“… the expedited trial of the rights and obligations of the Claimant, the Defendant and the Intervener in respect of the Polar Rock Cargo and/or the Secured Sums [being the US$30m to be paid into court by VTB], including any losses that Petraco may have sustained under the cross-undertaking in damages, and (for the avoidance of doubt) the Claimant’s right to seek repayment of the monies paid into Court… .”
“there is little point in going into much detail: when determining such applications, the court can only form preliminary views on most of the relevant legal issues and cannot be anything like certain about which issues and what evidence will eventuate if the matter proceeds to trial.”
“103. This was a jurisdiction challenge and concerned whether it was appropriate to grant permission to serve proceedings out of the jurisdiction on a foreign defendant. Those proceedings were meant to be as defined in the particulars of claim for which permission to serve out was sought. In this case the challenge was made on the grounds that the claimants had no arguable case against the anchor defendant. Where, as in this case, there are particulars of claim, that is an issue which should ordinarily fall to be addressed by reference to the pleaded case. 104. If the issues are addressed by reference to the pleaded case, then the focus of the inquiry is clearly circumscribed and problems of lack of proportionality should generally be avoided. 105. In the present case, not only did the parties choose to swamp the court with evidence, but it appears that the claimants chose not to update their pleadings to reflect the evidence. We were told that this is because they wanted to avoid producing various iterations of the pleading, but if they wanted to advance a case which was not reflected by their existing pleading then they should have amended it. In that way the proper focus of the inquiry can be maintained…”
“It was the plaintiff which chose to bring the proceedings … It was the plaintiff which chose to apply for interlocutory relief and to offer the court a cross-undertaking in damages as the price of obtaining such relief. It must have known that the injunction which it obtained might cause the [third party] loss, that it might subsequently be established that the injunction should not have been granted, and that the [third party] might seek to recover its loss by applying to enforce the cross-undertaking. It must have known that, if it chose to resist such an application, it might incur further irrecoverable costs. It did not qualify its cross- undertaking by making its enforcement conditional on the [third party] providing security for costs. Had it attempted to do so, its cross-undertaking would have been rejected and its application for an injunction refused. Having offered the court an unqualified cross- undertaking, it now seeks to protect itself against a situation which it must have been able to foresee. That it should succeed is not an attractive proposition. As for the [third party], it has had no choice in the matter. It has done nothing beyond reacting to the steps which the plaintiff has taken against it. …. The plaintiff obtained an injunction …. The [third party] claims that the existence of the injunction caused it loss; it seeks to recover the loss. It seeks only to be restored, so far as compensation can achieve it, to the position it was in before the proceedings began. The [third party] must counter- attack to recover ground lost by an earlier defeat, but it makes no territorial claim of its own; it cannot fairly be described as an aggressor. Although the [third party] is claiming monetary compensation for loss which it alleges it has sustained as a result of the injunction, it has no independent cause of action to recover such loss- It cannot bring separate proceedings, whether by writ or counterclaim in the existing proceedings- Its claim arises out of and is wholly dependent upon the plaintiffs cross-undertaking. Its only remedy is to enforce the cross-undertaking by applying under the liberty to apply in the proceedings in which the cross- undertaking was given.”
"It is a commonplace for a court to direct the trial of an issue within existing proceedings, naming the party on whom the burden to establish the relevant point lies as the claimant on the issue, whether it is a claimant or a defendant in the proceedings. The effect of such an order is not to constitute the issue a separate, free-standing set of proceedings."
“This is, in my judgment, a step too far. The applicants sought to exclude the shares in Dregon Land from the relevant orders on the footing that Mr Ablyazov had no beneficial interest in them. That did not open the way for the bank to bring an entirely different claim that Lapointec and Limia should be required to return shares (of which they were in fact the beneficial owners) because they had been party to a disposition which was to their knowledge in breach of those orders. Any such application would need to be brought by some originating process.”
“General principles. The provisions of this Part are founded on the following principles, and shall be construed accordingly— (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense; (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; (c) in matters governed by this Part the court should not intervene except as provided by this Part.”
“It's not so much a case of the tail wagging the dog as the dog being dragged by its tail for some considerable distance”
“it is generally preferable, other things being equal, that a case should be tried in the country whose law applies. However, that factor is of particular force if issues of law are likely to be important and if there is evidence of relevant differences in the legal principles or rules applicable to such issues in the two countries in contention as the appropriate forum.”
“I do not regard it merely as convenient that the two actions, in which many of the same issues fall to be determined, should be tried together; rather that I regard it as a potential disaster from a legal point of view if they were not, because of the risk inherent in separate trials, one in Egypt and the other in England, that the same issues might be determined differently in the two countries.”
“Vedanta had by the time of the hearing offered to submit to the jurisdiction of the Zambian courts, so that the whole case could be tried there. This did not, of course, prevent the claimants from continuing against Vedanta in England, nor could it give rise to any basis for displacing article 4 as conferring a right to do so upon the claimants. But it does lead to this consequence, namely that the reason why the parallel pursuit of a claim in England against Vedanta and in Zambia against KCM would give rise to a risk of irreconcilable judgments is because the claimants have chosen to exercise that right to continue against Vedanta in England, rather than because Zambia is not an available forum for the pursuit of the claim against both defendants. In this case it is the claimants rather than the defendants who claim that the risk of irreconcilable judgments would be prejudicial to them. Why (it may be asked) should that risk be a decisive factor in the identification of the proper place, when it is a factor which the claimants, having a choice, have brought upon themselves?”
“there is nothing in the decision of the Supreme Court in Vedanta which represents a step-change in the law requiring the Court in the present case to discount the importance of the avoidance of multiplicity of proceedings and the risk of irreconcilable judgments as a factor favouring resolution of all the claims against all the defendants in one forum, England.”
“Where the risk of irreconcilable judgments arises because the claimants have chosen to exercise a right to sue a party in England rather than in a jurisdiction which is an available (and appropriate) forum the risk of inconsistent judgments loses its force because it has arisen from the claimants’ own choice”
“I accept that the Claimants exercised a choice to sue the Mints Defendants in England. But it was reasonable for them to make such a choice because of the relative ease of enforceability of an English, compared with a Russian, judgment.”
“The difficulties of translation and of interpreting the effect of what was said are compounded when the court is dealing with text messages, manuscript notes, and similar documents. Those are written in abbreviated form with context being of great importance in determining what an abbreviation meant or was intended to mean and with ample scope for argument about the true effect of a particular abbreviated note. It is already clear that there will be such dispute here. In such cases the outcome can depend on a judge having to make a determination between different nuances of meaning. That can involve a difficult exercise of judicial assessment even when the judge is a speaker of the language used. A judge working from a translation of notes (and in this case an English judge is unlikely to be familiar even with the script in which the notes are written) is in a markedly worse position to decide on a party’s contention as to what was meant by a particular abbreviation than a judge who is a speaker of the language in question and who can make an assessment for him or herself of the credibility of a particular account of what was meant by a note.”