Dmitry Gerasimenko & Ors v VTB Capital Plc (in administration) & Ors

On a summary judgment application, the court must assess the pleaded and evidential case as it stands, while considering evidence reasonably expected to be available at trial. A claimant cannot rely on the hope that disclosure will repair a fundamental gap, but the court must allow for a fuller investigation where there are reasonable grounds to think it may materially affect the evidence. The court should avoid deciding genuinely disputed facts summarily. Where the available material discloses no arguable factual or legal case against an anchor defendant, summary judgment may be entered, with the consequence that parasitic jurisdiction over co-defendants cannot be maintained.

The claim alleged that the defendants had participated in the expropriation of the claimants’ interests in a Russian metallurgy business. The first defendant, an English company in administration, applied for reverse summary judgment. Its jurisdictional role was material because the claimants relied on it as the anchor defendant for jurisdiction over the remaining defendants.

The claimants’ original case concerning a criminal complaint was effectively abandoned and replaced by a case based on alleged misstatements in a document supplied by the first defendant’s solicitor to Russian authorities. The central issue was whether that new case disclosed an arguable claim against the first defendant suitable for determination at trial.

1. Summary judgment principles. The court applied the principles stated in Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch). It also took into account evidence reasonably expected to be available at trial, as required by Royal Brompton Hospital NHS Trust v Hammond (No.5) [2001] EWCA Civ 550, and the guidance of Lord Briggs in Lungowe v Vedanta Resources plc [2020] AC 1045. A claimant must show a case unsuitable for adverse determination without trial; the court must nevertheless consider whether fuller investigation may add to or alter the relevant evidence.
2. The proposed case depended on a draft document, uncertain authorship and uncertain final contents. The principal alleged error was the addition of the guarantor to a statement about an earlier Russian judgment. The surrounding material was accurate, and the alleged omissions amounted at most to slight misleadingness.
3. The document did not allege wrongdoing by the first claimant, identify him as an owner, or provide a plausible means of advancing the alleged unlawful scheme. The later indictment, issued fifteen months afterwards, contained allegations which bore little resemblance to the document. Limited disclosure could not cure the absence of a factual foundation.
4. The alternative case based on vicarious or other legal responsibility for the solicitor’s conduct was also inadequately pleaded and unsupported by Russian law evidence. Although those defects might have been material at trial, they did not require refusal of summary judgment where the factual case itself was unarguable.
5. The court gave summary judgment for the first defendant. As the anchor defendant’s involvement was not established, there was no basis to assume jurisdiction over the claims against the other defendants. No order was sought on those claims. Consequential matters were to be dealt with by written submissions unless an oral hearing was required.