“17. On13 December 2016 , purportedly pursuant to Art. 52 of the Law of Ukraine “On Banks and Banking”, the NBU issued Decision No 105 which designated the Surkis Family Companies as persons related to PrivatBank. 18. Between 18 and21 December 2016 , the NBU and the Individuals` Deposits Guarantee Fund (the “Fund”) engaged in a process by which the funds held in PrivatBank accounts by designated related persons (such as the Surkis Family Companies) were used to capitalise PrivatBank (the “Bail-In”). The structure of the Bail-In was as follows: 18.1. PrivatBank, managed by the Fund, issued additional shares (the “Additional Shares”). 18.2. The designated related persons, represented by an authorised representative of the Fund, entered into a sale and purchase agreement with PrivatBank, represented by another authorised representative of the Fund, under which the designated related persons purchased the Additional Shares in exchange for the funds standing to the credit of the designated related persons in PrivatBank (the “Bail- In SPA”). 18.3. The Fund then entered into a further sale and purchase agreement pursuant to which it sold 100% of PrivatBank’s shares to the Ministry of Finance for one hryvnia (the “Ministry of Finance SPA”). 19. The Bail-In described above was given effect to by means of the following specific decisions, orders and agreements: 19.1. On20 December 2016 , the Fund issued Decision No. 2887 pursuant to which: (i) the conditions for the Bail-In SPA were approved; (ii) Andrii Mykolayovych Shevchenko was granted the power to sign the Bail-In SPA on behalf of the designated related persons; (iii) Maryna Anatoliivna Slavkina was granted the power to sign the Bail-In SPA on behalf of PrivatBank; and (iv) Nataliia Anatoliivna Solovyava was granted the power to debit the accounts of the designated related persons in performance of the Bail-In SPA and to reflect the transactions connected with the Bail-In SPA in the accounting records of PrivatBank. 19.2. On20 December 2016 , pursuant to Decision No 2887, Ms Solovyava issued Order No 22 which purported to block the PrivatBank accounts held by the designated related persons. 19.3. On20 December 2016 , the Bail-In SPA was entered into. 19.4. On20 December 2016 , the Fund issued Decision No 2891 pursuant to which Mr Shevchenko was granted the power to execute the Ministry of Finance SPA. 19.5. On21 December 2016 , pursuant to Decision No 2887, Ms Solovyava issued Order No 44 which purported to debit the PrivatBank accounts held by the designated related persons in purported performance of the Bail-In SPA. 19.6. On21 December 2016 , the Ministry of Finance SPA was executed. … 21. The Decisions, Orders and agreements referred to at paragraphs 17 to 19 above, to the extent that they related to the Surkis Family Companies, were unlawful under Ukrainian law as there was no proper basis for the designation of the Surkis Family Companies as persons related to PrivatBank. The unlawfulness of the Decisions, Orders and agreements referred to at paragraphs 17 to 19 above has been confirmed by the judgment of the Administrative Court of Kiev dated25 July 2017 (the “Administrative Court Judgment”) pursuant to proceedings commenced by the Surkis Family Companies against the NBU, the Fund, the authorised representatives of the Fund, PrivatBank and the Ministry of Finance of Ukraine. Under Ukrainian law the Administrative Court decision is not final until approved by a Court of Appeal. … 30. At the meeting on or about20 December 2016 , Mr Surkis informed Mr Poroshenko that FC Dynamo Kiev (a Ukrainian football team in which Mr Surkis has an interest), as well as Mr Surkis’s father (whose PrivatBank account was being used as collateral for FC Dynamo Kiev’s credit facilities) and Mr Surkis’s brother (whose PrivatBank account was also being used to assist FC Dynamo Kiev) had been designated as persons connected to PrivatBank. Mr Surkis explained that the effect of those designations was placing FC Dynamo Kiev in considerable financial difficulty. Mr Surkis warned Mr Poroshenko if FC Dynamo Kiev, Mr Surkis’s father and Mr Surkis’s brother were not removed from the list of persons connected to PrivatBank by the time Mr Surkis arrived back at his offices at FC Dynamo Kiev, Mr Surkis would arrange a meeting with journalists to inform them that FC Dynamo Kiev would not be in a position to function properly and that Mr Surkis would be handing over the keys of FC Dynamo Kiev to Ms Gontareva so that she could be responsible for the functioning of FC Dynamo Kiev. 31. On the same day, while Mr Surkis was on his way back to his offices, Ms Gontareva called the vice president and the financial controller of FC Dynamo Kiev, Vitaliy Sivkov, and informed him that the PrivatBank accounts of FC Dynamo Kiev as well as the PrivatBank accounts of Mr Surkis’s fatherand Mr Surkis’s brother were functioning properly and that all three had been removed from the list of connected persons. … 46. Mr Poroshenko and Ms Gontareva are liable for the tort of unlawful means conspiracy as follows: 46.1. Mr Poroshenko and Ms Gontareva combined to procure the making of the Decisions, Orders and agreements set out at paragraphs 17 to 19 above in relation to the Surkis Family Companies. The fact that Mr Poroshenko and Ms Gontareva combined as alleged is clear from the following: a. Mr Poroshenko and Ms Gontareva are closely connected having worked together in business since at least the 1990s. b. Ms Gontareva appears to have a history of assisting Ukrainian politicians with unlawful activities. In March 2017 the Kramatorsk City Court in the Donetsk Region of Ukraine recorded that a company of which Ms Gontareva was the head of the Board at the material times was involved in transactions that were part of a scheme pursuant to which the former President of Ukraine, Viktor Yanukovych, misappropriated substantial sums from state institutions. c. The decision to designate the Surkis Family Companies as related persons was unlawful and can only be explained on the basis that it was motivated by reasons other than a genuine desire to ensure that persons with a genuine relationship with PrivatBank were designated as related persons. … h. Mr Poroshenko and Ms Gontareva had the ability to influence the decision to designate the Surkis Family Companies as related persons because Decision 105, by which the Surkis Family Companies were designated as related persons, was taken by NBU’s Commission dealing with matters of determining related persons and inspecting the operation of banks (the “Commission”). The Commission was formed by the Board of the NBU (the “Board”) and the Board consisted of Ms Gontareva and her deputies. Ms Gontareva’s deputies were appointed by the Council of the NBU (the “Council”) upon Ms Gontareva’s recommendation. Ms Gontareva was the chairperson of the Council and between Ms Gontareva and Mr Poroshenko they appointed a majority of the members of the Council. The effect of the aforementioned was that Mr Poroshenko and Ms Gontareva had significant influence over the Commission. i. Mr Poroshenko and Ms Gontareva had the ability to influence the conduct of the Fund which took the Decisions and made the Orders set out at paragraph 19 above. The Fund is managed by the Administrative Council of the Fund and the Executive Directorate of the Fund. The Administrative Council consists of five members, one representative of the Cabinet Ministers of Ukraine, two representatives of the NBU, one representative of the Ukrainian Parliament and the managing director of the Fund. The NBU representatives were appointed by the Board of the NBU, which consisted of Ms Gontareva and her deputies. At the relevant times, the NBU representatives were Ms Gontareva and Aleksandr Pysaruk. The managing director of the fund at the relevant times was Vorushylin Konstantin Mykolaiovych. Mr Vorushylin has long standing connections to Mr Poroshenko having been: (i) chairperson of the board of the bank JSBC Mriya, which was owned by Mr Poroshenko (1997-2006); (ii) head of financial and investment activities at “Bohdan”
“17. On13 December 2016 , purportedly pursuant to Art. 52 of the Law of Ukraine “On Banks and Banking”, the NBU issued Decision No 105 which designated the Surkis Family Companies as persons related to PrivatBank (the “Designation”). … 21. The Designation wasDecisions, Orders and agreements referred to at paragraphs 17 to 19 above, to the extent that they related to the Surkis Family Companies, were unlawful under Ukrainian law as there was no proper basis for the dDesignation of the Surkis Family Companies as persons related to PrivatBank. The unlawfulness of the Designation Decisions, Orders and agreements referred to at paragraphs 17 to 19 above has been confirmed by the judgment of the Administrative Court of Kiev dated25 July 2017 (the “Administrative Court Judgment”) pursuant to proceedings commenced by the Surkis Family Companies against the NBU, the Fund, the authorised representatives of the Fund, PrivatBank and the Ministry of Finance of Ukraine. Under Ukrainian law the Administrative Court decision is not final until approved by a Court of Appeal. … Unlawful means conspiracy 46. Mr Poroshenko and Ms Gontareva are liable for the tort of unlawful means conspiracy as follows: 46.1. Mr Poroshenko and Ms Gontareva combined to procure the making of the DesignationDecisions, Orders and agreements set out at paragraphs 17 to 19 abovein relation to the Surkis Family Companies so as to cause the Cypriot Accounts to fall within the Bail-In and, therefore, to have the Bail-In SPA entered into, purportedly on behalf of the Surkis Family Companies, and, thereby, cause PrivatBank to impair and zero the Cypriot Accounts. The fact that Mr Poroshenko and Ms Gontareva combined as alleged is clear from the following: … h. Mr Poroshenko and Ms Gontareva had the ability to influence the decision to designate the Surkis Family Companies as related persons because Decision 105, by which the Surkis Family Companies were designated as related persons, was taken by NBU’s Commission dealing with matters of determining related persons and inspecting the operation of banks (the “Commission”). The Commission was formed by the Board of the NBU (the “Board”) and the Board consisted of Ms Gontareva and her deputies. Ms Gontareva’s deputies were appointed by the Council of the NBU (the “Council”) upon Ms Gontareva’s recommendation. Ms Gontareva was the chairperson of the Council and bBetween Ms Gontareva and Mr Poroshenko they appointed or were able to influence the appointment of thea majority of themembers of the Council. The effect of the aforementioned was that Mr Poroshenko and Ms Gontareva had significant influence over the Commission. In the premises set out in paragraphs 31, 32 and 34 above, it is to be inferred that Ms Gontareva and Mr Poroshenko, in concert, used their influence within the NBU and over the Commission in order to procure and maintain the Designation and enable Mr Poroshenko to coerce Mr Surkis into assisting Mr Poroshenko in advancing the latter’s personal agenda in getting re-elected as President. i. Mr Poroshenko and Ms Gontareva had the ability to influence the conduct of the Fund which took the Decisions and made the Orders set out at paragraph 19 above. The Fund is managed by the Administrative Council of the Fund and the Executive Directorate of the Fund. The Administrative Council consists of five members, one representative of the Cabinet Ministers of Ukraine, two representatives of the NBU, one representative of the Ukrainian Parliament and the managing director of the Fund. The NBU representatives were appointed by the Board of the NBU, which consisted of Ms Gontareva and her deputies. At the relevant times, the NBU representatives were Mr Oleh StrynzhaMs Gontareva and Mr Mykhailo VidyakinAleksandr Pysaruk. The managing director of the Ffund at the relevant times was Vorushylin Konstantin Mykolaiovych. Mr Vorushylin has long standing connections to Mr Poroshenko having been: (i) chairperson of the board of the bank JSBC Mriya, which was owned by Mr Poroshenko (1997-2006); (ii) head of financial and investment activities at “Bohdan”
“19.3. It is unclear what VG alleges to be the relevance of the fact that some of the facts and matters set out in paragraphs 29 to 41 of the Amended Particulars of Claim took place after VG left her role as Governor of the NBU. That does not affect the Claimants’ case that VG used her influenceas the Governor of the NBU to procure the Designation in order to assist Mr Poroshenko.” (Emphasis added)
“… there seems to be no reason why the immunity of a head of state under the Act should not be construed as far as possible to accord with his immunity at customary international law, which provides the background against which this statute is set … The effect is that a head of state will, under the statute as at international law, enjoy state immunity ratione personae so long as he is in office, and after he ceases to hold office will enjoy the concomitant immunity ratione materiae “in respect of acts performed [by him] in the exercise of his functions [as head of state],” the critical question being “whether the conduct was engaged in under colour of or in ostensible exercise of the head of state’s public authority” … In this context, the contrast is drawn between governmental acts, which are functions of the head of state, and private acts, which are not.”
“There would seem to be two explanations for immunity ratione materiae. The first is that to sue an individual in respect of the conduct of the state's business is, indirectly, to sue the state. The state would be obliged to meet any award of damages made against the individual. This reasoning has no application to criminal proceedings. The second explanation for the immunity is the principle that it is contrary to international law for one state to adjudicate upon the internal affairs of another state. Where a state or a state official is impleaded, this principle applies as part of the explanation for immunity. Where a state is not directly or indirectly impleaded in the litigation, so that no issue of state immunity as such arises, the English and American courts have nonetheless, as a matter of judicial restraint, held themselves not competent to entertain litigation that turns on the validity of the public acts of a foreign state, applying what has become known as the act of state doctrine.”
“These immunities belong not to the individual but to the state in question. They exist in order to protect the sovereignty of that state from interference by other states. They can, of course, be modified or removed by agreement between states or waived by the state in question.”
“The immunity is available whether the acts in question are illegal or unconstitutional or otherwise unauthorised under the internal law of the state, since the whole purpose of state immunity is to prevent the legality of such acts from being adjudicated upon in the municipal courts of a foreign state. A sovereign state has the exclusive right to determine what is and is not illegal or unconstitutional under its own domestic law.”
“The defendant was responsible for supervising the provision of educational services to members of the United States armed forces in the United Kingdom and their families. He published the material alleged to be defamatory in the course of his duties. If the provision of the service in question was an official or governmental act of the United States, then so was its supervision by the defendant. I would hold that he was acting as an official of the United States in the course of the performance of its sovereign function of maintaining its armed forces in this country.”
“It is apparent from Lord Wilberforce's statement of principle that the ultimate test of what constitutes an act jure imperii is whether the act in question is of its own character a governmental act, as opposed to an act which any private citizen can perform.”
“a malevolent and unlawful act of a private individual who happened to be an official; not the act of an official”
“… the classification of the relevant act was taken to depend on its juridical character and not on the state's purpose in doing it, save in cases where that purpose threw light on its juridical character.”
“If the act is done under colour of official authority, the purpose of personal gratification … should be irrelevant.”
“11. In some borderline cases there could be doubt whether the conduct of an individual, although a servant or agent of the state, had a sufficient connection with the state to entitle it to claim immunity for his conduct. But these are not borderline cases. Colonel Abdul Aziz is sued as a servant or agent of the Kingdom and there is no suggestion that his conduct complained of was not in discharge or purported discharge of his duties as such. The four defendants in the second action were public officials. The conduct complained of took place in police or prison premises and occurred during a prolonged process of interrogation concerning accusations of terrorism (in two cases) and spying (in the third). There is again no suggestion that the defendants’ conduct was not in discharge or purported discharge of their public duties.” “12. International law does not require, as a condition of a state’s entitlement to claim immunity for the conduct of its servant or agent, that the latter should have been acting in accordance with his instructions or authority…”
“The protection afforded by the Act of 1978 to States would be undermined if employees, officers (or as one authority puts it, "functionaries") could be sued as individuals for matters of State conduct in respect of which the State they were serving had immunity, Section 14(1) must be read as affording to individual employees or officers of a foreign State protection under the same cloak as protects the State itself.”
“What happened is that PP and VG used their personal influence to procure the Designation. In doing so, PP and VG were doing no more than any other private citizen could do, the only difference being that they happened to have more connections and influence within the Ukrainian government as a result of then holding the roles of President and Governor of the NBU.”
“There is no judicial authority on how a former Prime Minister of a sovereign state could be sued in a private capacity for inducing breaches of duty by other public officials resulting in torts being committed against a claimant. It is difficult to see how the two hats can be severed and how the alleged private motive in inducing the torts can be separated from the public office that gave the defendant the status and the ability to direct others and issue instructions”
“the designation process was part and parcel of an overall nationalisation process of PrivatBank including the Bail-In of the account balances of related persons and the designation of the LLPs [and] would have had the inevitable effect of leading to the negation of their rights as customers … at … the Cypriot branch at which their balances were held.”
“2 Submission to jurisdiction. (1) A State is not immune as respects proceedings in respect of which it has submitted to the jurisdiction of the courts of the United Kingdom. (2) A State may submit after the dispute giving rise to the proceedings has arisen or by a prior written agreement; but a provision in any agreement that it is to be governed by the law of the United Kingdom is not to be regarded as a submission. (3) A State is deemed to have submitted— (a) if it has instituted the proceedings; or (b) subject to subsections (4) and (5) below, if it has intervened or taken any step in the proceedings. (4) Subsection (3)(b) above does not apply to intervention or any step taken for the purpose only of— (a) claiming immunity; or (b) asserting an interest in property in circumstances such that the State would have been entitled to immunity if the proceedings had been brought against it. (5) Subsection (3)(b) above does not apply to any step taken by the State in ignorance of facts entitling it to immunity if those facts could not reasonably have been ascertained and immunity is claimed as soon as reasonably practicable. (6) A submission in respect of any proceedings extends to any appeal but not to any counter-claim unless it arises out of the same legal relationship or facts as the claim. (7) The head of a State’s diplomatic mission in the United Kingdom, or the person for the time being performing his functions, shall be deemed to have authority to submit on behalf of the State in respect of any proceedings; and any person who has entered into a contract on behalf of and with the authority of a State shall be deemed to have authority to submit on its behalf in respect of proceedings arising out of the contract. … 14 States entitled to immunities and privileges … (2) A separate entity is immune from the jurisdiction of the courts of the United Kingdom if, and only if— (a) the proceedings relate to anything done by it in the exercise of sovereign authority; and (b) the circumstances are such that a State (or, in the case of proceedings to which section 10 above applies, a State which is not a party to the Brussels Convention) would have been so immune.”
“These immunities belong not to the individual but to the state in question. They exist in order to protect the sovereignty of that state from interference by other states. They can, of course, be modified or removed by agreement between states or waived by the state in question.”
“State immunity is not a personal right. It is an attribute of the sovereignty of the state. The immunity which is in question in the present case, therefore, belongs to the Republic of Chile, not to Senator Pinochet. It may be asserted or waived by the state, but where it is waived by treaty or convention the waiver must be express. So much is not in dispute.”
“[The official’s] immunity depends upon the state’s, and can only be waived by the state.”
“1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article 37 may be waived by the sending State. 2. Waiver must always be express”
“One reason for the enactment of the SIA was to permit the United Kingdom to become a party to the European Convention on State Immunity”. provides in Article 2 (emphasis added): “A Contracting State cannot claim immunity from the jurisdiction of a court of another Contracting State if it has undertaken to submit to the jurisdiction of that court either: a. by international agreement; b. by an express term contained in a contract in writing; or c. by an express consent given after a dispute between the parties has arisen.”
“[f]or there to be a submission by Saudi Arabia to the jurisdiction it would have to be shown either that the head of the Saudi Arabian diplomatic mission by the solicitors' letter had so submitted or that the person entering into the alleged contract by the letter did so ‘on behalf of and with the authority of’ Saudi Arabia”
“…in the case of acts done by a separate entity, it is not enough that the entity should have acted on the direction of the state, because such an act need not possess the character of a governmental act. To attract immunity under section 14(2) therefore, what is done by the separate entity must be something which possesses that character. An example of such an act performed by a separate entity is to be found in Arango v Guzman Travel Advisors Corp (1980) 621 F 2d 1371 in which Dominicana (the national airline of the Dominican Republic), faced with a claim by a passenger in respect of inconvenience suffered in 'involuntary re-routing', was held entitled to plead sovereign immunity under theUnited States Foreign Sovereign Immunities Act 1976 , on the ground that it was impressed into service, by Dominican immigration officials acting pursuant to the country's laws, to perform the functions which led to the re-routing of the plaintiff. Judge Reavley, delivering the judgment of the court, said (at 1379): 'Dominicana acted merely as an arm or agent of the Dominican government in carrying out this assigned role, and, as such, is entitled to the same immunity from any liability arising from that governmental function as would inure to the government, itself.' (My emphasis).”
“Once it is recognised, as I have concluded it should be, that a separate entity may be entitled to immunity if it is exercising sovereign authority pursuant to a constitutional allocation to it of such authority, then I consider that its servants or agents should be entitled to the same immunity, for otherwise it would lead to the circumvention of the immunity which it has been found that the entity should have.”
“In my view it is obviously desirable that if a party wishes to challenge the jurisdiction of the court it should do so in an orderly way. It is also desirable that the rules of procedure should prescribe the manner in which challenges to the court’s jurisdiction should be made, as Part 11 does. However, unlike the extra-territorial jurisdiction which the court exercises in accordance with Part 6 of the Rules and which is derived from generally recognised principles of private international law, state immunity rests on principles of consent derived from customary public international law now codified in theState Immunity Act 1978 . Subject to the specific exceptions set out in sections 2 to 11 of that Act, the general rule is that a state is immune from proceedings, save to the extent that it has consented to the jurisdiction, either expressly or by taking a step in the proceedings of a kind that demonstrates an election to waive immunity. It is for this reason that merely filing an acknowledgment of service does not amount to a waiver of immunity. In those circumstances I do not think that a state which has filed an acknowledgment of service but has failed to take any action to challenge the jurisdiction of the court can be treated by virtue of rule 11(5) as having submitted to the jurisdiction. Contrary to Mr Hancock QC’s submission, it has not taken a “negative” step in the action of a kind that is inconsistent with an assertion of immunity. The situation in the present case is quite different from that which obtained in Maple Leaf v Rouvroy, which concerned only the submission of a private party to the jurisdiction for the purposes of the Judgments Regulation.”
“1) Make a submission on behalf of Ukraine to the jurisdiction of the English Court and waive any right of Ukraine to declare state immunity under the Act in respect of the subject matter of the Dispute [Request 1], and 2) Confirm that Ukraine consents for the English Court to determine all of the issues raised in the Lawsuit [Request 2]. The letter then concluded as follows: “In view of the foregoing, Your Excellency, we request you to confirm that you have the appropriate authority to consider the issues raised in this letter and to grant said waiver of immunity and to make the above submission on behalf of Ukraine to the jurisdiction of the Court of England.”
“Therefore, in any case, the English court referred to in the application within its jurisdiction is entitled to establish all the circumstances to be established and considered to resolve the case. With reference to the foregoing, there are no grounds for drawing the conclusion provided for by the Procedure for Protecting the Rights and Interests of Ukraine during Dispute Resolution, Hearing of Cases Involving a Foreign Entity and Ukraine in Foreign Jurisdictional Bodies approved by Presidential Order No 261/2011 of3 March 2011 .”
“Under the Regulation on the Ministry of Foreign Affairs, approved by the Resolution of the Cabinet of Ministers of Ukraine No. 281 dated30 March 2016 , the Minister represents the MFA in public-law relations with other bodies, enterprises, institutions and organisations in Ukraine and abroad. Under the Regulation on the Department of International Law of the Ministry of Foreign Affairs, approved by the Order of the Ministry of Foreign Affairs No. 360 dated26 September 2014 , the director of the said department under the instructions of the management of the MFA represents the interests of the MFA in relations with the state authorities, foreign authorities and international organisations. The exercise of the above powers is not within the competence of the State Secretary of the MFA.”
“Therefore, the answer to the question whether the Minister, the Secretary of State of the MFA of Ukraine or other officials of the MFA of Ukraine act on behalf of Ukraine and provide clarifications on legal matters in relations with authorities of foreign states and the international organisations depends on the content and the circumstances of a particular issue, the nature and the legal regulation of the specific relations and therefore cannot be provided in generalised and non-specific manner.”
“Obviously there is also an issue as to authority and your Lordship has to take a view there on the basis of the material before your Lordship to determine whether it is reasonable to conclude that the letter was authorised on behalf of Ukraine. But again, that’s a question for your Lordship to determine on the basis of the evidence before your Lordship.”
“The State Secretary of the MFA is the most senior member of the MFA’s civil service, and his responsibilities include organising the work of the office of the MFA, appointing and dismissing MFA employees and members of the diplomatic service, and ensuring their proper training. Consequently, and as is apparent from the evidence exhibited by the Claimants, the position and role of State Secretary of the MFA is wholly distinct from that of Minister of Foreign Affairs.”
“4. If the Ministry of Foreign Affairs of Ukraine receives information, documents on a dispute involving a foreign entity, in respect of which there is a threat of a lawsuit against Ukraine in foreign jurisdictional body or it is submitted, or the lawsuit of Ukraine may be submitted to foreign jurisdictional body, this Ministry shall inform the Ministry of Justice of Ukraine about the dispute within five days from the date of receipt of such information, documents.”
"Every sovereign State is bound to respect the independence of every other sovereign State, and the Courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves."
“As a member of the family of nations, the Government of the United Kingdom (of which this court forms part of the judicial branch) observes the rules of comity, videlicet, the accepted rules of mutual conduct as between state and state which each state adopts in relation to other states and expects other states to adopt in relation to itself. One of those rules is that it does not purport to exercise jurisdiction over the internal affairs of any other independent state, or to apply measures of coercion to it or to its property, except in accordance with the rules of public international law. One of the commonest applications of this rule by the judicial branch of the United Kingdom Government is the well-known doctrine of sovereign immunity. A foreign state cannot be impleaded in the English courts without its consent: see Duff Development Co. v. Kelantan Government. As was made clear in Rahimtoola v. Nizam of Hyderabad, the application of the doctrine of sovereign immunity does not depend upon the persons between whom the issue is joined, but upon the subject-matter of the issue. For the English court to pronounce upon the validity of a law of a foreign sovereign state within its own territory, so that the validity of that law became the res of the res judicata in the suit, would be to assert jurisdiction over the internal affairs of that state. That would be a breach of the rules of comity. In my view, this court has no jurisdiction so to do.”
“The principle is that the English courts will not adjudicate on the lawfulness or validity of a state’s sovereign acts under its own law”
“118 In summary terms, the Doctrine amounts to this, that the courts of the United Kingdom will not readily adjudicate upon the lawfulness or validity of sovereign acts of foreign states, and it applies to claims which, while not made against the foreign state concerned, involve an allegation that a foreign state has acted unlawfully. … 121. The first rule is that the courts of this country will recognise, and will not question, the effect of a foreign state’s legislation or other laws in relation to any acts which take place or take effect within the territory of that state. 122. The second rule is that the courts of this country will recognise, and will not question, the effect of an act of a foreign state’s executive in relation to any acts which take place or take effect within the territory of that state. 123. The third rule has more than one component, but each component involves issues which are inappropriate for the courts of the United Kingdom to resolve because they involve a challenge to the lawfulness of the act of a foreign state which is of such a nature that a municipal judge cannot or ought not rule on it. Thus, the courts of this country will not interpret or question dealings between sovereign states; “[o]bvious examples are making war and peace, making treaties with foreign sovereigns, and annexations and cessions of territory”
“The Designation was unlawful under Ukrainian law as there was no proper basis for the Designation. The unlawfulness of the Designation has been confirmed by the judgment of the Administrative Court of Kiev dated25 July 2017 (the “Administrative Court Judgment”) pursuant to proceedings commenced by the Surkis Family Companies against the NBU, the Fund, the authorised representatives of the Fund, PrivatBank and the Ministry of Finance of Ukraine. Under Ukrainian law the Administrative Court decision is not final until approved by a Court of Appeal.”
“The Second to Seventh Claimants brought proceedings in Ukraine challenging the actions that resulted in the Cypriot Accounts being fully impaired and zeroed. Those proceedings were successful in the Ukrainian Administrative Court but are of no effect until confirmed on appeal.”
“If the courts will not adjudicate on the lawfulness or validity of a state’s sovereign acts there is, in my judgment, no principled reason for saying that the principle does not apply where the sovereign act is the act of the head of state in making certain appointments. I do not consider that the recognition by Lord Neuberger Belhaj, paragraphs [125], [135] and [159] per Lord Neuberger JSC. (and indeed by Lord Mance Belhaj, paragraph [74], per Lord Mance JSC. ) that the previous cases were only concerned with property within the state in question should be regarded as requiring the conclusion that the principle does not apply to such an act of the head of a sovereign state. Indeed, it would be very surprising and unprincipled if, given the existence of the act of state of doctrine and the principles underlying it, it did not apply to executive actions of the head of state himself.”
“When Lord Neuberger first stated the first and second rules in paragraphs 121 and 122 he stated that the court will recognise and will not question sovereign acts “which take place or take effect within the territory of that state”
“the designation process was part and parcel of an overall nationalisation process of PrivatBank including the Bail-In of the account balances of related persons and the designation of the LLPs [and] would have had the inevitable effect of leading to the negation of their rights as customers … at … the Cypriot branch [of PrivatBank] at which their balances were held.”
“(i) The use of the word “fraud” or “dishonesty” is not necessary in a pleading if the facts which make the conduct fraudulent are pleaded. (ii) The function of pleadings is to give the party opposite sufficient notice of the case which is being made against them. An allegation of fraud/dishonesty must be sufficiently particularised by pleading the primary facts relied on. (iii) At an interlocutory stage, the court is not concerned with whether the evidence at trial would establish fraud, but only whether the facts pleaded disclose a reasonable prima facie case which the other party will have to answer at trial. If the plea is justified the case must go forward to trial and the assessment of whether the evidence justified the inference is a matter for the trial judge. (iv) For a valid plea of fraud/dishonesty the claimant does not have to plead primary facts which are consistent only with dishonesty. The correct test is whether, on the basis of the primary facts pleaded, an inference of dishonesty is more likely than one of innocence or negligence. There must be some fact or facts which tilts the balance and justifies an inference of dishonesty.”
“25. In terms of the approach to summary judgment in fraud claims Primekings commended to my attention the judgment of Stuart Smith J in Portland Stone Firms Ltd v Barclays Bank plc[2018] EWHC 2341 (QB) at [25] – [29], in the context of the approach to be taken when faced with an application to strike out a claim in fraud. In summary: i)The Court should bear in mind that cogent evidence is required to justify a finding of fraud or other discreditable conduct, reflecting the court’s conventional perception that it is generally not likely that people will engage in such conduct. ii)Pleadings of fraud should be subjected to close scrutiny and it is not possible to infer dishonesty from facts that are equally consistent with honesty. iii)However, in view of the common feature of fraud claims that the Defendant will, if the underlying allegation is true, have tried to shroud his conduct in secrecy, the Court should adopt a “generous” approach to pleadings. 26. There is one potential distinction between the position in relation to an application for summary judgment underCPR r. 24.2 and an application to strike out underCPR r. 3.4 (2)(a). As just noted, underCPR 24 evidence is admissible to show that the pleaded allegations are fanciful – albeit that the court will be very cautious about rejecting a claimant’s factual case at the summary judgment stage. 27. When considering an application to strike out however the facts pleaded must be assumed to be true and evidence regarding the claims advanced in the statement of case is inadmissible. This is noted in Terry Allsop v Banner Jones Limited[2021] EWCA Civ 7 by Marcus Smith J (giving the judgment of the Court of Appeal) at [7], citing the judgment of Arnold LJ in Libyan Investment Authority v King[2020] EWCA Civ 1690 , at [96]: “In contrast with the applications underCPR 3.4 (2)(b), the applications underCPR 3.4 (2)(a) andCPR 24.2 are concerned with the merits of the claim, specifically whether the claim meets the (low) threshold of what I shall call “reasonable arguability”
“Attempts to coerce Mr Surkis 29. On or about20 December 2016 , following the commencement of the Bail-In process, Mr Surkis met with Mr Poroshenko at Mr Poroshenko’s Presidential offices. Amongst other things, Mr Poroshenko and Mr Surkis spoke about the designation of the Surkis Family Companies (as well as the designation of Mr Surkis and other Surkis family members who were personally designated at the same time as the Surkis Family Companies). Mr Surkis told Mr Poroshenko that the Surkis Family Companies (and Mr Surkis and the other Surkis family members) should not have been designated as connected to PrivatBank with the effect that their accounts were impaired and zeroed. Mr Poroshenko admitted that Mr Surkis might be right but stated that he was not aware of what happened in relation to the designations and that it was a matter handled by the NBU. 30. At the meeting on or about20 December 2016 , Mr Surkis informed Mr Poroshenko that FC Dynamo Kiev (a Ukrainian football team in which Mr Surkis has an interest), as well as Mr Surkis’s father (whose PrivatBank account was being used as collateral for FC Dynamo Kiev’s credit facilities) and Mr Surkis’s brother (whose PrivatBank account was also being used to assist FC Dynamo Kiev) had been designated as persons connected to PrivatBank. Mr Surkis explained that the effect of those designations was placing FC Dynamo Kiev in considerable financial difficulty. Mr Surkis warned Mr Poroshenko if FC Dynamo Kiev, Mr Surkis’s father and Mr Surkis’s brother were not removed from the list of persons connected to PrivatBank by the time Mr Surkis arrived back at his offices at FC Dynamo Kiev, Mr Surkis would arrange a meeting with journalists to inform them that FC Dynamo Kiev would not be in a position to function properly and that Mr Surkiswould be handing over the keys of FC Dynamo Kiev to Ms Gontareva so that she could be responsible for the functioning of FC Dynamo Kiev. 30A. In fact, the statement made by Mr Surkis at the meeting that his brother’s account was being used to assist FC Dymano Kiev was not correct. Mr Surkis made a mistake in this regard whilst talking to Mr Poroshenko about the perilous position of FC Dynamo Kiev. 31. On the same day, while Mr Surkis was on his way back to his offices, Ms Gontareva (it is to be inferred, at Mr Poroshenko's request) called the vice president and the financial controller of FC Dynamo Kiev, Vitaliy Sivkov. Mrs Gontareva indicated that she was aware of a complaint about the funding of FC Dynamo Kiev, i.e. Mr Surkis’s complaint to Mr Poroshenko, and informed Mr Sivkovhim that the PrivatBank accounts of FC Dynamo Kiev as well as the PrivatBank accounts of Mr Surkis’s father and Mr Surkis’s brother were functioning properly and that all three had been removed from the list of connected persons.It is to be inferred from Mrs Gontareva’s comments to Mr Sivkov (i) that she called him after having been told by Mr Poroshenko of his discussion with Mr Surkis, and (ii) that Mr Poroshenko and Mrs Gontareva were acting in concert in relation to the operation of the Designation in respect of the Surkis family and entities connected with them. 32. Between January and March 2017, several meetings took place between Kateryna Rozhkova, the then Deputy Governor of the NBU, and Mr Surkis’s brother at the offices of Ms Rozhkova. During those meetings, Ms Rozhkova assured Mr Surkis’s brother that she would have the question of the impairment and designation of the Surkis Family Companies (and the individual members of the Surkis family) looked into. Mr Surkis’s brother was given to understand (as it was intended that he should understand) that it was a condition of Ms Rozhkova looking into the Designation of the Surkis Family Companies that Mr Surkis should assist Mr Poroshenko in relation to the latter’s effort to obtain control of the 1+1 Media Group. That understanding was confirmed, in particular, by the meeting attended by Ms Gontareva referred to at paragraph 32A below. It is to be inferred that Ms Rozhkova was acting in the knowledge of and with the approval of Mrs Gontareva because (i) Ms Rozhkova was Mrs Gontareva’s deputy and (ii) in the light of the meeting referred to at paragraph 32A below. Some of the meetings between Mr Surkis’s brotherand Ms Rozhkova held between January and March 2017 were attended by Mr Sofocleous, Mr Surkis’s Cypriot lawyer. 32A. One of the meetings referred to above that took place in January 2017 was attended by Mr Surkis’s brother, Ms Rozhkova and also by Mrs Gontareva and Vasily Gritsak (the former head of the Security Services of Ukraine). During that meeting Mrs Gontareva said words to the effect “Didn’t Kolomoisky tell you that you should take your money” and asked “well, tell me, why didn’t you come to me earlier”
“Didn’t Kolomoisky tell you that you should take your money” and asked “well, tell me, why didn’t you come to me earlier”
“it is true that the Claimants have not been able to set out the precise benefit that Mrs Gontareva received.”
“Lawful means conspiracy 48. If the making of the Decisions, Orders and agreements set out at paragraphs 17 to 19 above, to the extent that they related to the Surkis Family Companies, was lawful (which is denied), Mr Poroshenko and Ms Gontareva are nevertheless liable for lawful means conspiracy because they combined with the sole or predominant purpose of injuring the Surkis Family Companies. Accordingly, in the alternative to their claims for unlawful means conspiracy, the Surkis Family Companies seek the damages, as set out at paragraph 47 above, for the tort of lawful means conspiracy.”
“Lawful means conspiracy 48. If the Designation making of the Decisions, Orders and agreements set out at paragraphs 17 to 19 above, to the extent that they related to the Surkis Family Companies, was lawful as a matter of Ukrainian law (which is denied) or there were no other unlawful acts as a matter of English and/or Cypriot law as set out at paragraph 46.2 above, Mr Poroshenko and Ms Gontareva are nevertheless liable for lawful means conspiracy because they combined with the sole or predominant purpose of injuring the Surkis Family Companies. In this connection, reliance is placed on paragraph 46 above. Further, even if the Designation was lawful and there were no other unlawful acts as set out at paragraph 46.2 above, had it not been for the conduct of Mr Poroshenko and Ms Gontareva in procuring that the Surkis Family Companies were designated as persons connected to PrivatBank, the Surkis Family Companies would not have been so designated and the Surkis Family Companies would not have been caught up in the Bail-In and the Cypriot Accounts would not have been impaired and zeroed. Accordingly, in the alternative to their claims for unlawful means conspiracy, the Surkis Family Companies seek the damages, as set out at paragraph 47 above, for the tort of lawful means conspiracy.”