JSC Commercial Bank Privatbank v Igor Valeryevich Kolomoisky & Ors [2026] EWHC 1617 (Ch)

[2026] EWHC 1617 (Ch)Case No BL-2017-000665
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate Monday 29 June 2026
Before
THE HONOURABLE MR JUSTICE TROWER
Between
JSC COMMERCIAL BANK PRIVATBANKClaimant(1) IGOR VALERYEVICH KOLOMOISKYDefendants(2) GENNADIY BORISOVICH BOGOLYUBOVDefendant(3) TEAMTREND LIMITEDDefendant(4) TRADE POINT AGRO LIMITEDDefendant(5) COLLYER LIMITEDDefendant(6) ROSSYN INVESTING CORPDefendant(7) MILBERT VENTURES INCDefendant(8) ZAO UKRTRANSITSERVICE LTDDefendantDaniel Saoul KC and Conor McLaughlin (instructed by Hogan Lovells International LLP) for ClaimantCharles Béar KC (instructed by Fieldfisher LLP) for First DefendantCraig Morrison KC and Geoffrey Kuehne (instructed by Enyo Law LLP) for Second Defendant for The Third to Eighth Defendants did not appear and were not representedHearing Hearing dates: 24 and 25 June 2026
APPROVED JUDGMENTThis judgment was handed down remotely at 2pm on 29 June 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives
[1]This judgment is concerned with one of a number of issues which were argued at a hearing concerned with the meaning and effect of two orders made on 10 November 2025 (the “CO” and the “WFO”) in light of a judgment I handed down the same day ([2025] EWHC 2909 (Ch) (the “Consequentials Judgment”)). I ruled on most of the issues during the course of the hearing, but reserved judgment on one issue which was raised by D2’s application notice dated 10 June 2026 and which arose out of the provisions of sub-para 3E(6) of the CO.[2]To put the point in context, para 3 of the CO ordered judgment for the Claimant (the “Bank”) against the First Defendant (“D1”) and the Second Defendant (“D2”) in the sum of approximately US$3 billion to be paid by 4pm on 24 November 2025. Para 3E of the CO was concerned with restrictions on the Bank’s rights to enforce the judgment pending appeal.[3]At the time the CO was made, all parties contemplated that both D1 and D2 would wish to seek permission to appeal and to pursue that appeal if permission were to be granted. The Bank wished to do what it could to protect its own right to enforce against D1 and D2’s assets and to ensure priority against other creditors. It therefore opposed a general stay but recognised that sufficient liquid resources should be available for payment of D2’s legal costs to ensure that his rights to appeal were not stifled.[4]To this end, the CO and the WFO, both of which were heavily negotiated, were drafted to hold the ring. In paragraph 207 of the Consequentials Judgment I described the impact of the proposed CO on the stifling argument as follows:
“The strength of [D2’s] stifling argument was affected by discussions between the parties during the course of the Second Consequentials hearing. Those discussions were concerned with the nature and extent of a ring-fencing proposal designed to permit [D2] to pay his costs, the legal costs of the appeal and other English litigation and foreign proceedings to which he is subject, much of which relates to claims by the Bank itself. The underlying concept was that a sum should be ring-fenced in the client account of [Enyo], and excluded from the assets over which the Bank would otherwise be entitled to enforce its judgment. To this extent there would be a limited stay of execution to mitigate the risk that his appeal might otherwise be stifled, a factor which weighs in the balance when the court is considering the risk of injustice to each side if a stay is or is not granted.”
[5]Para 3E of the CO prevented the Bank from executing or otherwise taking steps to enforce the order made against D2 for payment of the judgment sum against what were called the Ringfenced Funds. The Ringfenced Funds were derived from D2’s assets or from assets in the name of others, the disposition of which he was able to control. They comprised(a) certain identified cash assets,(b) certain cash and securities held with Barclays Bank in Jersey, Royal Bank of Canada in Jersey and UBP in Switzerland,(c) the first c.£30 million of sums paid into and held in what were called the New Enyo Accounts and(d) identified amounts held in seven other accounts (the “Schedule B accounts”) held in Switzerland and Jersey.[6]The New Enyo Accounts were three designated deposit accounts (in USD, EUR and GBP) opened by D2’s solicitors (“Enyo”) to hold monies on behalf of D2. By the time the CO had been made, certain amounts had already been paid into the New Enyo Accounts from Enyo’s client account and two accounts at UBP.[7]Sub-para 3E(2) of the CO provided for the Ringfenced Funds to be ring-fenced for five identified purposes. They included the payment of D2’s living expenses (sub-para 3E(2)(a)), the payment of D2’s tax bill and associated costs (sub-para 3E(2)(d)) and the payment of the reasonable costs of the administration, maintenance and sale of certain property in London (sub-para 3E(2)(e)). In each instance the source of the amounts in the New Enyo Accounts to be applied towards the relevant payment was specifically identified, as were the provisions for notification to the Bank of the payments to be made.[8]The other two purposes identified in sub-para 3E(2) of the CO related to D2’s legal costs: i) the payment of D2's reasonable legal fees and disbursements other than in respect of the costs of compliance with the CO, a delivery up and disclosure order also made on 10 November 2025 (the “DDO”), the WFO and any other orders of the court in these proceedings (sub-para 3E(2)(b)); and ii) the payment of D2’s legal fees costs and disbursements reasonably necessary for D2 to comply with the CO, the DDO, the WFO, and any other orders made in the proceedings (sub-para 3E(2)(c)).[9]The two categories of legal costs for which payment out of the Ringfenced Funds was permitted were dealt with separately in the CO because the two sub-paragraphs made very specific provision for identified categories of payment to be limited in amount and to be paid only from monies in the New Enyo Accounts and the Schedule B accounts which had been derived from specific sources. The obligation to use the Ringfenced Funds only for an identified purposes was spelt out in para 3E(3) of the CO.[10]Sub-para 3E(4) made provision for D2 to use the New Enyo Accounts to pay an interim payment of costs totalling £76.4 million ordered by sub-para 9(4) of the CO. Sub-para 3E(5) made provision for the Bank to be informed of balances, and payments into and out of the New Enyo Accounts and the Enyo Client account.[11]Sub-para 3E(6) of the CO, which is at the core of this part of the dispute, was as follows:
“In the event that (i) the Second Defendant does not make an application to the Court of Appeal for permission to appeal the Judgment by the deadline for doing so, (ii) the Court of Appeal refuses the Second Defendant permission to appeal the Judgment, or (iii) the Second Defendant’s appeal (if permission is granted by the Court of Appeal) of the Judgment is dismissed or is not pursued, sub-paragraphs (1)-(3) shall no longer apply and the Claimant shall be at liberty to take any enforcement step it considers appropriate against the Ringfenced Funds.”
[12]The reference to the entitlement to take enforcement steps on the occurrence of any one of the three events identified in sub-para 3E(6)(i) to (iii) of the CO (a “disapplication event”) relates back to that which the opening words of para 3E prevented, viz. the taking of any steps to enforce the judgment against the Ringfenced Funds.[13]The CO contemplated a charge in respect of the New Enyo Accounts, which the Bank and D2 were directed by para 3F to use all reasonable endeavours to agree and execute. In the event, such a charge was agreed and executed on 1 December 2025 (the “Deed of Charge”).[14]By clause 2 of the Deed of Charge, D2 charged to the Bank by way of first fixed charge, all of his right, title and interest, present and future, in the New Enyo Accounts and all amounts deposited by D2 or Enyo to the credit of the New Enyo Accounts (the “Deposits”). The Deed of Charge was a continuing security for the payment and discharge of any liability expressed to be due, owing or payable by D2 to the Bank under or in connection with the CO.[15]By clause6.1 of the Deed of Charge it was provided that the security created by it was to become enforceable upon the occurrence of any disapplication event, including therefore the dismissal of D2’s appeal against the Judgment. Clauses6.2 of the Deed of Charge went to on to provide that:
“At any time after the Security created by this Deed has become enforceable, the Chargee may, unless precluded by law or the [CO], do all or any of the following, without prejudice to any other rights and remedies and without prior authorisation from Mr Bogolyubov, Enyo or any court: (a) issue a Blocking Notice (in accordance with and as defined in Schedule 1, Part II) to the Accounts Bank; (b) enforce all or any part of that Security at the times, in the manner and on the terms it thinks fit … (c) apply the Deposit in or towards satisfaction of the Secured Liabilities …” (a) issue a Blocking Notice (in accordance with and as defined in Schedule 1, Part II) to the Accounts Bank; (b) enforce all or any part of that Security at the times, in the manner and on the terms it thinks fit … (c) apply the Deposit in or towards satisfaction of the Secured Liabilities …”
[16]Clause 14 of the WFO also made provision for legal costs as follows; “a. This order does not prohibit any Respondent from spending a reasonable sum on his / its legal advice and representation in these or any other proceedings (anywhere) in accordance with paragraph 3E(2)(b) of the [CO]. But before spending any money, the Respondent must tell the [Bank’s] legal representatives where the money is to come from. [D2] may pay such expenses from the funds held in the Enyo Client Account and the New Enyo Accounts (as defined in the [CO]) from time to time in accordance with paragraph 3E(2)(b) of the [CO]. But before spending any money and/or transferring any funds from the Enyo Client Account / the New Enyo Accounts to Enyo’s office account or any other account in accordance with this sub-paragraph, [D2]must give the [Bank’s] legal representatives three clear working days’ notice of the amount and purpose of his intended expenditure. … d1. [D2] is permitted to use the funds held in(i) the New Enyo Accounts (as defined in the [CO]); and(ii) the Ringfenced Amount in the bank account set out at Schedule B(1) of the [CO] to pay the legal fees, costs and disbursements reasonably necessary for [D2] to comply with the [CO], the [DDO], the WFO and any other orders of the court in accordance with paragraph 3E(2)(c) of the [CO]. But before spending any money, [D2] must tell the [Bank’s] legal representatives where the money is to come from and (save for legal fees and disbursements, as to which the notification procedure in sub-paragraph (a) above applies) seek the [Bank’s] consent to the payment, which consent is not to be unreasonably withheld.”[17]On 22 May 2026, the Court of Appeal handed down judgment dismissing D1’s and D2’s appeals against the Judgment. It did so very shortly after the appeal had been heard. At that stage there were sums in excess of £950,000 which had been incurred in respect of legal costs which the Bank now accepts were reasonable sums spent on legal advice and representation within the meaning of sub-para 14a of the WFO, but which had not been paid. There were also further amounts totalling £682,246 in respect of which D2 had given or intended to give notice of payment, to which the Bank objected on the grounds that they did not fall within either sub-para 14a of the WFO or sub-paras 3E(2)(b) or (c) of the CO.[18]The parties raised with the Court of Appeal the question of the extent to which the ring-fencing provisions under the CO continued to apply in the light of its judgment. On 4 June 2026, the Court of Appeal made the following determination: “[D1] We consider that the stay granted until disposal of the appeal came to an end when we decided to dismiss the appeal, but that is probably academic now. So far as the application for a further stay is concerned, we refuse that on the ground there is no arguable point of law for the Supreme Court, let alone an arguable point of law of general public importance. So far as ring-fencing is concerned, we consider that paragraph 4C of Trower J’s order continues to have effect notwithstanding the dismissal of the appeal. If the [Bank] wishes to terminate this provision, it should apply to the High Court and preferably Trower J. We consider that [D1’s] costs of the appeal would include an application to this Court for permission to appeal, but not any further application to the Supreme Court. If [D1] wishes to extend the order to cover such an application, he should apply to the High Court and preferably Trower J. On the other hand, we consider that [D1] can spend money on compliance with the WFO and DDO and does not have wait for 3 days before doing so. [D2] Since the Court has dismissed the appeal, we consider that paragraph 3E(6) of Trower J’s order has come to end. The application to extend the ring-fencing is refused for the same reason that D1’s application to extend the stay is refused. Similarly, the [Bank’s] undertakings have come to an end and should not be extended. With regard to the dispute about whether [D2] can pay out of the ring-fenced funds costs already incurred but not yet paid, the Court would encourage the parties to try to reach agreement. In default of agreement this is another matter that should be resolved by an application to the High Court and preferably Trower J.”

[D2]

[19]The dispute referred to by the Court of Appeal in the last paragraph of its determination is the one with which this judgment is concerned, i.e., whether and to what extent certain legal costs can be paid out of the Ringfenced Funds, now that D2’s appeal has been dismissed. The disputed amounts fall into two broad categories.[20]The first category is proposed payments which the Bank does not challenge as expenditure of reasonable sums on D2’s legal and advice and representation in these and other proceedings, so as to fall within sub-para 14a of the WFO. It is therefore accepted that these can be paid by D2 notwithstanding the WFO. However, the Bank contends that they cannot be paid out of the New Enyo Accounts. The reason for this is that the ring-fencing now no longer applies (see the Court of Appeal’s determination on the meaning of sub-para 3E(6) of the CO), the Deed of Charge which has granted the Bank security over the New Enyo Accounts has become enforceable and the Bank has taken steps to enforce by issuing a Blocking Notice. The Bank’s position is that, as the New Enyo Accounts are in England, they are relatively straightforward to enforce against, and that in any event D2 has other resources, including the Schedule B accounts, from which the amounts due to his own lawyers can be paid.[21]The second category comprises proposed payments of £500,000 to a firm of English solicitors (Linkilaw), £103,704 to a firm of Austrian lawyers (Legal Dynamics) and £78,542 to an entity called Coulant Capital in respect of the services of Mr Alex van der Zwaan. The Bank challenges all of these amounts on the grounds that the expenditure does not qualify as reasonable legal fees, costs or disbursements within the meaning of either sub-para 14a or sub-para 14d1 of the WFO.[22]As to this second category, at the hearing of the applications, I decided that a charge of £500,000 for the proposed Linkilaw work was unreasonable and that anything more than £250,000 to cover the fees of solicitors and counsel to prepare applications for permission to appeal to the Supreme Court would not be reasonable within the meaning of para 14 of the WFO. It was not said that the sum of £250,000 (which could be characterised as reasonable) had already been incurred and so the dispute referred to by the Court of Appeal did not apply to that amount.[23]I also decided that D2 had not established that either of the other two proposed categories of payment (to Legal Dynamics and to Coulant Capital) could be said to fall within either sub-para 14a or sub-para 14d1 of the WFO. In the case of Legal Dynamics it was because there was insufficient information to explain why it was reasonable to have legal advice from two separate firms of Austrian lawyers. In the case of Coulant Capital, it was because I was not satisfied that the services being provided were or are services amounting to legal advice and representation (within the meaning of sub-para 14a) or a reasonably necessary disbursement (within the meaning of sub-para 14d1): there is insufficient evidence to establish that Mr van der Zwaan is a regulated lawyer or that Coulant Capital is the appropriate recipient of a litigation disbursement.[24]The issue as to the first category of payments was concerned only with the dispute referred to by the Court of Appeal. All parties agreed that this gives rise to a question of construction of the CO.[25]D2 submitted that payment out of the New Enyo Accounts could be made for legal fees and disbursements incurred prior to the date of the order dismissing the appeal, or alternatively to the date of the Court of Appeal’s judgment. The Bank’s position is that the ring-fencing regime only applied where the legal costs had been invoiced and paid before the relevant disapplication event. It also said that this was the handing down of the judgment (which occurred on 22 May 2026) not the making of the order (which was only made on 10 June 2026). It said that whether or not they been incurred by the time of the disapplication event was not to the point if they had not been paid.[26]There was no dispute as to the correct legal approach to construing a court order. As Lord Sumption said in Sans Souci Ltd v VRL Services Ltd [[2012] UKPC 6 at [13]:
“… the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the Court made it, so far as these circumstances were before the Court and patent to the parties. The reasons for making the order which are given by the Court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the interpretation of an order may be critically affected by knowing what the Court considered to be the issue which its order was supposed to resolve.”
[27]The language of sub-para 3E(6) makes clear that two consequences flow on the occurrence of a disapplication event. The first is that sub-paras 3E(1) - (3) “shall no longer apply”. The second is that the Bank is at liberty to take any enforcement steps it considers appropriate against the Ringfenced Funds. The meaning and effect of both of those consequences cannot be considered in isolation from each other.[28]The phrase “shall no longer apply” relates to sub-paras 3E(1) to (3) and has the effect of terminating the restrictions which limit the purposes for which the Ringfenced Funds can be used. From that moment in time, sub-paras (1) to (3) no longer apply, which means that the ring-fencing purpose, for which the credit balances in the New Enyo Accounts are held, changes. While they are still held on behalf of D2, they are no longer subject to the ring-fencing regime, which only permits payments out to be made as described in sub-paras 3E(2) and 3E(3).[29]If matters had stopped there, the effect of para 3E(6) would have been that the credit balances on the New Enyo Accounts would have been held for D2, subject only to the limitations imposed by the Deed of Charge and the WFO. They were no longer held subject to the restrictions imposed by the ring-fencing regime, but the opening words of para 3E would have continued to restrict the Bank’s entitlement to execute the judgment. However, in place of the ring-fencing restrictions, the last two lines of sub-para 3E(6) had the effect of terminating the restrictions on the Bank’s entitlement to execute the judgment and granted the Bank liberty to enforce against the Ringfenced Funds, including therefore against the balance on the New Enyo Accounts. Such rights of enforcement were by then bolstered by the Deed of Charge contemplated by para 3F of the CO, which included the right to issue a Blocking Notice, and then to exercise all of the other rights it was granted by clause 6.2.[30]On the issue of whether the disapplication event within the meaning of sub-para 3E(6)(iii) of the CO occurred at the time of the judgment of the Court of Appeal or at the time of its order, I am satisfied that the Bank is correct. The reason for this is that the Court of Appeal ruled on 4 June that “Since the Court has dismissed the appeal, we consider that paragraph 3E(6) of Trower J’s order has come to end”. This ruling was given before the order was made. Although there is some ambiguity in its expression, it is clear to me that the ruling can only be construed as a determination that the hand down of the Court of Appeal’s judgment constituted the dismissal of the appeal for the purpose of sub-para 3E(6)(iii) of the CO.[31]I have not found the answer to the more substantive question to be so straightforward. Initially, I found it surprising that fees which had been incurred might no longer be payable out of the New Enyo Accounts in priority to the Bank’s enforcement rights if they were not paid by D2 prior to the occurrence of the relevant disapplication event. However, I have reached the clear conclusion that this is the effect of para 3E of the CO.[32]In support of the main part of his argument, Mr Morrison submitted that D2’s position was consistent with the intended purposes of the ring-fencing arrangements (and particularly sub-paras 3E(2)(b) and (c)). He said that the Bank’s construction would lead to absurd results. He relied on the purpose of the ring-fencing being to ensure that the appeal and the ability to defend other proceedings were not stifled and that this would be given effect by ensuring the funds held by Enyo would be ring-fenced and kept available for payment of fees properly incurred for those purposes. He submitted that the purpose could only be met if the CO permitted D2’s legal representatives to do their work with the confidence that they would be paid for it without being at risk that the Court of Appeal would reach a decision which ended the ring-fencing regime in respect of work they had already done.[33]It was also submitted that the argument that D2's appeal would not be stifled because of the ring-fencing regime introduced by the CO was bolstered by the finding made in the Consequentials Judgement that the CO would be “sufficient” to give protection to D2's ability to pursue his appeal. It was said that, if the ring-fencing were to be limited to legal costs actually paid prior to dismissal of D2's appeal, it would not provide “sufficient” protection. It was said that it was clear to everyone at the time the CO was negotiated that D2's legal representatives would not have acted on the appeal if there were to be any risk of non payment by reason of their access to funds in the New Enyo Accounts being terminated in respect of fees already incurred.[34]Mr Morrison also submitted that it was never suggested by any party that D2’s representatives would face continuous exposure to the risk of non payment for any work they had done, but for which they had not been paid. He said that this would have been commercially absurd, because it would have left them on risk in respect of fees incurred in a period of unknowable length between the last payment date and the date of dismissal of the appeal. It would be entirely fortuitous as to whether work done had been paid for at the time the disapplication event occurred, and could be seen to operate in an arbitrary manner, as reflected (e.g.,) in the fact that some counsel had been paid all or almost all of their fees by the time of the disapplication event, while others had not.[35]The construction which Mr Morrison therefore urged the court to adopt, was to recognise that the language of sub-para 3E(6) was forward-looking. It provided that sub-paras 3E(1) to (3) “shall no longer apply” and it quite specifically did not say that those paragraphs were to be treated as if they had never applied. He said that this showed that further work done after the relevant cut off date would be done on risk and would not benefit from the ring-fencing provisions, but that nothing in the language required what he described as the “retrospective removal of those protections” from work already done. This was further confirmed by sub-para 3E(5), which is not disapplied by sub-para 3E(6) and which must therefore contemplate that payments can continue to be made to D2 out of the New Enyo Accounts after the time at which the relevant disapplication event has occurred.[36]Mr Morrison also relied on sub-paras 3E(2)(b) and (c) of the CO, which explicitly provided that funds in the New Enyo Accounts “are” ringfenced for the payment of fees incurred for various specified categories of work. He said that the natural meaning of that language is that the funds would be held to discharge D2’s liability for that work to the extent that it was carried out until one of the disapplication events occurred. This was what he called the “core” scenario where the ring-fencing regime was required, i.e., ring-fencing in respect of work already done but not yet paid for, where D2's representatives were most vulnerable, and where ring-fencing was most essential.[37]The first difficulty with all of these submission is that the natural meaning of the language of para 3E of the CO, and the structure for which it provided, does not lead to the result for which Mr Morrison contends. Sub-para 3E(6) provides that what no longer applies is the purposes for which the Ringfenced Funds are held in the New Enyo Accounts. Those purposes were the payment of certain categories of expenditure. There is no language which provides that the ring-fencing was to continue to apply after the occurrence of a disapplication event for the purpose of enabling D2 to discharge obligations which had been incurred but not paid. While D2 was enabled to make payments for the prescribed purposes before the occurrence of a disapplication event, the making of the payment was chosen to identify the purpose for which the funds were held. There is no indication that the right to make payments thereafter should continue on the basis that the obligation had arisen before that date. The language makes no reference to the purpose being to enable the obligation to be incurred.[38]Of course this gave D2’s lawyers a less certain source of payment on the occurrence of a disapplication event, but it is perfectly coherent for it to be the consequence of a heavily negotiated agreement. It was not clear to the Bank that the New Enyo Accounts would always be the only source from which the legal costs referred to in para 3E of the CO might be paid. This was a compromise in circumstances in which the Bank had never accepted that other assets outside the jurisdiction, and against which it would have difficulty in enforcing its judgment, might not have been available for payment of D2’s own legal costs should he have chosen to go down that route.[39]The second difficulty is that the Bank’s right to enforce over the New Enyo Accounts, which is engaged on the occurrence of a disapplication event is inconsistent with D2's construction. For it to work, there would have to be a limitation on the unqualified right to enforce which does not appear in the language of sub-para 3E(6), and is inconsistent with the right being described as any enforcement step it considered appropriate. Furthermore, the asset of D2 over which such enforcement becomes available is the whole of the New Enyo Accounts and the Deposit, not just a proportion net of further legal costs incurred but not paid, and in respect of which no right to compete in priority to the Bank’s entitlement to enforce was granted.[40]Thirdly, D2's construction is based on an inherently uncertain concept. It assumes that an obligation to pay has arisen, but it does not grapple with the question of whether the obligation to pay does or should only arise as and when the work is done. In my view it is improbable that the parties invited the court to adopt a structure under which the amount of the asset over which the Bank's right to enforce had arisen was inherently uncertain. If there were to be a restriction on the Bank's right to enforce against such amount in the New Enyo Accounts as was available to discharge unpaid work in progress, it is to be expected that it would have been spelt out.[41]Fourthly, I do not think that what Mr Morrison called the forward-looking nature of the phrase “shall no longer apply” has the effect for which he contends. The word “shall” reflects the mandatory nature of what has been agreed as much as it is about futurity. I agree that the phrase “no longer” is forward-looking in the sense that the ring-fencing purpose no longer applies to encumber the use to which payments can be applied going forward, but the whole phrase says nothing about the historic position. What is removed is the purpose for which the credit balance may be applied in making payments out of the New Enyo Accounts. There is no qualification to the phrase “shall no longer apply” so that the ring-fencing purpose continues to apply to an as-yet undischarged obligation.[42]On this aspect of the argument, I do not think that Mr Morrison gets any assistance from the fact that sub-para 3E(5) is not disapplied by the occurrence of a disapplication event. He said that this shows that the CO contemplated that payments could continue to be made to D2 thereafter. That may be the case, but it is not surprising in circumstances in which the structure under sub-para 3E(6) had two sides to it: the disapplication of the ring-fencing purpose and the grant of liberty to the Bank to enforce. All that sub-para 3E(5) provides is that, notwithstanding the grant of that liberty, the notification provisions continue in place, whether or not the liberty to enforce is exercised. They fall well short of confirmation that, if the liberty to enforce is exercised, it is restricted so as to exclude any amounts required to discharge fees incurred but not paid.[43]Fifthly, I do not consider that the Bank’s construction means that the parties must have contemplated what D2 described as the absurd and uncommercial consequence that all fees would be paid upfront. It is certainly true that the Bank's construction means that D2's lawyers had an interest in prompt billing and payment of their fees, but that is not fatal to the Bank’s construction and, quite apart from the language, suffers from the flaw of looking at matters from D2’s side of the coin. It gave too much weight to the argument that the purposes for which the ring-fencing was introduced must have given D2 absolute security over the New Enyo Accounts as the only means by which the stifling argument could be overcome. The Bank’s side of the coin was its interest in ensuring that it had complete clarity as to the moment in time at which, and the asset over which, it was entitled to enforce, once the purpose for which the relevant legal fees were to be paid had fallen away on dismissal of the appeal.[44]In short, I consider that D2’s case gave insufficient weight to the clearly expressed link between the disapplication of the purposes for which the ring-fencing was introduced and the grant to the Bank of liberty to enforce. Both of those elements are spelt out in sub-para 3E(6) and were referred to in paragraph 207 of the Consequentials Judgment. In my view, applying the principles set out in Sans Souci Ltd v VRL Services Ltd, they lead to a conclusion that the Bank’s arguments are correct.[45]It follows that my initial reaction to the meaning and effect of sub-para 3E(6) was wrong. I shall therefore refuse the relief sought in paragraph 3 of D2’s 10 June application notice.