PJSC Commercial Bank Privatbank v Kolomoisky & Ors

A claimant seeking urgent without-notice relief must make full and fair disclosure of facts material to the application, including facts undermining the pleaded claim or the asserted value of the relief. Deliberate presentation of a misleading case may justify setting aside the order even where a lesser claim is arguable.

Under Article 6.1 of the Lugano Convention, jurisdiction cannot be obtained by artificially suing an anchor defendant solely to remove a foreign defendant from the jurisdiction of domicile. A good arguable claim against the anchor defendant does not prevent abuse being established on other grounds. Related proceedings in a third State may justify a stay where the statutory or analogous conditions are satisfied. Forum conveniens depends on the forum in which the case can suitably be tried in the interests of all parties and for the ends of justice.

The Bank brought claims in tort and unjust enrichment arising from an alleged Ukrainian fraud against two Swiss-domiciled individuals, three English companies and three BVI companies. It obtained worldwide freezing orders without notice and permission to serve the BVI defendants out of the jurisdiction.

The defendants challenged the Bank’s good arguable case, the freezing orders, jurisdiction under Article 6.1 of the Lugano Convention, stays in favour of related Ukrainian proceedings, and the forum for claims against the BVI defendants. The central questions were whether the English defendants were genuine anchor defendants and whether the Bank had fairly presented the factual basis and value of its claim.

1. Good arguable case and quantum. The Bank had a good arguable tort claim under Ukrainian law, but only up to about US$515 million. The evidence showed that the English and BVI defendants were generally conduits and that much of the money advanced under the Relevant Loans was repaid to the Bank or did not reach them. The unjust enrichment claim against them was hopeless because they were not enriched by retaining the money.
2. Without-notice disclosure. An applicant must make full and fair disclosure of all facts material to the application and must make proper enquiries before applying: [1988] 1 WLR 1350. The Bank failed to disclose material facts about repayment, immediate onward transfers, the limited role of the English defendants and the weakness of the unjust enrichment claim. The misleading presentation was deliberate and highly material. The freezing orders were therefore set aside.
3. Article 6.1 jurisdiction. The claim against the English defendants was artificially constructed and brought solely to establish jurisdiction over the Swiss-domiciled defendants in England. The existence of an arguable claim against an anchor defendant does not prevent abuse being established on other evidence. The court therefore had no jurisdiction over the First and Second Defendants under Article 6.1.
4. Stays in favour of Ukraine. The Ukrainian defamation proceedings were related because they involved substantial factual overlap and a risk of irreconcilable findings about the alleged fraud. The court would have stayed the claims under the inherent jurisdiction or CPR rule 3.1(2)(f), by analogy with Article 28 of the Lugano Convention, and under Article 34 of the Recast Brussels Regulation. The stay would be temporary and subject to review.
5. BVI defendants. England was not forum conveniens for claims against the BVI defendants alone. The natural forum was Ukraine, or the forum in which any valid claim against the principal defendants was pursued. Service on the BVI defendants was set aside.
6. Orders. The claims against the First and Second Defendants were struck out for want of jurisdiction. The claim against the English defendants was stayed. Service on the BVI defendants and the freezing orders were set aside.

First-instance decision. The judgment records no prior appellate decision in this litigation.