Tajik Aluminium Plant v Abdukadir Ganievich Ermatov & Ors

Applications concerning service out of the jurisdiction, foreign defendants, act of state and non-justiciability should be determined by reference to the pleaded claims and the evidence. The court must identify whether there is a real issue to try, whether an overseas defendant is a necessary or proper party, whether each cause of action has a reasonable prospect of success, and whether England is clearly the appropriate forum.

Act of state and non-justiciability are fact-sensitive doctrines. Where the underlying facts require disclosure and careful investigation, it may be unjust to strike out the claim at an interlocutory stage. A claimant may amend to remove objections based on those doctrines if the remaining case has a reasonable prospect of success.

The claimant, a Tajik state-owned aluminium plant, brought claims concerning alleged corruption and uncommercial trading arrangements. The second defendant, Ansol Limited, brought Part 20 claims against the claimant, Rusal-related parties and Orienbank-related parties, alleging that it had been unlawfully excluded from a joint venture and from trading with the plant.

The court considered applications under CPR Part 11, CPR Part 13.2, CPR Part 3.4 and the rules governing service out of the jurisdiction. The central issues were whether the Part 20 claims were non-justiciable or barred by act of state, whether the foreign defendants were proper parties, whether the claims had a reasonable prospect of success, and whether England was the proper forum.

1. Disposition. TadAZ’s strike-out application failed. The Part 20 claims were permitted to continue against TadAZ, Rusal, CDH and Hamer in the amended form. Permission to serve out was maintained against Rusal and CDH, but set aside in relation to Mr Deripaska, Rusal Management Company, Mr Bulygin, Mr Saduloev and Orienbank. Default judgments were set aside where appropriate. The earlier amendment application was dismissed as withdrawn.
2. Service out. Under CPR 6.20(3), the claimant had to show a real issue between it and the anchor defendant, that the overseas defendant was a necessary or proper party, and a reasonable prospect of success in each cause of action. The claimant also had to establish that England and Wales was clearly the appropriate forum. The jurisdiction was to be exercised with particular caution because it could bring foreign defendants before the English court in disputes with little connection to England.
3. Proper parties and merits. Rusal and CDH were proper parties to the amended claim. The evidence, including the evidence of foreign law, established a reasonable prospect of success, although it was strongly contested and could not fairly be resolved at an interlocutory hearing. The remaining individual and corporate defendants were not shown to be necessary or proper parties, and the amended pleadings were inadequately particularised in material respects.
4. Act of state and non-justiciability. The doctrines were fact-sensitive and required close examination of the particular issues. They did not justify striking out the claims at this stage. The chronology and authenticity of governmental decrees, including the alleged suspension of exports, required disclosure and investigation. It was unjust to allow TadAZ to pursue its main claims while preventing Ansol from pursuing seriously arguable related claims against TadAZ, Rusal and CDH.
5. Amendment and case management. A party could amend its claim to avoid an objection based on act of state, non-justiciability or immunity where the remaining case had a reasonable prospect of success. The court emphasised the need for realism, co-operation and proportionate interlocutory applications under the overriding objective.

This was a first-instance decision. The judgment refers to earlier interlocutory decisions, including orders of Blackburne J, Laddie J, Mann J and Lawrence Collins J, but no appeal from the present decision is stated.