JSC Commercial Bank Privatbank v Igor Valeryevich Kolomosiky & Anor

Where a party’s pleaded case is that repayment automatically extinguished the claimant’s loss, it cannot introduce at closing a different case based on the claimant’s choice to treat payments as discharging restitutionary liabilities without amendment. A late amendment may be refused for prejudice. Ledger entries recording credits do not, by themselves, prove such a choice; evidence of decision-making is required. If the factual premise of a repayment defence fails, an appellate court need not decide an alternative question of foreign law. Serious delay in delivering judgment calls for special care on appeal, but does not itself justify setting the judgment aside.

The Bank sued two founding shareholders and associated companies for losses allegedly caused by a fraudulent misappropriation of bank funds. Trower J held the shareholders jointly and severally liable under article 1166 of the Civil Code of Ukraine and rejected their Repayment Defence. The defence asserted that credits from further loans and transfers of assets had discharged the liabilities arising from the original drawdowns.

On appeal from the judgment reported at [2025] EWHC 1987 (Ch), the appellants argued that their case had been pleaded and established on the evidence. They also challenged the judge’s approach to Ukrainian law. The central issues were whether the alternative case based on the Bank’s choice had been properly raised and whether the evidence established that choice.

1. Disposition. The Court of Appeal dismissed the appeal. The appellants had to succeed on both grounds, and the factual ground logically came first. All three members of the court agreed with the judgment of Arnold LJ.
2. Pleading and amendment. The pleaded Repayment Defence was based on automatic extinction of the Bank’s loss when the Relevant Loans were repaid. In closing submissions, the appellants advanced a different case: where the loans were void, the Bank had chosen to treat credits as discharging the borrowers’ restitutionary liabilities. That case was unpleaded, had not been included in the trial issues, and no amendment had been sought. The judge was correct to treat the pleaded case as abandoned on the relevant premise. A late amendment would have been refused because of prejudice to the Bank, so the appellants could not rely on the new case.
3. Evidence of choice. Even if the new case had been allowed, ledger entries showing credits against the Relevant Drawdowns did not establish the Bank’s choice. The issue depended on evidence of the Bank’s decision-making, not merely its accounting records or the absence of evidence that the credits had been allocated elsewhere. The judge considered the evidence as a whole and was entitled to conclude that neither the Cash Repayments nor the Asset Transfers proved the necessary choice. No rationally insupportable error was shown.
4. Ukrainian law and delay. Ground 1 therefore did not require decision. The court nevertheless indicated that it would not have been justified in interfering with the judge’s assessment of the unresolved issue of Ukrainian law, having regard to the civil-law context, the absence of a Ukrainian decision on the issue, the extensive expert evidence and the judge’s assessment of the experts. Serious delay in judgment delivery requires special care in reviewing findings and reasoning. The principles stated in Bank St Petersburg PJSC v Arkhangelsky [2020] EWCA Civ 408, [2020] 4 WLR 55, Phones 4U Ltd v EE Ltd [2025] EWCA Civ 869 and NatWest Markets plc v Bilta (UK) Ltd [2021] EWCA Civ 680 did not assist the appellants because they identified no adverse effect of the delay on the quality of the reasoning.

• Court of Appeal (Civil Division): The appeal was dismissed on 22 May 2026: [2026] EWCA Civ 658.
• High Court, Business List (ChD): Trower J held the appellants liable under article 1166 of the Civil Code of Ukraine and rejected the Repayment Defence in the judgment dated 30 July 2025: [2025] EWHC 1987 (Ch). The Court of Appeal dismissed the appeal against that decision.