“1. The application is to be listed for an expedited directions hearing once AOS have been filed at which the court will consider further directions including the issue of expedition. Applications for expedition and listing of the Ds’ jurisdiction challenge and SJ applications 1. This is a complex case and the issues relating to expedition and an appropriate time estimate cannot be resolved on paper. 2. There is to be a 2 hour directions hearing listed as soon as possible next term to consider the requests for expedition. Skeletons for that hearing are not to exceed 8 pages plus a 1 page timetable for the jurisdiction/SJ hearing showing how time would be allocated between the parties on that parties’ estimates. 3. Parties should come armed with counsels’ diaries for that directions hearing”
“Dear Oliver, As long as the transaction can be documented we can certainly manage the challenges. As a first step could you share the KYC or at least the name of the UBO, in order to assess that there is no adverse/PEP issues affecting him. We could pre-clear him on the compliance side and then move forward on the Belize IBC. Best regards. Reda Bedjaoui CEO”
“Many thanks for your swift response, Reda. Much appreciated. Please find attached the passport copy and CV of the UBO. I can wait until Monday for a clearance of the individual, so no rush. I wish you a nice evening and send you kind regards Oliver Muggli”
“Dear Mr Muggli, My name is Konstantin Kuzovkov. I apologise for contacting you without proper introduction, but I really need your help with a very important problem. I’m a former manager of Russian businessman-oligarch Ziyavudin Magomedov. In summer this year Mr. Magomedov started proceedings in the High Court in London against 22 defendants, me being one of them. You could find more information, for example, in this article in Financial Times https://www.ft.com/content/73f8e43e-ba11-4240-b803-a3c5113240e2 In October 2023 High Court ruled that there was no good arguable case against me. Back in September this year Claimants (Mr. Magomedov's lawyers) made a statement that a fiduciary services provider from Liechtenstein in November 2021 sent an email to London banker, known to Mr. Magomedov's family, asking to open a bank account for me (more specifically, to a Belizian company I allegedly owned). This fiduciary mentioned that I (Konstantin) wanted to transfer USD 20m from a Russian Locko-bank to a bank in Europe. The source of these funds being revenue from liquidation of stock options in FESCO (the company I worked for, where Mr. Magomedov was a shareholder). As a proof, claimants attached redacted emails with my passport and CV. I asked them a few times to disclose identities of at least the fiduciary. They refused. However yesterday evening I received a submission to the Court of Appeal by the claimants, to which unredacted emails were attached, disclosing identity of both the fiduciary and the banker. The fiduciary is you, and the banker is Mr. Reda Bedjaouli the founder of Privat 3 Money Limited, a fintech firm based in London. I would tremendously appreciate if you could confirm to me that: - You don’t know me. - I never contacted you and/or your company directly, or indirectly. - Neither me, nor companies affiliated with me are (or were) clients of your company. Also, if you have any idea about how the request about bank account opening came to you and from whom, please let me know. Again, I apologise for what could seem like a fishing request, however I have no choice, but to contact you, since I’m accused of things I never did. Please let me know if you need more information, I would be happy to answer. Hope to hear from you soon! Thank you very much in advance! Konstantin”
“Dear Mr. Kuzovkov Many thanks for your message. I would like to apologize for the inconvenience caused by this matter and for the unprofessional disclosure of these confidential information by Mr. Reda Bedjaouli of Privat 3 Money Ltd.. I am happy to confirm to you that we have never met, neither electronically nor over the phone nor in person. I can furthermore confirm that I was never contacted by you directly or indirectly. I can also confirm that neither you nor companies affiliated with you are (or were) clients of our company 1291 Private Office Ltd. I have tried to find out the source of the enquiry and am sorry to inform you that I have been unable to find this information. I was contacted by Mr. Bedjaouli in autumn of this year. He mentioned a legal process in London and already asked me to check the source of the inquiry. I was unable to identify the source and informed Mr. Bedjaouli accordingly. One of our services is to support corporate clients around the world in opening transaction accounts for their business payments. We work with numerous intermediaries to do this. Some of these are established business partners with whom we maintain a close and regular dialogue, while others are companies that only send us individual enquiries and with whom we then break off contact. I remain at your disposal in case of any additional questions and wish you good luck in fending off these accusations. Kind regards Oliver Muggli”
“Dear Mr Muggli, Thank you so much for your quick response! This is really helpful! Very much appreciate! Just one more thing. Could you please prepare a short memo on a company letterhead with the information from your email below and send it to me? Also, could you please allow me to send this correspondence and the memo to the Court of Appeal in London and to my co-defendants? Pity you can’t find the source of information.. If you happen to find it in the future, or have any ideas about who it might have been, please let me know. Once again, huge thank you for your help! Konstantin”
“Dear Mr. Kuzovkov I refer to your enquiry from yesterday and am pleased to enclose the requested letter. I will be happy to support you in your defence of the allegations. I would like to reserve the right to claim appropriate compensation for my expenses should I incur additional costs, such as giving evidence in court. I continue to regard the disclosure of the information by Mr Reda Bedjaouli as an unjustified disregard of the confidentiality agreement. If it is possible for you to provide me with further documentation on the relevant statement by Mr Bedjaouli, this would be greatly appreciated. I will be happy to answer any further questions you may have. Many thanks and best regards Oliver Muggli”
“Dear Mr. Muggli, Thank you very much! This is super-helpful! Let’s get in touch next week regarding the next steps. Wishing you very good weekend and happy holidays! Konstantin”
“(i) The applicant has to demonstrate a good arguable case that a form of legally recognised wrong has been committed against them by a person (‘the Arguable Wrong Condition’). (ii) The respondent to the application must be mixed up in so as to have facilitated the wrongdoing (‘the Mixed Up In Condition’). (iii) The respondent to the application must be able, or likely to be able, to provide the information or documents necessary to enable the ultimate wrongdoer to be pursued (‘the Possession Condition’). (iv) Requiring disclosure from the respondent is an appropriate and proportionate response in all the circumstances of the case, bearing in mind the exceptional but flexible nature of the jurisdiction (‘the Overall Justice Condition’).”
“E2: Intra-group loans and the bribes to FESCO Board members”
“116. In or around early 2020, the FESCO Board commissioned KPMG to formulate a restructuring plan for the FESCO Group’s intra group debt structure, including the Sian Disputed Loan and the Maple Ridge Disputed Loans. 117. The restructuring plan for the FESCO Group’s intra group debt structure duly produced by KPMG on its behalf, called “Project Moonlight”, was comprehensive, achievable and in the best interests of the FESCO Group. Project Moonlight was considered by the strategy committee of the FESCO Board in or around April 2020, which committee duly recommended to the FESCO Board that it be approved and implemented. The strategy committee’s recommendation was endorsed by Mr Maxim Sakharov (“Mr Sakharov”), FESCO’s then Chief Executive Officer. 118. Notwithstanding that fact, and without good reason, the FESCO Board did not seek to progress or implement Project Moonlight or make any other reasonable efforts to extend or restructure the intra-group debt. Instead: (1) on or shortly after12 February 2020 , a letter was sent by Halimeda to Sian and Maple Ridge by way of purported demand under the Sian Disputed Loan and the Maple Ridge Disputed Loan (the “Purported Demand Letter”); (2) on29 April 2020 , Ms Mammad Zade sent an email to the FESCO Board postponing consideration of Project Moonlight, for which decision she provided no detailed or adequate reason; (3) on3 September 2020 , a meeting of the FESCO Board took place at which the FESCO Board replaced Mr Sakharov as Chief Executive Officer of FESCO and purported to approve the commencement of proceedings by Halimeda against Maple Ridge with respect to the Maple Ridge Disputed Loans and against Sian with respect to the Sian Disputed Loan (the “3 September Proposals”). 119. It is to be inferred that Mr Kuzovkov received a bribe from Mr Rabinovich and/or Ermenossa in exchange for his acquiescence in the failure by the FESCO Board to restructure or extend the intra-group debt and/or his support of the 3 September Proposals in circumstances where: (1) As pleaded above, in or about late 2019, Mr Kuzovkov participated in the negotiation of the 2019 Option Agreement which provided for an incentive payment of US$ 5 million to be paid to Domidias (and thus Mr Garber) following a successful acquisition by unnamed parties of the SGS Branch’s interest in FESCO. In the course of the negotiations, Mr Kuzovkov paid particular attention to the detail of this incentive payment and it is to be inferred that he stood to gain personally from it under an arrangement with Domidias and/or Mr Garber. The payment was never triggered. (2) In November 2021, Mr Kuzovkov or a person or persons acting on his behalf approached a banker in London through an intermediary based in Lichtenstein, with a view to receiving an amount of US$ 20 million that stemmed from the proceeds of an “option agreement” over 3% of the shares of FESCO. The monies were to be transferred from an account held at Locko Bank, a Russian bank in which Mr Rabinovich held a substantial minority stake of 14.78%, and in which Mr Severilov held a stake of 4.79%. Mr Kuzovkov was due to be paid or wished to hold the monies in either GBP or EUR. (3) There is no legitimate explanation for how Mr Kuzovkov could have acquired those rights to 3% of the shares of FESCO. He was not granted any rights to those shares as part of his employment at FESCO. His personal wealth was nowhere near sufficient to purchase those rights. The total remuneration paid to all members of the FESCO Board in 2019 was RUB 41,625,000 (approximately USD 645,000 using the average exchange rate for 2019 published on exchangerates.org.uk). Solicitors for the Claimants wrote to Mr Kuzovkov on4 May 2022 and put this allegation of bribery to him. The response to that letter, sent on17 June 2022 by solicitors acting for Mr Kuzovkov and extending over 13 pages, did not deny that Mr Kuzovkov had received the sums alleged but did not even attempt to explain any legitimate basis upon which he had done so. The Claimants will rely upon this implied admission. (4) As noted above, Mr Rabinovich (through Ermenossa) acquired approximately 9% of the issued share capital of FESCO held through the Novator and Nautilius Branches in September 2021.” (1) on or shortly after12 February 2020 , a letter was sent by Halimeda to Sian and Maple Ridge by way of purported demand under the Sian Disputed Loan and the Maple Ridge Disputed Loan (the “Purported Demand Letter”); (2) on29 April 2020 , Ms Mammad Zade sent an email to the FESCO Board postponing consideration of Project Moonlight, for which decision she provided no detailed or adequate reason; (3) on3 September 2020 , a meeting of the FESCO Board took place at which the FESCO Board replaced Mr Sakharov as Chief Executive Officer of FESCO and purported to approve the commencement of proceedings by Halimeda against Maple Ridge with respect to the Maple Ridge Disputed Loans and against Sian with respect to the Sian Disputed Loan (the “3 September Proposals”). (1) As pleaded above, in or about late 2019, Mr Kuzovkov participated in the negotiation of the 2019 Option Agreement which provided for an incentive payment of US$ 5 million to be paid to Domidias (and thus Mr Garber) following a successful acquisition by unnamed parties of the SGS Branch’s interest in FESCO. In the course of the negotiations, Mr Kuzovkov paid particular attention to the detail of this incentive payment and it is to be inferred that he stood to gain personally from it under an arrangement with Domidias and/or Mr Garber. The payment was never triggered. (2) In November 2021, Mr Kuzovkov or a person or persons acting on his behalf approached a banker in London through an intermediary based in Lichtenstein, with a view to receiving an amount of US$ 20 million that stemmed from the proceeds of an “option agreement” over 3% of the shares of FESCO. The monies were to be transferred from an account held at Locko Bank, a Russian bank in which Mr Rabinovich held a substantial minority stake of 14.78%, and in which Mr Severilov held a stake of 4.79%. Mr Kuzovkov was due to be paid or wished to hold the monies in either GBP or EUR. (3) There is no legitimate explanation for how Mr Kuzovkov could have acquired those rights to 3% of the shares of FESCO. He was not granted any rights to those shares as part of his employment at FESCO. His personal wealth was nowhere near sufficient to purchase those rights. The total remuneration paid to all members of the FESCO Board in 2019 was RUB 41,625,000 (approximately USD 645,000 using the average exchange rate for 2019 published on exchangerates.org.uk). Solicitors for the Claimants wrote to Mr Kuzovkov on4 May 2022 and put this allegation of bribery to him. The response to that letter, sent on17 June 2022 by solicitors acting for Mr Kuzovkov and extending over 13 pages, did not deny that Mr Kuzovkov had received the sums alleged but did not even attempt to explain any legitimate basis upon which he had done so. The Claimants will rely upon this implied admission. (4) As noted above, Mr Rabinovich (through Ermenossa) acquired approximately 9% of the issued share capital of FESCO held through the Novator and Nautilius Branches in September 2021.”
“Mr. Kuzovkov and his companies are not and have never been working with my Client. There was no communication between Mr. Kuzovkov and my Client prior to Mr. Kuzovkov’s email in December 2023. My Client doesn’t possess any information that could identify the origin or confirm the authenticity of the documents provided by you in your email of10 January 2024 .”
“They [sc. the authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.”
“Business and trade secrets refer to company-related business or technical facts in which the owner has a legitimate interest in maintaining secrecy. No secrets are obvious facts and facts that are not generally known but are easily accessible to interested parties (e.g. through literature or internet research). The disclosure of illegal business and trade secrets (e.g. a plan to build a bomb) can also be a criminal offence. Trade secrets generally include a company's strategy, purchasing conditions, sales structures, customer lists, data of customers, suppliers, employees etc, clients' correspondence, customer turnover and the like. Even the disclosure of data on a small number of customers, potential customers or the disclosure of an individual customer can constitute a criminal offence. Given the broad meaning of trade and business secrets and considering the business of 1291 Private Office Ltd., it would be reasonable to assume that the documentation requested by the (draft) Norwich Pharmacal Order concerns business- and trade secrets.”
“37. In conclusion, without the consent of the data owner or an order of the Liechtenstein Court releasing the information would be in contravention of the Liechtenstein Data Protection Act. 38. Since there is no enforcement treaty between Liechtenstein and England the Norwich Pharmacal Order is not enforceable in Liechtenstein and the Liechtenstein courts will not order to enforce the Norwich Pharmacal Order in Liechtenstein.”
“[44] According to prevailing opinion, “business secrets” are understood to be facts and findings that are only known to a certain and limited number of persons and are not or only with difficulty accessible to others and, according to the intention of the authorised party, should not go beyond this circle of insiders, and which concern company-related commercial relationships. This may include, for example, price calculations customer base, conditions, business letters on pricing, purchasing conditions, sample collections, delivery offers, special recipes or customer lists (insofar as they contain more than just names, addresses and telephone numbers). [45] Due to this broad definition and the limited publicity or accessibility, it can certainly be argued that the information concerned is (at least partially) classified as a business secret. Notwithstanding such classification, the review of the documents under the Norwich Pharmacal disclosure would be necessary. While the definition of “business secret” is broad under Liechtenstein law, it is not possible to state whether it is a business secret without review of the documents concerned.”
“It cannot be excluded that criminal liability may arise from the disclosure of a business or trade secret and as an English court judgment or court order is not directly enforceable in Liechtenstein, it cannot be assumed that the addressees of an NP order in Liechtenstein would readily comply with it and may expose themselves to a possible penalty.”
“Although it is quite clear that some of the requested information will be personal data in accordance with the DSG (in particular, names of the persons sought to be identified), however, it is by no means clear that all the Information sought would be personal data (a number of the items listed in the Draft Order are explanations, for example, detailing searches undertaken) - a case-by-case review of the documents and information to be provided would be necessary to form a definitive view.”
“In any event, a court or administrative authority is entitled to request the disclosure of personal data. In principle, a court judgment or an instruction could therefore also constitute a "legally permissible reason". I am not aware of any case law in which the Liechtenstein court has considered whether a foreign court order such as that sought from the English court here, would constitute such a “legally permissible reason” but it is certainly arguable that it would.”
“It is important to note that under Liechtenstein law, it is conceivable in certain cases that someone may be obliged by a court to hand over certain information or documents. I am only aware of previous cases in which this process has been successful on the basis of statutory or contractual rights. I am not aware of any previous case in which a party has sought to claim information or documents through this process on the basis of an English Norwich Pharmacal Order, I can see that the position would be arguable but as it has not previously been tested by the Liechtenstein courts I cannot say with any certainty that such a claim would succeed.”
“Transfers or disclosures not authorised by Union law Any judgment of a court or tribunal and any decision of an administrative authority of a third country requiring a controller or processor to transfer or disclose personal data may only be recognised or enforceable in any manner if based on an international agreement, such as a mutual legal assistance treaty, in force between the requesting third country and the Union or a Member State, without prejudice to other grounds for transfer pursuant to this Chapter.”
“Nothing in this order authorises or requires a Respondent to do anything which is contrary to the law of the country where the Respondent is incorporated”
“I am only aware of previous cases in which this process has been successful on the basis of statutory or contractual rights. I am not aware of any previous case in which a party has sought to claim information or documents through this process on the basis of an English Norwich Pharmacal Order, I can see that the position would be arguable but as it has not previously been tested by the Liechtenstein courts I cannot say with any certainty that such a claim would succeed.”
“14.81 Applications for disclosure pursuant to Norwich Pharmacal v Customs and Excise Commissioners[1974] AC 133 ,[1973] 2 All ER 943 , HL should be made by Part 8 claim form unless made within existing proceedings when an application can be made under Part 23. An application under Part 23 is otherwise likely to be rejected.”
“The only bar to the exercise of the court’s discretion to make such order [for alternative service] is that, by r.6.40(4), nothing in a court order must authorise any person to do anything which is contrary to the law of the country where the claim form is to be served. Thus, the proposed method of service may not be permitted by the law of that country; the bar applies only where such method is positively contrary to the law of that country. The evidence required would therefore seem to be that the proposed method of service (or, in retrospective cases, the method that has been used): (1) is not permitted under Pt 6; and (2) will not be or was not contrary to the law of the country where the claim form or other document is to be served, pursuant to r.6.40(4).”
“… would suggest that it should not now be the practice to make orders for what is commonly referred to as “deemed or substituted service” prospectively under r.6.15(1) unless there is a high degree of likelihood that the claim form or document (r.6.27) will come to the intended recipient’s notice. ”
“(1) There is a risk that relevant documents have been destroyed or will shortly be destroyed: the letter of15 December 2023 alluded to ‘breaking off’ contact with companies who send ‘individual enquiries’ as part of the reason why Mr Muggli was not able to confirm the source of the Enquiry. There thus appears to be a risk that documents from such individual enquiries are in fact destroyed or may be scheduled to be destroyed. It is crucial that Norwich Pharmacal relief is obtained before any (further) document destruction occurs. By way of full and frank disclosure, 1291 Private Office has said that they are “not in the business of destroying documents”
“32. By way of full and frank disclosure, it may be said that 1291 UK is not mixed up in the wrongdoing. However, the structure of the 1291 Group, the location of its documents, and the manner in which the Enquiry came in to the 1291 Group are unknown to the Applicants. The 1291 entities do appear, however, to be closely connected and centralised in several respects: 32.1 The email domain of Mr Muggli and Mr Peenz is “@1291group.com”, and their email signatures refer to the 1291 Group as a whole. 32.2 The entities share a website (www.1291group.com), and are referred to as ‘units’ of the Group, rather than separate entities (albeit 1291 UK is an English registered company with company number 14416326). 32.3 The Group website sets out the details of the executive management of the Group as a whole. This comprises five individuals, including Patrick Knecht, the Group Chief Operating Officer, Daniel Koller as the Group’s Head of Legal & Compliance. Mr Knecht and Mr Koller (both Swiss nationals) are each directors of 1291 UK. The Group website indicates that Mr Knecht and Mr Koller each physically work from the same Lichtenstein office as Mr Muggli, albeit according to Companies House records Mr Knecht is resident in Switzerland with Mr Koller resident in Liechtenstein.”
“Furthermore, the Applicants have already been corresponding with the First Respondent’s lawyers, BWB Legal, and with Mr Peenz of the Second Respondent, who are each aware of the requests for information and documents that have been raised by the Applicants, as well as the Applicants’ intention to initiate legal proceedings if they were not able to provide the requested information by correspondence. In his last email, Mr Ralph Wanger of BWB Legal requested that any future communication be channelled exclusively through him. As such, service on the First Respondent by email to Mr Wanger of BWB Legal is likely to bring the Applications to the First Respondent’s attention. Further, Seladore Legal received correspondence from a Dubai-based law firm called Global Advocates on behalf of 1291 Dubai on 13 February and18 March 2024 . Service by email on 1291 Dubai’s lawyers, Global Advocates, is thus likely to come to the Second Respondent’s attention. For the reasons at ¶32 above, service by post to the address of 1291 UK is also likely to come to the attention of the First and Second Respondents and the Applicants therefore also seek permission to serve by those means.”
“Within our 1291 family you are connected to an international group of top professional experts in the field of Private Wealth Solutions”
“I agree in particular with what Lord Justice Coulson has said at [126] to [128] below about the way the failure to disclose issue was presented by the respondents, both in the court below and in this court. I sought in National Bank Trust v Yurov[2016] EWHC 1913 (Comm) at [14] and [15] to encourage a degree of restraint and a sense of proportion on the part of those seeking to set aside without notice orders on this ground, but it appears that the message has not got through. In this case we have been prepared to separate the wheat from the chaff, but I would suggest a different approach for the future. In future, if the court is presented with a long shopping list of alleged failures of disclosure, with no attempt made to identify the relatively few points which really matter, it should simply decline to consider the issue at all.”
“[119] … vi)Where facts are material in the broad sense, there will be degrees of relevance and a due sense of proportion must be kept. Sensible limits have to be drawn, particularly in more complex and heavy commercial cases where the opportunity to raise arguments about non-disclosure will be all the greater. The question is not whether the evidence in support could have been improved (or one to be approached with the benefit of hindsight). The primary question is whether in all the circumstances its effect was such as to mislead the court in any material respect;” “[120] … “30. Although this was said in the context of an application for a freezing order, the principles are of general application. I would draw particular attention, as relevant in the present case, to the fact that the overriding consideration when deciding whether to continue an injunction or grant a fresh injunction despite a failure of disclosure is the interests of justice; and to the need to maintain a due sense of proportion in complex cases. This latter point was made by Mr Justice Toulson in Crown Resources AG vVinogradsky (15 June 2001 ) and was adopted by the Court of Appeal in Kazakhstan Kagazy Plc v Arip[2014] EWCA Civ 381 , [2014] 1 CLC 451 at [36]: '… where facts are material in the broad sense in which that expression is used, there are degrees of relevance and it is important to preserve a due sense of proportion. The overriding objectives apply here as in any matter in which the Court is required to exercise its discretion. … I would add that the more complex the case, the more fertile is the ground for raising arguments about non-disclosure and the more important it is, in my view, that the judge should not lose sight of the wood for the trees. … In applying the broad test of materiality, sensible limits have to be drawn. Otherwise there would be no limit to the points of prejudice which could be advanced under the guise of discretion.' 31. A further point which merits emphasis is that even when there has been a failure of full and frank disclosure, the interests of justice may sometimes require that a without notice order be continued and that a failure of disclosure be marked in some other way, for example by a suitable costs order. A court needs to consider the range of options available to it in such an event.””
“Having described the ‘mere witness’ rule and concluded that it was inapplicable because there could be no trial unless the identity of the alleged wrongdoers was disclosed, Lord Reid pointed out that it did not follow that discovery might be ordered against anyone who could give information as to the identity of a wrongdoer. He continued ([1974] AC 133 at p 174E): “It [discovery] is not available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession …” ”
“They [sc. the authorities] seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration.” “It [discovery] is not available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession …” ”