1. The JSC BTA Bank litigation
There are over 70 reported decisions to date in this litigation, in most of which Stephen has appeared as lead advocate for the claimant bank. The following are the most significant decisions:
(1) BTA Bank v. Ablyazov (No.15)  1 WLR 603 EWCA 987
Abuse of process, privity and estoppel
(2) BTA Bank v. Ablyazov  EWHC 2788
Bank entitled to production of documents created by or produced for solicitors as Defendant not entitled to claim litigation privilege.
(3) BTA Bank v. Ablyazov  EWHC 2019
Respondent to Norwich Pharmacal proceedings obliged to pay Bank’s costs as his evidence was evasive and dissembling.
(4) BTA Bank v. Lapointec & Limia  EWCA 602
A claim by a third party that to be able to enjoy assets free from the Court’s freezing and receivership orders had to go to trial.
(5) BTA Bank v. Ablyazov  EWHC 691
Bank granted summary judgment for over US$294m for fraudulent misappropriation of assets.
(6) BTA Bank v. Ablyazov  1 WLR 1414
Not all choses in action are caught by a freezing order. (The Supreme Court has granted permission to appeal).
(7) BTA Bank v. Usarel Investments  1 BCLC 407
The Court declined to extend the powers of a litigation receiver to enable him to pursue an appeal to the Court of Appeal for which the trial judge had granted permission to appeal.
(8) BTA Bank v. Salim Shalabayev [17.5.13]
It was an abuse of process for a non-party to seek to challenge a decision made in the proceedings after the non-party had given evidence and been disbelieved.
(9) BTA Bank v. Ablyazov  EWHC 510
After a 44 day trial of 3 actions, the Bank was awarded damages in excess of US$1.5bn, plus interest and indemnity costs, together with a port on the White Sea in Russia.
(10) BTA Bank v. Ablyazov (CA)  1 WLR 1854
A judge had not erred in refusing to recuse himself as the trial judge following his finding of contempt against a defendant, as there was no real possibility of bias and the right to make an application had been waived.
(11) BTA Bank v. Ablyazov (CA)  1 WLR 1331
There was jurisdiction to make an order that a defendant surrender himself to custody. The judge had been entitled to make orders debarring a defendant from defending the claims brought against him unless he surrendered himself and made proper disclosure of his assets.
(12) BTA Bank v. Usarel Investments  I.L.Pr 53
The Court had jurisdiction to appoint a receiver of a company for the purposes of giving instructions in connection with the continuation of proceedings where the appointment of directors was in doubt.
(13) BTA Bank v. Ablyazov  EWHC 2543
A defendant who had breached the terms of a freezing injunction by causing his companies to grant pledges to banks should use his best endeavours to intervene in any proceedings to enforce the pledges so as to inform the court of his breach.
(14) BTA Bank v. Ablyazov (CA)  NJLR 757
The Court had jurisdiction to prevent a contemnor from pursuing an appeal against a committal order.
(15) BTA Bank v. Ablyazov (CA)  1 WLR 1988
The Bank was entitled to proceed against a defendant on a limited number of allegations of contempt, without having to abandon other allegations it had raised and notwithstanding a degree of overlap between the allegations and issues which would arise at the substantive trial.
(16) BTA Bank v. Kythreotis (CA)  1 WLR 350
Defendant sentenced to 21 months’ imprisonment for failure to comply with the disclosure requirements of a freezing order (punitive part 9 months).
(17) BTA Bank v. Syrym Shalabayev  EWHC 2908
Contemnor sentenced to two custodial sentences of 18 months and one of 6 months (to run concurrently) for breaches of the disclosure provisions of a freezing order.
(18) BTA Bank v. Solodchenko (CA)  1 WLR 888
A respondent to a freezing injunction in the Commercial Court form is not permitted to say that assets need not be disclosed because he holds them on trust for another.
(19) BTA Bank v. Ablyazov  2 All ER (Comm) 10
Application for a stay of proceedings struck out as allegations of political motivation were not justiciable.
(20) BTA Bank v. Ablyazov  1 WLR 2996
Even if proceedings were brought only partly for the purpose of making a recovery for the benefit of the Bank/its creditors (and partly for political purposes), they were not an abuse of process.
(21) BTA Bank v. Ablyazov (CA)  Bus LR 119
An order appointing receivers of a defendant’s assets was rightly made since there was a measurable risk that the defendant would deal with his assets in breach of a freezing order.
(22) BTA Bank v. Ablyazov  All ER 2840
A standard form freezing order should be varied as there was real risk that the liberty to deal with overseas assets would be used to put assets beyond the claimant’s reach.
(23) BTA Bank v. Ablyazov (CA)  1 WLR 976
Section 13 of the Fraud Act 2006 had removed the privilege against self-incrimination in respect of an offence under Section 328 of the Proceeds of Crime Act 2002.
(24) BTA Bank v. Ablyazov (CA)  1 All ER (Comm) 1029
It was appropriate for a defendant to give disclosure of his assets pursuant to a freezing injunction before his application to discharge the injunction could be heard.
2. Thevarajah v. Riordan  1 Costs LR 163
A party in default was not entitled to “another bite of the cherry” of relief from sanctions. Mitchell guidelines applied.
3. AK Investment CJSC v. Kyrgyz Mobil Tel Ltd (PC)  1 WLR
Where there was substantial evidence of specific irregularities, breaches of natural justice and irrational conclusions, the Court was entitled to find that there was a considerable risk of justice not being obtained in a foreign forum and refuse an application for a stay.
4. Cukurova Finance International v. Alfa Telecom Turkey Ltd (PC)  3 All ER 849
For the purposes of a right of appropriation of shares pursuant to the Financial Collateral Regulations 2003, it was not necessary for the chargee of the shares to obtain legal title to the shares for the appropriation to be effective.
5. Texan Management Ltd v. Pacific Electric Wire and Cable Co Ltd (PC)  UKPC 46
The Court had jurisdiction to impose a case management stay of proceedings in the BVI, pending the determination of the proceedings in Hong Kong, even though the relief claimed in the BVI (the rectification of the share registers of BVI companies) was not available in Hong Kong.
6. Dian AO v Davis Frankel & Mead  1 All ER 1074
Court’s approach to applications to search the Court record under CPR 5.4C.
7. The RBG Resources Plc litigation
There are a number of reported decisions in these proceedings in which Stephen acted as leading counsel for the provisional, then full, liquidators of RBG Resources, and then the trustee in bankruptcy of Viren Rastogi:
(1) Shierson v. Rastogi  BPIR 891
The automatic discharge of a bankrupt was suspended where there remained substantial failures by the bankrupt to comply with his obligations to provide full details of his financial affairs.
(2) RBG Resources plc v. Rastogi  2 BCLC 592 A defendant who had adopted a totally unreasonable and unjustified stance in proceedings had his costs reduced by 40% on an application by liquidators to discontinue the proceedings against him.
(3) RBG Resources plc v. Rastogi  EWHC 1089 Summary judgment entered against directors for US$350m for dishonest breaches of fiduciary duty.
(4) RBG Resources plc v. Rastogi  EWHC 2782
It was arguable that a senior employee was obliged to blow the whistle on suspected fraud of a director or manager by informing the auditors of the company or the authorities.
(5) Re RBG Resources plc (CA)  1 WLR 586
The Court was entitled to direct that directors of a company should be examined under s. 236 of the Insolvency Act 1986 by the liquidators of the company, even though the company (acting by its liquidators) had already commenced proceedings for fraud against those directors.
8. Fortis Fund Services Bahamas v. Seward & Kissel LLP (PC)  UKPC 16
It was at least arguable that in providing advice to a manager in the Bahamas, lawyers intended the advice to be acted upon in the Bahamas and, if the advice was negligent, a tort had been committed in the Bahamas.
9. Shalson v. Russo  Ch 281
The Court refused to consolidate sub-accounts in a Swiss bank so as to enable the claimant to overcome the rule that tracing was not permissible through accounts which were overdrawn.
10. Duggan v. Governor of Full Sutton Prison (CA)  2 All ER 678
Monies handed over to the Governor of a prison by a prisoner were not held by the Governor on trust for the prisoner and the Governor was under no duty to invest them in an interest-bearing account on the prisoner’s behalf.
11. R (Feakins) v. Secretary of State (CA)  1 WLR 1761
An applicant for judicial review had standing to make the application even though he had indicated he would accept the decision under challenge if he was paid a sufficient sum of money.
12. R (Persey) v. Secretary of State  QB 794
The Secretary of State’s decision not to hold a public inquiry into the outbreak of foot and mouth disease was not irrational.
13. T. Choithram International v. Pagarani (PC)  1 WLR 1
A gift of shares to a trust was complete notwithstanding the absence of a formal transfer where the donor was also a trustee of the trust.
14. Trustor v. Smallbone  1 WLR 1177
It was appropriate to pierce the corporate veil and attribute the liability of a company to its sole shareholder where the company was a façade and used to conceal impropriety by the shareholder.
Other cases in which Stephen acted as a junior include:
Federal Bank of the Middle East v. Hadkinson (CA)  1 WLR 1695
Haji-Ioannou v. Frangos (CA)  2 Lloyd’s Rep 337
Village Cay Marina v. Acland (PC)
Re BCCI (Morris v. Mahfouz) (CA)  BCLC 450
The Derby v. Weldon litigation:
(1) Derby v. Weldon (CA)  Ch 48
(2) Derby v. Weldon (Nos. 3 & 4) (CA)  Ch 65
(3) Derby v. Weldon (No. 5) (CA)  1 WLR 1244
(4) Derby v. Weldon (No. 6)  1 WLR 1139
(5) Derby v. Weldon (No. 7) (CA)  1 WLR 1156
(6) Derby v. Weldon (No. 8)  1 WLR 73