Loudmila Bourlakova & Ors v Oleg Bourlakov & Ors

On interim applications involving allegedly misused confidential or privileged information, the court must tailor relief to the procedural context and ensure that it is proportionate and workable. Where the extent of access, dissemination or use remains unclear, an injunction application may be adjourned to obtain necessary transparency, particularly where undertakings prevent material prejudice. Relief may include delivery up, destruction, restrictions on use and affidavits identifying recipients and compliance steps. The court should exercise caution before granting wide-ranging relief where there is no properly constituted substantive claim for the alleged wrongs, or where affected persons have not received adequate notice and an opportunity to respond.

The claim concerned an alleged fraudulent scheme involving misrepresentation, forgery and asset misappropriation. The Claimants sought asset-freezing and proprietary injunctive relief against several Defendants and Hemaren Stiftung. The Defendants made applications concerning the alleged acquisition and use by the Claimants’ investigators of their confidential and privileged information, including material associated with a CT Group report.

The Claimants no longer relied on the CT report for asset-freezing relief against several Defendants. The Defendants sought an adjournment of the injunction application and extensive confidentiality-related orders. The central issues were whether the injunction application should be adjourned to allow further investigation and transparency, and what proportionate interim relief should govern the confidential information.

1. Adjournment. The Injunction Application was adjourned. The position concerning the Claimants’ access to and use of the Defendants’ confidential and privileged material was insufficiently clear to exclude its possible relevance to delay and the clean-hands issue. The undertakings offered by Edelweiss and Hemaren meant that the Claimants would suffer no material prejudice from the adjournment.
2. Notice and procedural fairness. The court cautioned against making potentially damaging findings of unlawful or criminal conduct against investigators who had not received sufficient notice or a proper opportunity to respond. Interim proceedings and a balance-of-probabilities standard did not remove that concern.
3. Nature and limits of relief. The Confidentiality Applications arose within proceedings alleging fraud, rather than in a properly constituted substantive claim for breach of confidence. The court therefore had to protect the integrity of the proceedings, equality of arms and effective participation, while avoiding relief that was premature, overbroad or directed at persons not properly before the court.
4. Applying the principles discussed in Imerman v Tchenguiz and others and Ford v Financial Services Authority and others, the court accepted that confidential information obtained wrongfully should generally be returned or destroyed and should not be accessed or used. The form of relief remained discretionary and had to be proportionate and sensible in the particular procedural setting.
5. The order required delivery up and destruction of defined confidential information, restrictions on use, instructions to investigators to return or destroy material, and affidavits from each Claimant and a Mishcon de Reya partner. The CT report was retained because it remained relevant to the applications, but its use was limited. Copies could be retained for the limited purposes of defending the applications or related proceedings, subject to the order. The Defendants did not obtain all the relief sought, but their central transparency concerns were addressed.

Not stated in the judgment.