“6.36 In any proceedings to which rule 6.32 or 6.33 does not apply, the claimant may serve a claim form out of the jurisdiction with the permission of the court if any of the grounds set out in paragraph 3.1 ofPractice Direction 6B apply.” 6.37 (1) An application for permission under rule 6.36 must set out – (a) which ground in paragraph 3.1 ofPractice Direction 6B is relied on; (b) that the claimant believes that the claim has a reasonable prospect of success; and (c) the defendant’s address or, if not known, in what place the defendant is, or is likely, to be found. (2) Where the application is made in respect of a claim referred to in paragraph 3.1(3) ofPractice Direction 6B , the application must also state the grounds on which the claimant believes that there is between the claimant and the defendant a real issue which it is reasonable for the court to try. (3) The court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim. …”
“12. In February 2008, Mr Ivanyushchenko approached Mr Shulman in the Fairmont Hotel at 12, Avenue des Spélugues, Monte Carlo, 98000, Monaco with a proposal to acquire and develop land adjacent to the “7th Kilometre Industrial Market” near Odessa, Ukraine (“the Market”) into a transport and logistics hub (“the Project”).” 13. Early on in those discussions, Messrs Shulman andIvanyushchenko orally agreed that any disputes arising frombusiness dealings which they had together (including theProject) would be governed by English law and subject to theexclusive jurisdiction of the English courts.”
“Pursuant to the Joint Venture Agreement, Mr Shulman and Mr Ivanyushchenko agreed that: a. Mr Shulman and Mr Ivanyushchenko (through a company to be determined by him and Mr Ivanyushchenko) would acquire and develop the Land into a transport and logistics hub (“the Project”). b. Mr Shulman (through a corporate vehicle) would invest US$ 21,800,000 as “seed capital” in the Project which Mr Ivanyushchenko would use to fund the first phase of the development of the Project, in exchange for an initial 40% share in the Project. c. Mr Ivanyushchenko would bring in the Dutch Partner to contribute funds to enable the Project to be fully developed and that, once this further investment had been obtained, Mr Shulman’s and Mr Ivanyushchenko’s respective shareholding in Addison would ultimately be reduced to around 20% each. d. Upon Mr Ivanyushchenko’s request, half of the initial “seed” investment (i.e.US$ 10,900,000 ) was to take the form of a loan to Mr Ivanyushchenko repayable to Mr Shulman personally on demand with reasonable notice, which loan was agreed to be used by Mr Ivanyushchenko for the purposes of advancing the Project (“the Project Loan”). The Project Loan would carry interest at 5% per annum compounded monthly, accruing from the date of the Project Loan. e. As previously agreed between Messrs Shulman and Ivanyushchenko, the Joint Venture Agreement was to be subject to English law and to the exclusive jurisdiction of the English courts…”
“23. As was my practice at the time (and, I understood from him, Mr Ivanyushchenko’s practice also and, to the knowledge of us both, that of most Ukrainian and CIS businessmen) in dealing with commercial contracts, we agreed at an early stagein the negotiations that the entire joint venture arrangement for the Project would be governed by English law, that all disputes arising from it would be resolved only in courts in England and that this would apply to all of our business dealings with each other. It was normal practice among businessmen working in the Eastern block at that time, because the legal systems of their “home” countries were still in early stages of development of the USSR while English courts had a reputation of being neutral and fair.”
“Straight away in our first conversation in February 2008 at theFairmont Hotel, Mr Ivanyushchenko and I discussed issuesconcerning the judicial system in Ukraine, and how neither of us considered that we could trust the Ukrainian courts. We immediately agreed that any disputes in relation to the project and our future business dealings would only be resolved in London, as both he and I were of the same view that the English courts were neutral and fair. At the same time, we agreed that English law would apply to any disputes we might have.”
“…In early 2008, Mr Ivanyushchenko was my friend and I trusted him. We reached agreements orally on the substance of the Joint Venture and the Project and my investment in it. Whilst of course I now regret trusting Mr Ivanyushchenko, I did not see at the time why an agreement on jurisdiction should be dealt with any differently to those oral agreements we made.”
“7. An attempt to clarify the practical implications of these principles was made by the Court of Appeal in Canada Trust Co v Stolzenberg (No 2)[1998] 1 WLR 547 . Waller LJ delivering the leading judgment observed, at p 555: “‘Good arguable case’ reflects … that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allow the court to take jurisdiction.”
“[73] it is in my view clear that, at least in part, the Supreme Court confirmed the relative test in Canada Trust… This is plain from the express endorsement of that test in Brownlie… And nothing in Goldman Sachs… detracts from that analysis but on the contrary operates upon the basis Brownlie was correct. Reference to “plausible evidential basis” in limb (i) is hence a reference to an evidential basis showing that the claimant has the better argument… [78] Limb (ii) is an instruction to the court to seek to overcome evidential difficulties and arrive at a conclusion if it “reliably” can. It recognises that jurisdiction challenges are invariably interim and will be characterised by gaps in the evidence. The court is not compelled to perform the impossible but, as any judge will know, not every evidential lacuna or dispute is material or cannot be overcome. Limb (ii) is an instruction to use judicial common sense and pragmatism, not least because exercise is intended to be one conducted with due dispatch and without hearing oral evidence… Where there is a dispute between witnesses it might be possible to focus upon the documentary evidence alone and see if that provides a sufficient answer which then obviates the need to grapple with what might otherwise be intractable disputes between witnesses. [79]…[Limb (iii)] arises where the court finds itself simply unable to form a decided conclusion on the evidence before it and is therefore unable to say who has the better argument. [80]… The solution encapsulated in limb (iii) addresses this situation. To an extent it moves away from a relative test and, in its place, introduces a test combining good arguable case and plausibility of evidence. Whilst no doubt there is room as to what this implies for the standard of proof it can be stated that this is a more flexible test which is not necessarily upon relative merits.”
“I consider that in a case such as the present where the background legal context is Article 25 some regard must be paid to the fact that, as was held in Bols, the “clear and precise” test must be taken into account as a component of the domestic test and the melding of the two is necessary to ensure that domestic law remains consistent with the regulation. As with so much of the language used in this context, that which is “clear and precise” is not easy to define with precision. But I would rely upon it as providing at least an indication of the quality of the evidence required. It supports the conclusion that the prima facie test (in limbs (i) and (ii)) is a relative one; and in so far as the court cannot resolve outstanding material disputes (limb (iii)) it accords an indication as to the sort of evidence that a court will seek.”
“The mere fact that the defendant is challenging jurisdiction does not somehow impose a duty on him to specify his case. The onus is on the claimant to satisfy the court that there is a serious issue to be tried on the merits of the claim, and not on the defendant to satisfy the court that he has a real prospect of successfully defending it.”
“I have personally known the Ivanyushchenkos for a number of years, at least since 2007 when my family moved to Monaco,… I came to consider Mr Ivanyushchenko as a personal friend, which was one of the reasons why I was prepared to accept what he told me about a business opportunity, and why I did not research it as thoroughly or document as many safeguards as, with high, I perhaps should have done.”
“At the end of 2013, Mr Ivanyushchenko responded that he was ready to repay me all the money he owed… I was relieved that, at last, I would get my money back. I immediately asked for a draft agreement to be prepared, and my lawyer …sent this draft to Mr Ivanyushchenko’s lawyers on8 January 2014 . However, Mr Ivanyushchenko did not do anything about signing it.”
“If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction… The agreement conferring jurisdiction shall be either: (a) in writing; (b) in a form which accords with practices which the parties have established between themselves; or…”
“The contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case…”
“A contract will be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case.”
“(1) The general rule is that the applicable law is the law of the country in which the events constituting the tort or delict in question occur. (2) Where elements of those events occur in different countries, the applicable law under the general rule is to be taken as being— … (c) in any other case, the law of the country in which the most significant element or elements of those events occurred.”
“(1) If it appears, in all the circumstances, from a comparison of - (a) the significance of the factors which connect a tort or delict with the country whose law would be the applicable law under the general rule; and (b) the significance of any factors connecting the tort or delict with another country, that it is substantially more appropriate for the applicable law for determining the issues arising in the case, or any of those issues, to be the law of the other country, the general rule is displaced and the applicable law for determining those issues or that issue (as the case may be) is the law of that other country. “(2) The factors that may be taken into account as connecting a tort or delict with a country for the purposes of this section include, in particular, factors relating to the parties, to any of the events which constitute the tort or delict in question or to any of the circumstances or consequences of those events.”
“[205] The editors [of Dicey, Morris & Collins, The Conflict of Laws 15th ed para 35-148] note that the general rule has beendisplaced on very few occasions. They further observe that, although section 12 applies in all cases to which section 11 applies, it would seem that the case for displacement is likely to be most difficult to establish in the case of section 11(2)(c) because the application of that provision itself requires the court to identify the country in which the most significant element or elements of the tort are located. Importantly they stress the use of the word “substantially”, which they describe as the key word, and conclude that the general rule should not be dislodged easily, lest it be emasculated. The party seeking todisplace the law which applies under section 11 must show aclear preponderance of factors declared relevant by section12(2) which point to the law of the other country. [206] That approach is borne out by the cases. The idea that “substantially” was the key word was derived from the judgment of Waller LJ in Roerig v Valiant Trawlers Ltd[2002] 1WLR 2304 , at para 12 (v). The principles were considered in more detail by Brooke LJ in R(Al-Jedda) v Secretary of State for Defence[2007] QB 621 , at paras 103 and 104, where he noted that the 1995 Act derived from a report of the Law Commission, from which he quoted. He added that LordWilberforce, who was a member of the House of LordsCommittee which considered the Bill, had expressed the viewthat it would be a “very rare case” in which the general ruleunder section 11 would be displaced: “Prima facie there has tobe a strong case”.”
“…Because the schemes concerned shipping, the contractual arrangements by which they were conducted were governed by English law…However the focus of the conspiracy remained Russian and collusion was based in Russia although the schemes were played out elsewhere.”
“1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation arising out of a tort/delict shall be the law of the country in which the damageoccurs irrespective of the country in which the event giving rise to the damage occurred and irrespective of the country or countries in which the indirect consequences of that event occur. 2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall apply. 3. Where it is clear from all the circumstances of the case thatthe tort/delict is manifestly more closely connected with acountry other than that indicated in paragraphs 1 or 2, the lawof that other country shall apply. A manifestly closer connection with another country might be based in particular on a pre-existing relationship between the parties, such as a contract, that is closely connected with the tort/delict in question.”
“1. The law applicable to a non-contractual obligation arising out of dealings prior to the conclusion of a contract, regardless of whether the contract was actually concluded or not, shall be the law that applies to the contract or that would have been applicable to it had it been entered into. 2. Where the law applicable cannot be determined on the basis of paragraph 1, it shall be: (a) the law of the country in which the damage occurs,…; or (b) where the parties have their habitual residence in the same country at the time when the event giving rise to the damage occurs, the law of that country; or (c) where it is clear from all the circumstances of the case that the non-contractual obligation arising out of dealings prior to the conclusion of a contract is manifestly more closely connected with a country other than that indicated in points (a) and (b), the law of that other country.”
“If a non-contractual obligation arising out of unjust enrichment, including payments of amounts wrongly received, concerns a relationship existing between the parties, such as one arising out of a contract or a tort/delict, that is closely connected with that unjust enrichment, it shall be governed by the law that governs that relationship.”
“The parties may agree to submit non-contractual obligations to the law of their choice: … (b) Where all the parties are pursuing a commercial activity, also by an agreement freely negotiated before the event giving rise to the damage occurred. The choice shall be expressed or demonstrated with reasonable certainty by the circumstances of the case and shall not prejudice the rights of third parties.”
“...[Art 4(3) Rome II] is only to be used on an exceptional basis. The defendants rely upon [35–032] of Dicey, Morris & Collins: The Conflict of Laws which states that Article 4(3) should only be applied where there is a ‘clear preponderance of factors’ pointing to another country than that indicated by Articles 4(1) and (2). The 103. Explanatory Memorandum refers to the ‘centre of gravity’ of the tort.””
“However, the reality is that, unless RT and RT Capital had some “killer point” which demonstrated that Erste’s case on the facts was unsustainable (and, for reasons I will develop in detail below, they do not have any such “killer point”), the expending of so much time and energy on a full-scale evidential challenge is a fruitless exercise. All it succeeds in doing is demonstrating that Erste has raised serious issues to be tried.”
“The court will only do so where it finds external circumstances that exist independently of the claimant’s will (beyond his control) which either significantly impair the claimant’s ability to bring the relevant claim within the limitation period or render it altogether impossible. Whether such circumstances are made out is a question of fact and depends on the surrounding circumstances. The court will assess whether it was objectively impossible or significantlydifficult for the claimant to bring the claim on time, while alsotaking into account whether the claimant showed the necessarydiligence to protect their violated right. This is a high bar for claimants to overcome.”
“16. I would like to explain that Article 267(5) of the Civil Code does not explain what “valid reasons” are. The Ukrainian lawmaker has left this issue to be decided by the courts applying their discretion when considering particular cases based on the specific facts. 17. I have not seen a similar case in the Ukrainian courtpractice where the limitation period would have been “missed”(on the Defendants’ 4-6 case) for the same reason as in thepresent case. Therefore, I am not surprised that the tests formulated by the courts, to which Mr Alyoshin refers in §27 of OA2, do not take the present situation into account. However,this does not mean that the situation would automatically beruled out, since, as I explain, this issue is to be treated on a caseby case basis. I understand from §23 of VS1 that Mr Shulman had (and, apparently, continues to have) a bona fide belief that the English law of limitation would apply. 18. The only reason why it may now appear that the Claimants have “missed” the limitation period is only if this Court finds – as I understand, to the surprise of the Claimants – that Ukrainian law should apply instead of English one [sic] (including to the issue of the limitation period). Given that thiswill not be the decision within the Claimants’ control and thatthe Claimants had believed that – when bringing their claims –they should, rather, be guided by the limitation period underEnglish law (and not Ukrainian), in my opinion, there are goodreasons for the Court to apply its discretion in favour of theClaimants. 19. In my opinion, the above demonstrates that the limitation period in the present case has been “missed” for, indeed, valid reasons and that the Claimants determination to comply [sic] in good faith with what they believed was the relevant limitation period (i.e. the one under English law) should not be held now against them.”
“27. Valid reasons are certain external circumstances that exist independently of the Claimant’s will (beyond his control) which either significantly impair the Claimant’s ability to bring the relevant claim within the limitation period or render it altogether impossible. Mr Shulman’s subjectiveperception of the duration of the limitation period or applicablelaw would not qualify as a valid reason by a Ukrainiancourt, since, firstly, it is not an external circumstanceexisting beyond the claimant’s will (being Mr Shulman’ssubjective belief) and, secondly, it neither significantlyimpairs bringing the claim nor renders it impossible. 28. Moreover, basing a decision on Mr Shulman’ssubjective belief when deciding on disapplication of thelimitation period undermines the principle of legalcertainty - that, according to the Constitutional Court of Ukraine, requires clarity and uniguity [sic] of legal norms, in particular their foreseeability(predictability) and stability. The purpose of the limitation period is to apply despite anyone’s subjective belief. Only in exceptional circumstances that go beyond a claimant’s will, may it be disapplied (as case law referred to in the First Expert Report demonstrates).”
“ln the JCG Report (para. 16 to 22), no mention is made about a possible waiver of a limitation period that has expired. This waiver is accepted under Monegasque law. It may be express or tacit; tacit relinquishment arises out of afact presupposingthe abandonment of an established right (Article 2073 MCC). Again, it would be for a judge to establish whether there is or is not sufficient evidence of such a waiver.”
“32 Article 2073 provides: “A waiver of a limitation period may be express or tacit; tacit relinquishment arises out of a fact presupposing the abandonment of an established right.” 33. This provision provides that a defendant can waive theirright to rely on any applicable limitation period as a defence toa claim made against them. It does not mean (to the extent it is suggested) that limitation can be waived in the sense that it is being suspended, interrupted or in any way cease to have effect. ”
“(1) …, where in the case of any action for which a period of limitation is prescribed by this Act, either— (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiffhas discovered the fraud, concealment or mistake (as the casemay be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendant's agent and to any person through whom the defendant claims and his agent. (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty…”
“[50] At that point, around autumn/winter 2011 I started becoming concerned about the progress the Project was making and whether my investment was still safe. I was worried that because Mr Ivanyushchenko had acquired the Market itself, he would have less time to dedicate to the Project. Besides, it certainly seemed to me that he had lost interest in pursuing it already. [51] I therefore started thinking about how I could protect the funds I had tied in the Project in the best way possible, i.e. by developing a hub on my own without Mr Ivanyushchenko’s involvement, perhaps on a reduced scale, or exiting it altogether… [55] However, by early 2012, despite regularly chasing Messrs Ivanyushchenko and Avramov for updates, it started to become clear to me that the Project was nowhere near completion. Based on the information I was getting, and the information [my lawyer] was getting in Ukraine which he reported to me regularly, it appeared to me that I would not be getting my returns on the Project in the reasonably near future. [56] in the first quarter of 2012 I told Mr Ivanyushchenko that I wanted to exit the Project or at least get repaid the Project Loan… ”
“For the purposes of the present case, I think that the principles in the cases can be summarised as follows. (1) The power of the court to grant declaratory relief is discretionary. (2) There must, in general, be a real and present disputebetween the parties before the court as to the existence orextent of a legal right between them. However, the claimant does not need to have a present cause of action against the defendant. (3) Each party must, in general, be affected by the court’s determination of the issues concerning the legal right in question. (4) The fact that the claimant is not a party to the relevant contract in respect of which a declaration is sought is not fatal to an application for a declaration, provided that it is directly affected by the issue;…”
“The Parties have agreed to join efforts to conduct the Joint Business, including its foundation, management, monitoring and acquisition of income. The Joint Business includes, but is not limited to, the following companies: [Redacted] PRODUCTION INVESTMENT MANAGEMENT LTD (registration number 4842930) ADDISON ALLIANCE LIMITED (registration number 5350443) [Redacted]” [Redacted] ADDISON ALLIANCE LIMITED (registration number [Redacted]”
“[D6] authorizes [D5] to conduct the current Joint Business.”
“27. During 2009 and 2010, Mr Shulman, Mr Ivanyushchenko and Ms Ivanyushchenko continued to be friends. When they saw each other and communicated by telephone. Mr Shulman repeatedly asked Mr Ivanyushchenko about the status of the Project. 28. Mr Ivanyushchenko responded that the Project was progressing (though not as rapidly as had been originally envisaged), that he was fully involved in taking it forward, and that he had been using the money invested by Mr Shulman to develop the Project. 29. Ms Ivanyushchenko was present at social events when theseconversations took place and condoned those statements by herconduct and/or did not indicate that she disagreed with herhusband’s assessment of the Project’s status.”
“Mr Avramov and/or Ms Ivanyushchenko and/or PIML (acting through its agents and/or representatives including Mr Avramov and Ms Ivanyushchenko) assisted MrIvanyushchenko in his breaches of the fiduciary duties set out at paragraphs 53 and 64 above. Without prejudice to the generality of the foregoing (and subject to disclosure in this case): a. Mr Avramov made the Representations set out at paragraph 53 above to Mr Shulman and/or Dili, on his own behalf or as agent or representative of Mr Ivanyushchenko. b. Ms Ivanyushchenko was present when many of the saidRepresentations were made and impliedly and/or by conductcondoned those representations and/or did not correct thosemisrepresentations. c. PIML received the US$ 21,800,000 paid by Mr Shulman/Dili, of which Mr Avramov and Ms Ivanyushchenkobecame indirect shareholders. d. Mr Avramov and Ms Ivanyushchenko concealed the factsand matters set out above, their knowledge that Mr Shulman’smoney had not been used for the purposes of the Project,and/or that the Project / Joint Venture was not being developed. e. By10 July 2018 Mr Avramov and Ms Ivanyushchenko each indirectly owned between 25% and 50% of Addison’s shareholding and so have significant and/or outright controlof Addison. f. PIML received the US$21,800,000 paid by Mr Shulman/Dili (of which US$10,900,063 remains unreturned) and Mr Avramov and Ms Ivanyushchenko became indirectshareholders in PIML through Pallace and Rollexa, respectively”
“67. Further or alternatively, the circumstances set out at paragraphs 57 to 66 above would or should have indicated to Mr Avramov and/or Ms Ivanyushchenko and/or PIML (acting through its agents and/or representatives including Mr Avramov and Ms Ivanyushchenko) that any sums paid by MrShulman through Dili to PIMLand/or received by Mr Avramov and/or Ms Ivanyushchenko (and/or companies owned orcontrolled by them) and/or any traceable proceeds of the same were transferred in breach of fiduciary duty such that it would be unconscionable to retain their benefit. Paragraphs 65(e)-(f) above are repeated.”
“In 2009 and 2010, nothing much changed. We continued our friendly relationship and meeting and having telephone calls on a regular basis. I was interested to know about how the project was progressing, and asked Mr Ivanyushchenko about it pretty much every time we met. Mr Ivanyushchenko was happy to tell me that the Project was moving forwards, albeit not as quickly as he had originally hoped. From these updates, I understood that he was “on top” of the Project and that he had been using the money I paid to progress the Project. 42.His wife, Ms Iryna Ivanyushchenko, was often present when we had these discussions. Mr Ivanyushchenko had previously told me that he was going to make her a shareholder in the project company. I do not remember her saying much about the Project, however she never disagreed with anything he said about it.”
“I am surprised that Mr Bercow is saying that Mr Ivanyushchenko transferred his interest in Addison, the Project company, in 2005 to Ms Ivanyushchenko. As explained at paragraph 21 of my first witness statement, Mr Ivanyushchenko told me in 2008/2009 that he was going to make his wife a shareholder in the Project company (which would have made no sense had that company already been transferred in 2005) and, as explained above in paragraphs 30 et seq., he never suggested that any transfer of assets to her would take part of any ‘separation’ or ‘divorce’. He certainly never suggested or said that the intention of making his wife a shareholder meant that he would have no interest whatsoever in the Project company or the Project as a whole. On the contrary, it was clear to me that he simply meant that he would find it advantageous for certain of his assets to be held in the name of his wife. I do not know whether or not Mr Ivanyushchenko intended Ms Ivanyushchenko to have a beneficial interest in the Project, as that was a matter for them. He was the person who negotiated the joint venture with me and structured the Project in 2008, and he was the one who kept me updated about it. However, as I explain above, MsIvanyushchenko was fully aware of our agreement to jointlydevelop the Project with her husband because we discussed thatin front of her. She never asked me or him to explain what theProject was. She therefore definitely knew about the Project,and at least some of the detail of what it entailed.”
“But in any event I feel unable to accept the submission as legally sound. In my judgment it fallaciously treats the ingredient of assistance as having to encompass the mental element which renders the conduct of the fiduciary a breach of trust or fiduciary duty; whereas what is required, or at least is sufficient, for the ingredient of assistance, is simply conduct which in fact assists the fiduciary to commit the act which constitutes the breach of trust or fiduciary duty. A dishonest participant in a transaction takes the risk that it turns out to be a breach of trust or fiduciary duty. It is not necessary for the assistant to know, or evensuspect, that the transaction is a breach of trust, or thefacts which make it a breach of trust, or even what atrust means; it is sufficient if he knows or suspects that thetransaction is such as to render his participation dishonest: Agip (Africa) Ltd v Jackson[1990] Ch 265 , per Millett J at 294, Barlow Clowes International Ltd v Eurotrust International Ltd[2006] 1 WLR 1477 per Lord Hoffmann at [28]; Abou-Rahmah v Abacha [2007] 1 All ER Comm 827 per Rix LJ at [39]. So accessory liability on the part of a dishonest assistant requires no more from his point of view than the actus reus of assisting by participation in thetransaction, and the mens rea of dishonesty. It is not necessary that the assistance should play any part in the mental state of the fiduciary, still less that it should assist the mental state of the fiduciary in a way which is necessary to render the fiduciary’s act a breach of trust or fiduciary duty.”
“I assumed that his interests were held through his wife or other nominees, through corporate entities, which he later confirmed in the context of our subsequent business discussions…”
“(6) A claim is made in respect of a contract where the contract – (a) … (c) is governed by English law; or (d) contains a term to the effect that the court shall have jurisdiction to determine any claim in respect of the contract.”
“[71] Notwithstanding the width of the language used by Longmore LJ in the Greene Wood & McLean case, plainly that case does not compel us to decide that connection of a claim with a contract to which an intended defendant is not party is a qualifying jurisdictional link under gateway (6). That point was left open. I am for my part attracted by the argument that aclaim is not for that purpose properly described as 'made inrespect of a contract' where the contract in question is not oneto which the defendant is party. For my part I see great force inthe argument that it is implicit in the rule that the contract uponwhich reliance is placed must be one to which the intendeddefendant is party. I am also attracted by Mr Morgan's formulation which I would tentatively restate as follows: unless the claimant is suing in order to assert a contractual right or a right which has arisen as a result of the non-performance of a contract, his claim is not in this context properly to be regarded as one made in respect of a contract. I think it likely that ordinarily such claims can only be made in respect of contracts to which the intended defendant is party. However the case of the intended defendant, Warner, considered by Hamblen J in Cecil v Bayat may show that that will not always be so. It is sufficient to dispose of the point in this case to indicate that the required connection between claim and contract must inevitably be the more difficult to establish in a case where the intended defendant is not party to the contract upon which reliance is placed than in a case where he is party to it. Longmore LJ was able to say in the Greene Wood & McLean case[2009] 1 WLR 2013 that the claim for contribution clearly had a connection with the Templeton contract which established the liability of Templeton to the miners, because that (contractual) liability was a prerequisite to Greene Wood claiming contribution from Templeton. Here there is in my judgment no clear connection, or no connection with any real content, between the claims in tort or delict against Ds 6-9 and the Reachcom loan agreements. Those agreements may be an incidental product of the conspiracy but it puts the cart before the horse to describe the claim in respect of the conspiracy as a claim in respect of the contracts to which it may, incidentally, have given rise. It would be more natural, but still in my judgment artificial, to regard the claim as made in respect of the contracts of guarantee between Alliance and Reachcom rather than the loan agreements between Reachcom and Ds 3 and 4, since it was by the former that Alliance was deprived of its money. Similarly, I consider that the claims in unjust enrichment against the wrongdoers who allegedly participated in the scheme to divert Alliance's assets and the equitable claims for dishonest assistance and knowing receipt arising from the breach of fiduciary duty that arguably occurred when the contracts of guarantee were executed have a closer affinity to those contracts than to the contracts of loan. In these cases too however the necessary connection between the claim and the contracts is in my view lacking. In none of these formulations is Alliance suing Ds 6-9 in order to assert a contractual right or a right which has arisen as a result of the non-performance of a contract.”
“a claim is made against the defendant as constructive trustee, or as trustee of a resulting trust, where the claim arises out of acts committed or events occurring within the jurisdiction or relates to assets within the jurisdiction.”
“A claim is made against the defendant in reliance on one or more of paragraphs (2), (6) to (16), (19) or (21) and a further claim is made against the same defendant which arises out of the same or closely connected facts.”