Summary
On an application challenging jurisdiction, the claimant must establish a serious issue to be tried, a good arguable case within the relevant service-out gateway, and that England is clearly or distinctly the appropriate forum.
An issue of foreign law is treated as an issue of fact at this stage. The court may analyse expert evidence and reject a fanciful case without conducting a mini-trial. Under the tort gateway, the claimant must identify substantial and efficacious acts of the defendant committed within the jurisdiction; regular presence alone is insufficient. Under Spiliada, a natural foreign forum should be displaced only by cogent evidence of a real risk that substantial justice will not be obtained there.
Factual background
WWRT Limited, an English special purpose vehicle and assignee of claims formerly held by a Ukrainian bank, brought proposed tort proceedings against Mr Zhevago concerning an alleged scheme involving loans made by the bank to Ukrainian companies.
Mr Zhevago challenged jurisdiction and sought to set aside Moulder J’s order permitting service out of the jurisdiction and alternative service. The issues were whether the assignment transferred the alleged tortious claims, whether the claim satisfied the tort gateway in CPR PD 6B paragraph 3.1(9)(b), and whether England was clearly or distinctly the more appropriate forum than Ukraine.
Held
- Assignment. The DGF/Horizon assignment transferred contractual rights under specified loan and guarantee agreements. Its language did not transfer tortious claims against Mr Zhevago, who was not a debtor, guarantor, successor or other party to whom the debtors’ obligations had been transferred. Article 514 of the Civil Code of Ukraine made the scope of an assignment dependent on the rights and conditions existing at transfer, subject to the parties’ agreement. There was no serious issue to be tried that Ukrainian law automatically transferred tortious rights which the parties had not agreed to assign.
- Serious issue to be tried. The court applied the summary-judgment approach. A claim must have a real, rather than fanciful, prospect of success. The court need not accept an expert’s statement of foreign law without analysis, particularly where the relevant legal materials and reports enable the issue to be assessed.
- Tort gateway. Under CPR PD 6B paragraph 3.1(9)(b), applying Metall und Rohstoff and Manek, the relevant inquiry is whether damage resulted from substantial and efficacious acts of the defendant committed within England, assessed in a common-sense way. WWRT identified no act in England, still less one with that quality. Mr Zhevago’s short and intermittent visits, principally for unrelated business and family purposes, did not establish a good arguable case.
- Forum conveniens. Ukraine was the natural forum. The alleged tort, governing law, parties, witnesses, documents, related proceedings and principal factual connections were overwhelmingly Ukrainian. The court applied the structured Spiliada inquiry and found no cogent evidence of a real risk that substantial justice would not be obtained in Ukraine. Wartime disruption, possible enforcement arguments, and the late allegation of bribery did not justify retaining English jurisdiction.
- The bribery evidence was refused because it was raised deliberately and exceptionally late, without a fair opportunity for response. In any event, the material did not amount to cogent evidence of a real risk of corruption affecting the trial.
- The application succeeded. The order permitting service out and alternative service was set aside. Counsel were invited to agree the appropriate form of order.
The court’s approach to earlier authorities
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Appellate history
First-instance jurisdiction application. The judgment records earlier related proceedings in which the Chancellor stayed proceedings on forum grounds, but those proceedings were not an appeal in this case.
Key cases cited
17 authorities cited.
- Goldman Sachs International v Novo Banco SA [2018] UKSC 34
- VTB Capital plc v Nutritek International Corp and others [2013] UKSC 5
- AK Investment CJSC v Kyrgyz Mobil Tel Limited and others (Isle of Man) [2011] UKPC 7
- Spiliada Maritime Corpn v Cansulex Ltd (The Spiliada) [1987] AC 460
- Manek & Ors v IIFL Wealth (UK) Ltd & Ors [2021] EWCA Civ 264
- Kaefer Aislamientos SA De CV v AMS Drilling Mexico SA De CV & Ors [2019] EWCA Civ 10
- NATALIYA GOLUBOVICH v ALEXEY GOLUBOVICH & OLGA MIRIMSKAYA [2022] EWHC 1605 (Ch)
- JJH ENTERPRISES LIMITED v MICROSOFT CORPORATION & ORS. [2022] EWHC 929 (Comm)
- THE FOOTBALL ASSOCIATION PREMIER LEAGUE LIMITED v PPLIVE SPORTS INTERNATIONAL LIMITED [2022] EWHC 38 (Comm)
- ArcelorMittal North America Holdings LLC v Ravi Ruia et al [2022] EWHC 1378
- VTB Commodities Trading DAC v JSC Antipinsky Refinery & Ors [2021] EWHC 1758 (Comm)
- King & Ors v Stiefel & Ors [2021] EWHC 1045 (Comm)
- Dynasty Company for Oil and Gas Trading Ltd v Kurdistan Regional Government of Iraq & Anor [2021] EWHC 952 (Comm)
- AltaTrading UK Ltd v Bosworth and others [2020] EWHC 2757
- Ferrexpo AG v Gilson Investments Ltd & Ors [2012] EWHC 721 (Comm)
- Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch)
- Metall und Rohstoff AG v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391
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Cases citing this case
2 later cases · 1 positive · 1 neutral
Most senior citing decisions:
- Loudmila Bourlakova & Ors v The Estate of Oleg Bourlakov & Ors [2025] EWHC 1792 (Ch) applied
- Aercap Ireland Capital Designated Activity Company & Ors v PJSC Insurance Company Universalna & Ors [2024] EWHC 1365 (Comm) considered
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