NATALIYA GOLUBOVICH v ALEXEY GOLUBOVICH & OLGA MIRIMSKAYA [2022] EWHC 1605 (Ch)

“18. In fact, the Deed of Settlement is a forgery. Olga has confirmed that she did not sign it and that she had never seen it before or soon after its production on 9 June 2016. 19. As a result, the Deed of Settlement was ineffective to transfer the various artworks and antiques described in the appendices from Olga to Mr Golubovich.”

“The Defendant applies for an Order pursuant to section 37 of the Senior Courts Act 1981, restraining the Third Party until further order from commencing, prosecuting, continuing, taking any steps in or otherwise participating in any claims and/or proceedings against the Defendant in respect of any dispute arising out of or in connection with the Deed of Settlement or ownership of the Collection (as defined in the Second Witness Statement of Tatiana Menshenina attached to this application) in proceedings in any court or tribunal in Russia, or in any other court or tribunal other than by litigation before the courts of England and Wales, including (but not limited to) the proceedings filed by the Third Party, Case No. 02-5486/2020 ∼ М-5266/2020, before the Moscow Presnenskiy court in Russia.”

“(4) A claim is an additional claim under Part 20 and the person to be served is a necessary or proper party to the claim or additional claim.”

“71. On an application for permission to serve a foreign defendant (including an additional defendant to counterclaim) out of the jurisdiction, the claimant (or counterclaimant) has to satisfy three requirements: Seaconsar Far East Ltd. v Bank Markazi Jomhouri Islami Iran [1994] 1 AC 438 , 453–457. First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits, i.e. a substantial question of fact or law, or both. The current practice in England is that this is the same test as for summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success: e.g. Carvill America Inc v Camperdown UK Ltd [2005] EWCA Civ 645, [2005] 2 Lloyd's Rep 457 , at [24]. Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more classes of case in which permission to serve out may be given. In this context “good arguable case” connotes that one side has a much better argument than the other: see Canada Trust Co v Stolzenberg (No 2) [1998] 1 WLR 547 , 555–7 per Waller LJ, affd [2002] 1 AC 1; Bols Distilleries BV v Superior Yacht Services [2006] UKPC 45, [2007] 1 WLR 12 , [26]-[28]. Third, the claimant must satisfy the court that in all the circumstances the Isle of Man is clearly or distinctly the appropriate forum for the trial of the dispute, and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.”

“There is no dispute between the parties that the core tests to be applied on an application for permission to serve out of the jurisdiction are those derived from the decision of the Privy Council in Altimo Holdings v Kyrgyz Mobile Tel Ltd [2011] UKPC 7 delivered by Lord Collins at [71]. For the English court to take jurisdiction and give permission to serve out in the circumstances of this case where Alexey relies on ground set out at paragraph 3.1(4) of Practice Direction 6B (“Gateway 4”) it must be satisfied that: (1) There is a serious issue to be tried on the merits applying the same test as the first limb of CPR rule 24.2; (2) Alexey has made out a good arguable case that Olga is a necessary or proper party to the claim or the additional claim; (3) England is clearly or distinctly the most appropriate forum for the trial of the claim and that in all the circumstances the court ought to exercise its jurisdiction to permit service out of the jurisdiction.”

“Thanks, but I don't need reply submissions. I have handed down the judgment. The decision is made and is final.”

“96 Lord Mance JSC in paras 41 and 42 of his judgment has set out the passages in the judgments of Arnold J and the Court of Appeal respectively, which contain the centrally relevant reasoning of those tribunals on the first question which we have to decide. At least on the face of it, those passages each involve a classical interlocutory weighing up exercise with which an appellate court should be slow to interfere. Of course, that does not detract from the point that the Court of Appeal will consider any argument that the judge took into account any irrelevant or mistaken material, or omitted some relevant material, which could well have influenced the conclusion reached, or that the case is one of those even more unusual cases where the judge’s conclusion was one that no reasonable judge could have reached. 97 It is worth emphasising that, as Lord Wilson JSC says, the exercise carried out by the judge and by the Court of Appeal on the first question was not the exercise of a discretion but an evaluative, or a balancing, exercise, with which, as Lord Goff said in The Spiliada at p 465, an “appellate court should be slow to interfere” (also reflected in Lord Bingham’s observation in Lubbe quoted in para 92 above).”

“The forum issue required Arnold J not (in my view) to exercise a discretion but, rather, to reach an evaluative judgment upon whether, in the light of these and the many other points pressed upon him by each side, England was clearly the more appropriate forum. “The appellate court should be slow to interfere” (Lord Goff in The Spiliada [1987] AC 460, 465); and I agree with Lord Mance JSC at para 68 and with Lord Neuberger PSC at para 98 that the errors which the Court of Appeal identified in the judgment of Arnold J (in particular his adoption of the two-part test apt to an application for stay) were, on analysis, of materiality insufficient to justify a re-evaluation of its own.”

“I entirely agree with Lord Neuberger PSC that, where a judge has made no error of principle and the only challenge that can be advanced against his or her decision depends upon persuading an appellate court to balance the various factors differently, an appellate court should not interfere unless the balance struck by the judge can be shown to be plainly wrong. The question is whether this is such a case or whether this is a case in which, as VTB says, both the judge and the Court of Appeal made errors of principle and that, permission to appeal to this court having been granted, it becomes its responsibility to strike the balance. In my opinion, this case is in the second category.”

“240 In relation to the first question in this appeal, namely whether the permission granted ex parte to VTB to serve the proceedings out of the jurisdiction should be set aside, I have reached the same conclusion as Lord Clarke of Stone-cum-Ebony JSC. I do not question the general points made by Lord Neuberger of Abbotsbury PSC at paras 79—93 of his judgment. Nevertheless, it appears to me that the courts below erred in law in their approach to this question. In particular, as explained by Lord Clarke JSC, they erred (i) in concluding that the applicable law was Russian law rather than English law and (ii) in failing to attach appropriate weight to the fact that the alleged tort was committed in England, in accordance with the line of authority including The Albaforth [1984] 2 Lloyd’s Rep 91 and Berezovsky v Michaels [2000] 1 WLR 1004. 241 These errors, particularly when considered cumulatively, appear to me to have been material. I recognise that the Court of Appeal stated (para 166) that, even if it had concluded that the applicable law was English law, this would not have been a factor that would weigh heavily, “precisely because if the defendants wished to allege and plead that the applicable law was Russian law, both sides would have had to prepare for a trial on that basis”

“Mr Samek’s response to ATEL’s argument (see [6] above) that the authorities establish that an appellate court should be slow to interfere with a first instance judge’s assessment of the merits at the interlocutory stage of a jurisdictional challenge is that the cases from The Spiliada [1987] AC 460 to VTB Capital v Nutritek International upon which Mr Downes relied concerned forum non conveniens. They have, he submitted, no application where the issue of jurisdiction is determined by the proper construction of the contractual arrangements, here the Framework Agreement, and not by the evaluation of competing factors in favour of rival jurisdictions in determining which jurisdiction is the appropriate forum. This is because the question of construction is a question of law which an appellate court is well able to determine. Moreover, in these cases the evidence will all be documentary and in principle the appellate court will be in as good a position as the judge to assess it.”

“The first justification is that, where the issue is forum non conveniens or where the documentary evidence contains a sharp clash of evidence about the facts, the exercise carried out by the judge is an evaluative one, sometimes with a ‘predictive’ element, and with more than one possible ‘right’ answer. The evaluation of the factors relevant to the determination of the appropriate forum and of disputed evidence is very much the province of the first instance judge: Cherney v Deripaska [2009] EWCA Civ 849; [2009] 2 CLC 408 at [10] and [59]. In such cases an appellate court should only interfere where it is clear that an error of principle has been made or that the result falls outside the range of potentially ‘right’ answers.”

“The second justification given for circumspection by appellate courts is more general and has to do with the nature of the appellate function and the role of an appellate court. The basis of our system is that not every issue determined at first instance should be revisited by an appeal court. In EI Dupont de Nemours & Co v ST Dupont (Note) [2003] EWCA Civ 1368; [2006] 1 WLR 2793 at [94], May LJ discussed the requirement in CPR 52.11(1) that, subject to exceptions, every appeal is limited to a review of the decision of the lower court. He stated that the concept of review in this context engages the merits, but accords appropriate respect to the decision of the lower court, and that there is a spectrum of appropriate respect, depending on the nature of the decision of the lower court. At one end of the spectrum are decisions of primary fact reached after an evaluation of oral evidence and purely discretionary decisions. What May LJ described as ‘multi-factorial decisions often dependent on inferences and analysis of documentary material’ are further along the spectrum. May LJ observed that CPR 52.11(4) expressly empowers the appeal court to draw any inference of fact which it considers justified on the evidence. Questions of law lie at the other end of the spectrum.”

“41. In a jurisdiction challenge there is an important factor pointing against circumspection. It is the factor identified by Christopher Clarke J in Cherney v Deripaska that in such cases the issue is whether a defendant not ordinarily subject to the jurisdiction of the English court and who does not accept jurisdiction should be compulsorily brought here as a defendant. For that reason, the court in either granting permission to serve out of the jurisdiction or refusing to set aside service out is exercising an exorbitant jurisdiction over those not within its ordinary reach. Although the discussion in that case was about the justification for the ‘much the better of the argument’ requirement, what Christopher Clarke J stated in that context is also of relevance in considering the appellate role. 42. To conclude, the requirements for service out of the jurisdiction in CPR r 6.30 and the jurisdiction of the English court provide for an evaluation, not a finding. The fact that the nature of the issue upon which jurisdiction depends in this case is one to which there is a single ‘right’ answer taken together with the fact that the court would be exercising an exorbitant jurisdiction over a party which contends that it is not within the ordinary reach of the English court suggest that an appeal court should show less circumspection to the first instance decision than in a forum non conveniens case. But the decision of this court in Aldi Stores Ltd v WSP Group plc shows that some circumspection is needed even where the decision is one to which there can only be one correct answer.”

“In considering the approach to be taken by this court to the decision of the judge, it was rightly accepted by Aspinwall that the decision to be made is not the exercise of a discretion; WSP were wrong in contending otherwise. It was a decision involving the assessment of a large number of factors to which there can, in such a case, only be one correct answer to whether there is or is not an abuse of process. None the less an appellate court will be reluctant to interfere with the decision of the judge where the decision rests upon balancing such a number of factors; see the discussion in Assicurazioni Generali SpA v Arab Insurance Group (Practice Note) [2003] 1 WLR 577 and the cases cited in that decision and Mersey Care NHS Trust v Ackroyd (No 2) [2007] HRLR 580, para 35. The types of case where a judge has to balance factors are very varied and the judgments of the courts as to the tests to be applied are expressed in different terms. However, it is sufficient for the purposes of this appeal to state that an appellate court will be reluctant to interfere with the decision of the judge in the judgment he reaches on abuse of process by the balance of the factors; it will generally only interfere where the judge has taken into account immaterial factors, omitted to take account of material factors, erred in principle or come to a conclusion that was impermissible or not open to him. In this case, I consider that the judge, despite the weight that must be accorded his view given his great experience in this type of litigation and the conspicuous success with which he has managed the TCC, reached a decision which was impermissible by taking into account factors which he should not have done and omitting factors which he should have taken into account.”

“The second point follows from the first. The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case but also of a reserved judgment based upon notes, such as was given by the district judge. These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.”

“The application is under R.S.C., O. 12 r. 8(1)(c) to discharge the Master’s order giving leave to serve out. The question is therefore whether that order was rightly made at the time it was made. Of course the Court can receive evidence which was not before the Master and subsequent events may throw light upon what should have been relevant considerations at the time. But I do not think that leave which was rightly given should be discharged simply because circumstances have changed. That would mean that different answers could be given depending upon how long it took before the application came on to be heard.”

“41. It is clearly established that, on an application to set aside the grant of permission to serve out of the jurisdiction, the court decides the issues arising by reference to the position at the time that the permission was originally granted and not by reference to the position at the time the application to set aside is heard. In Erste Group Bank AG v JSC ‘VMZ Red October’ [2015] 1 CLC 706 at [44] Gloster LJ in giving the judgment of the court said: “The parties did not dispute the proposition that an application to set aside permission to serve out of the jurisdiction falls to be determined by reference to the position at the time permission is granted, not by reference to circumstances at the time the application to set aside is heard: see per Hoffmann J (as he then was) in ISC Technologies v Guerin [1992] 2 Ll Rep 430 at 434-435.” 42. Gloster LJ then cited a number of authorities which applied this proposition. The proposition applies to all aspects of an application for permission to serve out of the jurisdiction, not just forum conveniens. In Erste Group Bank, Gloster LJ went on to say at [45] that: “…permission which was rightly granted will not be discharged simply because circumstances have changed, although, as Hoffmann J observed in ISC Technologies, subsequent events may throw light upon considerations which were relevant at that time.” 43. In a typical case, the grant of permission to serve out of the jurisdiction will have been granted at an ex parte hearing on the basis of the evidence adduced by the claimant alone but when the court considers an application to set aside the original grant of permission, the matter will be considered at an inter partes hearing on the basis of evidence adduced by all relevant parties. Nonetheless, the further evidence must be directed at the situation at the date when permission was originally granted: see Mohammed v Bank of Kuwait [1994] 1 WLR 1483 at 1492 per Evans LJ and Microsoft Mobile OY v Sony Europe [2018] 1 All ER (Comm) 419 at [93] per Marcus Smith J. In the present case, the relevant date is 1 November 2019, when permission to serve out was granted by Roth J.” “…permission which was rightly granted will not be discharged simply because circumstances have changed, although, as Hoffmann J observed in ISC Technologies, subsequent events may throw light upon considerations which were relevant at that time.”

“The position about the decision of the Deputy Judge on the application for anti-suit injunction application is different, not least because it was a step taken by Alexey. That difference is material although it is of limited impact. I do not accept that the decision of the Deputy High Court judge bears the analysis that Olga places upon it on the subject of forum conveniens, for reasons I will explain later in this judgment, but even if it does, it is not open to Olga to rely upon an issue estoppel or an abuse of process argument. It is appropriate, however, to have regard to the Deputy Judge’s analysis of the issue of forum conveniens to the extent it may shed light upon that issue.”

“I start by considering the judgment of the Deputy Judge who dismissed Alexey’s application for an anti-suit injunction. For the reasons I have already given, I reject the notion that it is abusive for Alexey to maintain that England is clearly or distinctly the correct forum for the issues raised in the additional claim to be litigated. It is right however to have regard to the views formed by the Deputy Judge on that subject because they are capable of shedding light (I put it no higher than that) upon the circumstances present at the date when Deputy Master Lloyd made his decision and, in any event, it is appropriate to do so as a matter of judicial comity.”

“17 Res judicata is a portmanteau term which is used to describe a number of different legal principles with different juridical origins. As with other such expressions, the label tends to distract attention from the contents of the bottle. The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. This is “cause of action estoppel”

“My Lords, this is a case about abuse of the process of the High Court. It concerns the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. The circumstances in which abuse of process can arise are very varied; those which give rise to the instant appeal must surely be unique. It would, in my view, be most unwise if this House were to use this occasion to say anything that might be taken as limiting to fixed categories the kinds of circumstances in which the court has a duty (I disavow the word discretion) to exercise this salutary power.”

“In my judgement the tension is more apparent than real. The Henderson and Hunter principles apply to interlocutory hearings as much as to final hearings. Many interlocutory hearings acutely engage the court’s duty to ensure efficient case management and the public interest in the best use of court resources. Therefore the application of the principles will often mean that if a point is open to a party on an interlocutory application and is not pursued, then the applicant cannot take the point at a subsequent interlocutory hearing in relation to the same or similar relief, absent a significant and material change of circumstances or his becoming aware of facts which he did not know and could not reasonably have discovered at the time of the first hearing. This is not a departure from the principle in Johnson v Gore Wood & Co [2002] 2 AC 1 that it is not sufficient to establish that a point could have been taken on an earlier occasion, but a recognition that where it should have been taken then, a significant change of circumstances or new facts will be required if raising it on a subsequent application is not to be abusive. The dictum in Woodhouse v Consignia plc [2002] 1 WLR 2558 that the principle should be applied less strictly in interlocutory cases is best understood as a recognition that because interlocutory decisions may involve less use of court time and expense to the parties, and a lower risk of prejudice from irreconcilable judgments, than final hearings, it may sometimes be harder for a respondent in an interlocutory hearing to persuade the court that the raising of the point in a subsequent application is abusive as offending the public interest in finality in litigation and efficient use of court resources, and fairness to the respondent in protecting it from vexation and harassment. The court will also have its own interest in interlocutory orders made to ensure efficient preparations for an orderly trial irrespective of the past conduct of one of the parties, which may justify revisiting a procedural issue one party ought to have raised on an earlier occasion. There is, however, no general principle that the applicant in interlocutory hearings is entitled to greater indulgence; nor is there a different test to be applied to interlocutory hearings. In every case the principles are those identified in paras 30—40 above, the application of which will reflect that within a single set of proceedings, a party should generally bring forward in argument all points reasonably available to him at the first opportunity, and that to allow him to take them serially in subsequent applications would generally permit abuse in the form of unfair harassment of the other party and obstruction of the efficacy of the judicial process by undermining the necessary finality of unappealed interlocutory decisions.”

“The defendants are seeking a rehearing on evidence which, or much of which, so far as one can tell, they could have adduced on the earlier occasion if they had sought an adequate adjournment, which they would probably have obtained. Even in interlocutory matters a party cannot fight over again a battle which has already been fought unless there has been some significant change of circumstances, or the party has become aware of facts which he could not reasonably have known, or found out, in time for the first encounter. The fact that he capitulated at the first encounter cannot improve a party's position. The Revlon point was open to the defendants in April 1979, notwithstanding that this court had not then decided that case. Some at least of the new evidence was readily available to them at that time.”

“Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different p cause of action to which the same issue is relevant one of the parties seeks to re-open that issue.”

“The doctrine of issue estoppel generally is not a new one. It can certainly be found in the opinion of the judges delivered by De Grey C.J. in The Duchess of Kingston's Case, a passage from which has been quoted by my noble and learned friend, Lord Reid, and an accepted re-statement of it was given by Coleridge J. in Reg. v. Inhabitants of the Township of Hartington Middle Quarter, which is also quoted by my noble and learned friend. Mr. Spencer Bower, in his work on Res Judicata states the principle as being " that the judicial decision was, or involved a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised" (Res Judicata, p. 9)—a formulation which invites the inquiry how what is " involved " in a decision is to be ascertained. One way of answering this is to say that any determination is involved in a decision if it is a " necessary step " to the decision or a " matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision" (Reg. v. Inhabitants of Hartington Middle Quarter Township). And from this it follows that it is permissible to look not merely at the record of the judgment relied on, but at the reasons for it, the pleadings, the evidence (Brunsden v. Humphrey) and if necessary other material to show what was the issue decided (Flitters v. Allfrey). The fact that the pleadings and the evidence may be referred to, suggests that the task of the court in the subsequent proceeding must include that of satisfying itself that the party against whom the estoppel is set up did actually raise the critical issue, or possibly, though I do not think that this point has yet been decided, that he had a fair opportunity, or that he ought, to have raised it.”

“25. To my mind Mr Emmet’s submissions set out in his skeleton are correct inasmuch as he contends that the principles that I have referred to, lead to the firm conclusion that there must be good reason why a decision to stop foreign proceedings should be made by an English judge rather than by a foreign judge; and that the cases where justice requires the English court to intervene will be exceptional. I agree with him that the power to grant anti-suit injunctions should be exercised with caution. 26. This is of course an unusual matter as Mr D’Cruz quite properly submits. This is a situation where it is not Mr Golubovich who is the underlying claimant and seeks to restrain the defendant from litigating elsewhere. He is the Defendant. But he wants a substantial element of his Additional Claim decided in the proceedings which he has been forced to defend in England.”

“There are two crucial questions which in my judgment must be answered by Mr Golubovich in order for him to succeed on his application. The first is whether England is the “natural forum” for the determination of the matters raised in the Presnenskiy Declaration Proceedings; the second is whether the prosecution of those proceedings in parallel is something that this court should act to prevent.”

“28. I pose the first question because it seems to me that embarking upon the enquiry as to whether the Presnenskiy Declaration Proceedings are vexatious or an interference, ultimately leads to the same point: should Ms Mirimskaya be restrained from proceeding in Moscow because England is the proper and natural forum for the determination of the matters in issue? 29. The dispute which Ms Mirimskaya seeks to have resolved in Russia relates to a matter which, as Mr Emmet points out, has already involved the Russian Courts and legal system for many years. To see the matter determined in England will involve moving one aspect of the divorce litigation from the forum which has had the conduct of all the relevant matrimonial litigation hitherto. In effect it would be the English Court and not the Russian that would be resolving questions of ownership of matrimonial assets. 30. In my judgment it is right to say that the dispute between Mr Golubovich and Ms Mirimskaya arises out of their rights and obligations as spouses, not out of a commercial relationship. It is one thing to prevent a business from litigating a commercial dispute in its forum of preference; it is another to deprive a Russian citizen of her right to submit disputes relating to the consequences of her Russian divorce to the Russian court that has had for some time, the conduct of proceedings relating to that divorce. 31. It is not clear to me the basis upon which on 21 July 2020, Deputy Master Lloyd ordered that there be permission to serve the Additional Claim Proceedings out of the jurisdiction. What can be said is that (through no fault of anyone participating) the matter was not properly argued before the learned Deputy Master with Ms Mirimskaya taking no part in the proceedings. I doubt that the Deputy Master had the benefit of all of the materials that have been put before me by Counsel on a fully contested ASI application. At any rate I don’t consider this court’s hands to be tied by virtue of the procedural order made.”

“35. It must also be right to take into account the self-evident benefit of having a Russian Court oversee a dispute concerning a Russian language Deed of Settlement purportedly dividing up assets acquired during a Russian marriage which has been brought to an end by a Russian court. It is difficult to see the material disadvantage to Mr Golubovich, who is of course Russian and is already embroiled in Russian litigation with Ms Mirimskaya, litigation to which I will turn to shortly. The benefits to Ms Mirimiskaya in the choice of forum, from which she is not to be deprived absent good reason, are to me equally self-evident. 36. I must take into account the obvious fact that the Presnenskiy Declaration Proceedings concern just one of the issues that arise in the English dispute. One consequence of not interfering with the Presnenskiy Declaration Proceedings would be that the question of the authenticity of the Deed of Settlement might perhaps be resolved in Moscow. In that event, there is the danger that Mr D’Cruz pointed to of there being an argument as to whether the Russian judgment gives rise to an issue estoppel. Whilst I see this point, I do not consider that it is anything other than a factor to weigh in the scales when arriving at a view overall on the competing merits. 37. What must be taken into account in my judgment is the submission that this is not a case where there is a wholesale overlap of issues between two complex pieces of litigation. The parallel proceedings concern only the resolution of one, narrowly contained, factual issue. 38. It also seems to me to be pertinent to consider the contents of paragraph nine of the second witness statement of the English Solicitor acting on behalf of Mr Golubovich. That evidence makes it plan that Mr Golubovich and Ms Mirimskaya are “currently involved in a number of legal disputes in the Russian Federation…including a claim relating to allegedly undivided joint marital property”.”

“40. To grant an anti-suit injunction in the circumstances of this case would in my judgment be contrary to the interests of justice. I am far from persuaded that England is the proper, let alone natural forum for the determination of the dispute surrounding the Deed of Settlement. 41. I accept that it is undesirable for there to be parallel proceedings in the shape of the Presnenskiy Declaration Proceedings but against the factual matrix that I have outlined, I do not consider them to be vexatious or oppressive, at any rate not such as would swing the balance as far as I believe it needs to go in order to persuade me to intervene. In approaching this question, I have had very much in mind the position adopted by Toulson LJ in his Proposition 6.”

“44. It seems to me that whilst the application before me is framed as an ASI, it is in reality a dispute about where the question of ownership of the matrimonial assets should be determined. Given the procedural history of that divorce it is not easy to conceive of the argument that suggests that England is the natural forum for the resolution of any questions as to who should be entitled to assets acquired during the marriage. 45. There were arguments made before me about who really controls the Underlying Proceedings in England on the one hand, and why if Ms Mirimskaya is running shy of the London Court, she did not begin (if she is indeed the domina litis) the Underlying Proceedings (that she is alleged to have procured her daughter to commence) in Russia in the first place, on the other. In my judgment these issues are not for me. The issues I must resolve are altogether of more substance and turn on the guidance offered by the Court of Appeal in Deutsche Bank: the first question being whether England is the natural forum and I have found that it is not. 46. It might be said that the commencement of the Presnenskiy Declaration Proceedings has somewhat contrived an advantage in Ms Mirimskaya’s favour but it is hardly a surprising event given that the parties who dispute ownership are both Russian, live in Russia, and that as Mr D’Cruz accepted, some at least of the Disputed Assets might very well be in Russia, and the disputing parties are already embroiled in not unrelated asset division proceedings in Russia. The Court cannot ignore that this is in essence a family dispute. In my judgment that has an important bearing on the exercise of the court’s discretion.”

“The Applicant (Mr Golubovich) in this matter has come to the court seeking what is known as an anti-suit injunction (ASI). The court is asked to make an order restraining the Third Party (Ms Mirimskaya (formerly Mrs Golubovich)) from continuing the claim she has commenced in the Moscow Presnenskiy Court (the Presnenskiy Declaration Proceedings) in connection with an alleged Deed of Settlement which purportedly addresses the ownership, as between the parties, of a collection of valuable artwork accumulated during their marriage.”

“Langley J held, in granting permission to serve out, having been informed of potential arguments in favour of Kenyan jurisdiction, that he was satisfied that England was the proper place to bring the claims against SDV in accordance with 6.21(2A). The forum conveniens issue was effectively resolved by the necessary or proper party issue and the question of discretion under CPR 6.21. Although the burden is on a claimant to show, when seeking leave to serve out of the jurisdiction, that England is the appropriate forum where the case can most suitably be tried for the interests of all the parties and the ends of justice, the fact of continuing proceedings in England against other defendants on the same or closely allied issues virtually concludes the question, since all courts recognise the undesirability of duplication of proceedings and the lis alibi pendens cases make this clear. Although there are connecting factors with Kenya to which I refer later in this judgment, if proceedings are going on in this jurisdiction on the self−same or linked issues, this is clearly the most appropriate forum for those common and connected issues to be tried between all relevant parties.”

“The necessary or proper party head of jurisdiction is anomalous, in that, by contrast with the other heads, it is not founded upon any territorial connection between the claim, the subject matter of the relevant action and the jurisdiction of the English courts: Tyne Improvement Comrs v Armement Anversois SA (The Brabo) [1949] AC 326, 338, per Lord Porter. Piggott, Foreign Judgments and Jurisdiction, 3rd ed (1910), Pt III, p 238, said: “This is perhaps the most important of the sub-rules, for it throws the net of jurisdiction over a wider area; and the principle of considering the nature of the cause of action which pervades the whole subject, appears here to be ignored.”

“I agree . . . that caution must always be exercised in bringing foreign defendants within our jurisdiction under Ord 11, r 1(1)(c). It must never become the practice to bring foreign defendants here as a matter of course, on the ground that the only alternative requires more than one suit in more than one different jurisdiction.” “I agree . . . that caution must always be exercised in bringing foreign defendants within our jurisdiction under Ord 11, r 1(1)(c). It must never become the practice to bring foreign defendants here as a matter of course, on the ground that the only alternative requires more than one suit in more than one different jurisdiction.”

“The jurisdictional gateways and the discretion as to forum conveniens serve completely different purposes. The gateways identify relevant connections with England, which define the maximum extent of the jurisdiction which the English court is permitted to exercise. Their ambit is a question of law. The discretion as to forum conveniens authorises the court to decline a jurisdiction which it possesses as a matter of law, because the dispute, although sufficiently connected with England to permit the exercise of jurisdiction, could be more appropriately resolved elsewhere. The main determining factor in the exercise of the discretion on forum conveniens grounds is not the relationship between the cause of action and England but the practicalities of litigation.”

“In Brownlie I Lord Sumption JSC suggested (at para 31) that the main determining factor in the exercise of discretion on forum non conveniens grounds is not the relationship between the cause of action and England but the practicalities of litigation. While it is correct that practical issues can feature large in the exercise of the discretion, the discretion is not so limited. As Lord Wilson JSC pointed out in Brownlie I (at para 66) the Spiliada criteria are not limited to matters of mere practical convenience. On the contrary, Lord Goff made clear in The Spiliada [1987] AC 460 (at p 474) that the Latin tag is something of a misnomer: “I feel bound to say that I doubt whether the Latin tag forum non conveniens is apt to describe this principle. For the question is not one of convenience, but of the suitability or appropriateness of the relevant jurisdiction. However, the Latin tag (sometimes expressed as forum non conveniens and sometimes as forum conveniens) is so widely used to describe the principle, not only in England and Scotland, but in other Commonwealth jurisdictions and in the United States, that it is probably sensible to retain it. But it is most important not to allow it to mislead us into thinking that the question at issue is one of “mere practical convenience”.”

“The discretionary test of forum non conveniens, well established in our law, is an appropriate and effective mechanism which can be trusted to prevent the acceptance of jurisdiction in situations where there is merely a casual or adventitious link between the claim and England. Where a claim passes through a qualifying gateway, there remains a burden on the claimant to persuade the court that England and Wales is the proper place in which to bring the claim. Unless that is established, permission to serve out of the jurisdiction will be refused (CPR r 6.37(3)). In addition - and this is a point to which I attach particular importance - the forum non conveniens principle is not a mere general discretion, the application of which may vary according to the differing subjective views of different judges creating a danger of legal uncertainty. On the contrary, the principle applies a structured discretion, the details of which have been refined in the decided cases, in a readily predictable manner.”

“I have already determined that Olga is a proper party to the additional claim and that on the view expressed by Cooke J in Credit Agricole Indosuez v Unicof “virtually concludes” the issue of forum. It is significant that Nataliya with the assistance of Olga has brought the main claim in England. Although she resides at 28 Upper Mall, she also resides in Russia. He parents are both resident in Russia. Olga and Nataliya entered into the Deed of Gift and agreed that it would be subject to English law. Nataliya subsequently issued the main claim in England concerning chattels that are partly held in other jurisdictions. Nevertheless, Alexey has accepted the jurisdiction of the English Court. Having determined that Olga is a proper party to the additional claim it would be odd for the court to conclude that England is not obviously the proper forum for the additional claim given the choice of jurisdiction Nataliya, with Olga’s support, has made.”

“I respectfully adopt those observations noting, however, that “virtually concludes” does not obviate the need for the issue of forum to be considered. A determination that the additional party is a proper party to either the main claim or the additional claim is likely to be very influential on the subject of forum, but it is not conclusive.” (2) The Deputy Master had already reminded himself, at [9], of the need for caution when bringing a party into this jurisdiction. In a footnote to [9] the Deputy Master made express reference The Golden Mariner, cited by Lord Collins in Altimo in the context of the need for caution. (3) At [65] itself the Deputy Master did not confine himself to his conclusion that Olga was a proper party to the Additional Claim, and stop there. He set out a list of factors relevant to the Forum Question. Most significantly, in the last sentence of [65] the Deputy Master did not say that his conclusion on the proper party test either concluded or virtually concluded the Forum Question. What he actually said was that having determined that Olga was a proper party to the Additional Claim, it would be “odd” for the court to conclude that England was not obviously the proper forum for the Additional Claim, “given the choice of jurisdiction Nataliya, with Olga’s support, has made.”. (4) The Deputy Master’s evaluation of the factors relevant to the Forum Question did not stop at [65]. The Deputy Master continued the evaluation exercise at [66] to [69]. (5) The Deputy Master reached the conclusion to his evaluation exercise at [70]. For present purposes the relevant point in respect of this conclusion is that the Deputy Master’s conclusion that Olga was a proper party to the Additional Claim was treated as “a starting point”

“I would accept for the purposes of argument that the weight to be given to the fact that proceedings will continue in any event in this jurisdiction may be qualitatively different in cases where this court is compelled to accept jurisdiction on the basis of a defendant’s domicile. Even where that is not the case, however, the fact that proceedings are very likely to continue here remains a factor which is entitled to weight. The amount of weight to be attached to it is a matter for the judge, always bearing in mind the caution it is necessary to exercise before bringing foreign defendants here on the ground that the only alternative requires more than one suit in more than one jurisdiction.”

“Both Alexei and Olga have provided lists of indicative factors that are relevant to the decision about forum. Olga points principally to the following factors:”

“178. At this stage, the burden remains on the claimants to establish that England is clearly the more appropriate forum (e.g., per Lawrence Collins J in Komanenemi v Rolls Royce Industrial Power India) Ltd [2002] 1 WLR 1269 at [175]). Whenever there is a challenge to jurisdiction on forum non conveniens grounds, whether that challenge arises on the application of the third stage in the test for permission to serve out of the jurisdiction or on an application for a stay, the challenger must identify some other forum which does have jurisdiction to determine the dispute and that jurisdiction must be the more appropriate forum: Unwired Planet International Ltd v Huawei Technologies (UK) Co Ltd [2020] UKSC 37 at [96]. In the present case, the Kazakov defendants and Mr Anufriev submitted that Monaco is the other more appropriate forum. 179. To enable the court to reach an informed conclusion on that aspect of the application, it is incumbent upon the party challenging jurisdiction, so far as possible, to identify the issues which he says should be tried in the other jurisdiction and to state as clearly as possible how they arise or may arise in the proceedings (VTB Capital plc v Nutritek International Corpn [2013] 2 AC 337 at [36] per Lord Mance JSC and [192] per Lord Clarke JSC).”

“It is also important to appreciate that the court is concerned with the totality of the dispute, identifying the forum in which the case as a whole can suitably be tried for the interests of all the parties and for the ends of justice. This was a significant point in Vedanta in which Lord Briggs JSC emphasised (at [68]) that the court is looking for a single jurisdiction in which the claims against all the defendants may most suitably be tried, and rejected (at [73] and [74]) an argument that the court was only concerned with the issues as the arose between the claimants and the foreign defendants, rather than the case as a whole. When considering the totality of the dispute, the court is concerned not just with all of the parties to the dispute, but also where appropriate the defendants’ answer to the claim (Shenzhen Senior Technology Material Co Ltd v Celgard LLC [2020] EWCA Civ 1293 at [71]).”

“In addition to the above, the parties have been in correspondence in relation to consequential matters (correspondence attached). The latest proposal from Withers (with which we agree) is for the parties to provide written submissions on consequential matters in accordance with the timings below and that the consequential matters be decided on paper as this would be the most efficient and cost-effective way forward: 1. The parties to file and serve their primary submissions by 4pm on Tuesday, 3 August 2021; and 2. Response submissions be filed and served by 4pm on Thursday, 5 August 2021.”

“I agree the proposal put forward by the parties concerning consequential issues. Please will the parties file an agreed consent order for me to approve. All consequential issues, including permission to appeal, are treated as being adjourned for later disposal.”

“10. Alexey has filed a costs statement that totals £190,260.50. Olga’s costs statement totals £170,038.08. I have in mind the factors set out in CPR rule 44.4 and Mr D’Cruz’s submissions about them. 11. The summary assessment of costs in an impressionistic exercise rather than an exercise of calculation. 12. Alexey’s costs statement includes a schedule of work done on documents that has 164 entries and I accept Mr Emmett’s submission that there are doubts about whether numerous items are recoverable in whole or in part on the standard basis because they suggest there has been double counting. Such doubts must be resolved in favour of Olga. 13. I also consider that (a) there are doubts about the extent to which counsels’ fees will be fully recoverable and (b) the costs statement claims for an excessive number of fee earners attending the hearing. 14. I note that by letter dated 27 July 2021 Alexey offered to accept £150,000 in respect of his costs. Some additional costs have been incurred since that date. 15. Both parties have adopted a broadly similar ‘no holds barred’ approach to the claim which forms part of a bitter family dispute. I consider that £150,000 is a reasonable and proportionate sum for Olga to pay. Payment must be made within 28 days from the date of this judgment.”

“We note that the costs now claimed by Alexey exceed by £20,643.37 the amount indicated in the schedule dated 14 June 2021. Olga accepts the principle that the costs of reasonable work since the hearing may be recovered. But this amount is excessive. In particular: 1. £10,291.97 has been claimed by Alexey’s solicitors for attendance on client / opponent / others. This is an extraordinary amount to claim following argument and before judgment. This can hardly be regarded as the reasonable costs of the application. 2. A further £6,947 has been claimed in respect of work done on documents by the solicitors which again can’t be viewed to be reasonable in addition to the fees charged by the counsel team in relation to the submissions on consequential matters. 3. There is an entry for £965 on 21 June 2021 said to relate to work done by junior counsel on a “Supplemental Skeleton Argument” (the hearing was on 15 June 2021). We do not know what this relates to. 4. Alexey has also claimed £639 as the costs of obtaining a transcript of the hearing on 15 June 2021 (costs which the parties did not agree to share / Olga should not be responsible for reimbursing Alexey given the transcript has not been shared with her). In addition to the above, in relation to paragraphs 11-12 of Alexey’s submissions dated 3 August 2021, the offer in question was not reasonable. It did not address the matters set out in Olga’s submission dated 3 August 2021 (which were already known to Alexey). Also, it was made before Alexey’s solicitors provided notification of the additional £20,000-odd that are now being claimed in respect of work since the hearing. It was (i) unreasonable to make an offer which was intended to have costs consequences without providing proper information about the amount that would ultimately be claimed, and (ii) not unreasonable for Olga to refuse the offer given that it represented nearly 90% of the costs that had actually been notified to her to that time. In the circumstances, we would respectfully submit that the sections of today’s judgment in relation to issues as to costs are reconsidered in light of the information set out above.”

“Thanks, but I don’t need reply submissions. I have handed down the judgment. The decision is made and is final.”