Verum Plus AG (in liquidation) & Ors v Petroineos Trading Limited [2026] EWHC 1236 (Comm)

[2026] EWHC 1236 (Comm)Case No CL-2021-000085
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
COMMERCIAL COURT (KBD)
Venue Royal Courts of Justice, Rolls Building, Fetter Lane, London, EC4A 1NLDate 22/05/2026
Before
MR JUSTICE BUTCHER
Between
VERUM PLUS AG (in liquidation)ClaimantPETROINEOS TRADING LIMITEDDefendant
Andrew Pearson and David Barnard (instructed by PCB Byrne LLP) for ApplicantsDavid Walsh KC and Edward Batrouney (instructed by HFW LLP) for Defendant for The Claimant did not appear and was not representedHearing Hearing date: 21 April 2026
JUDGMENTThis judgment was handed down remotely at 10:30am on Friday 22 May 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
[1]There are two applications before the court. The first is an application issued on 21 May 2025 by Andrey Polyakov, Carbonco SA and Freshwind Operations OÜ (together ‘the Applicants’) to be joined to these proceedings as Claimants and for permission to amend the Claim Form and Particulars of Claim to reflect such joinder (‘the Joinder Application’). The second is an application issued on 4 June 2025 by the Defendant (‘Petroineos’) to strike out the claim (‘the Strike Out Application’).

Background

[2]The background to these applications can be briefly described as follows.[3]Verum Plus AG (‘Verum’) is a Swiss-incorporated company. Until its insolvency it was the main trading vehicle of Andrey Polyakov. Petroineos was and is an oil and petroleum products trading company established in Jersey. The dispute arises from several contracts between Verum and Petroineos in relation to the storage and sale of petroleum products and their financing.[4]Verum alleges that in or around January 2019 the two parties entered into a joint venture agreement in relation to the supply and sale of petroleum products. It contends that contracts D13, D19 and D20, referred to below, were entered into in furtherance or pursuance of that joint venture agreement. Petroineos denies that any joint venture agreement was concluded.[5]It is not, however, in dispute that the parties entered into a contract (‘Contract D13’) in February or March 2019 under which Petroineos purchased from Verum 45,298.287 mt of mixed residual oil (‘MRO’) and 44,613.076 mt of vacuum gas oil (‘VGO’) for a provisional price of US$47,313,380. The parties entered into a contract (‘Contract D19’) on 18 April 2019 under which Verum supplied to Petroineos Hydrocracker Bottoms, VGO and ultra-low sulphur VGO. In July 2019 the parties entered into a contract (‘Contract D20’) under which Verum was to buy back the cargo acquired by Petroineos under Contract D13 and additional cargo on the relevant vessel at the time.[6]Verum contends that on 17 July 2019 Petroineos repudiated Contract D20 by wrongfully purporting to terminate the contract and claim damages. On Petroineos’s case, it was entitled to terminate due to Verum’s repudiatory breach in failing to open an acceptable standby letter of credit and failing to open a performance bond. Petroineos proceeded to sell the cargo to a third party. Petroineos counterclaims for sums due under Contract D13 and damages for Verum’s alleged breach of Contract D20. Petroineos also maintains that it is entitled to set those sums off against sums due to Verum under Contract D19.[7]As for the alleged joint venture agreement, Verum claims an entitlement to 80%, alternatively 70%, of all net profit earned pursuant to the agreement (including the Contract D13, D19 and D20 cargoes).[8]Of relevance to the Joinder Application are the non-assignment provisions in Contracts D13, D19 and D20. Thus: i) Contracts D13 and D19 each provided:
‘Neither party shall assign its rights and obligations under this agreement, in whole or in part, without the prior written consent of the other party.’ ii) Contract D20 provided: ‘Without the prior written consent of the other party, which consent shall not be unreasonably withheld, neither party may assign its rights or obligations under this agreement in full or in part, except that the seller and its assigns may without such consent assign all or a portion of their rights to receive and obtain payment under the contract in connection with securitisation or bank funding arrangements, always providing such assignment does not contravene any applicable law, regulation or decree binding on the buyer…’
[9]On 17 February 2021, Verum issued these proceedings against Petroineos, claiming pursuant to the alleged joint venture agreement and Contracts D13, D19 and D20. On 24 August 2021, Petroineos served its Defence and Counterclaim.[10]On 5 April 2022, Verum was declared bankrupt in Switzerland. On 23 January 2023, its appeal against its bankruptcy was dismissed by the Swiss Federal Court.[11]On 24 July 2023, the Bankruptcy Office of the Canton of Zug (the ‘Bankruptcy Office’) assigned (by ‘Abtretung’) the right to conduct these proceedings in the name of Verum to the Applicants and to Litasco SA (‘Litasco’) under Article 260 of the Swiss Debt Enforcement Act (‘SchKG’).[12]Some steps were taken in the proceedings after 24 July 2023, on their face by Verum in its own name and instructing lawyers on its own behalf.[13]One such step was to appear, on 20 October 2023, to oppose Petroineos’s application to strike out the claim due to failures on Verum’s part to comply with orders for the provision of security for costs. On that occasion, I made an order, on unless terms, for Verum to make a series of payments into court, as security to cover a sequence of phases of the litigation, in a total amount of £720,000. Those amounts were paid.

The Position in Swiss Law

[14]The Joinder Application is made in the context of a position under Swiss law which is largely agreed between the experts for the parties, Mr Michele Caratsch of Baldi & Caratsch for the Applicants, and Ms Brigitte Umbach-Spahn of Wenger Platner for Petroineos. The experts agree on the following: i) Article 260 of SchKG vested in the Assignees (the Applicants and Litasco) the right to prosecute the claims in these proceedings. The substantive claim remained with the bankrupt estate. ii) As it is put by Ms Umbach-Spahn, such assignment is ‘a sui generis enforcement and procedural instrument that transfers the authority to pursue the claims and conduct litigation’. Mr Caratsch says that an assignee ‘effectively acts as procedural trustee’. iii) Assignees under Article 260 SchKG are able to take any actions in the proceedings that would have been available to the bankrupt estate, including settling the proceedings or requesting interim measures. iv) Assignees under Article 260 SchKG exercise their rights in their own names, and at their own risk and expense. v) The Assignees have not assumed any of Verum’s liability, including in relation to Petroineos’s counterclaim. But, the Assignees are entitled (and, on Mr Caratsch’s view, obliged) to defend the counterclaim, and any liability established against Verum will be ‘netted off’ against the claims pursued by the Assignees. vi) An assignment under Article 260 SchKG to multiple assignees requires joint action on the part of those assignees. In proceedings before a Swiss court, judgment would not be entered unless and until all assignees were involved. vii) As a result of the assignments, the bankruptcy administration has no authority over the assigned proceedings and cannot give instructions to solicitors on behalf of the bankrupt estate. viii) Article 260 SchKG does not mandate the English court to take any particular approach to the Applicants/Assignees.[15]The position of assignees pursuant to Article 260 SchKG has been summed up in Swiss legal literature as being that they ‘act as representatives in the proceedings. This means that they merely assume the procedural status of the bankruptcy estate; the estate, on the other hand, is not a party to the proceedings but remains the legal holder of the (alleged) claims.’[16]As regards the period of their validity, the assignments originally provided that the Bankruptcy Office ‘reserves the right to cancel the assignment in the event that no judicial assertion is made within a period to be determined by it. This period is 360 days.’ This period elapsed in 2024. It was, as the Applicants say, extended in their favour in November 2024 until 24 July 2025, and, most recently, on 14 April 2026, until 14 April 2027.[17]It is in circumstances where it appears clear that, as a matter of Swiss law, neither Verum nor the Bankruptcy Office is entitled to conduct Verum’s claim, whether in the Bankruptcy Office’s or Verum’s name, and the Assignees/Applicants are entitled to conduct Verum’s claim in their own names, that the Joinder Application is made.

The Joinder Application

[18]The Applicants’ application is made pursuant to CPR r. 19.2(2). It provides:
‘The court may order a person to be added as a new party if- (a) it is desirable to add the new party so that the court can resolve all the matters in dispute in the proceedings; or (b) there is an issue involving the new party and an existing party which is connected to the matters in dispute in the proceedings, and it is desirable to add the new party so that the court can resolve that issue.’
[19]The Applicants relied, as I understood it, primarily if not exclusively on CPR r. 19.2(2)(a). They submitted that it was plainly desirable to join them to the proceedings to ensure that the court could resolve all matters in dispute in the proceedings.[20]Petroineos opposed the Joinder Application on four main grounds, as follows: i) That the Applicants do not have the right to pursue these proceedings as a matter of English law. ii) There has been undue delay in bringing the application for joinder. iii) The non-assignment provisions in the contracts prohibit any assignment under Article 260 SchKG. iv) The Applicants have not complied with CPR r. 19.3(1) in that they have not joined Litasco, and joinder must be refused for that reason. I will consider these four points in turn. The Applicants do not have the right to pursue these proceedings[21]Petroineos’s argument here is this. It is a fundamental rule of English private international law that matters of substance are governed by the law to which the court is directed by its choice of law rules, and that matters of procedure are governed exclusively by the law of the forum. In this case, the right assigned to the Applicants is procedural, being the Bankruptcy Office’s procedural right to advance, in their own names, a cause of action that remains with Verum. Under English private international law, that procedural right under Swiss law does not allow the Applicants to sue in their own name: only Verum may do so. Similarly, English law does not allow a liquidator to assign a procedural right to bring the insolvent company’s action in the assignee’s own name. Reference was made to Pickthall v Hill Dickinson LLP [2009] EWCA Civ 543. Thus, the Applicants have no title to sue, and cannot obtain the remedies they seek in the English court.[22]I cannot accept this argument. Prima facie, the joinder of the Applicants would appear to fall clearly within CPR r. 19.2(2)(a): it would be desirable in order to allow the resolution of all issues in dispute in the proceedings. On Petroineos’s argument, no one can pursue the claims. Verum cannot, because the effect of the assignments is that the Bankruptcy Office cannot instruct solicitors in Verum’s name, and cannot conduct the litigation. Equally, the Assignees cannot, because what is assigned is a procedural right, which English law will not recognise.[23]It is not in doubt that matters of procedure are governed by the law of the forum as a matter of English private international law. It was also not disputed between the parties that Article 260 SchKG effects the assignment of a procedural right. I would also accept that English law would not directly apply that Swiss procedural rule. I do not, however, see why, applying English procedural rules permitting the joinder of parties which it is desirable should be joined, there should not be joinder of the parties who, because of the nature of the Swiss assignments, alone can pursue the claim made in the proceedings. To do so would appear to me to be consistent with the overriding objective, to avoid the unsatisfactory result that no one can sue, and to be in accordance with comity.[24]There does not appear to be any English authority dealing with the effect of, and to be accorded to, an assignment under Article 260 SchKG. The answer which I favour, and which I have summarised in the previous paragraph, seems, nevertheless, to derive some support by the analogy with two cases which were cited by the Applicants dealing with how English courts treat receivers/assignees in foreign bankruptcy or insolvency proceedings who, under the law of the foreign jurisdiction, are entitled to sue in their own name. The first of those cases is Alivon v Furnival (1 Cr., M. and R., 277), where one party to a contract containing an arbitration agreement became insolvent after proceedings had been begun. The French court appointed three ‘syndics’, insolvency officers, two of whom then brought proceedings in their own name in the English courts to enforce an arbitration award which had been obtained by the bankrupt. One argument raised was that all three needed to sue. Parke B, giving the judgment in the Exchequer of Pleas, said, at 296:
‘The property in the effects of the bankruptcy does not appear to be absolutely transferred to these syndics in the way that those of a bankrupt are in this country; but it should seem that the syndics act as mandatories or agents for the creditors; the whole three or any two of them having the power to sue for and recover the debts in their own names. This is a peculiar right of action, created by the law of that country; and we think that it may by the comity of nations be enforced in this, as much as the right of foreign assignees or curators, or foreign corporations, appointed and created in a different way from that which the law of this country requires.’
[25]In the later case of Macaulay v Guaranty Trust Company of New York (1927) 22 Times LR 99 a similar approach was taken. In that case, a company incorporated in Delaware had receivers appointed over it. The receivers commenced proceedings in England in their own names seeking to recover a sum held by the defendant. The defendant questioned whether the receivers could sue in their own names. Clauson J gave judgment for the plaintiffs. The report states (at 100):
‘He [the judge] felt justified in making that order, having regard to the decision of Baron Parke in Alivon v Furnival. That was an authority for the proposition that, if receivers or assignees in bankruptcy had, according to the law of the country in which they had been appointed, a right to sue in their own names for a chose in action due to a body or person in respect of whose property they had been appointed receivers or assignees, that gave them a right of action which this country, by the comity of nations, would treat as though it were a right of action at common law on evidence that in fact the operation of the orders appointing them gave them a right to recover choses in action in the country in which they were appointed.’
Unjustified and unexplained delay[26]Petroineos contends that, as a matter of discretion, the court should not accede to the Joinder Application because of what it contends is unjustified and unexplained delay on the part of the Applicants.[27]In this regard, Petroineos points out that it has been questioning the validity of the assignments and Verum’s standing to act in the proceedings since PCB Byrne LLP came on the record for Verum. Mr Walsh KC drew attention in particular to letters from HFW LLP dated 19 October 2023, 26 January 2024, 28 May 2024, 14 June 2024, 10 July 2024 and 20 November 2024 with a draft amended Defence taking the standing point. During all this period, PCB Byrne LLP, while saying that they were acting on behalf of Verum, had no authority to act on its behalf. Ultimately, on 29 January 2025, PCB Byrne LLP indicated that there would shortly be an application to substitute the Assignees in place of Verum, and on 12 February 2025 PCB Byrne LLP wrote that they were no longer instructed to act on behalf of Verum. But the Joinder Application was not issued until 21 May 2025. Thus, Mr Walsh said, there had been a period of almost two years’ delay in bringing the application for which there was no explanation. This will have caused prejudice, in witness evidence becoming unavailable or less reliable, and because there may be difficulties as to whether documents have been retained.[28]On behalf of the Applicants, Mr Pearson accepted that there had been considerable delay in the action, but submitted that it was the responsibility of both parties. There was no or virtually no delay to the progress of the action which was attributable only to the failure to issue the application for joinder, and equally no real prejudice attributable to that, as opposed to the other delay.[29]I have concluded that joinder should not be refused on the basis of the delay. I accept that there was excessive delay in the clarification and rectification of the issue of who PCB Byrne LLP were acting for, and in the issue of the Joinder Application. I accept, further, that that delay is not properly explained. And I accept that unjustified delay is a strong factor against the exercise of a discretion in the Applicants’ favour (as was recognised, for example, by Leech J in Various Claimants v Barclays Bank PLC [2023] EWHC 2015 (Ch) at [148]). However, the court does not punish delays irrespective of the circumstances and of whether they cause prejudice (see Best Friends Group v Barclays Bank PLC [2018] EWCA Viv 601 at [42], American Leisure Group Ltd v Olswang LLP [2015] EWHC 629 (Ch) at [62]). In the present case, the delay in dealing with the joinder issue was concurrent with delays by both parties in progressing the claim and counterclaim. Both parties should, in the absence of steps being taken by the other in the action, have raised this with the court, if necessary by way of a restored CMC. I do not consider that any delay which is attributable solely to the delay in seeking the resolution of the joinder issue will have caused significant prejudice to Petroineos. By comparison, it appears that refusing the joinder will prejudice the Applicants, in that it might well mean that Verum’s claim cannot be pursued at all, especially as there may well be limitation issues. The Non-Assignment Provisions[30]As I have set out above, each of Contracts D13, D19 and D20 contained a non-assignment provision. Petroineos contends that those provisions prohibit an assignment such as that under Article 260 SchKG. There is no indication in the text of the provisions that the assignment of ‘procedural’ rights is excluded. Further, the application of non-assignment provisions to an assignment such as that under Article 260 SchKG is supported by the decisions of Ramsey J in Ruttle Plant Hire Ltd v Secretary of State for the Environment Food and Rural Affairs (No. 1) [2007] EWHC 2870 (TCC), and Ruttle Plant Hire Ltd v Secretary of State for the Environment Food and Rural Affairs (No. 3) [2008] EWHC 238 (TCC). An assignment effected in breach of such provisions is ineffective: Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85 at 108-9. Petroineos therefore submits that, as the assignment can be seen to be ineffective, there is no point in joining the Applicants, and the Joinder Application should be refused.[31]For their part, the Applicants submit that it is clear that, as a matter of Swiss law, there has been no assignment of Verum’s cause of action: all there had been was a transfer of the authority to pursue the claims and conduct litigation. Anti-assignment provisions are essentially aimed at protecting parties from being put in a position where they have to deal with counterparties other than those they signed up with. That is not the effect of the Article 260 SchKG assignment here. As a matter of construction, therefore, the Article 260 SchKG assignment is not caught by the anti-assignment provisions. Ruttle (No. 1) and Ruttle (No. 3) did not assist.[32]In my judgment, Petroineos is correct in relation to this point. The clauses prohibit each party, without consent of the other party, from assigning ‘its rights and obligations under this agreement’ ‘in whole [or in full] or in part’. The effect of the Article 260 SchKG assignment is, in my view, and in terms of the clause, an assignment of rights under the agreement, in whole / full or in part, because what is assigned is the right to pursue the action in respect of breaches of the agreement in their own names. I do not consider that a reasonable person, situated as these commercial parties were at the time of the conclusion of the contracts, would have understood the language used to be drawing a distinction between assignments of two different types, one of which transferred the cause of action to the transferee, and one of which transferred the right to prosecute the claim to the transferee. The language would, in my view, have been understood to embrace everything which could properly be described as an assignment; and a commercial party would have understood the safeguard against this having an unduly restrictive effect to lie in the provision that assignment may take place if the consent of the other party is given (and, in the case of Contract D20, is expressly not to be unreasonably refused).[33]I have reached this conclusion without reference to the authority cited by Petroineos. I agree, however, that it gains some support from the case of Ruttle (No. 3). In that case, the judge found that an assignment of a liquidator’s rights to prosecute and carry on an action, but not the action itself, was a purported assignment of the liquidator’s statutory power rather than of the company’s property, and was thus ineffective, and that Ruttle could not remain as a claimant. The judge went on, obiter, to hold that, in any event, the assignment of the liquidator’s right to carry on the action fell foul of a non-assignment provision in the contract, which prevented assignment by the supplier of ‘any portion of the Contract’. At [63] Ramsey J said:
‘In this case I can see no objection to the assignment by the Liquidator to Ruttle of the fruits of any action rather than the fruits of performance. However the assignment of the Liquidator’s right to prosecute and carry on the action is a right to pursue an accrued right of action against DEFRA. I consider that the ability to enforce the right of action arises out of the existence of that right of action and that the prohibition in Clause 21.1 prevents both the assignment of the right of action and of the right to enforce it.’
[34]Mr Pearson criticised this passage of Ramsey J’s reasoning, on the basis that the judge wrongly assumed that a cause of action is inseparable from the right to pursue it. In my view, however, Ramsey J’s reasoning was based, at least in part, on a construction of Clause 21.1 to the effect that a prohibition on assignment of ‘the contract’ precluded both an assignment of the rights of action under the contract, and rights to enforce them. I am not persuaded that that was wrong. Furthermore, I do not find attractive the idea that there could be a distinction in this regard between the effect of a clause which prohibited assignment of ‘any portion of the Contract’, and one which prohibited ‘rights and obligations under’ the contract.[35]As I have been able to reach this conclusion as a matter of construction of the relevant clauses, I do not consider that there is any need or point in permitting an amendment which pleads a claim by the Applicants under Contracts D13, D19 or D20.[36]While an argument was canvassed in Petroineos’s skeleton argument to the effect that a non-assignment provision should be considered to be implied into the alleged oral joint venture agreement, this appeared to me to be an ambitious argument, and it is one which Mr Walsh sensibly said he did not pursue. What that means, however, is that the contractual bar on assignment does not apply to the claim under the alleged joint venture agreement. Litasco[37]Petroineos opposed the application for joinder on the basis that the Applicants had not applied to join Litasco, and that not all parties who were necessary for a determination of the dispute would be before the court, even if the Joinder Application were successful. This was another reason why the Joinder Application should fail.[38]Shortly before the hearing, the Applicants put in further evidence in the form of a witness statement from Mr Polyakov. This exhibited a letter from Litasco dated 15 April 2026, signed by a M. Philippe Bonvin, Member of the Board, and bearing Litasco’s stamp. That letter states, in part, that Litasco had decided that it will no longer participate in the prosecution of the assigned claim and ‘[a]ccordingly … formally waives and relinquishes the assignment granted to it pursuant to Art. 260 SchKG with respect to the above-mentioned Claim, with immediate effect.’[39]That waiver appears to meet the requirement, identified by both Swiss law experts, for a waiver of the assignment which has the effect, as a matter of Swiss law, that the waiving assignee does not need to be joined to the proceedings.[40]Mr Walsh KC stated that Petroineos did not object to the court receiving the late evidence, but he made certain observations as to the weight which the court could place on the Litasco letter. It appeared to me, however, that given that I had received the evidence, and that there was no basis for disbelieving the evidence of Mr Polyakov as to the origin of the letter, I should accept it for what it apparently is. On this basis, there would appear to be no objection, in Swiss law, to the claim being carried on in the names of the three Applicants, without the joinder of Litasco. Given this, I would consider that it was appropriate, to the extent it is necessary, to order under CPR r. 19.3(2) that Litasco need not be joined either as claimant or defendant. Had I not ordered that, I would have ordered Litasco to be made a defendant.

Strike Out Application

[41]Petroineos applies to strike out Verum’s claim, on the basis that Verum has made it clear that it does not intend to, and indeed cannot, pursue the claim. The nature of the application as ultimately made to the court was limited to seeking the striking out of Verum as a party to the action. Petroineos applied for this whether or not the Joinder Application succeeded.[42]This application was not opposed by Verum, which has no solicitors on the record, and for which the Bankruptcy Office is no longer permitted to act in this case.[43]The Applicants’ position was that if the Joinder Application failed, they agreed that there would be no point in the claim being kept on foot. In circumstances where the Bankruptcy Office has no authority to discontinue it, strike out would be the appropriate remedy. Conversely, if the Joinder Application succeeded, the Applicants had no positive objection to Verum being removed as a claimant, but suggested that it might be simpler for Verum to remain a party.[44]As I have decided that the Joinder Application succeeds, to the extent that the Applicants can be joined for the purposes of the claim under the alleged joint venture agreement, it is the latter situation which is relevant.[45]I have decided, however, that it is not expedient, at least at this juncture, to strike Verum out as a party. As the argument progressed, it became apparent that there was at least one possible advantage in retaining Verum as a party, namely that it made Petroineos’s counterclaim more procedurally straightforward. It was agreed that the Asssignees must give credit in their claim for any amount that Petroineos may establish by way of counterclaim, but if Verum is not a party, any such counterclaim would not be a conventional one. There has been no agreement between Petroineos and the Applicants as to the form of an order which adequately deals with this or makes it appropriate, in light of this judgment, to remove Verum. I consider that the better course is for Verum to remain a party. It is likely to be convenient, however, for there to be an order dispensing with service upon Verum of most, if not all, of the documents in the case.

Conclusion

[46]For the reasons which I have given above, I will permit joinder of the Applicants, for the purposes of making them parties to the claim in respect of the alleged joint venture agreement. I will refuse permission to amend to plead a claim by them under Contracts D13, D19 or D20.[47]I decline, at the moment, to strike Verum out as a party to the action.[48]I trust that the parties can agree a form of order to embody the above conclusions.