncharova’s case that she and Ms Zolotova had agreed that DNA Solutions would carry out a DNA test. Ms Zolotova has not commented on this but it is difficult to see why the samples would be sent to a company of that name other than for DNA testing. Whatever the original position, Ms Goncharova knew the samples were with DNA Solutions for testing and contacted them to find out what was going on. From emails produced by Ms Goncharova for the first hearing and further emails adduced by her at the renewed hearing it is plain that by 31st January 2015 Ms Zolotova had directed DNA Solutions to return the samples to her. In recent days they have said that they did not carry out the test. There is no evidence about what Ms Zolotova has done with those samples.
The Probate Proceedings
On 29th July 2015, the applicant engaged PennTrust Limited, an independent firm of administrators, and applied to the Probate Registry of the Family Division to obtain letters of administration over the estate of Mr Bendukidze pursuant to rule 30(1)(c) of the Non-Contentious Probate Rules 1987. On the same day she applied to the Chancery Division under section 117 of the Senior Courts Act 1981 for an order appointing PennTrust as independent administrator over the estate of Mr Bendukidze pending suit of the proceedings in the Probate Registry. The purpose of that application was to ensure that the coroner did not release the samples held by the court to Ms Zolotova.
On 30th July 2015 Mann J made an order on the interim application which:
Recited that Ms Zolotova had undertaken not to request the samples from the coroner pending determination of the application made by PennTrust (in fact the application was made by the applicant but nothing turns on this);
Recited that Ms Zolotova had undertaken to write forthwith to the coroner in a joint letter from the parties’ solicitors confirming their respective consent to the coroner retaining the samples until otherwise directed by joint letter from the parties’ solicitors; and
Provided at paragraph 6 that, “In the event that [the coroner] confirms by 2pm on 31st July 2015 that she is prepared to retain the [samples] and not dispose of them without giving at least 14 days’ notice to the parties then this application shall be stayed generally with liberty to restore”.
On 31st July 2015 it was confirmed on behalf of the coroner that she would hold the samples on the basis set out in paragraph 6 of the order of Mann J.
In the meantime the applicant’s solicitors were chasing the application in the Probate Registry. On 25th September 2015, somewhat unexpectedly, the District Judge made an order which provides that, “the applicant’s application for letters of administration to PennTrust Rule 30(1)(c) is granted…” and that, “this order having been made in the absence of the parties either party has permission to apply to have it set aside within 7 days of receipt”.
On 1st October 2015 the coroner stated that if the appointment of PennTrust was confirmed she would release the samples to the personal representative of Mr Bendukidze; and that if the appointment was not confirmed she would consider releasing them to the applicant “in any case by the 14/10/2015, as the sample appears to be the key to resolving the legal dispute between the parties and so not to allow it to be DNA tested would be seen to be obstructing the administration of justice”.
By application notice dated 5th October 2015, Ms Zolotova applied (on a non urgent basis) to set aside the Probate Order. She asserts that the appointment of administrators was inappropriate because Mr Bendukidze had no business interests in the UK and no assets in this jurisdiction. That application is listed for hearing in January 2016.
On 17th October 2015 an email was sent on behalf of the coroner to the parties stating that, “the coroner has requested confirmation as to whether PennTrust have been officially appointed as the PR for this case. It is her understanding that the matter was to be resolved by 7th October 2015. If PennTrust have been appointed then she would wish to release the samples to them”.
Both PennTrust and the coroner have been informed of these proceedings. They remain neutral and will abide by the order I make.
The Orders of the Russian Court
On 3rd July 2015 Ms Goncharova’s Russian lawyers filed a petition with the Gagarinsky District Court for a letter of request to be sent to the Westminster Coroner’s Court to transfer the samples to the Russian Court. At the same time a petition was filed asking for the appointment of an expert to carry out DNA analysis of the samples to determine the issue of paternity.
On 13th July 2015 the Gagarinsky District Court made an interim order directing the Westminster Coroner’s Court to preserve the samples for DNA testing to be carried out. According to the respondent’s solicitors this was not served on the coroner but in any event they told the Westminster Coroner in a letter of 22nd July 2015 that the order had no legal effect in England.
The hearing of the application of 3rd July 2015 was adjourned to 4th August 2015. Just before the hearing Ms Zolotova’s lawyers provided a significant quantity of documentation by way of support for her objection to the petition of Ms Goncharova and so it was adjourned again, this time to 11th August2015.
On 11th August 2015 the judge heard Ms Goncharova’s renewed application for a letter of request to be sent to the Westminster Coroner’s Court for its assistance in providing the samples for analysis in Russia. He also considered her application that the court appoint an expert in Russia who would be charged with carrying out DNA testing on the samples once received from the Westminster Coroner.
At the hearing Ms Zolotova maintained her objection to the application that DNA testing be carried out on a number of grounds including i) the fact that there were questions about the integrity of the Russian laboratory proposed by Ms Goncharova and ii) the testing would only serve to prolong the Russian proceedings.
Ms Zolotova’s representatives proposed the use of a different laboratory but failed to include the laboratory’s consent that it would be prepared to carry out the DNA analysis if ordered to do so.
The judge ordered that both parties prepare a list of Russian state laboratories which the court would consider at the next hearing on 1st September 2015.
On that date Ms Goncharova maintained her petition for the appointment of DNA experts and for a letter of request to be sent to Westminster Coroner’s Court for the release of the samples. She provided letters from two state laboratories who would be prepared to carry out the DNA analysis. Ms Zolotova’s lawyers provided their list of laboratories, one of which was the Bureau of Forensic Medical Examination (BFME).
Ms Zolotova’s Russian lawyers again objected to the appointment of any Russian laboratory to carry out a DNA analysis, not because of standards in the laboratories, but because that process would prolong the Russian proceedings, a submission that is not easy to understand, but I have not heard argument about it. In any event it carried no weight since despite the objections, the judge ordered that the BFME be appointed to carry out an analysis of the samples once they were provided from the Westminster Coroner.
Although she has not attended the hearing before me, Ms Zolotova has been represented throughout, by leading counsel, junior counsel and at least two solicitors, including a partner in the firm of Forsters and her Russian lawyer. I am quite satisfied that every argument that could conceivably be run has been run on her behalf on this application. That is not a criticism; it is the fact from which I infer that no less quality or quantity of advice and representation was before the Russian Court which made the order.
In so far as is relevant the Court Ruling reads as follows (the emphasis is mine):-
“September 1, 2015, Gagarinsky District Court of the City of Moscow consisting of the Presiding Judge Achamovich I. V. assisted by Secretary Pak E. A. having examined in an open court hearing the civil case No.2-3307/15 regarding the claim of Goncharova Anastasia Igorevna against Zolotova Natalia Yurievna disputing the establishment of paternity, recognition of heirship, the court has found:…
Having heard the explanations of the parties’ representatives, the court has concluded the following.
In accordance with Article 79 of the Civil Procedural Code of the Russian Federation.
If questions arise in the course of considering the case which requires special knowledge in various fields of science, technology, the arts and the handicrafts, the court shall appoint an expert to express an opinion thereupon. The performance of the expertise may be entrusted to a legal expert agency, to a particular expert or to several experts. The resolution of the dispute requires special knowledge in the fields of medicine, biology, genetics, the court finds the request reasonable and a subject to satisfaction. In accordance with Articles 166, 79, 80 of the Civil Procedural Code of the Russian Federation, the court has ruled:
To appoint and conduct under the civil case No. 2-3307/15 regarding the claim of Goncharova Anastasia Igorevna against Zolotova Natalia disputing the establishment of paternity, recognition of heirship, the forensic-molecular-genetic examination using the biological material, stored at the Westminster Coroner’s Court of the United Kingdom, located at the address: 65 Horseferry Road, London, SW1P 2ED, UK and ask the following questions:
Is Bendukidze Kakha Avtandilovich, born on April 20, 1956 in Tbilisi, Georgia, died on November 13, 2014 the biological father of Goncharova Anastasia Igorevna, date of birth November 01, 1990 is not excluded, what is the probability that the result is not a consequence of a random coincidence of individualising symptoms of unrelated individuals?
Execution of the forensic-molecular-genetic examination to be assigned to the experts of the State State-Financed Institution of Health Care of the city of Moscow “Bureau of Forensic Medical Examination”, located at the address: Moscow, Tarniy proezd, building 3.
To assign to the experts of the State State-Financed Institution of Health Care of the city of Moscow “Bureau of Forensic Medical Examination”, located at the address: Moscow, Tarniy proezd, building 3 to collect the biological material of Bendukidze Kakha Avtandilovich, died November 13, 2014 from the Westminster Coroner’s Court of United Kingdom…for the execution of the forensic-molecular-genetic examination.
To oblige Goncharova Anastasia Igorevna to ensure her appearance for the examination and deliver the biological samples of Bendukidze Kakha Avtandilovich received from the Westminster Coroner’s Court of United Kingdom…to the State State-Financed Institution of Health Care of the city of Moscow “Bureau of Forensic Medical Examination”…;
The fact of the receipt of biological samples in relation to Bendukidze Kakha Avtandilovich promptly notify the Gagarinskiy District Court of the City of Moscow…;
To oblige Zolotova Natalia Yurievna to submit the biological samples of Bendukidze Kakha Avtandilovich, which she had received from “DNA Solutions” Limited into the laboratory of the State State-Financed Institution of Health Care of the city of Moscow “Bureau of Forensic Medical Examination”…
The experts in accordance of the articles 307,308 of the Criminal Code of the Russian Federation should be warned of their responsibilities.
All expenses, related to the execution of the forensic-molecular-genetic examination to be handled by Goncharova Anastasia Igorevna.
To entrust Westminster Coroner’s Court of United Kingdom…to send the biological samples to the State State-Financed Institution of Health Care of the city of Moscow “Bureau of Forensic Medical Examination”, having notified the Gagarinskiy District Court of the City of Moscow located at the address: Moscow, ulitsa Donskaya, No.11, Building, room 302;
The delivery of the samples should be conducted in compliance with the storage conditions, including during the transportation, at the expense and power of Goncharova Anastasia Igorevna, entrusting her all the necessary expenses.
The terms of the execution of the forensic-molecular-genetic examination to be set for one month after the court ruling comes in force, ie until October 16, 2015”.
The translation is far from perfect but the gist of the order is clear. Mr Holiner, a dual English/Russian qualified barrister retained by Ms Zolotova also provided a translation. It is attached to this judgment at Appendix A.
Ms Goncharova is prepared to provide a sample of her DNA for comparison with that of Mr Bendukidze. Ms Goncharova is not in a position to provide the samples since they are subject to the coroner’s order. The coroner will abide by the order of this court.
Ms Zolotova has not complied with the order of the Russian court to deliver to BFME the samples originally sent to DNA Solutions. I have received no explanation for that. She appears to be in contempt of the Russian court order. That is a matter for the Russian court.
The use of DNA testing in the Russian courts
In the Russian courts where the parties seek to rely on DNA testing in order to establish/disprove paternity, the testing must take place in a Russian laboratory. I take this from the evidence of Ms Mishenkina. It was first asserted by Mr Green in his first witness statement and was relied on by the applicant at both hearings. Mr Holiner has not dealt with it nor has Ms Zolotova’s Russian lawyer who was present throughout the hearings in front of me. Mr Wardell QC, who appeared with Ms Newton for Ms Zolotova, submitted that I should not accept the evidence because Ms Mishenkina may be partisan. I can see no basis for coming to that conclusion, particularly since Mr Wardell has produced no evidence to contradict the evidence. I accept it.
At various stages in the argument Mr Wardell warned me of “serious dangers” were the samples to be tested in Russia. The risk of “false positives” was referred to. Reliance was placed on the report of Mr Barber, an experienced forensic scientist based in the UK who had been engaged by Forsters on behalf of Ms Zolotova. He has no experience or knowledge of the work of BFME or the standards that apply there or anywhere else in Russia. He informs the court that there are international standards which apply to laboratories working on DNA testing. They are recognised across the world and are applied in many UK laboratories. To be accredited by the Ministry Of Justice for use in court proceedings in the UK, companies which offer these services must meet a particular International Standard, ISO 17025. In Russia, ISO 17025 or other International Standards are not routinely applied and so Mr Barber opines that it is unlikely that they are applied at BFME. The answer to that question must be known to Ms Zolotova’s legal team in Russia since they selected BFME. In any event Mr Barber goes on to say that he is aware that there are standards which apply in Russian laboratories but he does not know what they are. Before entrusting testing to BFME he would wish to be reassured about their processes and procedures. I am asked to infer that because Mr Barber, who does not hold himself out to be an expert in the standards in Russian laboratories, does not know what the standards are, there is a risk that the standards are not sufficiently high for me to be satisfied that the samples may safely be tested in Russia. I am not prepared to draw the inference urged upon me. The laboratory chosen by Ms Zolotova is acceptable to and approved by the Russian court which is seised of the claims. I can see no reason why a Russian court faced with determining paternity through the use of DNA testing would have any lower standards as to the integrity of the scientific process than would a court in the UK. Mr Barber’s evidence goes nowhere near establishing “serious dangers” or the risk of “false positives”, as Mr Wardell put it. I should add that it would be open to the parties to challenge any evidence that came from the laboratory, in the usual way. If there were genuine concerns about the process it would have been (and it remains) easy enough to carry out tests on samples in the United Kingdom.
My own experience of DNA testing for the purposes of our domestic courts is sufficient for me to know that accurate reliable results may be obtained from the testing of relatively small volumes of material or of whole blood. There is, by the standards of DNA testing, a very large volume of material here. Although the Russian court directed the sending of all samples (those held by the coroner and those held by Ms Zolotova) the purpose of the order was to ensure that sufficient samples for accurate testing are received at BFME.
The Application
The application is made on two alternative bases: under Section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (the 1975 Act) and alternatively under section 25 of the Civil Jurisdiction and Judgments Act 1982.
Urgency
The application came before me with a one and a half hour time marking as a matter of urgency on 14th October. The urgency arose because 16th October was the date by which the BFME was to carry out the testing. The applicant’s advisers were concerned that there was a risk that failure to comply with the order may lead to the claim being struck out altogether. The respondent’s representatives said that there was no urgency at all and that since one and a half hours was an unrealistic time estimate I should restrict myself to giving directions only. I directed the parties to get as far as they could in the time available with a view to taking stock. In the event it was possible for me to hear the balance of the argument on 20th October. I understand that the Russian Court has indicated informally that it will probably look at the case at the end of October/beginning of November. This judgment is being delivered within that time scale. I am satisfied that the slight delay has not prejudiced the applicant. The respondent has had all the time necessary properly to defend the application.
The 1975 Act was passed so that the United Kingdom could ratify the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the Hague Convention). It does not contain the same provisions as the Convention nor does it incorporate the Convention.
Mr Wardell reminds me and I accept that when dealing with this application there may be no recourse to the inherent jurisdiction of the court. The powers are as set out in the 1975 Act.
Sections 1, 2 and 9 of the 1975 Act read, so far as is relevant, as follows:
Application to United Kingdom court for assistance in obtaining evidence for civil proceedings in other court.
Where an application is made to the High Court … for an order for evidence to be obtained in the part of the United Kingdom in which it exercises jurisdiction, and the court is satisfied-
that the application is made in pursuance of a request issued by or on behalf of a court or tribunal (“the requesting court”) exercising jurisdiction …in a country … outside the United Kingdom; and
that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated,
the High Court … shall have the powers conferred on it by the following provisions of this Act.
2.-Power of United Kingdom court to give effect to application for assistance.
Subject to the provisions of this section, the High Court … shall have power, on any such application as is mentioned in section 1 above, by order to make such provision for obtaining evidence … as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made; and any such order may require a person specified therein to take such steps as the court may consider appropriate for that purpose.
Without prejudice to the generality of subsection (1) above but subject to the provisions of this section, an order under this section may, in particular, make provision-
for the examination of witnesses, either orally or in writing;
for the production of documents;
for the inspection, photographing, preservation, custody or detention of any property;
for the taking of samples of any property and the carrying out of any experiments on or with any property;
for the medical examination of any person;
without prejudice to paragraph (e) above, for the taking and testing of samples of blood from any person.
An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the court making the order (whether or not proceedings of the same description as those to which the application for the order relates); …
9.-Interpretation
In this Act-
“civil proceedings”, in relation to the requesting court, mean proceedings in any civil or commercial matter;
“requesting court” has the meaning given in section 1 above;
“property” includes any land, chattel or other corporeal property of any description;
“request” includes any commission, order or other process issued by or on behalf of the requesting court.
Mr Wardell informed me that he can find no case where a court has made an order under the 1975 Act requiring physical property to be transferred out of the jurisdiction. That does not mean that it cannot be done. It will rarely be necessary since in most cases the party obtaining the evidence then takes it to the other country for the purposes of proceedings in that jurisdiction. The question is does the order sought come within the Act?
There are four questions to be resolved.
i) Is this an application for an order for evidence to be obtained in the United Kingdom?
ii) Is the application made in pursuance of a request from the Russian court?
iii) Does the application relate to evidence which is to be obtained for the purposes of civil proceedings in Russia? and
Does the order sought require steps to be taken by way of obtaining evidence which the High Court can require to be taken in civil proceedings here (whether or not proceedings of the same description).
I shall deal with (i) and (iii) together.
There was some shifting of position by the respondent. Ultimately it was Mr Wardell’s argument that this application is not about obtaining evidence at all. He submitted that, properly analysed, it is an application for a mandatory injunction for the samples to be sent to Russia for testing. Accordingly, he argues, the 1975 Act is of no application.
I do not accept this argument. The Russian court requires DNA testing to be carried out in Russia on samples taken from Mr Bendukidze in order to resolve the question of paternity. The primary evidence will be the samples which are currently held to the order of the coroner. Testing of samples will reveal DNA (where it is present in the sample). The evidence of the results of the DNA test is not free standing. It depends on the original sample.
An order is necessary to require the coroner to release the samples she holds. That is an order for obtaining evidence. The contrary is not arguable. For the evidence to be obtained for the purposes of the proceedings in Russia it must be received at BFME for testing so that the results may be used in evidence, if appropriate. An order directing either of the parties to arrange for the samples to be sent to BFME for the tests to be carried out does no more than ensure that the samples are obtained for the purposes of the Russian proceedings. In most cases it is not necessary to order the parties to send evidence to the requesting country because the party seeking the evidence receives it and takes it to the country for the purpose of the proceedings. That approach is not expedient in a situation where there is such mistrust between the parties.
It follows that I am satisfied that the answer to the questions at (i) and (iii) above is yes.
(ii) - Is the application made in pursuance of a request from the Russian court?
I am satisfied that the application is made in pursuance of a request from the Russian court for the following reasons.
First, the definition of “request” in section 9 of the 1975 Act includes an order (see paragraph 39 above);
Second, the order made by the Russian court contains all that could be required i) to seek the release of the samples by the coroner ii) to secure the safe passage of the samples from the coroner to the BFME iii) to secure the production of the DNA Solutions samples by Ms Zolotova to BFME iv) to secure the production of a sample of her own DNA by Ms Goncharova to the BFME and v) to secure the testing by BFME within a reasonable timescale.
Mr Holiner says in his first report that the order gives the impression that the court “simply decided to order all possible parties to obtain or produce the samples in the hope of achieving this outcome.” I have the same impression. The need for speed may well have been to avoid the delay in the proceedings which Ms Zolotova said would result were testing ordered.
Mr Wardell submits that the order of the Russian court is not a Hague Convention compliant letter of request and so the application is not a request within the 1975 Act. Article 3 requires that the letter must specify-
a) the authority requesting its execution and the authority requested to execute it, if known to the requesting authority;
b) the names and addresses of the parties to the proceedings and their representatives, if any;
c) the nature of the proceedings for which the evidence is required giving all necessary information in regard thereto;
d) the evidence to be obtained or other judicial act to be performed.
Where appropriate the Letter shall specify, inter alia-
g) the documents or other property, real or personal to be inspected
…
Mr Pringle submits that there is no need for a letter of request which complies with Article 3. What matters is that there is a request which complies with the Act. I agree. In any event, save for the omission of the parties’ addresses the order contains everything required by the Convention. The addresses here are immaterial.
The order is directed to the Westminster Coroner and not the central authority as required by the Convention. That does not matter. It is before the High Court, as the 1975 Act requires. International comity would not be served were I to send the order back to Russia with a request that it should be sent again, this time to the Senior Master so that he may send it to the High Court. If authority for the proposition that the Court may adopt a pragmatic approach is necessary, see the observations of Lord Keith of Kinkel in Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] QB 547 at 653 C-E “It is the duty of the court to do its best, consistently with the provisions of the statute, to assist the processes of justice in the court from which the request comes, and to do so in a way as will cause the minimum of delay”.
Mr Holiner opines that the order would not be considered an effective (Hague Convention compliant) letter of request in Russian law for broadly the same reasons as those given by Mr Wardell, with the addition of a requirement in Russian law for a certified translation. This has not caused any difficulty. He also submits that the order would not in Russian law be effective extra territorially. No doubt the judge knew that. It does not prevent the order from being a request under the 1975 Act nor does the fact that the judge did not consider the application for a Hague Convention Compliant letter of request. I am satisfied that the order is a request within the meaning of the 1975 Act.
iv) Does the order sought require steps to be taken by way of obtaining evidence which the High Court can require to be taken in civil proceedings (whether or not proceedings of the same description).
Mr Wardell submits that the High Court would not make an order to send samples to Russia. That misses the point. Were the proceedings taking place in the High Court for (eg) a declaration of parentage under the Family Law Act 1986 or for relief under the Inheritance Act 1975 and paternity was in issue the court could and would make an order for DNA samples to be tested (pursuant to its powers under the Family Law Reform Act and/or CPR 25.1). In this jurisdiction the testing is done by laboratories approved by the Ministry of Justice, in the United Kingdom. The court directs which company is to carry out the testing. There is usually no reason to send samples abroad. There may well be a situation where expertise lies only abroad and an order may be made for testing in another jurisdiction but that is not this case.
It follows that the order requires steps that the High Court can require to be taken in this jurisdiction.
Mr Wardell further submitted that the order could not be made because it would cut across the Probate Proceedings. I do not accept this. The only issue in the probate proceedings is whether PennTrust should be administrators and if so should the coroner release the samples to them rather than to Ms Zolotova. Either way the order made by the High Court in civil proceedings would be the same.
Mr Wardell further argued that the High Court would be prevented from making the order by reason of the operation of the Human Tissue Act 2004.
By section 1, read in conjunction with Schedule 1, it is unlawful to “obtain scientific or medical information about a …deceased person which may be relevant to another person” from “relevant material” (the samples would be included in this definition), without “appropriate consent”. Appropriate consent is the “consent of a person who stood in a qualifying relationship to [the deceased] before he died”. It is not disputed for the purposes of this part of my judgment that Ms Zolotova is the person able to give appropriate/qualifying consent.
Mr Pringle argued in his skeleton that were the proceedings taking place in England Ms Zolotova would consent in any event. At that stage she had raised two objections to testing:-
i) religious reasons (unspecified) and
ii) concerns about the quality of testing in Russia.
As to (i) were there genuine religious reasons to object, Ms Zolotova would not have obtained samples from Mr Bendukidze’s body to send to DNA Solutions Ltd. Furthermore her solicitors, Forsters, could not properly have suggested to the coroner, in July 2015, that if testing were necessary in the Russian courts Mr Bendukidze’s body could be exhumed for that purpose.
As to (ii) I have already dealt with this earlier in the judgment. In any event, were the proceedings in England, this reason to refuse consent would also disappear.
At the resumed hearing I was told that Ms Zolotova now “stands on her rights” under the Human Tissue Act 2004. She intends to use her withholding of consent as leverage in negotiations with Ms Goncharova. She might consent to the release of the samples for testing provided that Ms Goncharova gives certain undertakings to her about her entitlement to a share (presumably size to be agreed) of the estate should the DNA test reveal that Ms Goncharova is indeed the daughter of Mr Bendukidze. This puts the previously expressed religious reasons and alleged concerns about the quality of testing into perspective. Consent here is being used as a bargaining chip.
I am satisfied that were the English Court concerned with determining the parentage of someone in Ms Goncharova’s position (in Inheritance Act proceedings or proceedings under the Family Law Act 1986) and post mortem samples were available in the circumstances that pertain here it would have no hesitation in ordering DNA testing of the samples for the reasons I have already given. It is not unlawful to carry out DNA testing in accordance with an order of the Court.
I am satisfied that the order sought is for steps to be taken that the High Court can require to be taken in civil proceedings.
Mr Wardell finally submits (in respect of the application under the 1975 Act and section 25 of the CJJA) that applying general principles I should take account of the “effect of the relief, if granted”. The effect of the testing will be that it will be known whether or not Mr Bendukidze was Ms Goncharova’s father. Thereafter the Russian and Georgian courts will apply their respective law in determining the dispute about the estate. Mr Wardell submits that the law of Georgia may be interpreted so as to leave Ms Zolotova with nothing. He refers to Article 1341 of the Civil Code. Were the court to be satisfied, contrary to her assertions, that she had in fact been separated from Mr Bendukidze for three years or more at the time of his death she “may be disinherited”. That does not begin to found an argument that I should not make the order on some sort of public policy grounds, particularly in the absence of expert evidence on the law of Georgia.
I am satisfied that the applicant is entitled to an order under the 1975 Act. Subject to submissions as to its precise form, I shall make an order securing the release of one half of the samples so that they may be sent to BFME for testing in accordance with the order of the Russian Court. [ THIS SECTION WILL NOT APPEAR IN THE FINAL JUDGMENT A draft order accompanies this draft judgment. I shall hear submissions, if necessary, on hand down about the precise mechanics and timing as well as any ancillary matters, including who pays for the safe carriage and delivery of those samples released by the coroner, costs etc].
I am satisfied that the provision of one half of the samples meets the request of the Russian Court.
If I am wrong about the fact that the application involves “obtaining evidence” then the applicant relies on section 25 of the Civil Jurisdiction and Judgments Act 1982. It reads:
25.- Interim relief in England and Wales and Northern Ireland in the absence of substantive proceedings.
The High Court in England and Wales or Northern Ireland shall have power to grant interim relief where-
proceedings have been or are to be commenced in a [Brussels [Contracting State or a State bound by the Lugano Convention]2
---
other than the United Kingdom or in a part of the United Kingdom other than that in which the High Court in question exercises jurisdiction; and
[
they are or will be proceedings whose subject-matter is either within the scope of the Regulation, as determined by Article 1 of the Regulation, within the scope of the Maintenance Regulation as determined by Article 1 of the Lugano Convention or within scope of the 2005 Hague Convention as determined by Articles 1 and 2 of the 2005 Hague convention (whether or not the Regulation, the Maintenance Regulation, the Lugano Convention or the 2005 Hague Convention has effect in relation to the proceedings).
]6
On an application for any interim relief under subsection (1) the court may refuse to grant that relief if, in the opinion of the court, the fact that the court has no jurisdiction apart from this section in relation to the subject-matter of the proceedings in question makes it inexpedient for the court to grant it.
Although Russia is not party to the Brussels or Lugano Conventions, by the Civil Jurisdiction and Judgments Act 1982 (Interim Relief) Order 1997 (SI 1997/30) the scope of sections 25(1) and (2) of the CJJA are satisfied, the English court may make orders in aid of proceedings taking place in the courts of Russia.
This provision gives the court a broad power to grant interim relief in support of foreign proceedings.
It is agreed that the issues on this application are two fold:-
Would the court grant the relief sought if the substantive proceedings were in this jurisdiction? and
If yes, does the fact that the substantive proceedings are taking place abroad render the granting of any such interim relief inexpedient?
Mr Wardell accepted that the court could in theory make an order in the terms sought but submitted that I should not do so.
Would the court grant the relief sought if the substantive proceedings were in this jurisdiction?
As I said in respect of the application under the 1975 Act the substantive proceedings would probably be under the Inheritance Act 1975 and/or the Family Law Act 1986. Whatever the precise nature of the application, the court in civil proceedings has comprehensive powers under the CPR to order inspection of property, the taking of samples, the carrying out of experiments (see CPR 25.1). The Family Law Reform Act also permits DNA testing. Mr Pringle submits that the High Court would be entitled to and would order that a sample or samples be sent to a named MoJ approved laboratory for DNA testing. Where, as here, there is sufficient whole blood for repeat testing the court may well direct that some of it should be retained for later testing, if necessary.
Mr Wardell submitted that the order would not be made for a number of reasons:-
i) It would cut across the probate proceedings.
I do not accept this for the reasons I have already articulated.
There are “serious dangers” in sending the samples to Russia.
I do not accept this for the reasons already set out above. Any issues about the validity of a particular test can be determined in the Russian court. Retention of half of the samples in the UK would guard against that hypothetical risk.
iii) Ms Zolotova is the person who has the right to give or withhold consent to testing under the Human Tissue Act 2004. This order would cut across that. I have already dealt with the unattractive stance Ms Zolotova now takes. I am quite satisfied that the Human Tissue Act is not a reason not to make the order.
iv) Mr Wardell further argues that this order is effectively a mandatory injunction which would dispose finally of the issues in the proceedings and so the threshold for granting it at an interim stage is extremely high. He has referred me to a number of well known authorities.
The issues in the Russian proceedings are paternity and the distribution of the estate. If Ms Goncharova is not Mr Bendukidze’s daughter then the proceedings will be disposed of in favour of Ms Zolotova. If Ms Goncharova is his daughter then Russian/Georgian law will determine what happens to the estate. The results of the testing are overwhelmingly likely to determine paternity. There is no good reason to delay this fundamental step any further. The Russian Court has ordered that the testing take place now. Further delay will achieve nothing.
Sending samples to Russia does not risk injustice, as was submitted to me. Not sending the samples for testing risks grave injustice. The Russian court will be deprived of the best evidence upon which to determine whether Ms Goncharova is the daughter of Mr Bendukidze, a question to which she has a right to an answer irrespective of her rights to a share in the estate.
Were the substantive proceedings in this jurisdiction the High Court would make an order for the samples to be tested.
Does the fact that the substantive proceedings are taking place abroad render the granting of any such interim relief inexpedient?
Mr Pringle submits that there is no sensible basis upon which it might be said that because the substantive proceedings are taking place abroad it is inexpedient to grant this relief. I agree.
With due deference to the submissions of Mr Wardell which ranged over a number of well known authorities, the answer to this question is plain. It is not inexpedient. On the contrary it is highly expedient since the samples must be tested in Russia for the results to be used in the Russian court. I do not repeat my findings in respect of the quality of testing in Russia.
Accordingly I would, were it necessary to do so, make an order under Section 25. It would be in the same terms as the order under the 1975 Act.
Annex A
Alternative translation of the Order of the Gagarinsky District Court
[Drew Holiner]
The operative part of the Ruling of the Gagarinsky District Court of Moscow dated 1st September reads as follows:
‘Being governed by Articles 166, 79 and 80 of the Code of Civil Procedure of the Russian Federation, the court
Rules
To appoint and conduct in case No. 2-3307/15 which concerns the claim of Anastasia Igoryevna Goncharova against Natalya Yuryevna Zolotova seeking to establish paternity and to declare her as heir, a forensic molecular genetic expert analysis of the biological material located at the Westminster Coroner’s Court of Great Britain, located at the address: 65 Horseferry Road, London, SW1P 2ED, Great Britain, in which the following questions shall be posed:
Is Kakha Avtandilovich Bendukidze, dob 20 April 20 1956, native of Tbilisi, Republic of Georgia, and deceased on 13 November 13 2014, the biological father of Anastasia Igoryevna Goncharova, dob 1 November 1990, native of Moscow and born of Margarita Leonidovna Zarsepina? If so, what is the percentage of probability?
If the paternity of Kakha Avtandilovich Bendukidze, dob 20 April 1956, native of Tbilisi, Republic of Georgia and deceased on 13 November 2014, in respect of Anastasia Igoryevna Goncharova, dob 1 November 1990, native of Moscow is not excluded, then what is the probability that the result obtained is not the consequence of a random coincidence of individualising features of unrelated persons?
The conduct of the forensic molecular genetic examination shall be assigned to experts at the State Budget Institution of Health Care of the city of Moscow [entitled] “Forensic Medical Expert Analysis Bureau”, located at the address: Moscow, Tarnyy proezd, d 3.
To instruct the experts of the State Budget Institution of Health Care of the city of Moscow [entitled] “Forensic Medical Expert Analysis Bureau”, located at the address: Moscow, Tarnyy proezd,d. 3, to make a fence [sic] [NB The original Russian literally says ‘to make a fence’ This appears to be a misspelling; it may be understood from the context that the author intended to write “to collect”] the biological material of Kakha Avtandilovich Bendukidze, deceased on 13 November 2014 from the Westminster Coroner’s Court of Great Britain located at…in order to conduct a forensic molecular genetic forensic analysis.
To order Anastasia Igoryevna Goncharova to appear for the examination and submit the biological samples of Kakha Avtandilovich Bendukidze received from the Westminster Coroner’s Court of Great Britain…to the laboratory of the State Budget Institution of HealthCare of the city of Moscow entitled “Forensic Medical Expert Analysis Bureau”, located at the address: Moscow, Tarnyy proezd,d. 3;
To immediately notify the Gagarinsky District Court of the City of Moscow at the address… of the fact of receipt of the biological samples in respect of Kakha Avtandilovich Bendukidze;
To order Natalya Yuryevna Zolotova to submit the biological samples of Kakha Avtandilovich Bendukidze, received by her from DNA Solutions LLC to the laboratory of the State Budget Institution of HealthCare of the city of Moscow entitled “Forensic Medical Expert Analysis Bureau”, located at the address: Moscow, Tarnyy proezd,d. 3.
To warn the experts of their liability under Articles 307 and 308 of the Criminal Code of the Russian Federation.
All expenses, connected with the conduct of the forensic molecular genetic expert analysis shall be borne by Anastasia Igoryevna Goncharova.
To instruct the Westminster Coroner’s Court of Great Britain located at …to send biological samples to the laboratory of the State Budget Institution of HealthCare of the city of Moscow entitled “Forensic Medical Expert Analysis Bureau”, located at the address: Moscow, Tarnyy proezd,d. 3. for the purpose of conducting a forensic molecular genetic expert analysis, and to send notice of their dispatch to the Gagarinsky District Court of the City of Moscow at the address: Moscow, ulitsa Donskaya, d.11, Str.1, room 302;
Delivery of the samples shall be implemented in compliance with the conditions of storage, including during transportation, at the account and through the efforts of Anastasia Igoryevna Goncharova, who shall bear all the necessary expenses.
The time for conducting the forensic molecular genetic expert analysis shall be set at one month after this ruling enters into legal force, ie by 16 October 16 2015.
The report on the forensic molecular genetic expert analysis shall be sent to the Gagarinsky District Court of Moscow at the address…
To explain to the parties the requirements of Article 79 of the Code of Civil Procedure of the Russian Federation, which states that if a party avoids participation in the expert analysis or fails to provide to the experts necessary materials and documents for the examination and in other cases, if the circumstances of the case and without the participation of that party it is impossible to conduct the expert analysis, then the court, depending on which party is avoiding the expert analysis and the significance of the [expert analysis] for that party, shall be entitled to declare the fact for which the expert analysis has been appointed to be proven or disproven.
The proceedings in the case shall be stayed until receipt of the results of the forensic molecular genetic expert analysis.
This ruling in the part concerning the stay of proceedings may be appealed to the Moscow City Court through the registry of the Gagarinsky District Court of Moscow within 15 days.