Yermek Alimov v Abdumalik Mirakhmedov & Ors

For jurisdiction applications, the court must avoid conducting a mini-trial where disputed credibility, authenticity and expert evidence prevent a reliable assessment of relative merits. A plausible evidential basis may nevertheless establish a good arguable case under the flexible third limb of the jurisdiction test.

Residence is a fact-sensitive assessment. An individual may have more than one usual residence. A service address under section 1141 of the Companies Act 2006 does not itself create a power to serve legal process.

Forum conveniens depends on the interests of justice and the real and substantial connections of the dispute. Different foreign procedural rules, or a possible difference in outcome, do not establish substantial injustice. Delay under a service treaty is ordinarily insufficient to justify alternative service.

The claimant brought claims governed by Kazakhstan law concerning an alleged oral joint-venture agreement relating to bitcoin mining facilities in Kazakhstan. He sought relief against three individual defendants and a Cyprus company.

The defendants challenged service, permission to serve out, the existence and scope of the alleged agreement, the fourth defendant’s joinder, alternative service and alleged non-disclosure. The central jurisdiction issue was whether England or Kazakhstan was the appropriate forum.

The applications required consideration of service at an English residence, the jurisdiction gateways, authority and ratification under Kazakhstan law, forum non conveniens, treaty service and the effect of the claimant’s without-notice presentation.

1. Service on D1. Residence was a multi-factorial and fact-dependent inquiry. D1 had not established a distinct break in his English residence. The evidence supported the conclusion that he continued to reside in England, while also living in Dubai. Service at 26 Holne Chase was therefore valid under CPR 6.9 as service at his usual or last known residence.
2. Section 1141. Section 1141 of the Companies Act 2006 defined a service address and enabled regulations prescribing conditions for such an address. It did not itself create a separate rule permitting service of proceedings. The authorities on section 1140 did not support service of a PSC outside section 1140’s scope. Service at 5A Falkland Road was therefore invalid on that alternative basis.
3. Jurisdiction gateways. The ordinary serious-issue threshold required a real, rather than fanciful, prospect of success. The good arguable case test required a plausible evidential basis; the court should reach a reliable view on relative merits if possible, but should not conduct a mini-trial. Where that was impossible, the third limb permitted reliance on a plausible, albeit contested, evidential basis. The claimant met that test for the alleged oral agreement and for the contract gateway.
4. Authority and ratification. The claimant failed to show a serious issue, still less a good arguable case, that D1’s authority to bind D2 and D3 was evident from the statutory reference to the environment in which a representative acts. The point had not been properly advanced in the evidence or supported by expert evidence. However, amendment to plead subsequent approval under Article 165 of the Kazakhstan Code was permitted. The pleaded conduct provided a plausible basis for ratification and a good arguable case against D2 and D3.
5. Appropriate forum. Kazakhstan was available and clearly and distinctly the more appropriate forum. The claims were governed by Kazakhstan law; the events, assets, parties’ business interests, documents and most witnesses were substantially connected with Kazakhstan. England’s connections, including the alleged London agreement and D1’s English residence, were comparatively slight. The claimant failed to show a real risk of substantial injustice in Kazakhstan. Different evidential rules and a possible adverse outcome were insufficient.
6. D4 and alternative service. No serious issue was pleaded against D4, and contingent enforcement or disclosure purposes did not justify its joinder. Delay under the UK/UAE Treaty, awareness of the claim and representation by English solicitors did not constitute a good reason for alternative service under CPR 6.15.
7. Non-disclosure and orders. The claimant materially failed to give full and frank disclosure on the without-notice application, particularly concerning the Kazakhstan appellate judgment on the alleged res judicata point. The order permitting service out was set aside. Proceedings against D1 were stayed in favour of Kazakhstan, permission to serve D1-D4 out was set aside, and alternative service was also set aside.