Summary
For jurisdictional gateways, the governing standard remains a good arguable case. It requires a plausible evidential basis, a reliable view where possible and, where that is impossible, a plausible contested case. It does not impose a rigid requirement that the claimant have much the better argument. Residence is fact-sensitive: a person may reside in more than one jurisdiction, and the quality, purpose and pattern of visits matter as much as numbers. For the tort gateway, an agreement made in England may be a substantial and efficacious act from which damage results in a conspiracy claim. A viable claim against an English anchor defendant may support joinder where it is reasonable to try and the claims require one investigation. Forum analysis must weigh all relevant connections and avoid fragmentation where inconsistent outcomes may result.
Factual background
The claimant alleged that he had co-founded the Norebo Group and that the defendants had conspired to misappropriate his shares in CJSC Almor Atlantika and deny his wider interest in the group. He advanced contractual and conspiracy claims for substantial damages, declaratory relief and an account.
On 23 July 2018 Bryan J granted a worldwide freezing order and permission to serve the First Defendant out of the jurisdiction. The First Defendant challenged jurisdiction, arguing that he was domiciled and resident in Russia, that the relevant gateways were unavailable and that Russia was the appropriate forum. The court considered domicile, residence, limitation, the tort gateway, the necessary or proper party gateway and forum conveniens. The present judgment determined the jurisdiction challenge only.
Held
- Outcome. The jurisdiction challenge failed. The claimant established a good arguable case that the First Defendant was resident and domiciled in England. The court therefore had jurisdiction over his contractual and tort claims as of right under Article 4 of the Recast Regulation. The remaining freezing-order issues were reserved.
- Good arguable case. Applying Brownlie v Four Seasons Holdings Inc [2017] UKSC 80 and Kaefer Aislamientos SA de CV v AMS Drilling Mexico SA de CV and others [2019] EWCA Civ 10, the court applied the three-limb test: a plausible evidential basis; a reliable determination where possible; and, where no reliable determination could be made, a plausible but contested evidential basis. The test remained one of good arguable case, without a rigid requirement that the claimant have much the better argument.
- Limitation. Under the Limitation Act 1980, the claimant had a good arguable case that the limitation period was postponed because the defendants’ intention to injure, a necessary ingredient of conspiracy, had been deliberately concealed. Knowledge in 2011 that the shares had been transferred did not necessarily amount to knowledge of that intention. Under Russian law, the better argument was that time began when the claimant discovered the adverse consequences of the transfer, including the denial of his interest and dividends.
- Residence. Residence meant a settled or usual place of abode. It was not determined by a numbers game. Applying Levene v Commissioners of Inland Revenue [1928] AC 217, Varsani v Relfo Ltd [2010] EWCA Civ 560 and Bestolov v Povarenkin [2017] EWHC 1968 (Comm), the court considered the quality and purpose of visits, their regular pattern, the Wharf flat, family connections and immigration evidence. The First Defendant could reside in both Russia and England.
- Alternative gateways and forum. A conspiratorial agreement made in England could constitute a substantial and efficacious act for the tort gateway, applying JSC BTA Bank v Khrapunov [2018] UKSC 19. The necessary or proper party gateway was also satisfied: the claim against the anchor defendant was viable and reasonable to try, and the First Defendant was a proper party to a single investigation with the other alleged conspirator. Applying The Spiliada [1987] AC 460, the court held that England was clearly and distinctly the most appropriate forum. The need to avoid fragmented proceedings and inconsistent outcomes outweighed the substantial Russian connections.
The court’s approach to earlier authorities
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Appellate history
- High Court (Commercial Court): Bryan J granted permission to serve out and made a worldwide freezing order on 23 July 2018. In the present first-instance judgment, Carr J dismissed the First Defendant’s jurisdiction challenge. The remaining freezing-order issues were left for a further hearing.
Key cases cited
The 30 most senior of 40 authorities cited.
- JSC BTA Bank v Khrapunov [2018] UKSC 19
- Four Seasons Holdings Incorporated v Brownlie [2017] UKSC 80
- Virgin Atlantic Airways Limited v Zodiac Seats UK Limited (formerly known as Contour Aerospace Limited) [2013] UKSC 46
- VTB Capital plc v Nutritek International Corp and others [2013] UKSC 5
- AK Investment CJSC v Kyrgyz Mobil Tel Limited and others (Isle of Man) [2011] UKPC 7
- Donohue v. Armco Inc and Others [2001] UKHL 64
- Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460
- R v Barnet London Borough Council, Ex p Nilish Shah (Abdullah v Shropshire County Council, Akbarali v Brent London Borough Council, Jitendra Shah, Ex parte, Jitendra Shah v Barnet London Borough Council, Nilish Shah, Ex parte, R v Barnet London Borough Council, Ex parte Jitendra Shah, R v Barnet London Borough Council, Ex parte Shabpar, R v Brent London Borough Council, Ex parte Akbarali, R v Inner London Education Authority, Ex parte Ablack, R v Shropshire County Council, Ex parte Abdullah, Shabpar, Ex parte, Shabpar v Barnet London Borough Council) [1983] 2 AC 309
- Levene v Inland Revenue Comrs [1928] AC 217
- Kaefer Aislamientos SA De CV v AMS Drilling Mexico SA De CV & Ors [2019] EWCA Civ 10
- Aspen Underwriting Ltd & Ors v Credit Europe Bank NV [2018] EWCA Civ 2590
- Lungowe & Ors v Vedanta Resources Plc & Anor [2017] EWCA Civ 1528
- Erste Group Bank AG London Branch v J 'VMZ Red October' & Ors [2015] EWCA Civ 379
- Varsani v Relfo Ltd (In Liquidation) [2010] EWCA Civ 560
- Deripaska v Cherney [2009] EWCA Civ 849
- Konkola Copper Mines Plc & Anor v Coromin Ltd & Ors [2006] EWCA Civ 5
- EZEKIEL v LEHRER [2002] Lloyd's Rep PN 260
- Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547
- Dubai Bank Ltd v Abbas [1997] ILPr 308
- PJSC Commercial Bank Privatbank v Kolomoisky & Ors [2018] EWHC 3308 (Ch)
- Gunn & Ors v Diaz & Ors [2017] EWHC 157 (QB)
- Bestolov v Povarenkin [2017] EWHC 1968 (Comm)
- Lungowe & Ors v Vedanta Resources Plc & Anor [2016] EWHC 975 (TCC)
- Al Jaber v Al Ibrahim [2016] EWHC 1989 (Comm)
- Erste Group Bank AG (London Branch) v JSC "VMZ Red October" [2013] EWHC 2926 (Comm)
- BAT Industries Plc v Windward Prospects Ltd [2013] EWHC 4087
- Innovia Films Ltd v Frito-Lay North America Inc [2012] EWHC 790
- JSC BTA Bank v Granton Trade Ltd & Ors [2010] EWHC 2577 (Comm)
- Pacific International Sports Clubs Ltd v Soccer Marketing International Ltd [2009] EWHC 1839
- OJSC Oil Company Yugraneft v Abramovich & Ors (Rev 1) [2008] EWHC 2613 (Comm)
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Cases citing this case
12 later cases · 6 positive · 3 neutral · 2 caution · 1 negative
Most senior citing decisions:
- Sheikh Mohammed Omar Kassem Alesayi v Bank Audi S.A.L. [2025] EWHC 1033 (KB) followed
- Stuart Lunn v Antarctic Logistics Centre International (Pty) Limited [2024] EWHC 1662 (KB) considered
- Zakir Haroon Mussa v Zubair Osman Gani Issa & Ors [2024] EWHC 763 (Ch) considered
- Dhan Kumar Limbu & Ors v Dyson Technology Limited & Ors [2023] EWHC 2592 (KB)
- Harrington & Charles Trading Company Limited (in liquidation) & Ors v Jatin Rajnikant Mehta & Ors [2023] EWHC 307 (Ch)
- The Public Institution for Social Security v Ely Michel Ruimy & Anor. [2023] EWHC 177 (Comm)
- HC TRADING MALTA LIMITED v K.I. (INTERNATIONAL) LIMITED & Ors [2022] EWHC 1387 (Comm)
- Alta Trading UK Ltd & Ors v Bosworth & Ors [2020] EWHC 2757 (Comm)
- Jovicic & Ors v The Serbian Orthodox Church-Serbian Patriarchy [2020] EWHC 2229 (QB)
- Kim v Lee [2020] EWHC 2162 (QB)
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