PJSC National Bank Trust & Anor v Mints & Ors

When permission is required to serve proceedings out of the jurisdiction, the claimant must show that England is clearly or distinctly the proper place for the claim. The court must assess the interests of all parties and the ends of justice, including the risk of multiplicity and inconsistent judgments. That risk may carry substantial weight where related conspiracy claims against an anchor group are already proceeding in England, provided the claimant had a reasonable basis for choosing England. A foreign forum may nevertheless be more appropriate where the English choice was unjustified. A failure to make full and frank disclosure on an ex parte application does not automatically require the order to be discharged. The court retains a discretion and may mark an inadvertent breach through costs where justice does not require discharge.

Two Russian banks brought claims concerning alleged dishonest approval of replacement transactions against four defendants resident in England and sought permission to serve three additional defendants outside the jurisdiction. The additional defendants resided in the United States, Israel and Russia. They argued that the claims were essentially Russian disputes, governed by Russian law, and should be pursued in Russia.

The applications challenged permission granted ex parte for service out of the jurisdiction. The court also considered related proceedings in Russia, New York and arbitration, the effect of possible Russian limitation issues, and the claimants’ failure to disclose certain foreign proceedings when seeking permission. The central questions were whether England was clearly or distinctly the appropriate forum and, if not, whether substantial justice could be obtained in Russia.

1. The applications to set aside permission to serve the proceedings out of the jurisdiction on the Fifth, Sixth and Seventh Defendants were dismissed.

2. The applicable principles were those in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 476. Where permission to serve out is required, the claimant bears the burden of showing clearly that England is the proper place. The court must identify the forum in which the case can be suitably tried for the interests of all parties and the ends of justice.

3. Although the dispute was Russian in substance, the claimants had a reasonable basis for suing the Mints Defendants in England. The relative ease of enforcing an English judgment, particularly against assets outside Russia, was a legitimate juridical advantage. That distinguished the case from the relevant reasoning in Lungowe and others v Vedanta Resources and another [2020] AC 1045.

4. The claims against all seven defendants arose from the same alleged conspiracy and replacement transactions. Declining jurisdiction over the Fifth, Sixth and Seventh Defendants would materially increase the risk of multiple proceedings and inconsistent judgments. That factor outweighed the Russian connections, the inconvenience to the Seventh Defendant and the existence of related proceedings, which concerned different or only partly overlapping issues.

5. The possibility that the claims in Russia were time-barred did not independently justify retaining jurisdiction. The claimants could have protected the limitation position by commencing protective proceedings in Russia.

6. The claimants had failed to disclose the Russian insolvency proceedings and intended foreign proceedings when applying ex parte. The omission was serious but inadvertent. The court retained a discretion and, having regard to the lower potential for harm from an order permitting service out, concluded that justice did not require discharge. The breach was marked by an order that the claimants recover none of their application costs and pay one quarter of the costs of the Fifth, Sixth and Seventh Defendants.