Alexander Tugushev v Vitaly Orlov & Ors

An English court may order disclosure even where compliance might breach foreign criminal law. The governing procedure is English law, and foreign law does not override the court’s control of its proceedings.

The court must balance the actual risk of foreign prosecution against the documents’ importance to the fair disposal of the English proceedings. A merely technical breach is insufficient. The court should consider whether the foreign prohibition is regularly enforced and whether protective measures can reduce the risk. An actual risk of prosecution is important but not determinative.

The claimant alleged breaches of a tripartite joint venture agreement and conspiracy concerning an international fishing business. The first defendant denied the claims. He had also initiated Russian criminal proceedings against the claimant.

During those proceedings a Russian investigator seized servers and storage devices containing about 10,000 documents relevant to the English action. The first defendant applied to defer disclosure of those documents. He argued that disclosure might expose him to prosecution under Article 310 of the Criminal Code of the Russian Federation for revealing preliminary investigation data.

The central issue was whether that asserted risk justified relief from the existing disclosure obligation or a further postponement of disclosure.

1. The application for relief was refused and prompt disclosure was ordered. English procedural law governed disclosure. The court could require production and inspection despite a possible breach of foreign criminal law, subject to a discretionary balance between the actual risk of prosecution and the documents’ importance to a fair determination of the action.

2. The first defendant had not established a real, significant or substantial risk of prosecution under Article 310 of the Criminal Code of the Russian Federation. The non-disclosure acknowledgement concerned preliminary investigation data learned through participation in the criminal case. The documents were pre-existing business records already known to the first defendant. Neither foreign-law expert identified a prosecution involving disclosure of information already known through business operations. The evidence also failed to establish the harm or threatened harm said to be necessary for prosecution.

3. The documents were essential to a fair trial. They comprised approximately half of the first defendant’s disclosure, including emails of central custodians, records from personal devices and extensive financial and business documents. Many were under the first defendant’s control and might not be available to the claimant. Complete withholding therefore required particularly strong justification.

4. The risk could be mitigated. Only copies held by the first defendant’s London solicitors were to be disclosed, and the claimant was not to be told which documents had been seized. Disclosure was necessary for a fair trial under Article 6 of the European Convention on Human Rights and also enabled the first defendant properly to defend the claim.

5. Immediate disclosure was necessary to protect the scheduled trial and permit preparation of witness statements. Further delay might leave the parties in the same position while seriously endangering the trial date. It would also be unfair to require the other parties to give complete disclosure while the first defendant withheld approximately half of his own documents.

• High Court (Commercial Court): The proceedings had previously included an unsuccessful jurisdiction challenge by the first defendant and his successful application to set aside and oppose continuation of a worldwide freezing order. Citations for those decisions are not stated in the judgment.
• High Court case management: Jacobs J refused the first defendant’s application for a split trial and ordered disclosure and a trial beginning in March 2022. Andrew Baker J later directed the first defendant to make any further disclosure application formally.