PJSC Tatneft v Gennady Bogolyubov & Ors, Court of Appeal - Commercial Court, September 26, 2018, [2018] EWHC 2499 (Comm)

Resolution Date:September 26, 2018
Issuing Organization:Commercial Court
Actores:PJSC Tatneft v Gennady Bogolyubov & Ors
 
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Case No: CL-2016-000172

Neutral Citation Number: [2018] EWHC 2499 (Comm)

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

QUEEN'S BENCH DIVISION

COMMERCIAL COURT

Royal Courts of Justice, Rolls Building

Fetter Lane, London, EC4A 1NL

Date: 26th September 2018

Before :

Mr Justice Andrew Baker

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Between :

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Paul McGrath QC, James Sheehan (instructed by Akin Gump LLP) for the Claimant

Matthew Parker, Philip Hinks (instructed by Skadden, Arps, Slate, Meager & Flom (UK) LLP) for the first defendant

Mark Howard QC, James Collins QC, Ruth Den Besten, Tom Ford (instructed by Fieldfisher LLP) for the Second Defendant

Kenneth MacLean QC, Owain Draper (instructed by Mishcon de Reya LLP) for the Third Defendant

Tom Weisselberg QC, Harry Adamson (instructed by Byrne & Partners LLP) for the Fourth Defendant

Hearing dates: 25th, 26th September 2018

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JUDGMENTMR JUSTICE ANDREW BAKER Wednesday 26th September 2018

  1. The claimant applies for permission to re-amend its particulars of claim. This is my judgment on that application which was argued yesterday. Trial will be two years from now, and apart from this application the court is today set to conduct a first CMC in the case. The proceedings are, though, more than two years old already thanks to the time that has been taken up by a very substantial initial contest about the arguability of the claim and hence inter alia its sufficiency to support freezing orders.

  2. That contest generated a lengthy judgment of Picken J in November 2016, [2016] EWHC 2816 (Comm), and a judgment of the Court of Appeal on an appeal against Picken J's decision, handed down in October 2017, [2017] EWCA Civ 1581. This comparatively short judgment will assume familiarity with those judgments and that will save substantial time in setting out matters of background and history.

  3. The decisive issue on the application is whether the re-amendments proposed by the claimant, if allowed, would amount to or involve the making by it of a new claim for the purposes of CPR 17.4, section 35 of the Limitation Act 1980 and the Foreign Limitation Periods Act 1984. That is the decisive issue in my judgment because:

    (1) it is plain that a fresh claim brought only now would be time barred under Russian law, it being common ground that Russian law governs the claim and therefore applies to questions of time bar;

    (2) I am satisfied that if the re-amendments amount to or involve a new claim, it is not a claim arising out of the same or substantially the same facts as the existing claim (and I shall come back to that briefly towards the end of this judgment);

    (3) in those circumstances, if indeed there is a new claim here, it is common ground that I cannot grant permission to introduce it;

    (4) on the other hand, the defendants only object to permission for the proposed re-amendments on discretionary grounds if the discretion arising is the discretion to allow a new but otherwise time-barred claim (i.e. time-barred if it were not admitted by amendment so as to be treated as having been brought when the proceedings were first commenced), and that will not be this case given (2) above.

  4. That said, as to discretion, I do record that in my judgment this application has been made much later than it should have been, and the claimant dealt inadequately and unsatisfactorily with the defendants' fair and entirely predictable complaint in that regard. Against the long history of the initial contest in the claim to which I have already referred, there was, amongst other things, a substantial argument before both Picken J and the Court of Appeal as to whether a first set of amendments should be permitted. That argument gave rise to questions whether the amendments would introduce a new claim, whether, if so, it would be one arising out of the same or substantially the same facts as the existing claim, and whether, if so, discretion should be exercised to allow it. The argument was of course in other respects different to the argument before me precisely because that set of amendments, in fact allowed in the Court of Appeal, was different to the proposed re-amendments now sought to be introduced.

  5. In those circumstances, as I say, in my judgment it was both fair and entirely predictable that the defendants would complain, amongst other things, that the re-amendments now being proposed were being proposed only some 10 months after the judgment in the Court of Appeal, as part of the run-up to the present hearing. As a matter of evidence, the only response provided by the claimant to the inevitable criticism I have just indicated, that the re-amendments now proposed should have been brought forward much earlier and, on any view, in time to be considered as part of that prior substantial interlocutory skirmish, was a one-sentence paragraph in the witness statement of Mr Larizadeh of Akin Gump LLP, the claimant's solicitors, which read as follows:

    "In response to Mr Lafferty's points as to timing [Mr Lafferty being of...

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