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Articles | Mon 16th Aug, 2021
We were fascinated to learn this week that even Russian oligarchs have troubles, if only the stress of what to do with their antiques collections. Our own concerns are more mundane; there are indications that judges’ patience with Claimants who take their time over service of proceedings may be running out, even in the context of Covid-19 and Brexit. In the recent decision in Qatar Investment and Projects Holding Co v Phoenix Ancient Art SA [2021] 8 WLUK 42 William Davis J held that a Master had been entitled to set aside an order extending time for service outside the jurisdiction in a high-value breach of contract claim where the Claimants had issued the claim two days before the expiry of the limitation period, and then waited several months before taking steps to serve the Defendant in Switzerland. The Covid-19 pandemic did not provide a good reason for the delay. The overriding objective required any application under r.7.6(2) to be dealt with justly. Good reason for an extension had to be shown in all cases and, in cases where an extension would impinge on limitation, reasonable steps had to be shown to have been taken.
Trouble in Paradise: Squabbling over the Heirlooms
In Golubovich v Golubovich v Mirimskaya [2021] EWHC 2099 (Ch), Deputy Master Marsh considered a jurisdictional challenge by a Part 20 Defendant. The background claim concerned a substantial art and antiques collection (the “art collection”) that had been acquired during the course of the marriage between the Part 20 Defendant, Ms Olga Mirimskaya (“Olga”), and Mr Alexey Golubovich (“Alexey”).
Background
Ms Nataliya Golubovich (the “Claimant”) alleged ownership of the art collection under a Gift of Deed from Olga, her mother. The Claimant brought a claim against Alexey, her father, seeking an order for delivery up of a significant proportion of the art collection. Alexey alleged that the art collection had already been vested in him by reason of a Deed of Settlement entered into with Olga. Alexey defended the claim, counterclaimed against the Claimant and issued a Part 20 claim against Olga. Alexey obtained permission to serve the additional claim on Olga out of the jurisdiction in Russia by an order of Deputy Master Lloyd dated 21st July 2020. The additional claim was deemed served on Olga on 30th July 2020.
On 18th August 2020 Olga commenced proceedings in the Presnenskiy District Court of Moscow seeking a declaration that the document relied on by Alexey in support of his claim for ownership (the Deed of Settlement) was a forgery. Alexey in turn brought an anti-suit injunction in London restraining Olga from pursuing the Russian proceedings. Alexey’s application was dismissed. On 6th November 2020 Olga issued an application to dispute jurisdiction on the basis that she was not a necessary or proper party to the claim and/or that England is not the natural forum for the claim. On 23rd December 2020 the Russian District Court ruled that Olga never signed the Deed of Settlement and therefore that it was invalid.
Jurisdiction
Alexey relied on the ground for jurisdiction set out at para 3.1(4) of Practice Direction 6B, which requires the Court to be satisfied that:
Serious issue to be tried / necessary or property party
It was alleged by Olga that there was no proper purpose to the declaration sought against her – there was no allegation on her part that she still owned the collection. Whilst true that Olga did not allege ownership, Deputy Master Marsh disagreed with the assertion that Olga was not a proper party to the claim.
First, the Claimant’s claim involved a chain of title and it was necessary to determine which title she received. Olga was intimately involved in the chain of title. If Olga was not a party to the claim, Olga would not be bound by the determination made by the court about items that once belonged to her. Further, it would be odd for the Court to determine the validity of the Deed of Settlement entered into between Olga and Alexey without Olga being bound by that determination.
Second, it was necessary for the Court to determine a number of issues relating to Olga on the Claimant’s case, including a) the basis on which the collection was made; b) who paid for the items as between Alexey and Olga and whether there was a common understanding between them as to ownership; c) what did the collection comprise; d) whether the Deed of Settlement was a valid document and, if so, the effects of that document. In these respects, the additional claim overlapped significantly with the main claim as well as further issues in dispute between Olga and Alexey. It was “obvious that there is a common thread” between those claims ([48]). These factors were indicative of the Part 20 Defendant (here, Olga) being a property party (see, for exp., Carvill America Inc. v Camperdown UK Ltd [2005] EWCA Civ 645 at [48]).
Forum
It was alleged by Olga that the issue as to appropriate forum was already determined in the hearing concerning Alexey’s anti-suit injunction. However, the judge in the anti-suit injunction was concerned with whether “England is the natural forum for the determination of the matters raised in the Presenskiy Proceedings, not whether England is the natural forum for determination of the issues in the additional claim.” ([59]). The Russian proceedings only concerned whether Olga had signed the Deed of Settlement, and did not concern any of the other issues included in the main and additional claim. Accordingly, Alexey was not estopped by the judgment in the anti-suit hearing.
Deputy Master Marsh had concluded that Olga was a proper party to the additional claim and on the view expressed by Cooke J in Credit Agricole Indosuez v Unicof [2003] EWHC 2676 that “virtually concludes” the issue of forum. Further, the Claimant had brought the main claim in England, with the assistance of Olga. Alexey accepted jurisdiction of the English Court. Deputy Master Marsh reasoned: “Having determined that Olga is a proper party to the additional claim it would be odd for the court to conclude that England is not obviously the proper forum for the additional claim given the choice of jurisdiction [the Claimant], with Olga’s support, has made.” ([65]).
Although there were other factors pointing in the direction of the Russian jurisdiction (see [68]) and also the English jurisdiction (see [69]), Deputy Master Marsh was “satisfied, having taken as a starting point the determination that Olga is a proper party to the additional claim, that…England is clearly or distinctly the most appropriate jurisdiction in which the claims in the additional claim should be determined.” ([70]).
Conclusion
Accordingly, Olga’s application to set aside the order permitting service out of the jurisdiction was dismissed.
About the Author
Henk Soede was called to the Bar in 2019. Since April 2020, he has been instructed by solicitors for both Claimants and Defendants in cross border disputes, package travel and other related claims. He is eager to build on his experience in these areas, but accepts briefs in all chambers’ areas of work.
Jaded over Amber? Challenging Quarantine
There has been lots of news recently about arrival rules from Amber List countries – particularly testing, and the scrapping of the “Amber Plus” category. But much of the world remains on the Red List, with arrivals from those countries being required to isolate in hotels at their own expense. This week saw the launch of a challenge to the mandatory quarantine regime, with claimants alleging that the quarantine rules are “arbitrary, unnecessary and disproportionate”. The claimants’ arguments compare the rules for arrivals from Amber List countries with those from Red List countries, noting that, the rules for Amber List travellers now differentiate between the double-vaccinated and other travellers, but the Red List rules do not; and that even unvaccinated arrivals from Amber List countries can “test to release” and end isolation after 5 days, whereas the double-jabbed and unvaccinated alike arriving from Red List countries have to remain in the hotel for a full 10 days.
This is the latest in a series of legal challenges to travel restrictions around the world, and follows on from a recent unsuccessful challenge in Australia to their far more restrictive rules, which effectively prevent most people from leaving that country.
The difficulty is that although the UK now has very high vaccination rates (over 60% of the whole population) and, thankfully, hospitalisations and deaths here are low, that is not the case in much of the world. Only 1.2% of people in low-income countries have received at least one vaccine. Having experienced the impact of the Delta variant which caused the large peak last winter it is understandable that the government – and most of the population – remains cautious about travel from many Red List countries. So while there may be some changes to the Red List quarantine rules before too long, this author anticipates that significant travel restrictions to many countries will remain for quite some time yet.
About the Author
Andrew Spencer was called to the Bar in 2004, and is listed in the Legal 500 as a Band 1 practitioner in travel law. He acted for the Claimant in the seminal case of Japp v Virgin Holidays Limited [2013] 11 WLUK 131, in which the Court of Appeal considered the time at which applicable local standards should be determined for the purposes of liability under Regulation 15(2) of the Package Travel Regulations; but he is equally comfortable acting for Claimants and Defendants in all travel related claims.
…And Finally…
Don’t miss your chance to learn How To Get The Most Out Of Your Barrister. This Thursday Sarah Prager will be joined by Chris Deacon, of Stewarts Law, to discuss this most important of topics – register here to participate. We look forward to hearing your thoughts in what should be a lively discussion.
