“4. [The Claimant] alleges that his shooting was an attempted murder arranged by [the Defendant] in order to prevent [the Claimant] from jeopardising a fraudulent scheme to obtain the Jerooy mining licence for a shell company, Global Gold Holding GmbH (‘Global Gold’), at Oxus Gold’s expense. 5. [The Claimant’s] case is that the ultimate beneficial owners of Global Gold were close associates of [Kurmanbek Bakiyev, the then President] and [the Defendant], the late Russian businessman Boris Berezovsky and Badri Patarkatsishvili; that the Jerooy licence was repayment for their assistance in raising [Kurmanbek Bakiyev] to power; and that [the Defendant] and his associates stood to (and did) reap massive financial rewards on re-sale of the licence. This gave [the Defendant] the motive for the attempted murder. 6. As the President’s son, [the Defendant] had the means to arrange the shooting: wealth, unparalleled influence, and the use of the State security apparatus. [The Claimant] also relies on evidence of [the Defendant’s] propensity to use or threaten violence and extortion; on the close temporal connection between [the Claimant’s] Oxus Gold activities and the shooting; and the perfunctory police investigation thereafter.”
“I hereby approve the first option of our activities (unconditional refusal from co-operation with Oxus).”
“It must be noted that due to the lack of experience and funds, Norox Mining Company has repeatedly breached its obligations relating to the development of the Jerooy gold ore field. … The new Government of the Kyrgyz Republic, formed after24 March 2005 , tried twice (May 2005 and April 2006) to strengthen the Kyrgyz side’s position. However, despite the substantial increase in gold prices on the global market, the company Oxus Gold plc did not agree with the main demands put forward by the Kyrgyz side. Talas Gold Mining Company’s latest commercial proposals, submitted on23 May 2006 , arrived after the contract with the new investor had already been concluded, and in addition to that, they weren’t even explicit. … Taking into account the lack of funds in the state budget for covering the costs of an international law firm to defend the interests of the Government of the Kyrgyz Republic and the open joint-stock company Kyrgyzaltyn, against the claim demands lodged by the companies Oxus Gold plc, Norox Mining Company and their affiliates, as well as the company MK Gold in relation to the Jerooy project, and with the aim of preventing a delay in the commencement of works on the Jerooy gold ore field due to the announcement of an investment tender, in accordance with the order of the President of the Kyrgyz Republic and the decrees of the Government of the Kyrgyz Republic which had been passed previously, the Government of the Kyrgyz Republic instructed the open joint-stock company Kyrgyzaltyn – the project operator – to search for potential investors having improved the commercial terms previously signed with Norox Mining Ltd. Applications from the companies Barrick Gold Corporation and Centerra Gold Inc. were examined. Since the said companies’ applications did not contain specific commercial proposals, they were not considered. Open Joint-Stock Company Kyrgyzaltyn chose Global Gold Holding GmbH, which proposed the best terms of project implementation, to act as a partner in the joint venture. With the aim of accelerating the development of the Jerooy gold ore field, by its Decree No.377 dated23 May 2006 , the Government of the Kyrgyz Republic approved the draft Joint Activity Contract between the open joint-stock company Kyrgyzaltyn and Global Gold Holding GmbH for the development of the Jerooy gold ore field. Moreover Global Gold Holding GmbH undertook to meet the aforementioned demands to settle the matter of compensation of funds amounting to US$2.5m to the company MK Gold, and to pay salaries to the joint venture’s former employees prior to the commencement of construction works on the site. … It should be particularly noted that in relation to the Jerooy and the Taldy-Bulak Levoberezhny projects, the contracts clearly stipulate that in the event of a breach of the completion deadline or failure to keep within the approved budget for the development of the gold ore fields, the contracts with investors shall be dissolved and no costs incurred by them will be compensated. These terms compare favourably with the terms of the contracts with the previous investors. In accordance with Article 73(2)(5) of the Constitution of the Kyrgyz Republic and Article 12(15) of the Constitutional Law of the Kyrgyz Republic… the Government of the Kyrgyz Republic has decreed that: … 2. The Zhogorku Kenesh of the Kyrgyz Republic be requested to withdraw its Decree No.1009-III ‘On the condition and prospects for development of the Jerooy gold ore field’ dated29 May 2006 .”
“Where the matters in issue are facts the standard of proof required in non-criminal proceedings is the preponderance of probability, usually referred to as the balance of probability… The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability. … … this does not mean that where a serious allegation is in issue the standard of proof required is higher. It means only that the inherent probability or improbability of an event is itself a matter to be taken into account when weighing the probabilities and deciding whether, on balance, the event occurred. The more improbable the event, the stronger must be the evidence that it did occur before, on the balance of probability, its occurrence will be established. Ungoed-Thomas J expressed this neatly in In Re Dellow’s Will Trusts[1964] 1 WLR 451 , 455: ‘The more serious the allegation the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it’.”
“(1) In estimating the weight (if any) to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence. (2) Regard may be had, in particular, to the following— (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contempor-aneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.” (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness; (b) whether the original statement was made contempor-aneously with the occurrence or existence of the matters stated; (c) whether the evidence involves multiple hearsay; (d) whether any person involved had any motive to conceal or misrepresent matters; (e) whether the original statement was an edited account, or was made in collaboration with another or for a particular purpose; (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight.”
“The decision what weight (if any) to give to hearsay evidence involves an exercise of judgment. The court has to reach a conclusion as to its reliability as best it can on all the available material. Where a case depends entirely on hearsay evidence, the court will be particularly careful before concluding that it can be given any weight. But there is no rule of law which prohibits a court from giving weight to hearsay evidence merely because it is uncorroborated and cannot be tested or contradicted by the opposing party.”
“It should be borne in mind that no evidence can be properly weighed in a vacuum divorced from the totality of its evidential context. Apparently weak evidence may gain strength or indeed considerable strength when considered in the light of other evidence.”
“I told them, that that is not in my competence to arrange such a meeting and also added that the President’s son (Maksim Bakiyev) had interest in Jerooy project, as he represented a group of companies controlled by the fugitive oligarch Boris Berezovsky. I, just as everybody else, was aware of Maksim’s capabilities and knew that any attempts to resolve the matter behind his back would lead to failure.”
“Enquiries suggested that Maksim Bakiyev, the President’s son, was also involved and had a commercial interest in Global Gold. I was not surprised to hear this as it was well known that Maksim was building a business empire in reliance on his family’s influence in Kyrgyzstan.”
“8. I arranged a meeting with Maksim Bakiyev at the Hyatt hotel in Bishkek. One of his assistants turned up and drove me to a private residence nearby. Maksim and I sat in an office upstairs. Nobody else was present. Maksim made it clear to me that he had the power to return the licence; there was no doubt about this. We discussed the terms under which the licence would be returned to Oxus. Maksim asked for payment of USD15m into his private BVI bank account, in return for which the licence would be immediately returned to Oxus. He told me that he had been paid USD5m by Boris Berezovsky for the licence to be given to Global Gold, and so the USD15m would be used to pay back Berezovsky along with some profit and he would keep the balance. I made it clear that, as CEO of a public company, I was unable to partake in extortion. 9. After that, it was clear that we were going to need the Government to be embarrassed by the lack of progress with the mine and for public pressure to facilitate the return of the licence. We continued negotiating with Sean and Sir Tony’s assistance. We offered terms that were far more favourable [than] the previous deal and those offered by Global Gold. I believed that the licence was going to be returned. …”
“The company would also like to report that on Wednesday5 July 2006 it won a Supreme Court ruling upholding an injunction restraining the Government from pursuing discussions with Global Gold GmbH, a recently formed Austrian-based company which is reported to be interested in acquiring the Jerooy Gold Project.”
“On 12 July, 2006, I was on a visit to the city of Bishkek where I had an appointment with Maksim Bakiyev to solve some production issues related to Ak-Tuz operation. I came to Maksim’s office, whose whereabouts I don’t remember as he had several offices. We talked business and found a solution to my business issue. Right after that, there came into the office Maksim’s brother Marat, who worked in the Council of National Security, and Kurmanbek Bakiyev’s brother – Zhanysh. There was a quarrel among them three, the exchange of warm words lasting for some 10 minutes. It was then that I managed to grasp the name of Sean Daley who was known to me as the director of CAMCO. Maksim was telling the other two off for failure to cope with him. They were speaking Russian, which was more or less understandable to me, so I was able to make out what it was all about. When the other two took their leave, I asked Maksim what had happened to Sean. He said that those two idiots had only shot Sean twice instead of making ten shots so as to kill him. Then I asked Maksim why he wanted to kill Sean and what he had in common with CAMCO. Maksim told me that Sean was a representative of the company OKSUS and that he had gotten to windward of Maksim in the Dzheruy gold-field development licence issue. In response to my surprise – ‘how could that be’ – he said that Sean had appealed to (Kyrgyz) Parliament and solved the Dzheruy issue in favour of OKSUS. He went on to say that Sean was now in hospital in a very bad condition and that he would not be able to get away with it and depart from Kyrgyzstan alive – Maksim would take care of the matter and have Sean finished while in the hospital. He also added that such would be the lot of anyone who dared come his way and try to dash him round. Since I was well familiar with Sean, I decided to help him and save his life. Therefore, on leaving Maksim’s office, I made a phone call to Kurmanbek Bakiyev and asked for an appointment. I was only able to see Kurmanbek in a day in his home, located in Zhibek Zholu Str., not far from a church. When we met, I told Kurmanbek Bakiyev that his son Maksim had gone mad and instructed Marat and Zhanysh to kill Sean and, once the first attempt had failed, to ultimately kill him in the hospital. I also warned him that should Maksim fulfil his threat and get … Sean in the hospital, it would be all too clear as to who was behind the scenes and also that, Sean being a British subject, this whole affair would cause a huge international scandal, the British being able to conduct a thorough investigation into the case and trace the one who was blood-guilty. When President Bakiyev heard my story, he was really upset. He told me that Maksim was getting out of control and even threatened him, his father, with a gun. He then made a phone call to Marat, Zhanysh and Bakyt Kaliyev. Some time afterwards, all of those invited did arrive, Zhanysh and Marat coming first. President Bakiyev took them outside to have a word with the two of them. When they left, Bakyt Kaliyev soon came. President Bakiyev took him outside too to have a word with him. Upon his leave, Kurmanbek Bakiyev informed me that he had told them three to not obey Maksim’s orders and encharged them with a task of assuring Sean’s personal security and arranging his safe departure from Kyrgyzstan.”
“… I bear responsibility for every single word I said and I am ready to confirm this testimony in the high courts of Kyrgyzstan and Great Britain.”
“Global Gold was registered in the city of Vienna in Austria. I worked out the ownership structure of this company. An arrangement was chosen in order to avoid double taxation. Global Gold was owned by Vitiano Holding, a company registered in Cyprus. In turn the founders of Vitiano Holding were two offshore companies. The ultimate beneficiary of the whole scheme was Badri Patarkatsishvili. At least that is how I understood it. I did not communicate directly with Badri Patarkatsishvili on this matter. Alexander Turkot was his representative and I held talks with him. I also discussed matters involving the Jerooy gold field with the second project manager Raphael Filinov. I am aware that Boris Berezovsky is trying through the courts in London to prove his ownership of half of the beneficial interest in the scheme described above, referring to his having had an oral agreement with Badri Patarkatsishvili. I do not know whether or not such an agreement existed between these two people. I repeat that as far as I am concerned Badri Patarkatsishvili was the sole beneficiary of the project.”
"... had recently volunteered to give evidence on behalf of the claimant but now appears to be reluctant to do so, should be admitted. Whether she does give oral evidence is an open question, but there are circumstances in which a summary of the evidence that it is understood she would have been prepared to give, can be received:CPR 32.9 ."
"I agree that there is no true basis for excluding the witness summary now."
"The claimant is granted permission to rely on the served witness summary of Elvira Surabaldieva at trial."
"A party who: "(a) is required to serve a witness statement for use at trial; but "(b) is unable to obtain one, may apply, without notice, for permission to serve a witness summary instead."
"Where a party serves a witness summary, so far as practicable rules 32.4 (requirement to serve witness statements for use at trial), 32.5(3) (amplifying witness statements), and 32.8 (form of witness statement) shall apply to the summary."
"A witness statement is a written statement signed by a person which contains the evidence which that person would be allowed to give orally."
"As the judge rightly recognised the foundation on which the rule must now rest is that findings of fact made by another decision maker are not to be admitted in a subsequent trial because the decision at that trial is to be made by the judge appointed to hear it ('the trial judge'), and not another. The trial judge must decide the case for himself on the evidence that he receives, and in the light of the submissions on that evidence made to him. To admit evidence of the findings of fact of another person, however distinguished, and however thorough and competent his examination of the issues may have been, risks the decision being made, at least in part, on evidence other than that which the trial judge has heard and in reliance on the opinion of someone who is neither the relevant decision maker nor an expert in any relevant discipline, of which decision making is not one. The opinion of someone who is not the trial judge is, therefore, as a matter of law, irrelevant and not one to which he ought to have regard."