JSC BTA Bank v Ablyazov & Anor

A stay of proceedings is exceptional. The applicant must establish solid grounds, normally including a form of irremediable harm, after which the court balances the risks of injustice to each party. Temporary inconvenience and potentially wasted preparation are usually insufficient, particularly where costs can later be recovered and procedural directions can reduce prejudice.

Multiplicity of proceedings in different jurisdictions is not automatically vexatious, oppressive or abusive. The court must examine the similarity and scope of the claims, the practical burden on the defendant, the risk of inconsistent judgments and the claimant’s interest in pursuing a proper claim. Permission to amend may therefore be granted where the claims substantially differ and any future duplication or inconsistency can be managed.

JSC BTA Bank claimed against Mukhtar Ablyazov and Ilyas Khrapunov for conspiracy by unlawful means, alleging dealings with assets intended to frustrate enforcement of judgments against Mr Ablyazov.

Mr Khrapunov sought a stay of substantive proceedings pending his appeal to the Supreme Court on jurisdiction. The Bank sought permission to amend its particulars of claim to add allegations concerning assets dealt with through an accountant and transactions involving property in the United States. The amendment was opposed on grounds including multiplicity of proceedings and overlap with New York proceedings.

The court determined whether the alleged prejudice justified a stay and whether the proposed amendment should be permitted.

1. Stay application. Applying the approach stated in DEFRA v Downs [2009] EWCA Civ 257, a stay is exceptional. The applicant must put forward solid grounds and normally identify irremediable harm. The court must balance the risks of injustice if the stay is granted or refused.

2. The alleged wasted preparation prejudice did not justify a stay. Any costs resulting from a successful jurisdiction appeal would likely be recoverable, no adequate evidence quantified the alleged wasted work, and the timetable already postponed witness statements until after the expected Supreme Court decision. Disclosure and expert evidence could proceed without unfairness.

3. The alleged disclosure prejudice was not established. The evidence did not demonstrate an exceptional risk that disclosed material would be misused. Any legitimate sensitivity concerning inspection could be managed by ordinary protective measures, including redaction or restricting inspection.

4. The alleged witness prejudice was also insufficient. Witnesses cannot ordinarily expect certainty that litigation will proceed to trial, and postponing witness statements substantially answered the concern. The stay was therefore refused, subject to the revised witness-statement date.

5. Amendment application. There is no rule that parallel proceedings are automatically vexatious, oppressive or an abuse of process. Societe Nationale Industrielle Aerospatiale v Lee Kui Jak [1987] UKPC 12 established that multiplicity must be assessed as a matter of discretion. The approach in Kuwait Oil Tanker Co SAK v Al Bader (27 November 1995, unrep) was consistent with that principle.

6. The English and New York claims differed in their legal basis, factual scope and subject matter. The possibility of some overlapping evidence did not outweigh the Bank’s interest in pursuing the wider claim. Nor was the risk of inconsistent judgments sufficient to refuse amendment, since the courts could address changed circumstances and manage any future issue.

7. Permission to amend was granted, subject to a minor uncontroversial alteration. The stay application was refused.

The judgment records that Teare J had partly upheld Mr Khrapunov’s jurisdiction challenge. The Court of Appeal allowed the Bank’s appeal and held that the court had jurisdiction over the whole claim. The Supreme Court later granted permission to appeal; the present judgment determined case-management applications pending that appeal.