NATALIYA GOLUBOVICH v ALEXEY GOLUBOVICH & OLGA MIRIMSKAYA

On an inter partes challenge to permission to serve proceedings out of the jurisdiction, the court must decide afresh whether service out was justified. The burden remains on the party seeking permission.

The forum inquiry is a structured evaluative exercise. The necessary-or-proper-party gateway is analytically distinct from the question whether England is the clearly or distinctly most appropriate forum. Satisfaction of the gateway may be highly influential, but it does not conclude the forum inquiry.

An appellate court should be slow to interfere with a first-instance forum evaluation unless there was an error of principle, relevant matters were omitted or irrelevant matters considered, or the conclusion was plainly wrong. The desirability of avoiding fragmented proceedings and inconsistent judgments may carry substantial weight.

Olga Mirimskaya applied for permission to appeal against the dismissal of her challenge to the jurisdiction of the English court. Deputy Master Marsh had upheld an earlier order permitting Alexey Golubovich to serve an additional claim on Olga out of the jurisdiction.

The additional claim concerned ownership of artworks and antiques acquired during Alexey and Olga’s Russian marriage. Olga argued that the issue should be litigated in Russia, that Alexey’s position was abusive in light of an earlier refusal of an anti-suit injunction, and that the Deputy Master had wrongly treated Olga’s status as a proper party as effectively determining the forum question. She also challenged the summary assessment of costs.

The central issues were whether the forum question had been decided previously, the proper approach to appellate review, the weight to be given to the existing English proceedings, and whether the costs procedure had caused material prejudice.

1. Permission and outcome. Permission to appeal was granted on the jurisdiction appeal but refused on the costs appeal. The jurisdiction appeal was dismissed. The costs assessment remained in place.
2. On a challenge to permission to serve out of the jurisdiction, the court must reconsider the matter de novo. The burden lies on the party seeking service out to establish that permission was properly granted. The relevant circumstances are ordinarily those existing when permission was granted, although later events may illuminate those circumstances.
3. The forum question involves an evaluative balancing exercise rather than the exercise of a conventional discretion. An appellate court should be slow to interfere unless the first-instance judge considered irrelevant or mistaken material, omitted relevant material which could have affected the result, made an error of principle, or reached a plainly wrong conclusion.
4. The earlier anti-suit injunction decision did not decide the forum question for the additional claim. It concerned the narrower question whether Olga should be restrained from pursuing the Russian proceedings concerning the authenticity of the Deed of Settlement. Alexey’s reliance on England as the appropriate forum was therefore not abusive.
5. The necessary-or-proper-party gateway and the forum inquiry serve different functions. The former may be highly influential, particularly where the additional claim mirrors a defence and counterclaim in existing English proceedings, but it does not virtually conclude the latter. The court must consider the totality of the dispute and the interests of all parties.
6. On the facts, the close identity of issues between the main claim and additional claim, the English choice-of-law provision in the Deed of Gift, and the case-management disadvantages of fragmentation gave England a compelling connection. Russian citizenship, residence, matrimonial history and Russian-law issues were relevant factors, but did not make the Deputy Master’s conclusion impermissible.
7. There was procedural unfairness in the Deputy Master’s failure to await Olga’s agreed response submissions on costs. However, the summary assessment was broad-brush, took account of the increased costs schedule, and was not shown to have been materially different had the submissions been received. No substantive injustice was established.

• High Court, Chancery Division: Deputy Master Lloyd permitted service of the additional claim out of the jurisdiction on 21 July 2020. Deputy Master Marsh dismissed Olga’s jurisdiction challenge on 5 August 2021, refused permission to appeal and summarily assessed costs at £150,000: [2021] EWHC 2099 (Ch).
• Chancery Appeals: Permission to appeal was granted on the jurisdiction issues but refused on costs. The jurisdiction appeal was dismissed.