Ziyavudin Magomedov & Ors v TPG Group Holdings (SBS), LP & Ors

On jurisdictional applications, the claimant must show that the pleaded case has a real, rather than fanciful, prospect of success. An unlawful-means conspiracy requires a combination pursuing a shared intention to injure, concerted action, unlawful means within the scope of the combination, and loss caused by those means. Lawful commercial conduct and individual self-interest do not, without more, justify an inference of conspiracy.

The English-law contract gateway ordinarily requires a substantive connection with a contract to which the defendant is party. An alternative forum may be available even where permission is required for service, provided it is practically open to the parties. A real risk of injustice may nevertheless justify retaining jurisdiction.

The claimants brought claims arising from alleged NCSP and FESCO conspiracies, principally alleging unlawful-means conspiracy, together with related tortious and contractual claims. The defendants applied for strike-out, summary judgment, challenges to jurisdiction, stays in favour of Russia or Cyprus, and orders setting aside service.

The proceedings followed earlier applications before Butcher J concerning notification and freezing orders, including the judgments at [2023] EWHC 2655 (Comm) and [2023] EWHC 3134 (Comm). The central issues were whether the pleaded claims raised serious issues to be tried, whether any jurisdictional gateway was available, whether England was the appropriate forum, and whether the claimants had made a fair presentation.

1. NCSP conspiracy. The claims against Transneft and Ms Mammad Zade had no real prospect of success and raised no serious issue to be tried. The additional evidence concerning the Omirico transaction, including shareholder and corporate resolutions and the closing meeting, materially altered the case since the earlier hearing. The pleaded case did not establish that Mr Karmokov acted in breach of duty or bad faith. Shareholder ratification after full disclosure could eliminate a claim against directors, applying BTI 2014 LLC v Sequana SA [2022] UKSC 25. A director’s fiduciary breach requires disloyalty or bad faith, not mere incompetence, applying Bristol and West Building Society v Mothew [1998] Ch 1.
2. The NCSP claims were governed by Russian law under Rome II. The English-law and arbitration clauses in the Omirico SPA did not bind non-parties to that agreement. The claims were in any event prima facie time-barred under Russian law. No jurisdictional gateway was available. Permission to serve out was also set aside for failure to make a fair presentation.
3. FESCO conspiracy. Serious issues to be tried existed against Halimeda, Ms Mammad Zade, Mr Rabinovich, Ermenossa, Mr Kuzovkov, Mr Severilov and ROSATOM. There was no serious issue against TPG, Domidias, Felix, DP World, FESCO, Mr Garber or GHP. The court rejected the claims based on the Merbau Call Option, the Project Moonlight decision, TPG’s alleged stalling, and most matters concerning the Intimere SHA and ROFO Offer.
4. Cyprus was an available and more appropriate forum for the FESCO claims. The court would therefore have stayed those claims in favour of Cyprus if a gateway had been established. The claimants established none of the relied-on gateways. The remaining causes of action, including lawful-means conspiracy, inducing breach of contract and Norwich Pharmacal relief, also failed.

This was a first-instance decision. The action was issued on 20 July 2023. Earlier interlocutory decisions included Butcher J’s judgments at [2023] EWHC 2655 (Comm) and [2023] EWHC 3134 (Comm), and an extension of time granted by Jacobs J on 22 January 2024. The present court held that subsequent developments permitted the merits to be contested afresh and then determined the applications.