LOUDMILA BOURLAKOVA & Ors v OLEG BOURLAKOV & Ors

The court applied the structured forum analysis required for service out and forum non conveniens applications. The relevant question is the forum in which the dispute as a whole can suitably be tried for the parties and the ends of justice. Practical convenience is important, but so are governing law, the place of the wrongful acts and harm, enforceability, the parties, witnesses and documents, and the risk of inconsistent judgments.

A foreign forum must provide a real ability to sue all material parties and obtain an enforceable judgment before a claimant’s choice of England loses substantial weight. Proceedings within the Brussels Regulation (Recast) cannot be stayed on general case-management grounds to achieve indirectly what article 34 does not permit.

The claimants brought substantial claims concerning an alleged international conspiracy to defraud Mrs Bourlakova of matrimonial and other assets. The claims included deceit, unlawful means conspiracy, misappropriation, declarations concerning forged documents and claims relating to the conduct of companies and fiduciaries.

Several defendants challenged the English court’s jurisdiction. The challenges concerned permission to serve the Panamanian companies out of the jurisdiction, the application of article 34 of the Brussels Regulation (Recast), forum non conveniens, extensions of time for service, an arbitration agreement affecting claims against Mr Anufriev, and service in Latvia.

The principal question was whether England was the proper place for the claims, notwithstanding related matrimonial, estate, criminal and asset-transfer proceedings in Monaco.

1. Jurisdiction and service out. The court held that the Panamanian companies had accepted that there was a serious issue to be tried and an available necessary-or-proper-party gateway under CPR PD6B. The issue was whether England was clearly and distinctly the proper forum. The structured forum inquiry required consideration of the dispute in its totality.
2. Forum factors. England had substantial connections, including London meetings at which important representations were allegedly made, an English anchor defendant, English-based witnesses and documents in English, and advantages concerning enforcement. Monaco had important connections with the Bourlakovs’ domicile, matrimonial dispute and estate. Those factors did not outweigh the risk that separate proceedings would produce irreconcilable judgments. The Monaco proceedings did not provide a sufficiently realistic single-forum alternative for all defendants, and consolidation was uncertain. The permission to serve out was therefore maintained.
3. Article 34 stay. The court held that the Monaco Asset Transfer proceedings fell within the matrimonial-property exclusion in article 1(2)(a) of the BRR. Following the approach in Moore v Moore, article 34 was not engaged where the related third-state proceedings were outside the material scope of the BRR. In any event, the proceedings were not sufficiently related, joint determination was insufficiently likely, the Monaco proceedings were suspended, and there was a substantial risk of delay. The article 34 applications were refused.
4. Case-management stay. Because the English proceedings were within the BRR, a case-management stay could not be used to circumvent the limits of article 34. That application was refused.
5. Arbitration. The arbitration clauses in the Foundation Charters covered conflicts arising from conduct undertaken in the capacity of protector. They did not necessarily cover conduct undertaken solely in another capacity after resignation. The claimants’ clarified case against Mr Anufriev was confined to his alleged role as manager and participant in the wider wrongdoing, so no stay under section 9 of the Arbitration Act 1996 was required. The arbitration clauses nevertheless significantly limited the allegations that could be advanced against him.
6. Service and extensions. The extensions of time for service were justified by the complexity of the claims, foreign-law evidence, multiple defendants and jurisdictional issues. Service on Mr Anufriev in Latvia was valid and effective because the documents had been received and the alleged signature formalities did not invalidate service.