Loudmila Bourlakova & Ors v Oleg Bourlakov & Ors

A representative appointed under CPR, Part 19.12 represents the deceased person’s estate only for the purposes of the proceedings in which the appointment is made. The representative must understand the claims and, with legal advice, act impartially for the interests of the estate as a whole. That does not require neutrality between parties or a duty to consult foreign administrators, beneficiaries or creditors.

The representative may seek directions, obtain relevant documents from abroad, bring a counterclaim or additional claim, and settle proceedings. Court approval of a settlement is appropriate but is not required by Part 19.12. The estate, rather than the representative personally, is ordinarily liable for costs, subject to the court’s powers concerning non-parties. In exceptional circumstances, the court may prospectively exonerate the representative from liability, save for fraud, dishonesty or bad faith.

The judgment concerned directions sought by Nicholas Jacob, appointed under CPR, Part 19.12(1) to represent the estate of Oleg Bourlakov in complex, high-value proceedings after Mr Bourlakov’s death. No personal representative had been appointed in England and Wales, although representatives existed in other jurisdictions.

The application raised the scope of the representative’s duties, whether consultation was required, the availability of further directions, the power to obtain documents abroad, the ability to bring a counterclaim or settle, responsibility for costs, and prospective exoneration from liability.

1. Role and duties. The appointment was limited to representing the estate in the existing proceedings. Mr Jacob was not the estate’s personal representative or administrator. His task was analogous to that of a litigation friend: he had to understand the claims and, with appropriate legal advice, take steps to promote the best interests of the estate as a whole. He had to act impartially between competing creditors and beneficiaries, but was not required to act neutrally between the parties. He should take objectively assessed litigation positions rather than speculative ones.
2. Consultation and directions. No duty arose to consult particular beneficiaries, creditors, foreign administrators or entities said to hold estate assets. Mr Jacob could consult anyone whose information might assist him, but the decision was his. Part 19.12 had to be read with the overriding objective, case-management powers and application rules. The court therefore had jurisdiction to give further directions, including on confidential material, although applications should be moderate and proportionate.
3. Documents, counterclaims and settlement. The existing order permitted Mr Jacob to seek relevant documents from foreign holders, including by recognition, letters of request or orders against parties. Because a valid claim existed before death and Mr Bourlakov had an interest in it, Part 19.12(1) enabled the claim to progress. The representative could defend, set off, counterclaim or bring an additional claim under the CPR. The power to represent for the proceedings also included power to settle. Court approval of any settlement was an appropriate safeguard.
4. Costs and exoneration. Mr Jacob was not personally liable merely because costs orders were made against the estate, although the court retained its powers under section 51 of the Senior Courts Act 1981 and CPR, Part 46.2. Given the exceptional value, complexity, international scope, litigation intensity, insurance difficulties and risk that the representative would otherwise resign, prospective exoneration was ordered from the date of appointment, subject to fraud, dishonesty or bad faith.
5. The parties were directed to agree consequential orders. The request to reopen the counterclaim ruling was refused.