Alexander Gorbachev v Andrey Grigoryevich Guriev

The court has jurisdiction to appoint the trial judge as a special examiner to take evidence overseas during a trial. The jurisdiction arises from the court’s case-management and inherent powers and is not excluded by the ordinary provisions governing evidence on commission. Exercise of the jurisdiction is wholly exceptional. Video evidence will ordinarily be preferred because overseas examination is costly, disruptive and deprives the judge of ordinary powers to control evidence. An order may nevertheless be justified where live assessment of oral evidence is critically important, translation materially reduces the effectiveness of video evidence, the parties support the arrangement, and fairness requires a level playing field.

The parties jointly applied for the defendant and his son to give evidence at the DIFC court in Dubai, with the trial judge sitting as a special examiner. Both witnesses were designated persons under the Russia (Sanctions) (EU Exit) Regulations 2019 and could not enter the United Kingdom.

The court considered whether it had jurisdiction to make the order and, if so, whether the order should be made as a matter of discretion. It also considered whether public policy arising from the sanctions regime required refusal of the application.

1. Public policy. The Regulations did not contain an express policy preventing the order. Regulation 20 operated as an immigration exclusion and was outside the anti-circumvention provisions applicable to Regulations 11 to 18(c). The existence of licences permitting designated persons to fund litigation reinforced that conclusion. Any public-policy concern would in any event have to be balanced against the strong public interest in enabling a defendant joined against his will to defend the proceedings properly, by analogy with Polanski v Conde Nast Publications Limited [2005] UKHL 10 and Mints and others v PJSC National Bank Trust and another [2023] EWCA Civ 1132.
2. Jurisdiction. The court had jurisdiction to appoint itself as special examiner. CPR rr.34.8 and 34.13 did not require an unduly narrow reading. They had to be read with CPR r.3.1(d) and (m), together with the court’s inherent power to manage its own procedures and cases. Ross v Woodward [1894] 1 Ch 38 supported that approach. Earlier decisions, including Peer International Corporation v Termidor Music Publishers Limited [2005] EWHC 1048, Energy Venture Partners Limited v Malabu Oil & Gas Limited [2013] EWHC 2118 and Attorney General of Zambia v Meer Care & Desai [2006] EWCA Civ 390, were consistent with the jurisdiction.
3. Discretion. The choice was between two sub-optimal methods of taking evidence. Following the analysis in the SKAT Litigation [2024] EWHC 19 (Comm), video evidence would ordinarily be preferable because a judge acting overseas as special examiner could not compel attendance, require an answer, control questioning or exercise ordinary contempt powers.
4. Exceptional circumstances nevertheless justified the order. The evidence was central to an alleged oral declaration of trust; the witnesses required Russian interpretation; face-to-face assessment was materially more important than in an ordinary document-heavy commercial trial; and the claimant supported the application because effective cross-examination required personal attendance. Refusal would risk disadvantaging a foreign defendant sued against his will.
5. The order was made in principle, subject to arrangements concerning bundles, visas, separate travel and accommodation, a strictly limited period, and costs.