Akhmedova v Akhmendov & Ors (Injunctive Relief)

The court may authorise alternative service, including service by email outside the jurisdiction, where the procedural rules permit it and the method brings the application to the respondent’s attention without causing unfairness. The court may abridge the ordinary notice period where sufficient notice has in fact been given.

Injunctions may be granted where it is just and convenient to protect the practical effectiveness of existing orders, including where there is a real risk that assets will be moved beyond enforcement. A penal notice may identify a company’s directors or officers, including de facto directors, but not shadow directors. Whether a person is a de facto director is a fact-sensitive question. For the purpose of naming an individual in a penal notice, a good arguable case is sufficient; the final status can be determined later.

The applicant had obtained a substantial financial remedy award and subsequent orders concerning a vessel held by the sixth respondent, Straight Establishment. Straight had been declared the first respondent’s alter ego and ordered to transfer the vessel or pay its monetary equivalent. The vessel remained in Dubai, where recognition and enforcement proceedings had encountered difficulty, creating an imminent risk of removal.

The applicant sought further mandatory and prohibitory injunctions, validation of service by email on parties and their lawyers outside the jurisdiction, abridgement of the notice period, and penal notices naming the directors of Straight’s corporate director. The respondents did not appear. The issues were whether sufficient notice had been given, whether further injunctive relief was just and convenient, and whether the proposed individuals could properly be named in the penal notices.

1. Service and notice. The court had jurisdiction under FPR rules 6.1(b), 6.19 and 6.43 to direct alternative service outside the jurisdiction and to validate steps already taken. Following Wilmot v Maughan [2017] EWCA Civ 1668, the rules did not preclude service by an alternative method, including email. The applicant’s extensive attempts to notify Straight, its lawyers, its corporate director and the relevant individuals meant that sufficient notice had been given. Service by email on Straight’s lawyers constituted good service, and service was dispensed with on the other respondents.
2. Injunctive relief. The court possessed jurisdiction under section 37 of the Senior Courts Act 1981, section 37 of the Matrimonial Causes Act 1973, and FPR rule 20.2. It was just and convenient to grant the requested orders. The existing orders might arguably leave room for dispute about whether moving the vessel constituted dealing with or diminishing its value. The further orders removed that ambiguity and required positive steps to protect the vessel. The court was entitled to take practical measures to make its earlier orders effective, notwithstanding the possibility that the orders would not be recognised or enforceable in Dubai or Liechtenstein.
3. Penal notices. FPR rule 37.4(3), like CPR rule 81.4(3), permitted committal proceedings against a company’s director or other officer, including a de jure or de facto director, but not a shadow director. The court adopted the approach in Touton Far East v Shri Mahal Ltd [2017] EWHC 621 (Comm) and Integral Petroleum SA v Petrogat FZE [2018] EWHC 2686 (Comm).
4. De facto directors. Whether a person is a de facto director is a matter of fact and degree requiring consideration of all the circumstances. The relevant inquiry includes whether the person formed part of the company’s corporate governing structure and assumed a role attracting the fiduciary responsibilities of a director, as explained in HMRC v Holland (In re Paycheck Services) [2010] UKSC 51. For naming a person in a penal notice, the court need only determine whether there is a good arguable case, applying JSC Bank of Moscow v JFC Group Holding (Re Kekhman) [2012] EWHC 2915 (Comm). There was such a case against each of Counselor’s directors, so all were named.

The orders sought were granted, including the validated and abridged service arrangements and the penal notices.