Zaza Okuashvili & Ors v Bidzina Ivanishvili & Ors

On a jurisdiction challenge, the claimant must establish a real prospect of success, a good arguable case under a jurisdictional gateway, and that England is clearly or distinctly the appropriate forum. The court assesses a serious issue primarily from the pleaded case and avoids a mini-trial. Foreign-law limitation issues may defeat that requirement where the claim is plainly time-barred. A without-notice application for service out must present the material jurisdictional problems fairly and disclose facts which reasonable inquiries would have revealed. Material non-disclosure may justify setting aside service. An exclusive English jurisdiction clause will ordinarily be respected unless strong reasons justify departure.

Two related claims concerned alleged extortion, coercion, patent infringement, intimidation, conspiracy, dishonest assistance, breach of contract and unjust enrichment arising from events in Georgia. The claimants sought to proceed in England against Georgian and English defendants, relying on English law in amended pleadings and, alternatively, Georgian law.

The defendants challenged jurisdiction, service out, full and frank disclosure, forum, and service validity. The court considered whether any claim raised a serious issue to be tried, whether the relevant gateways were satisfied, whether the orders permitting service out should stand, and whether proceedings against the principal contractual defendant should proceed under exclusive English jurisdiction clauses.

1. Claim 1. There was a serious issue to be tried against Mr Kipiani on breach of contract and fiduciary duty if the 2015 Consultancy Agreement was governed by English law. The agreement’s exclusive English jurisdiction clause, references to English statutes, and contractual context provided the claimants with the better argument on governing law. The claims in tort under Georgian law were time-barred, and the proposed continuing-tort analysis had no real prospect of success. The unjust-enrichment claim against Mr Ivanishvili remained arguable.
2. The application for service out in Claim 1 had not been presented fairly. The without-notice evidence conveyed that the claims had a reasonable prospect of success while acknowledging that the Georgian-law tort claims and, on the original case, the contractual claim were time-barred. The limitation period for breach of contract could and should have been identified by reasonable inquiry. The order permitting service out was therefore set aside for material non-disclosure. This did not invalidate service on Mr Kipiani, who could be served without permission.
3. Claim 2. There was no serious issue to be tried against Mr Kipiani on breach of contract or fiduciary duty because the relevant claimants were not parties or Group Companies under the 2017 Consultancy Agreement, and no post-contract breach was pleaded. The unjust-enrichment claim against TT remained arguable, but only to the extent that infringement before the 2017 patent revocation decision could be actionable. The claim for repayment of consultancy fees against Mr Kipiani also raised a serious issue.
4. The Pester Order was not vitiated by material non-disclosure. The claim against TT did not pass the relied-on gateways: the alleged unjust enrichment arose from patent infringement and profits in Georgia, while the alleged threats served a different and time-barred claim.
5. The remaining claims against Mr Kipiani fell within the contractual jurisdiction clauses. Although Georgia had substantial factual connections, those matters were foreseeable when the exclusive English jurisdiction clauses were agreed and did not amount to strong reasons for departure. Service on Mr Kipiani in Claim 1 was valid, alternatively was regularised and deemed effective; service in Claim 2 by the email method authorised by the Master was valid.