Ziyavudin Magomedov & Ors v Konstantin Kuzovkov & Ors

A Norwich Pharmacal order requires a good arguable case of legally recognised wrongdoing, involvement by the respondent in facilitating it, possession or likely possession of relevant information, and an appropriate and proportionate response in the overall interests of justice.

Where disclosure by an overseas third party would expose it to a strong risk of criminal liability under the law of its place of incorporation, and the English order would not readily be recognised or enforced there, the overall justice condition will ordinarily not be satisfied. A company cannot be treated as mixed up in wrongdoing merely because it shares a brand with another company, employs a person who may have relevant historical knowledge, or could make inquiries of that person.

The Applicants, claimants in substantial Commercial Court proceedings concerning alleged unlawful means conspiracies and bribery, sought Norwich Pharmacal relief against three financial services companies operating under the 1291 brand. They sought the identity of the source of an enquiry made in November 2021 concerning a proposed transfer of US$20 million to a company said to be beneficially owned by the thirteenth defendant.

1291 Private Office was incorporated in Liechtenstein. 1291 Group (DIFC) Ltd was incorporated after the enquiry, and 1291 Group Europe (UK) Ltd was a dormant English company incorporated later still. The issues included whether the respondents satisfied the Norwich Pharmacal conditions, whether service and procedure were valid, whether alternative service was permissible, and whether disclosure would contravene Liechtenstein law.

1. 1291 Private Office. The first three conditions were satisfied. There was a good arguable case that an illicit payment or attempted illicit payment formed part of an unlawful conspiracy; 1291 Private Office was sufficiently mixed up in the alleged wrongdoing by attempting to facilitate the transfer; and it was likely to possess information, even if relevant documents no longer existed.
2. The overall justice condition was not satisfied. There was strong evidence that disclosure of the identity of the relevant client could contravene Article 124 of the Liechtenstein Criminal Code and Articles 26 and 42 of the Liechtenstein Data Protection Act. The competing expert evidence did not establish that an English order would provide a safe legal basis for disclosure. The order was also not readily enforceable in Liechtenstein. Paragraph 4 of the proposed order did not cure the difficulty, because it would leave the respondent unable safely to comply and would make the order practically ineffective.
3. The application was not for an improper purpose merely because the information might assist in resisting forthcoming jurisdictional challenges. Identifying an alleged wrongdoer remained within the purpose of the Norwich Pharmacal jurisdiction.
4. A Part 23 application was capable of constituting originating process where made within existing proceedings. The Applicants therefore used the correct procedure. Alternative service by email on Liechtenstein lawyers contravened Liechtenstein law and was set aside. Alternative service by post to the English company’s registered address was justified because service was highly likely to come to the attention of senior group personnel connected with the Liechtenstein company.
5. The alleged failures of full and frank disclosure did not justify setting aside the remaining alternative-service order. Materiality and proportionality had to be assessed in the interests of justice.
6. 1291 Dubai and 1291 UK. Neither company satisfied the mixed-up condition. Each was incorporated after the critical 2021 enquiry, and the evidence did not establish that later employment, corporate connections, possible access to information, or involvement in responding to the litigation had facilitated the earlier wrongdoing. The applications against all three respondents were dismissed.