Gorbachev v Guriev [2023] WTLR 395

WTLR Issue: Summer 2023 #191

ALEXANDER GORBACHEV (respondent/claimant)

V

ANDREY GRIGORYEVICH GURIEV (defendant)

and

1. FORSTERS LLP (respondent)

2. T.U. REFLECTIONS LIMITED (appellant)

3. FIRST LINK MANAGEMENT SERVICES LIMITED (appellant)

Analysis

The claimant made a third-party disclosure application under CPR 31.17 and s34 Senior Courts Act 1981 against Forsters LLP, English solicitors instructed on behalf of Cypriot trustees. Forsters LLP’s position was that the trustees were the only proper parties to the application under CPR 31.17, and that any order for disclosure should be made against them. Permission was granted by HHJ Pelling QC pursuant to CPR PD 6B(20) to serve the application for third-party disclosure on the trustees out of the jurisdiction, and for the application to be served by alternative means pursuant to CPR 6.15, namely by delivery to Forsters LLP’s office within the jurisdiction and by email to two specified addresses. The trustees applied to set aside the order. Jacobs J ([2022] EWHC 1907 (Comm)) upheld the order. The trustees appealed.

The issues to be determined were:

  1. (1) Does the court have jurisdiction to make an order for disclosure of documents against a third party outside England and Wales?
  2. (2) If such jurisdiction exists, was the judge wrong to exercise his discretion to permit service out of the jurisdiction?
  3. (3) Was the judge wrong to permit alternative service on the trustees?

Held:

  1. (1) Section 34, Senior Courts Act 1981 allows an application to be brought against a third party out of the jurisdiction for an order to produce documents which are located within England and Wales (para [88]). Although the principle of territoriality has an important role in considering the scope of s34 in relation to documents located outside England and Wales, it has little or no application in relation to documents in the jurisdiction. Such an interpretation does not trespass unreasonably upon the ‘letter of request’ procedure governed by the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters concluded on 18 March 1970.
  2. (2) Obiter: in view of the availability of the letter of request procedure, it would only be in an exceptional case that it would be appropriate to exercise the jurisdiction in relation to documents held abroad; Nix v Emerdata Ltd [2022] distinguished (para [90]).
  3. (3) The words ‘claim’ and ‘proceedings’ in gateway (20) (CPR PD 6B, para 3.1(2)) should not be narrowly construed; they include both an application for pre-action disclosure and an application for third-party disclosure. ED&F Man Capital Markets LLP v Obex Securities LLC [2017] approved (para [34]).
  4. (4) The judge’s exercise of discretion to permit service out of the jurisdiction could not be said to have been wrong (para [94]).
  5. (5) There was no error in the judge’s conclusion to permit alternative service on the trustees. While the judge did not expressly mention the claimant’s delay in making the application, which was a material factor, there was no reason to doubt that the judge had it well in mind (para [98]).

Appeal dismissed. The question as to whether an order for third-party disclosure should be made was remitted to the Commercial Court.

JUDGMENT MALES LJ: [1] The principal issue on this appeal is whether an order for disclosure of documents can be made against a third party outside England and Wales pursuant to s34 of the Senior Courts Act 1981 (‘the SCA’) and CPR 31.17. Jacobs J held in this case that such an order can be …
This content is only available to members.

Counsel Details

Sam O’Leary and Harry Stratton (One Essex Court, Temple, London EC4Y 9AR, tel 020 7583 2000, e-mail clerks@oeclaw.co.uk), instructed by Enyo Law LLP (5th Floor, 1 Tudor St, London EC4Y 0AH, tel 020 3837 1700, e-mail info@enyolaw.com) for the appellants.

Paul Stanley KC and Mark Belshaw (Essex Court Chambers, 24 Lincoln’s Inn Fields, London WC2A 3EG, tel 020 7813 8000, e-mail clerksroom@essexcourt.com), instructed by CMS Cameron McKenna Nabarro Olswang LLP (Cannon Place, 78 Cannon Street, London EC4N 6AF) for the claimant. No appearance for the defendant.

Thomas James (Ten Old Square, Lincoln’s Inn, London WC2A 3SU, tel 020 7405 0758, e-mail clerks@tenoldsquare.com), instructed by Forsters LLP (31 Hill Street, London W1J 5LS, tel 020 7863 8333), for the respondent.

Cases Referenced

  • AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647
  • Charman v Charman [2005] EWCA Civ 1606; [2006] WTLR 1 CA; [2006] 1 WLR 1053
  • Clark v Oceanic Contractors Inc [1982] UKHL TC/56/183; [1983] 2 AC 130
  • Cox v Ergo Versicherung AG [2014] UKSC 22; [2014] 1 AC 1379
  • ED&F Man Capital Markets LLP v Obex Securities LLC & anr [2017] EWHC 2965 (Ch); [2018] 1 WLR 1708
  • Ex parte Blain (1879) 12 Ch D 522
  • GFN SA & ors v Liquidators of Bancredit Cayman Ltd [2009] UKPC 39; [2010] Bus LR 587
  • Gorbachev v Guriev & ors [2022] EWHC 1907 (Comm)
  • Holmes v Bangladesh Biman Corporation [1989] AC 1112
  • In re Seagull Manufacturing Co Ltd [1993] Ch 345
  • In re Tucker [1990] Ch 148
  • M v N [2021] EWHC 360 (Comm)
  • Mackinnon v Donaldson, Lufkin & Jenrette Securities Corporation [1986] 1 Ch 482
  • Masri v Consolidated Contractors International (UK) Ltd (No. 4) [2009] UKHL 43; [2010] 1 AC 90
  • Nix v Emerdata Ltd & anr [2022] EWHC 718 (Comm)
  • Orexim Trading Ltd v Mahavir Port & Terminal Pte Ltd & anr [2018] EWCA Civ 1660; [2018] 1 WLR 4847
  • Panayiotou & ors v Sony Music Entertainment (UK) Ltd [1994] Ch 142
  • R (Al-Skeini) v Secretary of State for Defence [2007] UKHL 26; [2008] 1 AC 153
  • R (KBR Inc) v Director of the Serious Fraud Office [2021] UKSC 2; [2022] AC 519
  • R (Quark Fishing Ltd) v Secretary of State for Foreign and Commonwealth Affairs [2005] UKHL 57; [2006] 1 AC 529
  • R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687
  • Test Claimants in the FII Group Litigation & ors v HMRC [2020] UKSC 47; [2022] AC 1

Legislation Referenced

  • Administration of Justice Act 1970
  • Bankers’ Books Evidence Act 1878, s7
  • Bankruptcy Act 1914, s25
  • Civil Procedure (Modification of Enactments) Order 1998 (S.I. 1998/2940)
  • Civil Procedure Act 1997, s2
  • Criminal Justice Act 1987, s2(3)
  • Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters concluded on 18 March 1970
  • Insolvency Act 1986, s133
  • Protection of Trading Interest Act 1980, s2
  • Senior Courts Act 1981, ss33-34 and 36