IPJSC United Company Rusal v Whiteleave Holdings Limited & Ors [2026] EWHC 1982 (Comm)

Neutral Citation Number: [2026EWHC 1982 (Comm)Case No CL-2022-000558
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 Tuesday, 28 July 2026
Before
Mr Justice Bright
Between
IPJSC United Company RusalClaimantWhiteleave Holdings LimitedDefendantsVladimir Olegovich PotaninDefendantCrispian Investments LimitedDefendantRoman Arkadievich AbramovichDefendant
Mr F Pilbrow KC, Mr T Ford, Mr B Mukherjee and Mr R Robertson (instructed by PCB Byrne LLP) for ClaimantMr T Lord KC, Mr C Morrison KC, Mr W Hooper, Mr J Pemberton and Mr F Mohandas (instructed by Seladore Legal) for First and Second DefendantsMr A Baradon KC for Third DefendantHearing Hearing date: 28/07/2026
JUDGMENTMR JUSTICE BRIGHT
[1]The claimant has applied to issue two separate letters of request. The first is directed to Cyprus. It is concerned with evidence to be obtained from four witnesses in Cyprus. They are Ms Irina Skittides, Ms Natalia Antoniou, Ms Maria Parouti and Ms Olga Orati. The second letter of request is directed to Germany. It is concerned with evidence to be obtained from one witness, Mr Guido Emmerich.[2]In principle, the Court may order a letter of request to be issued under CPR 34.13. There are two relevant questions as set out by the Court of Appeal in Honda Giken Kogyou Kabushiki Kaisha & Ors v KJM Superbikes Ltd [2007] EWCA Civ 313, per Lord Justice Rix at [10] and per Sir Anthony Clarke, Master of the Rolls at [27], both quoting and applying First American Corporation v Zayed [1999] 1 WLR 1154, at 1165D:(1) The first question is whether the intended witnesses can reasonably be expected to have relevant evidence to give on the topics set out in the relevant letter of request.(2) The second is whether the intention underlying the formulation of those topics is an intention to obtain evidence for use at the trial or is some other impermissible intention – e.g., mere general investigation.[3]If those questions both receive affirmative answers, the application should in principle be granted, subject to four further points (referred to before me as the “four Honda points”), are set out in the paragraph at the very end of the judgment of the Court of Appeal in Honda, at [31]:(1) whether the request is oppressive;(2) whether the request is too wide;(3) other case management considerations, including proportionality of costs and whether the evidence is necessary for the fair determination of the issues; and(4) whether there has been delay in making the application.[4]The application is resisted by the first and second defendants. Mr Morrison KC, making submissions on their behalf, did not dispute that the witnesses could be expected to have relevant evidence and did not suggest that the claimant does not intend to obtain evidence for use at trial. I think he also accepted that that evidence might very well be necessary for, or at least helpful to, the fair determination of the issues.[5]He did rely, however, on the Honda points, and in particular points 3 and 4. He said that there were case management considerations which he said would cause such extreme disadvantage to his clients as to be oppressive (and thus arguably to raise Honda point 1 as well), arising from delay.[6]Both Cyprus and Germany are signatories to the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the “1970 Hague Evidence Convention”). The two letters of request expressly refer to the 1970 Hague Evidence Convention and are intended to fall within its scope.[7]The two letters of request have to be considered separately, but they have some features in common. In particular, rather than summarising the nature of the case and issues in the conventional way -- that is, by a brief summary in the body of the letter of request -- they incorporate by reference the entirety of the list of common ground and issues and of the case memorandum from the English proceedings. Together, these documents run to over 60 pages. For each witness, the relevant letter of request then has a schedule setting out the subject matter for the examination of that witness, and then the specific questions that the witness should be asked. The letter of request for Cyprus[8]I take first the letter of request for Cyprus. This can be explained by summarising what it proposes in relation to the first of the witnesses in Cyprus, Ms Skittides. In her case, the first part of this schedule sets out the topics/issues on which the parties are to be entitled to ask questions, and runs to 10 numbered paragraphs.[9]The second part, which contains the questions themselves, runs to 95 numbered questions, many of which are divided into sub-questions. I estimate that there are at least 150 questions in total. There is then a third part, which sets out seven categories of documents that Ms Skittides is to be asked to produce.[10]All this is followed by a yet further schedule, which sets out what are documents for her examination; in other words, documents that must be read and understood as background to the questions that will be put to her, and to her answers. There are 60 documents referred to in this schedule in her case. These are then reproduced, and they run to several hundred pages.[11]The pattern, and the nature and the volume of the materials, is similar in relation to the other witnesses in Cyprus, albeit that in relation to two of them, the claimant no longer intends the letter of request to ask them to produce documents. Taken as a whole, the letter of request for Cyprus runs to 3,605 pages.[12]None of it has been translated into Greek. It is all provided only in English.[13]Furthermore, the letter of request does not ask the Cypriot court to examine the witnesses itself, nor even to permit local counsel do. Rather, the Cypriot court is requested to allow the claimant’s English counsel to question the witnesses. It is clear that it is not expected that counsel will be limited solely to the 95 numbered questions, because there may be additional questions. It is also proposed that the defendants’ English counsel will then be entitled to ask their own questions, without limitation, save that they must relate to the issues/topics set out in the letter of request.[14]The letter of request does not expressly say this, but the intention is obviously that all of this should happen in English, not in Greek. It is further intended that a transcription will be made, in English, by the parties’ transcribers, which the Cypriot Court will be asked to approve and confirm.[15]Letters of request under the 1970 Hague Evidence Convention are a method by which the courts of one contracting state ask the courts of another contracting state to obtain evidence. The second court will do so according to its own rules and in its own language. For this reason, the letter of request and all the documents associated with it must be translated from English into the language of the second court. I refer to CPR r.34.13(6)(a), subject to exceptions which do not arise here. I also refer to Art.4 of the 1970 Hague Evidence Convention.[16]Letters of request are not typically a means by which the courts of one state can or should request the courts of another state to allow lawyers from the requesting state to conduct the examination of witnesses according to the customs of the requesting state and in its language.[17]It would obviously be anomalous for foreign advocates not merely to act in court in England but to do so in a foreign language with which the English Court and the witnesses may not be familiar. It must be no less anomalous for English advocates to act in court abroad in English. This is perhaps the most strikingly unusual feature of the letter of request for Cyprus, aside from its very great length. I accept that this would be less striking, and perhaps less unusual, where there is no language barrier between the two states, in particular if English is the official language of both, or at least an official language of both. However, that does not apply to Cyprus, where the official languages are (I was told) Greek and Turkish.[18]I am, of course, aware that many people in Cyprus, especially professionals, including lawyers and judges, are fluent in English to a greater extent than in most other European countries, and that there are shared features in our two legal systems that make English practices in respect of the examination of witnesses relatively familiar to Cypriot lawyers and judges. Having said that, I am conscious that relying on colonial history as a basis for requesting another state to accept English lawyers into its midst and then to allow them to follow their English practices in their own English language is not attractive.[19]A great deal of useful information concerning the 1970 Hague Evidence Convention, as well as other Hague conventions, is published by the Hague Conference on Private International Law, which I refer to as the HCCH. This is an intergovernmental organisation composed of 93 members dedicated to promoting the use of the Hague Conventions in private international law. Its website is one of the first resources that should be consulted by court users in cases such as the present, not least because, in relation to each Hague Convention, including the 1970 Evidence Convention, it has a page which provides practical information.[20]The HCCH practical information in relation to Cyprus states that the competent authority in Cyprus is the Cypriot Supreme Court, albeit evidence from the claimant’s expert on Cypriot law and practice, Mr Koualis, indicates that the Supreme Court will refer the letter of request to the District Court(s) that cover the witnesses’ residential addresses, so that a District Court Judge will be the examiner for the execution of the letter of request in respect of each witness. This therefore confirms that the body responsible for obtaining evidence would be a judicial authority – a judge in Cyprus.[21]The HCCH practical information for Cyprus also states that the letter of request should preferably include specific questions; that the judicial authority may rewrite objectionable or offensive questions, in its discretion, so that the letter of request may be executed under its laws; and that the witness is usually provided with general information as to the matter to be addressed, and may be provided with the specific questions in advance, depending on complexity. All this again suggests that the Cypriot court system is intended to have a real and active role.[22]The HCCH practical information further states that the time for execution of a letter of request in Cyprus is usually three to five months.[23]The 1970 Hague Convention does not naturally accommodate evidence being obtained, not by the courts of the state to which the letter of request belongs, but by foreign lawyers. Article 9 of the 1970 Hague Evidence Convention provides:
“Article 9: The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed. However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties. A Letter of Request shall be executed expeditiously.”
[24]Mr Ford, for the claimant, suggested that the proposals in the letter of request for Cyprus are, or at least may be, compatible with the laws of Cyprus, and the request should be made, as drafted, for the Cypriot authorities to consider. He relied for this on two examples cited by Mr Koualis.[25]The first is LLC EuroChem North-West2 v Societe Generale SA [2025] EWHC 1938 (Comm), which happens to be a case in which I was the judge. One of the claimant’s witnesses, Mr Fokin, was of Russian origin but now resident in Cyprus. He provided a witness statement, but declined to come to England to give evidence or to do so by video link. A letter of request was issued to compel him to attend at court in Cyprus, and from there to give evidence by video link in the English proceedings. In other words, this was not a deposition in advance of the trial. Mr Fokin gave live evidence at the point in the trial at which it was natural for him to be called. He was then cross-examined in front of me by English counsel, who were in my court, and did so subject to my jurisdiction. Furthermore, the cross-examination was conducted in English with help from a Russian-English interpreter, which he undoubtedly found easier than had the process been conducted in Greek. I found the exercise particularly valuable, as I was able to assess his demeanour rather than relying on a mere transcript. There is no real comparison with what the claimant proposes in this case for the four witnesses who are in Cyprus.[26]The second example relied on by the claimant’s expert concerned a request from the courts of New York, pursuant to which the Cypriot Court permitted the examination of witnesses by foreign counsel. However, Mr Koualis has been unable to give any details because of obligations of confidentiality. I, therefore, do not know whether this, too, was really a case of witnesses giving live evidence before a judge in foreign proceedings by video link, nor do I know how any language issues were addressed.[27]As an English judge, I would not be surprised by the suggestion that a witness based in England that should give evidence from England by video link in proceedings taking place abroad. However, I would be surprised by the suggestion that the English courts should allow foreign lawyers to appear in court in England and conduct the examination of witnesses in their own language and according to their own customs, in effect transforming the English court into the court of the foreign country. This would make it difficult for the English judge to regulate the proceedings effectively. I am very reluctant to ask the same of the courts in Cyprus.[28]Furthermore, while I have very limited personal information regarding the four witnesses in question, I understand that they are all Cypriot nationals. I assume that their native tongue is Greek. On the face of things, they are entitled, if giving evidence in a court in their own country, to do so in their own language and on the basis of documents translated into their own language. If the proceedings are conducted in Greek and on documents rendered in Greek, the involvement of English counsel will not be beneficial. For similar reasons, if the proceedings are conducted in Greek and the witness’s evidence is given in Greek, the official transcription that is to be approved by the Cypriot court should be in Greek.[29]All these features make me very reluctant to accede to the claimant’s application as currently drafted. What really clinches matters, however, is a practical dimension that makes the claimant’s proposals, in my view, unworkable in case management terms.[30]The claimant appears to have in mind an evidential hearing at which there would be examination by its English counsel, and then further examination by counsel for the defendants, of four witnesses covering 10 substantial topics. I do not see how this could take less than four days. Given the potential involvement of interpreters, this may well be a low estimate. Indeed, two weeks might be more realistic.[31]When this evidential hearing would happen is unknown. On any view, all timetabling issues would be exclusively in the control of the courts in Cyprus and could not be managed by this court.[32]However, the claimant appears to envisage that it might be towards the end of this year or the beginning of next year. On the basis of the HCCH practical information, which I see no reason not to accept, that would seem realistic.[33]The full trial is due to take place in this court in April 2027. The first and second defendants object that it would place an intolerable burden on their English legal team to have to be ready, potentially at short notice, for a heavy hearing of this nature at a time when they would be gearing up for that trial. I consider that they are right. I therefore am not prepared to approve the letter of request for Cyprus in its present form.[34]The position would be different, however, if what was proposed was that the witnesses be examined in Cyprus in Greek with the involvement of local Cypriot lawyers, but with no active involvement required on the part of the parties’ English lawyers. This of course would require the letters of request (including all the documents attached) to be translated into Greek (as they should have been from the outset).[35]Conducting matters in this way would answer or at least mitigate the case management concerns of the first and second defendants. It would mean that the main and immediate burden of dealing with and participating in the execution of the letter of request for Cyprus would not fall on their English legal team, but on local lawyers who can if necessary be separately instructed (not least because of the detailed form of this letter of request).[36]This should also make the process easier and quicker for the judicial authorities in Cyprus to manage. The letter of request for Germany[37]I now turn to the letter of request for Germany. The letter of request for Germany again incorporates the entirety of the list of common ground in issues and the case memorandum from the English proceedings, and attaches numerous documents which provide the background to a lengthy list of specific questions. Like the letter of request for Cyprus, it is extremely substantial, running to 752 pages.[38]However, while its essential structure is similar to that of the letter of request for Cyprus, it has a number of important differences. Not only is it concerned with a single witness, it does not propose that the examination be led by English advocates and it does not contain a request for documents. Furthermore, its contents have been translated into German (albeit this exercise was not completed until very shortly before the hearing).[39]However, like the letter of request for Cyprus, the letter of request for Germany requests that the parties’ English counsel should be able to attend and participate, including by asking supplementary questions of the witness.[40]This does not seem to be consistent with German law practice and procedure on the evidence and information before me. The practical information held by the HCCH in relation to Germany refers to the German oath on the taking of evidence, which provides, at para.2.19, witnesses are questioned by the judge or judges, although I accept that it does also provide for limited follow-up questions from the parties’ advocates. This practical information also makes it very clear that all the documentation provided must be in German or translated into German, and it seems self-evident to me that the proceedings must take place in the German language.[41]The claimant’s expert on German law and practice, Mr Herzberg, confirmed in general terms that the letter of request was consistent with what the German court would accept, but his report does not address the possibility of foreign -- that is, English -- advocates taking an active part in questioning witnesses. I therefore am left with the other information to which I have referred.[42]It follows that the letter of request for Germany should not refer to the participation of English counsel. The HCCH practical information in relation to Germany indicates that the time for execution is approximately six months. Once again, I see no reason not to accept this. In principle, therefore, the process should be completed in advance of the trial. Delay[43]The claimant has known of the significance of these individuals since 2021. The defendants have never indicated that they were likely to call them. However, the claimant was entitled to wait and see, at least until it received the defendants’ case management information sheet in July of 2025. At that point, or soon after, the claimant appreciated that these witnesses would not be called by the defendants. The claimant also knew from the time of the first case management conference in July 2025 that the trial would be in April of 2027.[44]Against that background, the claimant first wrote to Mr Emmerich in January of 2026 and to the Cypriot witnesses in May of 2026. There having been no or no meaningful response from any of them, the applications were issued in June of 2026.[45]I accept that it would have been possible for the claimant to issue its applications earlier, but I also accept that it is not uncommon for parties to regard letters of request as a last resort. Issuing the applications in June of 2026 still left a substantial period before the commencement of the trial. On the basis of the HCCH practical information, even now, it is likely on the balance of probabilities that the letters of request will be executed well before the trial. Today, we are still at least eight months away from trial, and the information available suggests that whatever evidence is garnered via the letters of request will be provided in good time to be accommodated within the trial.[46]It may be said that the applications for the letters of request could have been made earlier, but this process is always a litigant’s last resort, as I have said, and in this case, any delay seems unlikely to have any significant consequences. If mitigated in the manner I have suggested above, there cannot be said to be any oppression as regards the defendants, or any unfairness.[47]What has not been considered in any detail, either by the claimant or by the defendants, is whether the lengthy letters of request running to many questions, supported by voluminous documents, might be oppressive to the witnesses.[48]Here again, there is an important difference between Cyprus and Germany. In Cyprus, as I have already indicated, it seems the court will give some advance notice to the witnesses, which may extend to the specific questions they will be asked, as I suspect is likely here. If the witnesses are given sufficient notice, and in particular if this enables them to take their own legal advice, then it may well be difficult for them to object to the process as oppressive. Indeed, they may find it convenient to prepare written answers in advance.[49]In Germany, it seems that witnesses are generally given no advance notice by the court. In these circumstances, I can imagine that Mr Emmerich may find it difficult to absorb all the information in the letter of request and provide his best answers. However, that will be for him to consider and to raise with the court in Germany as he sees fit. It may also be that the claimant is able to circumvent this problem, by providing him with the entirety of the letter of request for Germany in advance of his receiving it from the court, if that would be acceptable to the court in Germany. This would be so as to avoid Mr Emmerich being taken by surprise, and to enable him to prepare.[50]Against this background, I can see that the reaction of each of the various witnesses could lead to further delay. It therefore is possible that the execution of the letters of request will take longer than either three to five months or six months, respectively. Indeed, it is possible that the process will not have been completed in time for trial, and it is this possibility that Mr Morrison KC has attempted me to accept.[51]I do accept that it is possible that the execution of the letters of request will not have been completed in time for trial, in the sense that this is something that cannot be excluded. Nevertheless, the evidence suggests that there is a realistic chance, indeed a probability, that the evidence will be available within time. The mere possibility that Mr Morrison presses on me is not sufficient for it to be right to exclude the chance of obtaining what appears to be, in all likelihood, potentially very valuable evidence that will help the Court in fairly disposing of and determining the issues that it will face. Conclusion[52]My conclusion, therefore, is that I do not approve the letters of request as drafted in these applications. They will need to be revised as I have suggested, in particular to remove the proposal of the involvement of English counsel. In relation to the letter of request for Cyprus, there must also be a full translation. If revised in these respects, the defendants’ objections must fall away. The execution of these letters of request, if so revised, will not add to the burden on the first and second defendants’ English legal team to an extent that could be described as oppressive or unfair, in my judgment. ______________