JSC COMMERCIAL BANK PRIVATBANK v IGOR VALERYEVICH KOLOMOISKY & ORS.

An adjournment should be granted where proceeding on the listed date would make the trial unfair, unless the resulting injustice to the other party cannot be compensated. Fairness is assessed fact-sensitively, without mechanically applying a checklist. The court must consider the practical ability of parties, lawyers, witnesses and experts to prepare and participate, including the effect of war or other exceptional disruption on communications, instructions, evidence and representation.

Inconvenience, court-user pressure and delay are insufficient by themselves. A money claim and the public interest in maintaining trial dates may be outweighed by the unfairness of proceeding. Where the impairment of preparation is already substantial and continuing, it may be appropriate to adjourn immediately rather than wait for a later review.

The claimant brought substantial claims against two individuals and six corporate defendants arising from alleged fraudulent transactions involving a Ukrainian bank. The claims were principally governed by Ukrainian law, with a separate unjust enrichment issue said to be governed by Cypriot law. Trial was listed to begin on 7 June 2022 and was estimated to last 10 to 13 weeks.

Following the Russian invasion of Ukraine on 24 February 2022, the defendants applied for an adjournment. They relied on severe disruption to communications, legal instructions, factual preparation, expert evidence, funding and the ability of defendants and witnesses to attend or give evidence. The claimant accepted that the case could not be tried immediately but argued that the court should wait for a further pre-trial review. The central issue was whether a fair trial could commence in June 2022.

The applications were granted. The trial was adjourned from June 2022 to a date to be fixed in the first half of June 2023.

1. Applicable approach. The power to adjourn derived from CPR 3.1(2)(b) and had to be exercised consistently with the overriding objective in CPR 1.2(a). The guiding question, applying Bilta (UK) Ltd v Tradition Financial Services Ltd [2021] EWCA Civ 221, was whether proceeding would be fair in all the circumstances. The assessment was fact-sensitive and did not involve a mechanistic checklist.
2. If refusal would make the trial unfair, an adjournment should ordinarily be granted despite inconvenience to the other party or court users, unless that inconvenience represented injustice to the other party which could not be compensated. The requirement to consider both sides reflected CPR 1.1(2)(d) and Article 6 ECHR, as explained in Dhillon v Asiedu [2012] EWCA Civ 1020.
3. The court accepted that the invasion had materially interrupted the flow of instructions and advice between the defendants and their English lawyers. It had also impaired factual investigation, document review, expert preparation, funding and the ability of Ukrainian lawyers and other assistants to work. The defendants could not fairly be expected to prioritise extensive English litigation over personal safety, family responsibilities and the war effort, particularly where the evidence showed genuine and continuing disruption.
4. The possibility that communications or conditions might improve did not justify postponing the decision. Waiting would cause further wasted costs, uncertainty and court disruption, while the damage to preparation was already continuing. The claimant’s financial and public-interest prejudice, including delayed recovery, did not amount to irremediable injustice outweighing the unfairness of proceeding.
5. The court was also slow to countenance a trial involving serious allegations of fraud where defendants might be unable to attend or give evidence, and proceeded on the basis that they might wish to do so. A further adjournment would require detailed evidence of mitigation and preparation arrangements.