Yermek Alimov v Abdumalik Mirakhmedov & Ors

The principal issues concerned jurisdiction and forum: whether the English courts had been validly seised of proceedings and, if not, whether permission to serve out of the jurisdiction should have been granted. The judge found that service on the First Defendant at his English residence was valid under CPR 6.9. However, on the substantive forum question the court concluded that Kazakhstan was the clearly more appropriate forum for trial given the strong factual and legal connections with Kazakhstan and the fact that the parties’ claims are governed by Kazakh law. The ex parte order (the Dias J Order) giving permission to serve out and to use alternative methods of service was set aside inter partes. The court also set aside the alternative service directions. The Fourth Defendant’s application succeeded because no claim had been pleaded against it and there was no serious issue to be tried as to that defendant. The judge also identified material non-disclosure in the claimant’s without-notice papers (notably failure to disclose a Kazakhstan appellate decision dealing with a related criminal judgment) which further supported setting aside the Dias J Order.

Background and nature of proceedings. The claimant, a Kazakhstani businessman now resident in England, alleged an oral contract made in London in June 2017 with the three individual defendants (and acted on their behalf) concerning contribution of Kazakh property and rights to a bitcoin‑mining joint venture and consequent entitlements to shares, bitcoin and an electricity price differential. The claim is governed by Kazakhstan law and includes alternative claims in unjust enrichment and under Kazakhstan law on joint activities. The Fourth Defendant is a Cyprus company which the claimant says ultimately held the mining business. The defendants applied to set aside an earlier without‑notice order permitting service out of the jurisdiction and by alternative methods; the First Defendant separately applied to strike out or stay the claim on forum non conveniens grounds.

Key procedural and factual points.

• The judge examined whether the First Defendant had been validly served in England at one of three English addresses and whether he was resident or domiciled in England for the purposes of CPR PD6B gateway (1).
• The court considered the merits threshold for service out: whether there was a serious issue to be tried and whether a relevant gateway under PD6B applied (in particular the contract gateway), and then whether England was the appropriate forum.
• Extensive factual disputes existed concerning the alleged oral agreement and the surrounding transaction: differing accounts of the London meeting, documentary items of contested authenticity (spreadsheets, messages), and alternative explanations for payments made to the claimant.

Issues framed and court’s reasoning (concise):

• Service within the jurisdiction: the judge applied the ordinary residence test under CPR 6.9 and authorities on residence. On the facts he found the First Defendant retained a residence in England (26 Holne Chase) at the relevant time such that service at that address was valid.
• Service under Companies Act 2006 s.1141 alone could not be used to justify service where s.1140 did not apply; the claimant’s reliance on s.1141 without s.1140 was rejected.
• Permission to serve out of the jurisdiction requires (i) a serious issue to be tried, (ii) a good arguable case that a PD6B gateway applies and (iii) that England is the appropriate forum. The judge reviewed the tests in AK Investment, Brownlie, Goldman Sachs and Kaefer and described how the limbs interact.
• Serious issue/gateway: the court held it could not reliably determine the contested factual issues on the interlocutory material (to do so would amount to a mini‑trial). Accordingly limb (ii)/(iii) of the authorities applied and the claimant met the threshold of a good arguable case that the alleged oral contract had been made in London. The judge permitted the claimant to amend to plead ratification under Kazakhstan law and held there was a plausible evidential basis for that ratification case.
• Authority/parties issue: the defendants contended the First Defendant lacked authority to bind the others under Kazakhstan law (Article 163). The claimant’s late argument that authority arose because it was "evident from the environment" (the second sentence of Article 163) was not supported by expert evidence and had no real prospect of success on the material before the court; but ratification under Article 165 remained a plausible route and was permitted to be pleaded.
• Appropriate forum: applying Spiliada and subsequent authorities, the judge concluded Kazakhstan was the clearly more appropriate forum. Key reasons were that the claims were governed by Kazakh law, the overwhelming factual matrix lay in Kazakhstan (property transfers, witnesses, documents and regulatory questions), most witnesses and documents are Kazakh/Russian, and Kazakh law issues were central and in parts unsettled. The claimant’s arguments about substantial injustice in Kazakhstan failed (the Article 153 rule limiting use of witness testimony in certain written‑form disputes did not create a real risk of denial of substantial justice; the allegations of threats to witnesses lacked cogent evidence).
• Consequences: the First Defendant’s stay application succeeded on forum non conveniens grounds; the Dias J Order granting permission to serve out and alternative service was set aside as to all defendants for the reasons above and for material non‑disclosure on the without‑notice application. The Fourth Defendant was ordered to be struck out of the service‑out permission because there was no pleaded claim against it and no serious issue to be tried.

Wider context noted: the judge observed that the case involved difficult and numerous factual disputes and significant issues of Kazakh law, such that interlocutory determination of the central facts would amount to an impermissible mini‑trial; he emphasised the importance of full and frank disclosure on without‑notice applications.

First instance: The court held that service on the First Defendant at his English residence was valid under CPR 6.9, but on the merits of the appropriate forum question Kazakhstan was the clearly more appropriate forum. The claim against the First Defendant is therefore stayed on forum non conveniens grounds in favour of Kazakhstan. The Dias J order granting permission to serve the defendants out of the jurisdiction and by alternative methods is set aside inter partes (including as to the Fourth Defendant, where the court found there was no serious issue to be tried against it). The court also set aside the alternative service directions and found material non‑disclosure in the claimant’s without‑notice papers which reinforced that outcome.