JSC BTA Bank v Ablyazov & Ors

Where information disclosed under a freezing order is subject to restrictions, the court may permit disclosure to the claimant where this is necessary to verify the information, trace allegedly misappropriated assets and consider remedies. A general application is not necessarily defective where the information concerns a connected proprietary claim and the proposed investigation is defined by the disclosed material. Disclosure should be refused only where the risk of unjust or unlawful harm to third parties is sufficiently cogent to outweigh the claimant’s need. Unsubstantiated or speculative risk will not ordinarily justify withholding disclosure.

The claimant sought release of the first defendant’s affidavit and exhibit from restrictions imposed by an order dated 12 November 2009. The restrictions prevented the information supplied under a freezing order from being provided to the claimant itself. The information concerned the alleged movement of US$295 million and included assertions that substantial sums had returned to the claimant.

The application was opposed on the basis that disclosure might expose persons in Kazakhstan to improper treatment, and on the grounds that it was unnecessary, misconceived and too generalised. The central issue was whether disclosure should be permitted in light of the claimant’s need to verify the information and trace its alleged property against the asserted risk to third parties.

1. Application granted. The claimant and its lawyers required access to the information to check the accuracy of the first defendant’s account, identify the purpose of payments and assess possible remedies against third parties. Those enquiries were reasonably required in the context of the claimant’s proprietary claim.
2. The existing facility enabling the claimant’s solicitors to view its automated banking system was not an adequate answer. It did not provide access to all relevant transactions, loan agreements or credit files, and further enquiries could themselves risk disclosing information contrary to the order.
3. The application was sufficiently focused. It was limited to the first defendant’s affidavit and exhibit, particularly the monies said to have been paid to the claimant. Requiring separate applications for each payment would create unnecessary expense.
4. The court could not make findings on the general rule of law in Kazakhstan. The evidence established a real possibility of improper treatment, but the particular evidence concerning Mr Rizoyev did not establish inappropriate, unjust or unlawful treatment. The first defendant’s disclaimer of interests in most of the companies and the prior disclosure of three companies without demonstrated adverse consequences also reduced the asserted risk.
5. There was a very strong case for disclosure: see Mediterranea Raffineria Siciliana Petroli v Babanaft (1 December 1978) per Templeman LJ. A cogent reason was required to withhold information materially impairing the claimant’s ability to trace and preserve its alleged property. No such reason had been established.
6. No limitation on the claimant’s personnel receiving the information, redaction of the four relevant company names, or restriction to payment details was necessary. The first defendant was ordered to pay 90% of the claimant’s costs, with indemnity costs limited to dealing with Dr Connerty’s Fourth Affidavit.