Gorbunova v The Estate of Boris Berezovsky (aka Platon Elenin) (Deceased) & Ors

On a summary judgment application, a claimant must show a realistic prospect of success. The court must not conduct a mini-trial, but may decide a short point of law or construction where the evidence is sufficient.

A trust requires an intention immediately to dispose of property so that another person acquires the beneficial interest, and the trust property must be identified with sufficient certainty. A promise to pay a share of future recoveries does not, without more, create a trust or equitable assignment. A post-death disposition of an insolvent deceased’s property is void under section 284 of the Insolvency Act 1986.

The claimant, the long-term partner of Boris Berezovsky, sought proprietary relief against the trustees of his insolvent estate. She relied on a litigation deed promising her one third of property recovered through specified litigation and a later agreement concerning monies received under a settlement with the AP Family.

The trustees applied for summary judgment dismissing the proprietary claims. The claimant sought permission to re-amend her particulars of claim to add claims based on trust, equitable assignment, rectification, proprietary estoppel and constructive trust. The central issues were whether the documents had the alleged proprietary effects and whether the proposed alternative claims had a realistic prospect of success.

1. Summary judgment. The court applied the principles summarised in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), as approved in AC Ward & Son v Catlin (Five) Ltd [2009] EWCA Civ 1098. It had to assess whether the claims were realistic rather than fanciful, while avoiding a mini-trial. Where the issue was a short point of law or construction and the evidence was sufficient, it was appropriate to decide it.
2. Construction and trust. The documents were to be construed objectively. The litigation deed was a covenant to pay one third of the value of property recovered, not an immediate disposition of a beneficial interest. The litigation agreement was a conditional promise to transfer monies received free of encumbrances or restrictions. Neither document expressed an intention to create a trust, and the supposed trust property was also uncertain.
3. Insolvency. Any trust arising only when monies were received would have arisen after Berezovsky’s death in relation to payments made by the AP Family. By section 284 of the Insolvency Act 1986, as modified for insolvent estates by the Administration of Insolvent Estates of Deceased Persons Order 1986, such a disposition was void.
4. Alternative claims. The wording did not amount to an equitable assignment. The proposed rectification claims were inconsistent with the claimant’s own evidence of the parties’ intentions. The proprietary estoppel and constructive trust claims likewise pleaded assurances inconsistent with that evidence. These claims therefore had no realistic prospect of success.
5. The trustees’ application for summary judgment was granted. Permission to re-amend was refused except to the extent consented to by the trustees.