WWRT Limited v Kostiantyn Valentynovych Zhevago

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.

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.

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. The application succeeded. The order permitting service out and alternative service was set aside. Counsel were invited to agree the appropriate form of order.

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.