England and Wales High Court (Commercial Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
COMMERCIAL COURT

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		14 March 2014

Mr Justice Eder:

Introduction

1. On 10 February 2014 I delivered my Judgment in this case. On 14 March 2014 I had a further hearing dealing with various consequential matters arising from that Judgment. In the course of that hearing I indicated my decision on a large number of discrete points. This Judgment sets out my reasons for the main points which arose for decision.

Representation

2. At the outset, I should mention that since delivering the Judgment there have been certain changes in the representation of the parties. The claimants continue to be represented by Mr Berry QC and his team. Mr Peto QC and his team continue to represent Ms Kovarska. Mr Pinaev, Rossmore and Pleator were not represented before me and did not participate in this hearing. So far as the Urumov defendants are concerned, they are no longer represented by solicitors. Mr Urumov appeared before me as a litigant in person. Ms Balk did not appear before me. I was told by Mr Urumov that she was not well; and given the circumstances, I permitted him to address me on certain points on her behalf. Denning was not represented. The Gersamia defendants are no longer represented by solicitors. The Gersamia defendants did not appear before me although I had previously received an email from Mr Vladimir Gersamia raising certain points. As to the Jemai defendants, Jecot was not represented and did not appear before me. Mr Jemai continued to be represented by Mr Ian Smith who appeared today on a pro bono basis. Ms Jemai continues to be a litigant in person. She was unable to attend the hearing for medical reasons. She had previously applied to me for an adjournment of the hearing so far as she was concerned. I acceded to that request in relation to some but not all points.
3. I deal first with a number of points concerning the content of my Judgment.

Denning – quantum

4. First, with regard to paragraph 397 of my Judgment, the quantum of the claim against Denning has now been clarified. I now confirm that the relevant figure for the quantum of the claim against Denning is US$ 2,675,000. That is the headline figure for the purposes of paragraph 556(ii) of my Judgment and, for the avoidance of doubt, is subject to the specific point referred to in paragraph 557 of my Judgment. For the purposes of drawing up an order and subject to the points that follow in relation to credit for recoveries, I should confirm that the remainder of the relevant "headline figures" are those referred to in paragraph 556 of my Judgment.

Tess

5. Second, with reference to paragraph 543 of my Judgment, I need to clarify an outstanding point with regard to the sum of US$ 1.475m received by Fanteks from an account at ABLV Bank in Latvia held by Tess. As there stated, I refrained from making any final determination at that stage with regard to those monies pending further submissions because of a point raised by Mr Smith in his list of suggested errata when I circulated the Judgment in draft viz that it had never been part of the claimants' case that these monies represented the proceeds of fraud. That point has now been addressed further by Mr Jemai in a written Note and by Mr Smith orally in the course of his further submissions. In addition, I have had the benefit of further submissions on behalf of the claimants. In the event, I am persuaded that Mr Smith's initial submission that it had never been part of the claimants' case that these monies represented the proceeds of fraud was wrong: that was clearly the claimants' case, as set out in their written Opening and Closing Submissions, and again in their written Hinduja Submissions. Further, the point was put squarely to Mr Jemai in cross-examination. Mr Pillow accepted before me that it was true that the claimants had not been able to trace the monies in order to found a proprietary claim to them; but, as he submitted, it is clear that the claimants' case was indeed that this was a payment organised by Mr Kondratyuk to be made to Mr Jemai on account of the latter's share of the fraud proceeds. On the evidence before me, I am satisfied on a balance of probability that these monies did indeed form part of the fraud proceeds. However, I accept Mr Smith's further submissions to this extent viz that consistent with my other findings, on a balance of probability I remain unpersuaded that such fraud proceeds represented a further share for Mr Jemai.

Credit for recoveries?

6. Third, it is necessary to address specifically the further point referred to in paragraph 557 of my Judgment as to what if any deduction should be made to take account of recoveries already received by the claimants. The relevant recoveries which have been made by the claimants are as follows:

i) Approximately US$ 21.4m, the value of 42 Avenue Road as at the date when the claimants recovered the property and elected to retain and develop it.

ii) Approximately US$ 2.2m and securities from Dunant, following the default judgment entered on 1 March 2012.

iii) Approximately US$ 22.9m, the sum of money recovered to date from Mr Kondratyuk pursuant to the Deed of Agreement dated 25 January 2013.

iv) US$ 550,000, the total sum recovered from Belux.

v) Approximately US$ 5m, the total sum recovered from Mr Gherzi and his company, Airdale, pursuant to the Deed of Agreement dated 12 September 2012.

vi) €300,000 remitted by Farrer & Co, representing payments received from Dalberg.

vii) £271,245 remitted by S C Andrew, representing payments received from M Oil & other proprietary sums.

viii) US$ 65,000 from S C Andrew and US$ 15,000 from Mishcon representing proprietary funds held by those solicitors received from the eleventh defendant Mr Teimuraz Gersamia.

7. I should mention that Mr Urumov submitted that the claimants had also received further recoveries from Bordier in Switzerland. There was no direct evidence of this before me. However, Mr Berry informed me that although the claimants had indeed received further monies from Bordier in Switzerland, such monies were allocated in respect of costs incurred by the claimants in Switzerland and did not overlap with any of the claims which the claimants advanced in the present proceedings. On that basis, I do not consider that such recoveries are relevant in the present context.
8. The main issues which have arisen are (i) whether credit for these recoveries should be given upon Judgment or later at execution; and, if so (ii) how such recoveries should be allocated or appropriated as between the different defendants.
9. The point does not appear to be considered in any of the textbooks. However, Mr Berry submitted that the relevant legal principles can be summarised as follows:

i) First, as a matter of principle, where C sues D1 and D2 for the same loss (whether or not they are jointly and severally liable), he is entitled to judgment for the full amount against both or either of D1 and D2.

ii) Second, while C is entitled to enter judgment against both Ds, he is not entitled to execution for more than the total loss suffered: Townsend v Stone Toms & Partners (1984) 27 BLR 32, 56 per Waller LJ and the cases he cites.

iii) Third, if C recovers from D1, he must give credit for that sum as against D2. However, C has a choice as to how the settlement monies are to be appropriated:

"If one has paid in satisfaction or settlement of the claim, the other is entitled to credit in respect of the payment. If a claimant receives payment from one defendant who is liable both for claims overlapping with those of another defendant and for other claims against him alone, the claimant is entitled (by the settlement agreement or otherwise) to appropriate any settlement monies either to the overlapping claims or to the other claims and, if the appropriation is made bona fide and without collusion, it conclusively determines in respect of which claims the settlement monies have been received."

Fiona Trust v Privalov [2010] EWHC 3199 (Comm)

at §1547 per Andrew Smith J.

iv) Fourth, the merits threshold to be met by the claim to which C seeks to appropriate settlement monies is a low one: so long as it is not "obviously unsustainable", C is entitled to make the appropriation: Barings plc v Coopers & Lybrand [2003] PNLR 34 at §1116-1119 per Evans-Lombe J.

v) Fifth, if C who receives payment from D1 establishes an additional separate claim against D1, the payment is allocated first to that claim, and credit must be given in favour of D2 only for the excess necessarily referable to the overlapping claim: Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (No 2) [1988] 2 All ER 880, 882b per Steyn J.

vi) Sixth, whilst in Townsend the Court of Appeal upheld the Judge's approach, which was to ascertain the amount for which credit has to be given and then enter judgment for the balance (rather than defer it until execution) this is not, it is submitted, an invariable rule. On the contrary, in his judgment at p39, Oliver LJ recognised that a possible alternative approach is to enter judgment for the whole amount, but to provide in the judgment that execution shall not issue for more than whatever is the appropriate amount, having regard to the settlement monies. That approach finds support in the authority cited by Oliver LJ, viz. Bryanston Finance Ltd v de Vries [1975] QB 703, where Lord Denning said at p 723:

"In the present case, the question that arises is this: suppose that the plaintiff settles with one of the wrongdoers before judgment by accepting a sum in settlement: or suppose that by consent an order is made by which the plaintiff accepts an agreed sum from the one tortfeasor and discontinues against him, but goes on against the other. I believe this to be a new point. It should be solved in the same way as the payment into court was solved. If the plaintiff gets judgment against the remaining tortfeasor for a sum which is more than the sum already recovered (by the settlement or the consent order), he is entitled to enforce it for the excess over which he has already recovered. But, if he gets judgment for less than he has already recovered, then he recovers nothing against the remaining tortfeasor and should pay the costs". (emphasis added)

If, absent settlement, C is entitled to judgment in full against both D1 and D2, any inflexible rule that, if C settles with D1, the sum for which judgment can be entered against D2 must be reduced accordingly, would be anomalous (because it would discourage compromises) and unnecessary (because over- or double-recovery is precluded at execution). Accordingly, Cs submit that the Court in this case should enter judgment for the full sums sought against each D, without giving credit for any recoveries prior to execution.

vii) Seventh, where C brings gain-based claims (e.g., in knowing receipt) against D1 and D2 who are jointly and severally liable to restore the value of an unjust enrichment, the relevant principle is set out in Goff & Jones, The Law of Unjust Enrichment (8^th ed.) at §4-56:

"Joint and several liabilities in unjust enrichment can also arise in cases where a benefit is received by a defendant who then passes the benefit on to a second defendant. Provided that the first defendant is not entitled to raise a change of position defence, for example because he is not in good faith, and provided also that the second defendant is not a bona fide purchaser for value without notice of the benefit's provenance, the claimant will be entitled to an order for restitution against both defendants, although the principle against double recovery will prevent him from enforcing judgment against both defendants in full." (emphasis added)

10. In light of these principles, Mr Berry's primary case was that judgment should be entered against each of the defendants for the full amount ignoring recoveries subject possibly to a provision in the Order that execution shall not issue for more than whatever is the appropriate amount having regard to the recoveries made as suggested by Oliver LJ in Townsend. I do not accept that submission. I am prepared to accept that such an approach may, in certain circumstances, be justifiable – or at least unobjectionable. However, in the ordinary course, it seems to me that if relevant recoveries are made prior to judgment they operate to reduce the damage suffered by the claimant and thereby reduce the amount of any judgment that the claimant is entitled to. I accept that this is not necessarily a hard-and-fast rule; but in the circumstances of the present case, I am persuaded that that is the appropriate course.
11. The second aspect to consider is how such credit is to be given and in particular how such recoveries are to be allocated or appropriated. In that context the claimants say that in accordance with the principles set out above, the claimants are entitled to appropriate recoveries in the following order:

i) First, to £4m (approximately US$ 6.4m) of the claimants' costs, which represents about 40% of their total costs of this action.

ii) Second, save for the monies received from Mr Gherzi, Belux and the Gersamia defendants, recoveries are apportioned between (i) the Sign On Fraud, as to 13.22% (applied to interest first, then principal); and (ii) the Argentinean Warrants Fraud as to 86.78% (applied to interest first, then principal) on the basis that this reflects the proportion of the claimants' total loss caused by those two frauds respectively.

iii) Third, in respect of the monies received from Mr Gherzi, US$ 2,532,680 is appropriated to the Sign On Fraud loss, and US$ 2.5m is appropriated to the Argentinean Warrants Fraud loss.

12. The consequences of this approach have been set out in a number of separate spreadsheets submitted on behalf of the claimants for each defendant, giving credit for monies recovered at the date they were received. Further, Mr Berry set out in his written skeleton argument a number of examples explaining the basis of the figures in these spreadsheets. I do not consider that it is necessary to set these matters out in detail. However, for present purposes, what does remain important is the point of principle with regard to allocation or appropriation of such recoveries between the defendants.
13. With regard to Mr Urumov, Mr Pinaev, Mr Gersamia and Mr Jemai, the position is, in my view, straightforward. This is because on the basis of the conclusions in my Judgment, they are each jointly and severally liable for 100% of the loss suffered in relation to the Argentinean Warrants Fraud. The position is perhaps less straightforward with regard to the other defendants i.e. Ms Balk, Ms Kovarska, Jecot, Ms Jemai and Mr Gersamia Snr. However, I am persuaded that Mr Berry is right in saying that consistent with the principles summarised above, the claimants have a choice as to how the recoveries are to be appropriated so long as it is not "obviously unsustainable". Further, I am persuaded that there is nothing in the facts in the present circumstances which would lead to the conclusion that the claimants' appropriation is one which is "obviously unsustainable". For these reasons, it is my conclusion that credit for the recoveries obtained must be given in accordance with the claimants' appropriation summarised above. For the avoidance of doubt, this conclusion applies to all defendants including Ms Jemai.

Interest

14. So far as interest is concerned, the claimants originally sought to claim compound interest at a rate of 5.18%. However, in the event the claimants changed tack and advanced a claim only for simple interest at the lower rate of 3.25% based on US Prime Rate as to which there was no objection by any of the defendants. I should qualify this by saying that the question of interest was one of the issues which has been left open for the time being so far as Ms Jemai is concerned and this will be dealt with at the hearing on 29 April. However, I would very much hope that this can be agreed in the meantime.

Costs

15. So far as costs are concerned, I was informed that the costs incurred by the claimants in these proceedings amount to approximately £11.5m. Plainly, such costs will have to be assessed in the normal way unless otherwise agreed. However, before me, three main points arose for consideration. I deal with these points below so far as all defendants are concerned save only for Ms Jemai. So far as she is concerned, I will deal with costs at the hearing on 29 April.

Costs: basis

16. First, the claimants submitted that they were entitled to an order that costs should be paid on an indemnity basis. In support of that submission, the claimants relied in particular on the guiding principles as summarised by Tomlinson J in Three Rivers DC v Bank of England (No 6) [2006] EWHC 816 at paragraph 25. This was disputed by at least some of the defendants. However, given the conclusions which I have reached in my Judgment with regard to each of the defendants and for the particular reasons set out in paragraph 79 of Mr Dooley's 33^rd witness statement, I am satisfied that this is indeed a case where an order for costs on an indemnity basis is justified.

Costs: allocation

17. Second, there is an issue concerning the allocation of costs amongst the defendants. As to that, the claimants' primary case was that all of the defendants should be jointly and severally liable for 100% of the claimants' costs; alternatively each of the defendants should be jointly and severally liable for such costs as the claimants would have had to incur in order to prove their case against that particular defendant. I do not accept those submissions. In my view, the proper approach is the one advanced by Mr Peto both in his written skeleton and in his oral submissions. In particular, it seems to me that consistent with CPR 44.3(1) the Court should adopt a flexible approach so as to achieve, as best as possible, what is just and appropriate in the circumstances of the present case in the light of the considerations there set out and having regard to the issues raised by each defendant and the principle of proportionality. In my view, there is no single "right" answer in the present circumstances. In that context, Mr Peto helpfully referred to the decision of Chadwick J in Baylis v Kelly [1997] 2 Costs LR 54.
18. In the light of these considerations, it is my conclusion that the claimants' costs should be allocated amongst the defendants on the following basis i.e. that each of the following defendants are jointly and severally liable to pay the following respective proportions:

i) Mr Urumov and Denning – 100%.

ii) Mr Pinaev, Rossmore and Pleator – 90%.

iii) Mr Gersamia and Templewood – 40%.

iv) Mr Jemai – 40%.

v) Jecot – 25%.

vi) Ms Balk – 25%.

vii) Ms Kovarska – 10%.

viii) Mr Gersamia Snr – 10%.

19. For the avoidance of doubt, I should repeat that I will deal with the question of costs in relation to Ms Jemai at the hearing on 29 April.

Costs: payment on account

20. Third, the claimants applied for a payment on account pursuant to CPR 44.3(8). In principle, it seems to me that the claimants are plainly entitled to such an order. The main debate before me concerned the amount of such interim payment. The claimants submitted that the appropriate global figure was £7.5m. This figure was arrived at by deducting the sum of £4m in respect of recoveries made and appropriated to costs from what the claimants informed me were their total estimated costs i.e. £11.5m. Mr Pillow submitted that the relevant test was that referred to in United Airlines Inc v United Airways Ltd [2011] EWHC 2411 cited in the White Book 2013 Vol 1 para 44.3.15 viz "a reasonable assessment of what is likely to be awarded". Mr Pillow further submitted that the figure of £7.5m met this test. I do not accept that submission. I proceed on the basis that the claimants' total costs are indeed £11.5m. However, it seems to me that a proportion of those costs will inevitably be irrecoverable even on an assessment on an indemnity basis. Mr Peto submitted that such irrecoverable costs might be as much as £2.5m. I am prepared to accept that submission. This would bring down the total amount of recoverable costs to say £9m. Further, it seems to me at least arguable that the claimants would not be entitled to appropriate the sum of £4m by way of recoveries made to the total figure of costs, but only to this net figure. On this basis, it seems to me that Mr Peto is right that the appropriate amount to be ordered by way of a payment on account should be reduced to £9m-£4m = £5m. Accordingly, it is my conclusion that an order should be made requiring the defendants to make a payment on account of costs on a joint and several basis for their respective proportions as set out above of £5m.

Stay?

21. Certain of the defendants applied for a stay of execution – including Ms Jemai (who set out the grounds for such stay in a written note) and Mr Jemai.
22. As submitted by the claimants, the applicable principles are as follows:

i) First, unless the appeal court or the lower court orders otherwise, an appeal shall not operate as a stay of any order or decision of the lower court: CPR r 52.7.

ii) Second, the correct starting point is that a successful claimant is not to be prevented from enforcing his judgment even though an appeal is pending: Winchester Cigarette Machinery Ltd v Payne, CA Unrep, 10 December 1993, per Ralph Gibson LJ.

iii) Third, as stated in DEFRA v Downs [2009] EWCA Civ 257 at §§8-9, per Sullivan LJ (emphasis supplied):

"… A stay is the exception rather than the rule, solid grounds have to be put forward by the party seeking a stay, and, if such grounds are established, then the court will undertake a balancing exercise weighing the risks of injustice to each side if a stay is or is not granted.

It is fair to say that those reasons are normally of some form of irremediable harm if no stay is granted because, for example, the appellant will be deported to a country where he alleges he will suffer persecution or torture, or because a threatened strike will occur or because some other form of damage will be done which is irremediable. It is unusual to grant a stay to prevent the kind of temporary inconvenience that any appellant is bound to face because he has to live, at least temporarily, with the consequences of an unfavourable judgment which he wishes to challenge in the Court of Appeal. So what is the basis on which a stay is sought in the present case?"

iv) Fourth, the sorts of questions to be asked when undertaking the "balancing exercise" are set out in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2001] EWCA Civ 2065 at §22, per Clarke LJ (emphasis supplied):

"By CPR rule 52.7, unless the appeal court or the lower court orders otherwise, an appeal does not operate as a stay of execution of the orders of the lower court. It follows that the court has a discretion whether or not to grant a stay. Whether the court should exercise its discretion to grant a stay will depend upon all the circumstances of the case, but the essential question is whether there is a risk of injustice to one or other or both parties if it grants or refuses a stay. In particular, if a stay is refused what are the risks of the appeal being stifled? If a stay is granted and the appeal fails, what are the risks that the respondent will be unable to enforce the judgment? On the other hand, if a stay is refused and the appeal succeeds, and the judgment is enforced in the meantime, what are the risks of the appellant being able to recover any monies paid from the respondent?"

v) Finally, the normal rule is for no stay to be granted, but where the justice of that approach is in doubt, the answer may depend on the perceived strength of the appeal: Leicester Circuits Ltd v Coates Brothers plc [2002] EWCA Civ 474 at §13, per Potter LJ.

23. Bearing in mind these principles and the particular circumstances of the present case, I am not persuaded that I should grant a stay.
24. Despite the fact that my Judgment has already been available for some 4 weeks, it is noteworthy that none of the parties has yet made an application for permission to appeal. So far as Mr Jemai is concerned, it is fair to say that he has intimated that he intends to apply for permission to appeal. However, Mr Smith informed me that it had not been possible to formulate the grounds of such intended appeal; and that he (Mr Smith) was not in a position to make such application at the present time.
25. So far as Ms Jemai is concerned, I acceded to her request to adjourn her application for permission to appeal until the hearing on 29 April. She explained in her written note that she applied for a stay until the question of permission is determined and (if permission is granted) until the appeal is determined. That application was advanced on a number of grounds viz:

i) First, Ms Jemai submitted that "… the amount the Claimants could recover from me is very limited. Therefore the Claimants have very little importance of having to enforce the order against me immediately. They will not be prejudiced by waiting a short time before my permission to appeal request is heard by your Lordship or the Court of Appeal." I do not accept that submission. In principle, it seems to me that Mr Pillow is right in saying that it is for the judgment creditor to decide whether it is in their best interests to proceed with enforcement, even if the prospects of recovering the entire judgment sum are limited. As I have said, the Judgment was handed down some 4 weeks ago. During this time the claimants have been unable even to begin the process of enforcement. As submitted by Mr Pillow, any further delay would be unfair to the claimants who are, in principle, entitled to the fruits of their judgment immediately.

ii) Second, Ms Jemai says that absent a stay she would "suffer enforcement actions just while [she is] having [her] baby or recovering from birth and coping with [her] newborn." However, even taking Ms Jemai's alleged difficulties at face value, these have to be balanced against the interests of the claimants who have the benefit of a substantial judgment in their favour as a result (as I have found) of the dishonest assistance provided by Ms Jemai. I also bear in mind that, despite Ms Jemai's protestations, I regarded at least part of her evidence as totally lacking in credibility and, in certain respects, deliberately false: see, in particular, paragraphs 549, 551, 552, 553 and 554 of my Judgment. Mr Pillow has fairly drawn my attention to one of the valuable assets disclosed by Ms Jemai viz a flat in Founex, Switzerland (apparently purchased in 2008-09 for CHF 2.1m and owned jointly with Flavien Bare). However, as submitted by Mr Pillow, the commencement of any enforcement action in Switzerland would not, of itself, cause any prejudice to Ms Jemai. As for a sale of the flat, there is no suggestion that the claimants would be able to obtain this within a short timescale and, in any event, Mr Pillow submitted that the likelihood is that there is a mechanism in the Swiss procedural code to ensure that the interests of the judgment creditor and the judgment debtor (including any members of the latter's family) are properly balanced before the judgment debtor's home is sold.

iii) Third, Ms Jemai argues that if the claimants "… take the very little I have immediately, I would have nothing left and would not be able to file any appeal. It would therefore prevent me from being able to appeal." In my view, this is a somewhat hollow plea given that Ms Jemai did not instruct a lawyer during the trial and there is no good reason to believe that she would do so for the purposes of any intended appeal. Accordingly, it seems to me that Mr Pillow is right in saying that there is no risk of the appeal being stifled. Further, even if Ms Jemai genuinely intends to obtain legal representation for the appeal, I am not persuaded that any such intended appeal would be stifled by the refusal to grant a stay. In that context, I bear in mind my conclusions with regard Ms Jemai's evidence during the trial; the doubts concerning the veracity of Ms Jemai's asset disclosure; and her close relationship with her mother, Mrs Jemai.

iv) Fourth, Ms Jemai states that the claimants have "substantial assets". That is true. But, of itself, that is no reason to grant a stay. On the contrary, as submitted by Mr Pillow, that is a point in favour of refusing a stay.

v) Finally, Ms Jemai says that she will suffer stress from the prospect of enforcement. That may be – and it is fair to say that Ms Jemai submitted medical evidence to explain why she could not attend this hearing in person. However, I am not persuaded that such alleged "stress" is any different from that which probably arises in many if not all cases when an individual is faced with the enforcement of a judgment of this size.

26. For all these reasons, I am not persuaded to grant a stay.
27. As I say, this Judgment deals only with the main points which arose for determination at the consequentials hearing on 14 March. For present purposes, it is sufficient to say that the other points will be incorporated in the various orders referred to in the course of that hearing and which will require my approval in the usual way.