THE BUSINESS AND PROPERTY COURTS OF ENGLAND & WALES
COMMERCIAL COURT (QBD)
Strand, London, WC2A 2LL
B e f o r e :
| (1) ANATOLIE STATI
(2) GABRIEL STATI
(3) ASCOM GROUP SA
(4) TERRA RAF TRANS TRAIDING LTD
- and –
|THE REPUBLIC OF KAZAKHSTAN
Ali Malek QC, Christopher Harris, Paul Choon Kiat Wee and Dominic Kennelly (instructed by Herbert Smith Freehills LLP) for the Defendant
Hearing dates: 26 March 2018
Crown Copyright ©
Mr Justice Robin Knowles:
The proceedings in this jurisdiction
The notice of discontinuance and the reasons for it
The notice to set aside and the reason for it
Freestanding claims by the State in this jurisdiction?
Setting aside the notice of discontinuance: approach
"As with all provisions in the CPR, this rule must be construed, and the discretion under it exercised, with the aim of furthering the overriding objective. …
I consider that the Court should approach an application to set aside a notice of discontinuance under rule 38.4(1) on the basis that the Court has a discretion which it should exercise with the aim of giving effect to the overriding objective of dealing with the case justly and at proportionate cost. If the facts disclose an abuse of the Court's process, that will no doubt continue to be a powerful factor in favour of granting the application; but it would in my view be wrong to treat abuse of process as either a necessary or an exclusive criterion which has to be satisfied if the application is to succeed."
Henderson J went on to cite and express his agreement with a discussion of the jurisdiction by Aikens J in Sheltam Rail Co (Proprietary) Ltd v Mirambo Holdings Ltd  EWHC 829 (Comm),  Bus LR 302 which concluded with the sentence:
"A Court must … be entitled to consider both the circumstances in which the notice of discontinuance was issued and what the claimant is attempting to achieve by issuing and serving the notice."
Exercising the discretion in the present case; giving effect to the overriding objective
"The Court cannot willingly accept a situation in which one party can prevent it determining, where it is in the public interest to do so, whether its procedures have been flouted or abused."
Mr Sprange QC cautions that one must take this jurisdiction carefully as otherwise it will be overapplied. He emphasises that the facts and circumstances of Cherkasov are very different from the present case.
Decision on setting aside the notice of discontinuance