JSC BTA Bank v Solodchenko & Ors

Criminal contempt based on allegedly false evidence must be proved beyond reasonable doubt. Where the allegation depends substantially on inference about a witness’s recollection, the court must examine the circumstantial evidence with particular care. If more than one reasonable inference remains, including one consistent with innocence, committal cannot be ordered. A witness’s inadequate, cautious or unhelpful response to a detailed disclosure order is not itself proof of deliberate lying. The court should also avoid determining substantive liability indirectly through an interlocutory committal application where the evidential record is incomplete.

JSC BTA Bank applied to commit Anatoly Ereshchenko for criminal contempt. The Bank alleged that he had deliberately lied in responding to a Norwich Pharmacal disclosure order concerning transactions involving approximately US$300 million of investments. The alleged lies concerned his knowledge and involvement in the transactions, and his access to relevant documents. The application was made before the Bank’s substantive claims for dishonest assistance had been tried. The central issues were whether the statements were false, whether they were made without an honest belief in their truth, and whether they were intended to interfere with the course of justice.

1. Application dismissed. The Bank failed to prove beyond reasonable doubt that Mr Ereshchenko had committed contempt in any of the eight respects particularised.
2. The applicable mens rea required proof that he deliberately gave false evidence without an honest belief in its truth and intended, by doing so, to interfere with the course of justice. The criminal standard applied. The burden remained on the Bank, subject to any evidential burden arising from a positive defence.
3. Where the case depended on circumstantial evidence and inference about recollection, the court had to examine the evidence narrowly and consider whether other reliable circumstances weakened or destroyed the inference of guilt. If more than one reasonable inference could be drawn, and at least one was inconsistent with contempt, the application failed. The court adopted the approach stated in Daltel v Makki [2005] EWHC 749 (Ch) and the guidance in Teper v R [1952] AC 480.
4. Mr Ereshchenko’s evidence was cautious and insufficiently informative. His conduct, fear and failure to explain matters fully did not establish deliberate lying. The detailed questions, the absence of documents immediately available to him, his asserted limited role, and the incomplete evidential record left reasonable possibilities consistent with his account.
5. The court also emphasised that deciding the contempt allegations might effectively determine substantial aspects of the Bank’s unresolved dishonest-assistance claim. Nothing in the committal decision finally determined those substantive issues. If the Bank wished to pursue them, they had to be determined at trial on the full evidence.

The application to commit was dismissed. Costs and any ancillary orders were left for further argument.

Not stated in the judgment.