![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
England and Wales High Court (Commercial Court) Decisions |
||
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> JSC BTA Bank v Ablyazov & Ors [2015] EWHC 3871 (Comm) (18 December 2015) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2015/3871.html Cite as: [2015] EWHC 3871 (Comm) |
[New search] [Printable PDF version] [Help]
QUEEN'S BENCH DIVISION
COMMERICAL COURT
Royal Courts of Justice Friday, |
||
B e f o r e :
____________________
JSC BTA BANK |
Claimant |
|
- and - |
||
MUKHTAR ABLYAZOV (and Others) |
Defendants |
|
- and - |
||
MADIYAR ABLYAZOV |
Applicant/Intervener |
|
- and - |
||
EFG PRIVATE BANK LIMITED |
Third Party |
____________________
Transcribed by BEVERLEY F. NUNNERY & CO.____________________
MR. P. JONES QC and MR. C. WRIGHT (instructed by Hogan Lovells International LLP) appeared on behalf of the Claimant.
MR. P. KNOX QC and MR. J. SHEEHAN (instructed by Kingsley Napley LLP) appeared on behalf of the Intervener.
THE DEFENDANTS did not appear and were not represented.
MR. A. PELLING (instructed by Dechert LLP) appeared on behalf of the Third Party.
____________________
Crown Copyright ©
"It is clear that, save in exceptional circumstances, the defendant's right to use money which is prima facie his property, to pay his reasonable legal costs should prevail over a freezing order. In particular, the court must think long and hard before refusing an application to use English assets to fund English litigation."
Nevertheless, it is submitted, if the Bank be proved right in its claim that Mukhtar retained and retains the beneficial interest in the money, it should be and will be available to the Bank in part-satisfaction of the Bank's judgment against Mukhtar. Therefore, it is submitted, to allow Madiyar to spend the money pending resolution of the issue would be to allow Madiyar to dissipate a fund to which the Bank is arguably now entitled by way of equitable execution of a judgment debt. The position, therefore, it is said, is analogous to that in which a claimant arguably has a proprietary interest in a fund which a defendant wishes to deplete pending the determination of the issue.
"In this case if the plaintiff establishes at the trial that the fund belonged to him and the defendant has been allowed to use it on legal expenses, the plaintiff will have suffered the injustice that the defendant has been allowed to spend his money. On the other hand, if the funds are not released and the plaintiff fails at the trial, or, worse still, if he would have failed if the defendant had been able to mount a proper defence, then the defendant will have suffered a grave injustice. The decision therefore requires ... a balancing of these risks of injustice to the parties.... The balancing exercise is very much a matter of discretion."
"In the past, as I have said, I have been helped by my family. However, I understand from them, so far as relevant, that they are not in a position to continue to assist me because they also have substantial legal fees to pay for in relation to their own cases around the world."
"Because I had not received a salary between August and November 2015, I have had to ask to borrow money from my mother to fund my living expenses and I also have fallen behind in some of my rent and utility payments.... I said in my first statement that my family could no longer lend me money. Although my mother is in a difficult financial position she has helped me on an occasional basis to pay some living expenses to make sure that I could pay for rent and food. However, my mother has told me that she is not able to help me pay legal expenses going forward because she has her own legal expenses to pay for and she does not work and has to support my younger siblings. She has helped me in the past and has paid approximately £36,300 for lawyers' fees. Since making my first statement I have been able to borrow approximately £30,000 from my brother-in-law's mother (who I refer to as my aunt or aunt-in-law) to pay towards my legal expenses so that I can make this application. I have not been used to seeking financial assistance from her, but she has been prepared to give me some help out of absolute necessity, but she will not fund future legal expenses. This means that unless I am able to access funds in the EFG London account I will not be able to pursue my application."