PJSC Commercial Bank Privatbank v Kolomoisky & Ors

Permission to appeal should be granted where there is a realistic possibility of success, rather than a fanciful prospect. The permission stage is not a detailed assessment of the appeal’s merits. An appellate court rarely interferes with a first-instance judge’s assessment of evidence unless a legal error or comparable failure is shown.

A stay pending an application for permission is exceptional. The applicant must identify irremediable prejudice, and the court must balance the competing prejudice, including the circumstances in which the order was obtained. Costs may properly be awarded on the indemnity basis where jurisdiction was pursued abusively, material non-disclosure occurred, and the claim was materially exaggerated.

The claimant sought permission to appeal decisions concerning jurisdiction, stays based on related Ukrainian proceedings, the quantum of its claim, non-disclosure and misrepresentation, the discharge of a worldwide freezing order, and the adequacy of the reasons given.

The claimant also sought a short-term stay of the discharge of the injunction pending an application to the Court of Appeal for permission on grounds refused by the judge. The defendants had succeeded on the principal applications and sought their costs, including interim payments and assessment on the indemnity basis.

1. Permission to appeal. The applicable test was whether there was a realistic possibility of success, as opposed to a fanciful appeal. Permission was granted on the jurisdiction and stay issues, including the related-proceedings questions and the claim against the BVI defendants. The points concerning quantum, non-disclosure and adequacy of reasons were not reasonably arguable.
2. The judge’s assessment of the weight of evidence was a first-instance evaluative exercise with which the Court of Appeal would rarely interfere. No reasonably arguable error in the law governing non-disclosure or in the adequacy of the reasons had been identified. A lengthy judgment need not address every piece of evidence or argument where it makes clear why one party succeeded.
3. Short-term stay. The normal rule was that there is no stay pending an appeal. The applicant had to show likely irremediable prejudice. The court balanced the prejudice to the claimant if the injunction ended and the appeal later succeeded against the inconvenience and expense to the defendants if it continued. The defendants had shown no particular additional prejudice, while the claimant faced serious potential prejudice. Despite the injunction having been obtained without full and frank disclosure, the balance of convenience, narrowly, favoured a limited stay pending any application for permission on the refused grounds.
4. Costs. The defendants had won on all the substantial issues. The abandoned or unsuccessful subsidiary points did not justify depriving them of their costs because there was no evidence of substantial discrete expenditure on issues that should not properly have been raised or pursued. The claimant’s use of third-party defendants to establish jurisdiction, material non-disclosure and exaggeration of the claim justified assessment on the indemnity basis. The fact that the claim arose from an alleged fraud did not alter that conclusion.
5. Interim payments were ordered on a conservative basis: £4 million to the first defendant, £2 million to the second defendant, and £1.5 million jointly in respect of the third to eighth defendants. The sums were not ordered to be held pending the appeal application.

This was a first-instance decision on permission to appeal, a stay application and costs arising from earlier applications in the same proceedings. Permission was granted on specified jurisdictional and stay issues, but refused on quantum, non-disclosure and adequacy of reasons.