WWRT v Serhiy Tyshchenko & Anor

Applications to strike out or stay proceedings should not be used to revive arguments already rejected, abandoned, or reasonably available at an earlier interlocutory hearing. Whether repeated litigation is abusive requires a broad, merits-based assessment of all the circumstances, including whether the point should have been raised earlier and whether its revival misuses the court’s process.

Foreign-law issues are generally matters of fact proved by expert evidence. A court may determine a foreign statutory or contractual construction point summarily where the experts agree on the relevant law and materials. Where material expert disagreement remains, and neither opinion is plainly wrong or absurd, the issue is unsuitable for summary determination. A strike-out application should also be refused where the claim remains fact-sensitive or raises a serious issue requiring evidence.

WWRT brought a fraud claim under Article 1166 of the Civil Code of Ukraine concerning loans made by JSC Fortuna Bank and assigned through Star Investment One LLC to WWRT. The defendants applied to strike out or stay the claim and to revoke the worldwide freezing order.

The applications relied principally on alleged defects in the assignments, the alleged unlawful transfer of banking records, the contention that fraud could be pursued only criminally in Ukraine, and related claims brought by the Deposit Guarantee Fund of Ukraine. Most arguments had been raised or could have been raised at earlier hearings, including the hearing which resulted in the continuation of the freezing orders in [2021] EWHC 939 (Ch).

1. Disposition. Mrs Justice Bacon rejected all four applications. The grounds pursued at the hearing were either abandoned or constituted attempts to revive issues previously determined, or which could and should have been advanced earlier. Their reintroduction was an abuse of process.
2. The court applied the broad, merits-based approach in Henderson v Henderson and Johnson v Gore Wood. The fact that a matter could have been raised earlier does not automatically make later reliance abusive. The question is whether, in all the circumstances, the party is misusing the court’s process. That principle applies to interlocutory hearings, subject to significant changes in circumstances or genuinely new facts, as explained in Koza v Koza.
3. Under CPR r.3.4(2)(a), strike out may be appropriate where a case is unwinnable, but not where legal viability is unclear, depends on the facts, or raises a serious factual issue requiring oral evidence. Foreign law is ordinarily proved by expert evidence. Summary construction may be possible where the experts agree on the relevant foreign law and materials, but not where material disagreement remains and neither opinion is plainly wrong or absurd.
4. The assignment issue could not be summarily resolved. The wording of the First Assignment arguably encompassed tortious rights under Article 1166; the experts disagreed about Ukrainian contractual construction and the effect of Article 514 of the Civil Code of Ukraine. The Ukrainian judgments, DGF letters and the decision in WWRT v Carosan and Kaufman did not provide a proper basis for strike out.
5. The banking-records and fraud arguments had also been previously rejected and were abusive when revived. In any event, the expert evidence did not justify summary rejection of WWRT’s case. The DGF claims likewise supplied no basis for strike out or a stay. The applications for a stay on case-management grounds had no conceivable foundation.