Loudmila Bourlakova & Ors v Oleg Bourlakov & Ors

Permission to amend pleadings and join a claimant may be granted where the proposed claims disclose a real prospect of success and the objections based on limitation, jurisdiction and discretion are not made out.

For forum purposes, the court must consider the dispute as a whole, particularly in multi-party litigation involving an alleged common fraud. The appropriate forum is the jurisdiction in which all claims can most suitably be tried together for the interests of all parties and the ends of justice.

Where foreign law gives a claimant several possible routes to relief, a limitation objection must address the actual legal basis of the proposed claim. A reasonably arguable limitation defence cannot be established by relying on a different cause of action.

The claimants sought permission for four groups of amendments to their Particulars of Claim, including the joinder of Veronica Bourlakova as an additional claimant. The proposed amendments concerned alleged ownership of Panamanian companies, alleged sham or forged documents, alleged misappropriation of assets and related damages claims under Panamanian law.

The Kazakov defendants sought an adjournment, permission to rely on further evidence and a stay. They and other defendants opposed the amendments principally on limitation, jurisdiction and discretionary grounds. The court considered whether the Brussels Recast continued to apply, whether England, Panama or Florida was the appropriate forum, and whether the proposed claims should be permitted.

1. Disposal. The adjournment application was refused. Permission was granted to rely on further evidence. The proposed amendments, including Veronica’s joinder and related amendments, were permitted against all defendants except the deceased first defendant. The application for a stay under Articles 33 and 34 of the Brussels Recast was deferred.
2. Limitation. The defendants had not shown a reasonably arguable limitation defence to the proposed damages claims. Their evidence relied on a one-year period applicable to Article 1644 claims, whereas the claimants expressly advanced freestanding claims under Articles 128 and 129 of the Panamanian Penal Code. The defendants therefore had not addressed the limitation position on the claims actually proposed. The same threshold was not met for the declaratory claims because there was insufficient positive evidence that the relevant corporate acts had occurred, or when they had occurred. Documents which appeared backdated or potentially forged did not establish the factual foundation of the defence.
3. Brussels Recast. The proceedings had been instituted before the end of the transition period. Following Simon v Taché, the Brussels Recast continued to apply to new claims and claims against new parties added to those proceedings. Article 8(1) was engaged because the claims against the anchor defendant, Leo Holding, were genuine and sufficiently closely connected with the proposed claims against the EU-domiciled defendants.
4. Common law jurisdiction. The necessary or proper party gateway under CPR PD6B, paragraph 3.1(3) was also satisfied. There was a real issue to be tried against Leo Holding, and the other defendants were necessary or proper parties to claims closely connected with the existing proceedings.
5. Forum. England was clearly and distinctly the more appropriate forum than Panama or Florida. The relevant enquiry concerned the case as a whole, not the proposed amendments in isolation. England allowed the existing and proposed claims against all defendants to be tried together. Panama and Florida could not be shown to be available for all the claims or capable of providing a single composite proceeding. The foreign proceedings were narrower, involved different parties or issues, and did not establish that the ownership questions would be finally determined there.
6. Discretion. The amendments were sufficiently clear, disclosed a real prospect of success and caused no substantial prejudice because the proceedings remained at an early stage. The existence of related proceedings abroad did not make the amendments vexatious or abusive. It was in the interests of justice for the claims concerning the alleged international fraud to proceed together in England.

First-instance decision of the High Court (Business List). The judgment records the earlier jurisdiction decision of Trower J in Bourlakova and others v Bourlakov and others, [2022] EWHC 1269 (Ch), but this judgment concerned the later amendment, joinder and related applications.