Ashton Investments Ltd. & Anor v OJSC Russian Aluminium (Rusal) & Ors

For service out of the jurisdiction, the claimant need show a serious issue to be tried. Where the jurisdictional issue is intertwined with the merits, the court should not convert the application into a trial or require proof that the claimant has the much better overall case.

Under CPR Part 6.20(8), significant damage in England or substantial and efficacious acts in England may suffice, even where the conduct is international and the defendant’s acts began abroad. Confidential information stored on a server in England is property located within the jurisdiction for CPR Part 6.20(10). A claim for breach of confidence is not automatically a restitution claim under Part 6.20(15). England was the appropriate forum where the server, witnesses, related litigation and principal effects of the alleged wrongdoing were located.

The claim concerned alleged unauthorised access to the claimants’ London computer system, including alleged interception of confidential and legally privileged information connected with related litigation. The claimants advanced breach of confidence, unlawful interference with business and unlawful means conspiracy claims against Rusal, Rusal Management Company, Mr Deripaska and Mr Bulygin.

The defendants challenged the English court’s jurisdiction and sought to set aside issue and service of the claim form. The court proceeded on the agreed basis that permission to serve out was required. A previous order had removed Mr Deripaska and Mr Bulygin from related proceedings: [2006] EWHC 2374 (Comm). The issues were whether there was a serious issue to be tried, whether the claims fell within CPR Part 6.20 gateways, and whether England was clearly the appropriate forum.

1. Serious issue to be tried. The court rejected the submission that the claimants had to establish that they had a much better overall case. The Canada Trust gloss applied principally where a disputed jurisdictional fact concerned jurisdiction alone. Here, the jurisdictional question was closely connected with the merits. The proper question was whether there was a serious issue to be tried, applying the approach in Seaconsar and Konkola. The claim against the Rusal defendants satisfied that threshold, although the serious allegations required commensurate proof at trial.
2. Individual defendants. The evidence did not support a seriously arguable case that Mr Deripaska or Mr Bulygin had personally committed the alleged torts. Their senior positions and control of the group did not justify that inference. They were not necessary or proper parties merely because an injunction might be more effective if addressed to them. Proceedings against them were set aside.
3. Jurisdictional gateways. The alleged hacking was directed at and achieved access to a server in London. Significant damage was therefore sustained in England, and substantial and efficacious acts occurred there for CPR Part 6.20(8). Confidential information stored digitally on the London server was property located within the jurisdiction for Part 6.20(10). The claim was not, in substance, a restitution claim for Part 6.20(15). A future injunction restraining interference with the server would fall within Part 6.20(2), although the claimants did not need that gateway for relief concerning misuse of confidential information.
4. Conspiracy. The pleaded conspiracy against the Rusal defendants was insufficiently particularised, but it might be possible to plead a conspiracy involving the Rusal defendants and unknown individuals. The claimants were given an opportunity to re-plead it.
5. Forum conveniens. Russia was an available forum, but London was clearly the appropriate forum. The server, confidential information, claimants’ witnesses, experts and related High Court litigation were principally connected with England. English law was probably applicable, and Russian proceedings were likely to involve substantial legal difficulty and delay.
6. The proceedings against the Rusal defendants continued, subject to re-pleading of the conspiracy claim. Costs and further directions were reserved.

First-instance jurisdictional decision. The judgment records that related proceedings had previously resulted in the removal of Mr Deripaska and Mr Bulygin by [2006] EWHC 2374 (Comm).