WWRT Limited et al v Carosan Trading Limited et al

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL TERRITORY OF THE VIRGIN ISLANDS BVIHCMAP2024/0015 BETWEEN: [1] WWRT LIMITED [2] OLGA GUTOVSKA Committal Respondents/Appellants and [1] CAROSAN TRADING LIMITED First Defendant [2] BORIS KAUFMAN Committal Applicant/Respondent Before: The Hon. Mr. Trevor Ward Justice of Appeal The Hon. Mr. Eddy D. Ventose Justice of Appeal The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.] Appearances: Mr. Nathan Pillow KC for the Committal Respondents/Appellants Mr. Richard Morgan KC with him Mr. Christopher McCarthy for the Committal Applicant/Respondents ______________________________ 2024: November 28; 2025: January 13. ______________________________ Commercial Appeal – Appeal against the decision of the learned trial judge to dismiss a no case to answer submission with costs reserved – Shifting the burden of proof - Whether the learned trial judge erred in wrongly shifting the burden of proof from the committal applicant/respondent to the committal respondents/appellants – Right to Silence - Whether the learned trial judge erred in failing to recognize and apply the procedural and substantive consequences which properly flowed from the appellants’ acknowledged right to silence Evidential Deficiencies - Whether the learned trial judge erred in ruling that there was a case to answer on the evidence filed in support of the committal application – Whether the learned trial judge failed to give any weight, or any adequate weight, to key evidential deficiencies which the judge himself had identified – Whether the learned trial judge incorrectly gave weight to irrelevant considerations such as the lack of evidence from the appellants showing that the documents were inaccurate Claim No. BVIHC (Com) 96 of 2021 was commenced by WWRT Limited (“WWRT”) against Carosan Trading Limited (“Carosan”) and Mr. Boris Kaufman (“Mr. Kaufman”) as defendants on the basis that WWRT is an assignee of various rights of claim from a Ukrainian bank, JSC Platinum Bank, alleged to have been owned and/or controlled by Mr. Kaufman. A worldwide freezing order was applied for by WWRT and granted ex parte on 17th June 2021 against both defendants (“the ex parte BVI WFO”). The ex parte BVI WFO contained a Collateral Use Undertaking (“the CCU”) given by WWRT. By order dated 15th July 2021, made after the parties had agreed to certain changes to the terms of the ex parte BVI WFO, the said order was continued pending the return date (“the BVI WFO”). The BVI WFO (as continued) included a collateral use undertaking substantially in the same terms as in the collateral use undertaking (“CUU”) in the ex parte BVI WFO. WWRT also obtained a supportive worldwide freezing order from the English High Court in London on 21st June 2021 in proceedings there against Mr. Kaufman (“the English WFO”). The English WFO was continued on 30th June 2021. Its validity was further extended by the High Court in England until it was discharged by consent order dated 26th January 2023. By the BVI WFO, Carosan and Mr. Kaufman were each injuncted not to remove from the BVI or to dispose of, deal with, or diminish any of their respective assets whether inside or outside the BVI up to the value of 56 million pounds sterling. The said defendants were also severally ordered to inform the lawyers for WWRT of all their assets worldwide exceeding 50,000 pounds sterling in value, whether held in their own name or not and whether solely or jointly owned, giving the value, location and details of all such assets. By the terms of the BVI WFO, the first defendant, Carosan, was also ordered to disclose the identity of the directors, officers, shareholders and ultimate beneficial owners of its shareholding, a copy of its Register of Charges, and the full name of the mandate as appears on any relevant records for bank accounts held by Carosan. In response to the BVI WFO (as continued) Mr. Kaufman, by affidavit served (but not filed) on 28th July 2021, disclosed his assets and shareholding. This disclosed information is referred to as the “Restricted Information” and was subject to the CUU in the BVI WFO, the breach of which undertaking is the basis for the contempt application in the court below. As matters transpired, Mr. Kaufman’s application filed 24th September 2021 to set aside the claim form in the proceedings below and its service on him on jurisdictional grounds, was granted by Jack J on 10th December 2012 (written judgment dated 30th December 2021). This decision was reached on the basis that the foundational basis of WWRT’s claim against the defendants – the assignment of various rights of claim from an insolvent Ukrainian bank, JSC Platinum Bank- had not validly transferred the rights of claim asserted or relied on by WWRT in the Claim, but only the contractual rights to certain loans; and, accordingly, there was no serious issue to be tried in the Claim. In addition, Jack J found that Ukraine and not the BVI was clearly and distinctly the appropriate forum for the trial of the dispute. Accordingly, Jack J set aside service of the claim form on Mr. Kaufman and stayed the said Claim against Carosan. Carosan has taken no part in the proceedings in the court below, including the Contempt Application, and this appeal. WWRT subsequently applied for and was granted leave to appeal to the Court of Appeal from the order of Jack J on jurisdiction, which appeal was dismissed by the Court of Appeal on 20th July 2022. By order of a single judge dated 14th January 2022, this Court refused to extend the BVI WFO. WWRT was granted by this Court conditional leave to appeal to His Majesty in Council on 11th May 2023 and final leave on 14th August 2023. WWRT’s notice of appeal to the Privy Council was served on 9th October 2023. Based on the above, the position at the time the appeal in this matter was heard is that the BVI WFO is no longer in place since the temporary extension granted by Jack J on 30th December 2021 fell away upon this Court refusing WWRT’s extension application on 14th January 2022. By notice of application filed 20th December 2023 Mr. Kaufman sought, inter alia, a declaration that the appellants, WWRT and its director Ms. Olga Gutovska, are in contempt of court by reason of their collateral use in two specified proceedings in Ukraine, in breach of the CUU in the BVI WFO, of the Restricted Information (as defined) obtained by the appellants pursuant to the mandatory disclosure provisions of the BVI WFO; and an order for the committal of Ms. Gutovska for the said contempt. The Contempt Application was supported by evidence on affidavit of Mr. Richard Brown, a lawyer and partner in the firm of lawyers representing the Applicant, Mr. Kaufman and Carosan (“Brown 1”) and the documents exhibited thereto as “RB-1”. By notice of application filed 15th March 2024 in the proceedings below, the appellants sought the retrospective permission of the court (should it be required) to disclose the Restrictive Information in the Ukrainian criminal proceedings on, respectively, 6th and 26th October 2023, as alleged in the Contempt Application. It was accepted for the purposes of the hearing of the Contempt Application in the Commercial Court below, that the evidence filed in support of the appellants’ Retrospective Permission Application cannot be considered in the Contempt Application filed by Mr. Kaufman. Likewise, it was accepted that the evidence filed by appellants in opposition to the Contempt Application, which evidence was filed in compliance with the order and direction of the court below, was subject to the appellants’ right to silence and was not evidence in the Contempt proceedings unless and until the appellants had expressly adduced or deployed it as such in the said proceedings. At the hearing of the Contempt Application before Wallbank J on 21st May 2024, the affiant, Mr. Richard Brown, attended in person and was available to be cross-examined on his affidavit evidence if the appellants “identified a relevant issue of fact which may be elucidated by cross-examination and persuaded the Court to exercise its discretion in favour of cross- examination.” The appellants did not seek to cross-examine Mr. Brown at the said hearing. However, at the close of the case for the committal applicant Mr. Kaufman, the appellants’ legal counsel made a submission that there was no case to answer on the affidavit and documentary evidence adduced by the respondents from Mr. Brown. The learned judge in an ex tempore ruling dismissed the no case submission, and adjourned the Contempt Application and the Release Application to a further hearing on a date or dates to be fixed. Dissatisfied with the learned judge’s order dated 21st May 2024 dismissing their no case to answer submission with costs reserved, the appellants, by notice of appeal filed 16th July 2024, appeal against paragraph 1 of the learned judge’s order on the following grounds: (1) the judge erred in wrongly shifting the burden of proof from Mr. Kaufman to the appellants: instead of considering whether Mr. Kaufman had proven provenance, authenticity, and accuracy of the documents by the judge (sic) wrongly focusing on whether there was or might be evidence from the appellants that the documents were not accurate or that Ms. Gutovska had not made the alleged statements; (2) the judge erred in failing to recognize and apply the procedural and substantive consequences which properly flowed from the appellants’ acknowledged right to silence; and (3) the judge erred in ruling that there was a case to answer on the evidence filed in support of the Committal Application in so doing the judge failed to give any weight, or any adequate weight, to key evidential deficiencies which the judge himself had identified in his ruling, and incorrectly gave weight to irrelevant considerations, such as the lack of evidence showing that the documents were inaccurate. Held: allowing the appeal, setting aside the order of the judge below dismissing the submission of no case to answer, dismissing the Respondent’s Notice filed in this appeal on16th August 2024, dismissing the Committal Application filed 20th December 2023, and ordering that the appellants/committal respondents shall have their costs of the committal proceedings below and cost of the appeal and respondent’s notice, to be assessed by a judge of the Commercial Court, if not agreed within 21 days of the date of delivery of this decision, that: 1. The duty and parameters of a judge when considering a no case submission is to first and foremost bear in mind continuously that the committal respondent does not have to prove or disprove any of the allegations of breaches of a court order made against him or her by a committal applicant; and that it is imperative to consider only the admissible evidence adduced or deployed by the committal applicant in the committal proceedings and to ask himself and to answer the question whether that evidence was such that if left uncontradicted or unanswered was capable of proving the specific and particularized contemptuous allegations against the contemnor to the criminal standard of proof beyond reasonable doubt. This the learned judge, with the greatest respect, did not do. Instead, he allowed himself to be infected with irrelevant considerations and to use such considerations in reasoning to his decision in a way which smack of shifting or eroding the burden of proof from the committal applicant Mr. Kaufman, on to the appellants/committal respondents, when determining the no case submission. Moreover, the objective of a ruling on a submission of no case to answer is not to force or coerce the respondent into putting in or deploying evidence or to answer the allegations, but to assess whether on the admissible evidence before the court at that stage of the contempt proceedings, there is properly a case to answer or whether he ought to stop the proceedings and dismiss the application for committal for contempt. For these reasons ground 1 succeeds. Regina v Galbraith [1981] 1 WLR 1039 applied, Edwin Gomez and Isaiah Benjamin v The Queen ANUHCRAP2014/0012 & ANUHCRAP2014/0013 (delivered 17th August 2022, unreported) followed; Director of Public Prosecutions (British Virgin Islands) v Varlack [2008] UKPC 56 applied; Templeton Insurance Limited v Motorcare Warranties Limited & Ors [2012] EWHC 795 (Comm) applied; R v McLeod and others [2017] EWCA Crim 800; Munib Masri v Consolidated Contractors International and ors [2011] EWHC 1024 (Comm) applied; Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 applied. 2. During the hearing of the Contempt Application, the appellants/committal respondents did not by their legal counsel seek to rely on some of their response evidence which was subject to their right to silence, such that parts or portions of their response evidence filed in compliance with the directions of the judge thereby became no longer caught by that right to silence and thereby became evidence before the learned judge to take into account in deciding on the submission of no case to answer; or evidence upon which this Court can and should take into account should it have to de novo properly assess the evidence and decide whether the no case submission ought to have been upheld or dismissed. The upshot of all this is that the only evidence before the learned judge at that stage of the contempt proceedings was the evidence adduced by the respondent in the first affidavit of Richard Brown (“Brown 1”) and the documents exhibited thereto. Accordingly, the appellants/committal respondents were fully entitled throughout the committal proceedings before the learned judge to rely on their right to silence, and to the extent that the learned judge alluded to what evidence they may give or have not yet given in response to the allegations of contempt, this was an incorrect and impermissible derogation from or erosion of their right to silence. Accordingly, ground 2 also succeeds. 3. The standard of proof in contempt proceedings is the criminal standard of proof beyond a reasonable doubt. In this Court’s judgment, the extract from the learned judge’s decision (at page 228 of the transcript (lines 19 onwards) is not only indicative of him having strayed from the test in Galbraith and an impermissible indulgence in speculation, but is demonstrative of a shifting of or, at minimum, confusing, where the burden of proof lies, and improperly undermines the appellants/committal respondents right to silence. Moreover, the learned judge’s characterization of the appellants/committal respondents’ attacks on the two main documents as “peripheral” and an “attack on the fringes” is wholly misplaced, incorrect and wrong as a matter of principle. These attacks were justified, substantive and not peripheral. They were profound, as the learned judge himself acknowledged and bore the makings of a knockout point evidentially and substantively. 4. Apart from seeming to improperly shift an evidential burden on to the appellants/committal respondents and applying an incorrect analysis of the evidence adduced and of the burden of proof, the extract from the learned judge’s decision (at page 228 line 25 & page 229 lines 1-6) also incorrectly characterize the appellants/committal respondents’ criticism of the evidence adduced as simply the “provenance” of the key documents exhibited to Brown 1. The objection to these key documents evidentially was also (and more fundamentally) that they were incapable of proving, to the criminal standard, what they purported to show, as no reliance could be placed upon such documents in the absence of other cogent evidence speaking to their provenance, authenticity and accuracy. In the Court’s judgment, for the same reasons already given, it was also not permissible for the learned judge, in reasoning to his decision, to have speculated in the following ways: - (a) that Ms. Gutovska “may very well have said these things, and nobody is pointing to any evidence that she didn’t”; (b) “there has to be further argument on a number of things”; (c)“… but I get the sense that all these points really do need to be argued out further, because I am not sure that this is the entire story on either side”; (d) “I don’t think it is the end of the story for the simple reason is that there is, in fact, no evidence yet before the Court that Ms. Gutovska didn’t say these things, and I think that’s important”; and (e) “I think you have to balance what the document says with what people are not saying, balance that.” Regina v Galbraith [1981] 1 WLR 1039 applied. JUDGMENT

[1]FARARA JA [AG]: This is an appeal by WWRT Limited and Olga Gutovska (“the committal respondents/appellants” and individually “WWRT” and “Ms. Gutovska”) against the ex tempore decision and order made 21st May 2024 by a judge (Walbank J) of the Commercial Division of the High Court of Justice in the Territory of the Virgin islands (“the Commercial Court”), dismissing the appellants’ submission of no case to answer in civil contempt proceedings (“the Committal Proceedings”) brought by Boris Kaufman (“the committal applicant/respondent” or “Mr. Kaufman”) for alleged breaches by WWRT and Ms. Gutovska of the Collateral Use Undertaking (“the CUU”) given by WWRT in a worldwide freezing order (the BVI WFO”) in the said proceedings.

Overview

[2]WWRT, the first appellant, is a company incorporated under the laws of England and the claimant in the claim. The second appellant, Ms. Olga Gutovska, is the majority shareholder and a director of WWRT. While not a party to the claim, Ms. Gutovska was added as a committal defendant to the notice of application filed 20th December 2023 for contempt of court (“the contempt application”). Her place of residence is London, England. Mr. Kaufman is a national of Ukraine, based in Odessa, and the second defendant in the Claim. The first defendant, Carosan Trading Limited (“Carosan”) is a company incorporated under the laws of the British Virgin Islands (“BVI”). Carosan has taken no part in the proceedings in the court below, including the Contempt Application, and this appeal. The Claim, the WFO and Collateral Use Undertaking (“CUU”)

[3]The claim no. BVIHC (Com) 96 of 2021 (“the Claim”) was commenced by WWRT against Carosan and Mr. Kaufman on the basis that WWRT is an assignee of various rights of claim from a Ukrainian bank, JSC Platinum Bank, alleged to have been owned and/or controlled by Mr. Kaufman.

[4]The BVI WFO was applied for and granted ex parte on 17th June 2021 against both defendants. By order dated 15th July 2021 made after the parties had agreed to certain changes to the terms of the (original) BVI WFO, the BVI WFO was continued pending the return date. The BVI WFO (as continued) included a Collateral Use Undertaking substantially in the same terms as in the CUU in the ex parte BVI WFO.

[5]WWRT also obtained a supportive worldwide freezing order from the English High Court in London on 21st June 2021 in proceedings there against Mr. Kaufman (“English WFO”). The English WFO was continued on 30th June 2021. Its validity was further extended by the English High Court until it was discharged by Consent Order dated 26th January 2023.

[6]The CUU in the BVI WFO is in these terms:- “(7) The Applicant [WWRT] will not without the permission of the use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in the British Virgin Islands or in any other jurisdiction, other than (i) this claim, and/or (ii) any civil proceedings in this jurisdiction concerning any assets within the scope of paragraphs 5 – 10 of this Order.”

[7]By the BVI WFO, Carosan and Mr. Kaufman were each injuncted not to remove from the BVI or to dispose of, deal with, or diminish any of their assets whether inside or outside the BVI up to the value of 56 million pounds sterling. The defendants were also severally ordered to inform the lawyers for WWRT of all their assets worldwide exceeding 50,000 pounds sterling in value, whether held in their own name or not and whether solely or jointly owned, and giving the value, location and details of all such assets. By the terms of the BVI WFO Carosan was also ordered to disclose the identity of the directors, officers, shareholders and ultimate beneficial owners of the shareholding, a copy of the Register of Charges, and the full name of the mandate as appears on any relevant records for bank accounts held by the first defendant, Carosan. In response to the BVI WFO (as continued) Mr. Kaufman, by affidavit filed 28th July 2021, disclosed his assets and shareholding. This disclosed information is what is referred to as the “Restricted Information” and was subject to the CUU in the BVI WFO, the breach of which undertaking is the basis for the contempt application in the court below.

[8]As matters transpired, Mr. Kaufman’s application filed 24th September 2021 to set aside the claim form in the proceedings below and its service on him on jurisdictional grounds, was granted by Jack J on 10th December 2012 (written judgment dated 30th December 2021). This decision was reached on the basis that the foundational basis of WWRT’s claim against the defendants – the assignment of various rights of claim from an insolvent Ukrainian bank, JSC Platinum Bank- had not validly transferred the rights of claim asserted or relied on by WWRT in the claim (but only the contractual rights to certain loans) and, accordingly, there was no serious issue to be tried in the claim. In addition, Jack J found that Ukraine and not the BVI was clearly and distinctly the appropriate forum for the trial of the dispute. Accordingly, Jack J set aside service of the claim form on Mr. Kaufman and stayed the said claim against Carosan.

[9]WWRT subsequently applied for and was granted leave to appeal to the Court of Appeal from the order of Jack J on jurisdiction, which appeal was dismissed by the Court of Appeal on 20th July 2022. By order of a single judge dated 14th January 2022, this Court refused to extend the BVI WFO. WWRT was granted by this Court conditional leave to appeal to His Majesty in Council on 11th May 2023 and final leave on 14th August 2023. WWRT’s notice of appeal to the Privy Council was served on 9th October 2023. Based on the above, the position at this time is that the BVI WFO is no longer in place since the temporary extension granted by Jack J on 30th December 2021 fell away upon this Court refusing WWRT’s extension application on 14th January 2022.

Contempt Proceedings

[10]By notice of application filed 20th December 2023 Mr. Kaufman sought, inter alia, a declaration that the appellants are in contempt of court by reason of their collateral use in two specified proceedings in Ukraine, in breach of the CUU, of the Restricted Information (as defined) obtained by the appellants pursuant to the mandatory disclosure provisions of the BVI WFO; and an order for the committal of the appellants (WWRT and Ms. Gutovska) for the said contempt. The Contempt Application was supported by the affidavit of Mr. Richard Brown, a legal practitioner and partner of Carey Olsen, the Committal Applicant’s BVI lawyers of record in the Claim, filed 20th December 2023 (“Brown 1”). The Restricted Information was provided to WWRT by way of affidavits filed by Mr. Kaufman in compliance with the disclosure orders in the BVI WFO. The BVI WFO (with the Collateral Use Undertaking), was by order of the court below continued on 15th July 2021.

Application for Retrospective Permission

[11]By notice of application filed 15th March 2024 in the proceedings below, the appellants have sought the retrospective permission of the court (should it be required) to disclose the Restrictive Information in the Ukrainian criminal proceedings on, respectively, 6th and 26th October 2023, as alleged in the Contempt Application. It was accepted that the evidence filed in support of the appellants’ Retrospective permission Application cannot be considered in the Contempt Application filed by Mr. Kaufman.

Hearing of the Contempt Application

[12]At the hearing of the Contempt Application before Wallbank J on 21st May 2024, Mr. Richard Brown attended in person and was available to be cross-examined on his affidavit evidence if the appellants “identified a relevant issue of fact which may be elucidated by cross-examination and persuaded the Court to exercise its discretion in favour of cross-examination.” The appellants did not seek to cross-examine Mr. Brown at the said hearing, but made a submission that there was no case to answer on the affidavit and documentary evidence adduced by the respondents from Mr. Brown. The learned judge in an ex tempore ruling dismissed the no case submission, and adjourned the Contempt Application and the Release Application to a further hearing on a date or dates to be fixed. The grounds of appeal and the evidential issue

[13]By notice of appeal filed 16th July 2024, the appellants appeal against paragraph 1 of the learned judge’s order dated 21st May 2024 dismissing their no case to answer submission with costs reserved. They rely on three grounds of appeal as formulated in the notice. However, these three grounds were conveniently distilled by the appellants’ counsel at paragraph 19 of their written submissions (filed 16th July 2024), as follows: - Ground 1: The judge erred in wrongly shifting the burden of proof from Mr. Kaufman to the appellants. Instead of considering whether Mr. Kaufman had proven provenance, authenticity, and accuracy of the documents, the judge (sic) wrongly focused on whether there was or might be evidence from the appellants that the documents were not accurate or that Ms. Gutovska had not made the alleged statements. (“Shifting the Burden of Proof”) Ground 2: The judge erred in failing to recognize and apply the procedural and substantive consequences which properly flowed from the appellants’ acknowledged right to silence. (“the Right to Silence”) Ground 3: The judge erred in ruling that there was a case to answer on the evidence filed in support of the Committal Application. In so doing the judge failed to give any weight, or any adequate weight, to key evidential deficiencies which the judge himself had identified; and incorrectly gave weight to irrelevant considerations, such as the lack of evidence showing that the documents were inaccurate. (“the Evidential Deficiencies”)

[14]The respondent, Mr. Kaufman, in his written submission took the salutary view that although there are three separate grounds of appeal, the appellants’ appeal should in reality be confined to a single ground or question: “ was there evidence available to the judge which, if unanswered, was capable of being accepted as proving that the appellants were in contempt [I would add, to the criminal standard], which is the approach identified by Lord Lane CJ in the seminal English case of R v Galbraith [1981] 1 WLR 1039, at 1042B-E, and applied by this Court in AG v Spicer and ors Criminal Appeal No. 6 of 2001.”1

[15]In my considered view, while the question posed by the respondents (which roughly accords with the appellants’ ground 3) is the ultimate question to be answered in this appeal, it is nevertheless necessary to first consider shifting grounds 1 and 2 of the appellant’s notice of appeal (respectively, shifting the burden of proof and the ‘right to silence’ grounds), each being issues of law or mixed law and fact. This is because it is necessary to first determine whether the learned judge committed any errors of law regarding the burden of proof and in derogation of the appellants’/committal respondents’ unquestionable right to silence and, if so found, whether any such error corrupted or rendered erroneous his assessment and analysis of the evidence adduced at the stage of the “no case” submission, leading to his decision that the respondent/committal applicant had on that evidence made out a case to answer and the no case submission should be dismissed, being impugned.

[16]This approach leads first to a consideration of the ‘evidential issue’, that is, what evidence had been properly adduced or deployed in the contempt proceedings up to and including the stage of the appellants’ submission of no case to answer. Put differently, what was the evidence adduced or deployed at that stage of the contempt proceedings, whether from the committal applicant or the committal respondents (if any), whether by way of affidavit or documentary evidence, upon which the judge could properly decide the no case submission.

[17]With this approach, I now turn to consider seriatim with the following: (1) a consideration of the evidence adduced or deployed in the contempt proceedings by the respondent/committal applicant; (2) the applicable principles of law and procedure with regard to the conduct of civil contempt committal proceedings, including a committal respondent’s ‘Right to Silence’, and whether the judge was entitled to draw adverse inferences from the appellants/committal respondents’ exercising their right to silence; (3) the preliminary “evidential issue”: a determination, of whether having regard to the manner in which counsel for the appellants/committal respondents had presented the submission of no case to answer, they must be considered to have deployed or adduced or relied upon their filed evidence in response to Brown 1 (or any parts of it) in seeking to make good the no case submission and in derogation from their absolute right to silence, and to have effectively crossed the Rubicon and, by extension, whether the respondent/committal applicant was thereupon entitled to rely also on his reply evidence thereto in Brown 2 (or parts thereof) in answer to the no case submission; (4) the test, standard and principles to be applied when determining a submission of no case to answer; and (5) a consideration of the three grounds of appeal. The Contempt Application and evidence in support

[18]As mentioned before, the notice of application for committal for contempt was filed on 20th December 2023 by and on behalf of Mr. Kaufman, seeking a declaration of breach(es) by WWRT and Ms. Gutovska of the Collateral Use Undertaking on two separate occasions during aspects of the extant criminal proceedings in the Ukraine against him. Both occasions are said to involve the improper and intentional disclosure by Ms. Gutovska of the Restricted Information (or some of it) obtained by WWRT by virtue of the BVI WFO. Accordingly, Mr. Kaufman has sought orders for the committal of WWRT (effectively Ms. Gutovska) to prison in BVI.

[19]The grounds upon which Committal Application was made are summarized in the notice of application. The first 12 paragraphs are a chronological account of the steps in the Claim before the Commercial Court in BVI, from the ex parte application for the BVI WFO up to and including its discharge, the unsuccessful appeals against the jurisdiction order, and the grant of leave to appeal to the Privy Council.

[20]The particulars of contempt relied on to ground a finding of breach of the CUU and contempt of court are described at paragraphs 13 to 17 (inclusive) of the notice. The gravamen of these particulars is set out at paragraph 13(a) and (b). These are: - (a) On 6 October 2023, Ms. Gutovska attended an interview at the National Anti-Corruption Bureau of Ukraine in Kyiv, Ukraine, with Senior Detective Brauerman Stanislaw Oleksandrovych. In that interview, Ms. Gutovska was asked to provide details of the Restricted Information. Ms. Gutovska initially refused to provide such information, referring to her duties (under the Collateral Use Undertaking) not to use that information, but later did so. This interview has been referred to as the “NABU Interrogation”. (b) On 26th October 2023, Ms. Gutovska appeared as a witness in criminal proceedings in the High Anticorruption Court in Kyiv, Ukraine, Case No.991/9393/23, proceeding No. 1-kc/991/9486/23, in which Mr. Kaufman is a defendant. During her testimony, which was given in open court. Ms. Gutovska extensively referred to the Restricted Information. These proceedings are referred to as the “Bail Hearing”.

[21]At paragraph 15 of the notice of application, Mr. Kaufman contends that as a director and majority shareholder of WWRT (the applicant for the BVI WFO), Ms. Gutovska was aware at all times of the CUU, its scope, meaning and effect, and must have instructed solicitors to apply for it on behalf of WWRT, and to take the other steps in the litigation below, including the appeals. It is also stressed that she had attended the ex parte hearing at which the BVI WFO was granted and all other material hearings in the said proceedings. Mr. Kaufman also invited the judge to find that the alleged breaches of the CUU had been deliberate and done with the intention of causing prejudice to him, to discredit his defence of the Ukrainian criminal proceedings, and to prevent his release from custody pending trial in Ukraine – “in circumstances where Ms. Gutovska has publicly admitted having a “commercial interest” in the outcome of the criminal proceedings against Mr. Kaufman. Ms Gutovska has publicly admitted to sharing information relating to these BVI proceedings with Ukrainian investigators with the stated intention of assisting in the prosecution of Mr. Kaufman.”

[22]The notice of application expressly stated that it was supported by the affidavit of Richard Brown filed therewith. This is clearly a reference to the affidavit of Richard Brown filed on 20th December 2023 (“Brown1”). At paragraphs 34 to 37 of Brown 1 a summary is given of the criminal proceedings in Ukraine against Mr. Kaufman, including him being held in custody until he had satisfied the monetary terms of his bail as first ordered; and his subsequent release on bail upon satisfying a lower value of bail agreed upon in the said criminal proceedings. In the Ukraine criminal proceedings, Mr. Kaufman is charged (together with certain other defendants) of being concerned in the alleged misappropriation of property of Odesa Airport in Kyiv, Ukraine during the period 2009 to 2011, and misappropriation of airport revenues over a 10-year period.

[23]At paragraphs 40 to 42 of Brown 1, Mr. Brown deals with the NABU Interrogation. At paragraph 40, he avers (in part) that – “On 6 October 2023, Ms Gutovska attended for interrogation by the National Anti-Corruption Bureau of Ukraine in Kyiv. An English translation of the transcript of her interrogation, which has been obtained by Mr. Kaufman, is at [194-200].”

[24]It is to be noted that a copy of the original or official record of the Interrogation of Ms. Gutovska on 6th October 2023 in the Ukrainian language was not specifically referred to by Mr. Brown nor was a copy of it exhibited to Brown 1. Furthermore, it was not produced in the contempt proceedings by Mr. Brown or Mr. Kaufman. Only what purports to be the English translation from presumably the official transcript of the interrogation, was exhibited to Brown 1. Neither has Mr. Brown addressed whether and if so, when, from whom, and by what means (lawful or unlawful) Mr. Kaufman had obtained a copy of the original transcript of the interrogation. Moreover, the document exhibited which purports to be the English version of the transcript of the interrogation, does not disclose, and Mr. Brown does not address, who did the actual translation from Ukraine to English, when it was done, and whether it was a translation from the original Ukrainian transcript of the interrogation, much less the actual qualifications or certification of the purported translator.

[25]These are all glaring evidential deficiencies, all of which were identified and underscored by counsel for the appellants/committal respondents to the judge below their written submissions filed 17th May 2024 in advance of the hearing (paras. 32-35), and in the submission of no case to answer on 21st May 2024. These glaring deficiencies were also identified and catalogued by the learned judge in rendering his decision on the no case submission. They clearly go to the provenance, authenticity, and accuracy of this evidence of what transpired during the interrogation of Ms. Gutovska on 6th October 2023 by the Ukrainian police authorities. Importantly, they go to the cogency and reliability of this evidence, whether viewed as a separate piece of evidence or in the round with other evidence adduced. These are all legitimate deficiencies of this exhibit to Brown 1, which exhibit is crucial to discharging the burden and standard of proof of the alleged breach of the CUU by Ms. Gutovska at the NABU Interrogation on 6th October 2023 by the disclose of the Restrictive Information obtained by WWRT under the BVI WFO.

[26]Mr. Brown goes on at paragraph 40 of Brown 1, to question or to cast doubt on the account of Ms. Gutovska’s initial response (as set out in the English version exhibited) when asked by the interrogating detective to disclose the Restricted Information. His criticism is of her response in answer to a question from the Ukrainian detective that, according to BVI law, she had a duty not to disclose the information about assets and proceedings concerning Mr. Kaufman and, therefore, she cannot answer that question, leaving or creating the impression that she later provided the information under compulsion. (see para.40). Mr. Brown deposes: “the reality is that she must have chosen to travel to Ukraine and I infer that she volunteered herself as a witness with the intention of relaying information to the Ukrainian authorities relating to the BVI proceedings against Mr. Kaufman. Further, when she attended for this interrogation, I infer that she must reasonably have anticipated that she would be asked about the Restricted Information.” From the above statement, Mr. Brown invites the judge to draw the inference that Ms. Gutovska had declined initially to give the evidence and make the disclosure of restrictive information in breach of the CUU, merely to create the impression that when she did disclose the said information to the detective, which she intended to do anyway, she did so under legal compulsion and not voluntarily.

[27]As to the alleged disclosure at the Bail Hearing on 26th October 2023, Mr. Brown avers that Ms. Gutovska was a witness for the prosecution and during her testimony she “openly and (extensively) referred to the contents of Mr. Kaufman’s protected asset disclosure affidavit, in clear breach of the Collateral Use Undertaking; admitting that the source of her information given in testimony was Mr. Kaufman’s asset disclosure affidavit given in the BVI proceedings, which she knew was protected from disclosure by the CUU.2 In support of this allegation of contempt, two documents were exhibited to Brown 1. One is an incomplete Ukrainian version of what purports to be a transcript of the Bail Hearing. The second purports to be an incomplete English translation of the Ukrainian transcript.

[28]The criticism of or challenge to this evidence by the appellants/committal respondents, is that each of the two versions (Ukrainian and English) of the purported transcript are incomplete, devoid of any markings or other indication as to who prepared them, and Mr. Brown gave no evidence as to when, why and from whom they were derived or sourced. Mr. Brown provides no evidence as to the provenance or authenticity of either of these documents, nor any evidence seeking to establish their accuracy or reliability.3 Also, while the existence of a video of Ms. Gutovska testimony at the bail hearing proceedings on 26th October 2024 has been mentioned at paragraphs 43 and 44 of the committal respondents’ written submissions filed 17th May 2024, there is no mention whatsoever in Brown 1 of a video recording of her testimony, nor was the video exhibited to Brown 1. Additionally, the appellants/committal respondents state that Mr. Kaufman’s expressed position at the committal hearing was that he did not rely on the video recording, but only on the transcript as exhibited to Brown 1.

[29]Mr. Brown goes on to aver in Brown 1, that it is clear Ms. Gutovska made these disclosures with malicious intent which he has inferred from her threat, made in the public domain in Ukraine, to “Ramp up Publicity” against Mr. Kaufman. This latter assertion is based on an alleged telephone call on 17th August 2013 which he (Mr. Brown) had “with Kate Rigby, the partner in Rosing King LLB with conduct of the case for WWRT”, which was admittedly a ‘without prejudice” call, but was being disclosed in Brown 1 since “reference was made by Ms. Rigby, in the context of WWRT’s appeal to the Privy Council (sic), to WWRT’s intention that “publicity would be ramped up.”4 Accordingly, Mr. Brown’s belief is that “WWRT’s and Ms. Gutovska’s intention was to deploy information relating to the BVI proceedings in Ukraine to cause as much prejudice as possible to Mr. Kaufman, and that the “publicity” threatened by WWRT would include disclosing Restricted Information, including in the Ukraine criminal proceedings.”5

[30]Mr. Brown also addresses in Brown 1, what is described therein as “Ms. Gutovska’s prejudicial media campaign”6. There he speaks to what he describes as her admission of having voluntarily attended and being personally interested in proliferating proceedings against Ms. Kaufman, and that she had undertaken certain public activities to further those interests.7 Mr. Brown also recounts several examples of what was reported in the media in Ukraine of what Ms. Gutovska has said in answer or in response to questions from journalists on different occasions.

[31]These are (chronologically): - (a) a 16th October 2023 article entitled “HACC upheld the decision on the measure of restraint for the scandalous Odessa businessman”, published by Top-News.com.ua, a Ukraine news website and other news outlets8; (b) a 26th October 2023 interview outside the court in Kyiv “during which she made it clear that she had voluntarily offered assistance to the Ukrainian authorities admitted that she, via WWRT, had a direct commercial interest in the matter.”9; (c) also on 26th October 2023, a transcript of a video interview given by Ms. Gutovska outside the courtroom before the Bail Hearing on that day in which she is alleged to have said in response to a question as to why out of some 150 witnesses she is the only one who actually goes to court: “You see, obviously, I have a commercial interest, right? As for the WWRT, I’m just curious about what’s going on. Our lawyers and colleagues are here, we are curious, we would like to know what is going on.”10 (d) 31st October 2023 during which Ms. Gutovska is reported as saying, inter alia, “From what I can tell you so far…we are certainly following the case closely; we have a significant amount of evidence that will certainly be very useful to the prosecution and to the state and the city of Odesa in obtaining compensation and damages, we have undisputed evidence provided by Mr. Kaufman himself, about his enormous wealth, that is, we have evidence that he himself actually submitted – an affidavit to the court in the British Virgin Islands that only one of his assets is worth (redacted) million dollars, which is a lot of money, which I think Ukraine will need at this time. That’s probably the … those are the details that I can shares with you at the moment” (emphasis added); (e) a 2nd November 2023 article entitled « HACC did not allow representatives of the public to announce the decision to change the measure of restraint for Kaufman, - Gutovska”11; and (f) a 20th November 2023 article in Politeka titled “Kaufman’s Defence is trying to delay the trial by filing a motion to disqualify the prosecutor and detective, -Gutovska”12

[32]In Brown 1, the affiant also addressed what is termed the “false and misleading statements” made by Ms. Gutovska in her evidence before the Ukrainian court about the outcome and status of the BVI proceedings, giving certain examples; her false representation that she is a solicitor in the United Kingdon; and her false statement that the British government and British pension funds have invested in WWRT through a related company, Asertis Limited. It is to be observed that each of these allegations of false and/or misleading statements are taken from what Ms. Gutovska is alleged to have said as taken from the impugned transcripts of her interrogation on 6th October 2023 by the Ukrainian authorities, and her testimony at the bail hearing on 26th October 2023.

[33]Before leaving what evidence was adduced in the contempt proceedings below, I should mention, as was revealed during the hearing of this appeal, that the appellants did file affidavit evidence of Ms. Gutovska in response to the notice of application for committal and what was said in Brown 1. To this the respondent, Mr. Kaufman filed a second affidavit of Mr. Brown (“Brown 2”). Apparently, Brown 2 not only responded to Ms. Gutovska’s evidence, but also addressed and exhibited certain correspondence passing between the lawyers for the parties between the service of the notice of application and the filing of Brown 2. More specifically, exhibited to Brown 2 is a letter dated 4th March 2024 from the BVI lawyers for WWRT, and a letter dated 22nd December 2023 also from the said lawyers.

[34]I observe that neither of these letters were referred to by the learned judge when giving his ex tempore decision dismissing the appellants’ no case submission. This notwithstanding, before this Court learned counsel for the respondent sought to rely on both letters as evidence properly before the learned judge on the contempt application, to be taken into account in determining the correctness of the judge’s dismissal of the appellant’s no case submission in the event that this Court finds that the learned judge committed certain errors of law or procedure warranting the setting aside of his dismissal order. Furthermore, Mr. Morgan also sought to rely in his appeal submissions (oral and written) on behalf of the respondent/contempt applicant, on matters which it is asserted counsel for the appellants/committal respondents had referred to in his oral submissions in support of the submission of no case to answer, which matters form part of the appellants/committal respondents response evidence filed in compliance with the directions of the court below and which response evidence was admittedly not adduced evidence in the said proceedings but were subject to the appellants’/committal respondents’ right to silence. This submission that additional matters were made part of the contempt proceedings and evidence, was premised on the basis that by mentioned or relying on them in support of the no case submission, the appellants/committal respondents had adduced some of their filed response evidence in answer to the contempt application, notwithstanding their admitted ‘right to silence’, and had thereby “Crossed the Rubicon”.13

[35]I shall return later in this judgment to consider these evidential issues. However, before doing so I deal in the next sections with the law and principles applicable to contempt proceedings and to the correct approach of a judge to the submission of no case to answer. Suffice it to be noted at this juncture, that the appellants/committal respondents take issue with the overall approach and submissions of the respondent/committal applicant to this so-called ‘additional evidence’ being somehow evidence adduced by them in the committal proceedings up to the stage of the no case submission. The law and procedure: Contempt of Court

[36]Several important principles have emerged from the authorities on the law of contempt, the burden and standard of proof, how a court or judge ought to approach contempt of court proceedings, what matters are to be considered to be adduced in evidence on a contempt application, and the court’s assessment of the evidence adduced or relied on by the parties. Most, if not all of these principles are uncontroversial and, in that sense, may be said to be trite. They have been set out in several English cases and in decisions of this Court.

[37]The overarching principle is that the law and principles relative to the burden and standard of proof and to the applicable procedure in contempt proceedings are the same whether the court is concerned with criminal contempt (contempt in the face of the court) or civil contempt for alleged breaches or non-compliance with an order of the court. The second fundamental principle is that the burden of proof lies upon the prosecution or committal applicant and the standard of proof is to the criminal standard, that is, proof beyond a reasonable doubt. Accordingly, a respondent or committal defendant is entitled to the benefit of any reasonable doubt as to whether the specific charges or allegations of contempt are proven to the criminal standard. In Munib Masri v Consolidated Contractors International and ors14, Christopher Clarke J stated at para. 144: – “The onus of proving the acts of contempt of which he complains rests on the judgment creditor. He must satisfy the court so that it is sure that the judgment (sic) debtors are in contempt in the respects alleged i.e. to the criminal standard. The judgment debtors are to have the benefit of any reasonable doubt.”

[38]In seeking to discharge the burden of proof in contempt proceedings for breach or non-compliance with a court order, the committal applicant must show that (i) the committal defendant knew the terms of the order alleged to have been breached; (ii) he acted or failed to act in a manner which breached the terms of the said order; and (iii) he knew of facts which made his conduct or lack thereof a breach of the said order.15

[39]In considering whether an applicant for contempt has made out to the criminal standard a case of breach of an order of the court, the judge must consider each of the allegations of contempt and the totality of the admitted evidence in the round. It is not correct to simply consider each individual head of contempt in isolation, albeit the evidence as to each breach alleged must be weighed and a determination as to its proof made to the criminal standard. In Gulf Azov Shipping Co Ltd v Idisi16 it was stated in this way at para. [18] – “It is not right to consider individual heads of contempt in isolation. They are details on a broad canvas. An important question when that canvas is considered is whether it portrays the picture of a Defendant seeking to comply with the orders of the Court or a Defendant bent on flouting them. It is right that the individual details of the canvas should be informed by the overall picture. But, having said that, each head of contempt that has been proved must be established beyond reasonable doubt.” Right to Silence and Adverse Inferences

[40]Because of the criminal nature and potential consequences of a breach or non- compliance of a court order, the committal defendant is entitled fundamentally to the right to silence, which right is his or her to elect to maintain throughout the contempt proceedings. This is because, as stated above, the onus and burden of proof in contempt proceedings rests on the committal applicant throughout. This right is oft referred to as the rule or privilege against self-incrimination and has been enshrined in the statute laws of certain jurisdictions.17 That the appellants in the instant matter had the benefit of the right to silence is not disputed.

[41]As a core feature of the right to silence, a committal defendant is not required and cannot be compelled by the court to put evidence before the court in answer to or in rebuttal of the allegations of contempt. Likewise, it is well established that a committal defendant cannot be compelled to offer himself for cross-examination by the committal applicant or those representing him in the civil contempt proceedings. However, where he does voluntarily give evidence, he has no right to decline to be cross-examined. Comet Products U.K. Ltd v Hawkex Plastics Ltd18: - “I hold that a man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him prove his guilt.’19 ‘Where, however, the person whose committal is sought in civil contempt proceedings has voluntarily given evidence, I see no reason why he should be entitled, as of right, to decline to be cross-examined.”20

[42]However, the question arises as to whether the judge in committal proceedings is entitled to draw adverse inferences where a committal defendant does not put forward or adduce any positive defence in answer or in response to the specific charges or allegations of breach of the court’s order. This issue was considered in a number of English cases. Two examples are: Inplayer Ltd v Thorogood21; and VIS Trading Co Ltd v Nazarov22, both of which dealt with the ability of a judge in civil contempt proceedings to draw adverse inferences from an accused standing on his or her ‘right to silence’ at the end of the case for the committal applicant, and not giving or leading any evidence in response to or in defence of the contempt allegations laid against him.

[43]The position at common law is that a defendant in a criminal case has a right to silence and no adverse inferences can be drawn from his or her failure to give or to lead evidence in their defence to the criminal charges. However, section 35 of the Criminal Justice (Public Order) Act, 1994 of the Parliament of the United Kingdom, had made some inroads into the position at common law in relation to criminal trials whereby, in determining whether the accused is guilty of the offence or offences to which he or she has been charged, it is permissible for the judge or the jury ‘to draw such inferences as appears proper from his failure to give evidence or his refusal, without good cause, to answer any question’ if he had taken the step to testify. (s. 35(2) & (3)). By section 35(4), section 35 ‘does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.’ Suffice it to be said that there is no equivalent statutory provision to section 35 in the laws of BVI.

[44]The question of drawing adverse inferences in civil contempt cases for a failure to lead evidence in answer to the allegations of contempt, was also considered by Christopher Clarke J in Marsi.23 There the judge, having considered the submissions of counsel on this issue and reasoning by analogy with the position in England in criminal cases, accepted as the correct approach in cases of civil contempt the principles set out by the learned editors of Archibold - Criminal Law and Procedure at para. 4-398 in relation to an accused failure to testify in criminal proceedings. That position is that where an accused fails to testify (i) an inference from that failure cannot on its own prove guilt; and (ii) the court must be satisfied that the prosecution has established a case sufficiently compelling to call for an answer before drawing any inference from silence, and if it is concluded that the silence could only sensibly be attributed to the accused’s having no answer, or none that could stand up to cross-examination, the court could then draw an adverse inference.

[45]What is clear from the authorities is that where the common law position remains unaltered as in the BVI, no adverse inferences can be drawn by a judge for the failure of a committal respondent to adduce, deploy or to lead evidence in answer to the committal applicant’s case in support of the contempt allegations or charges, such as breaches or non-compliance with an order of the court. Moreover, were it open to a judge to draw adverse inferences in such circumstances, this cannot be done unless and until the court finds that the committal defendant has a case to answer or the hearing proceeds on the basis that there is at that stage a case for the committal respondent to answer. In short, no adverse inference can be drawn by the judge from the exercise by a committal respondent of his or her right to silence when considering whether a submission of no case to answer made at the end of the case for the committal applicant ought to be allowed to proceed.

[46]This is because a committal defendant is not required to put forward any evidence in rebuttal or in answer to the committal applicant’s case before the conclusion of the latter’s case in proof of the allegations or charges of contempt. The corollary to this principle is that where the committal defendant has, in derogation from his or her right to silence, adduced or deployed evidence in answer to or in rebuttal of the allegations of breach of the court’s order for consideration by the judge in determining whether there is a case to answer, the judge is entitled and indeed compelled to consider all the evidence adduced at that stage in determining whether to accede to a submission of no case to answer.

Adducing evidence in civil contempt proceedings

[47]With that said, there are, however, some differences in the approach procedurally to the evidence in cases of criminal contempt as compared with, as in the instant matter, civil contempt for alleged breaches of an order of the court or undertaking given to the court by a party to the said civil proceedings. Whereas in criminal proceedings the alleged contemptuous act of the alleged contemnor would usually have occurred in the face of the court, in civil contempt proceedings the alleged contemptuous act or failure to act by the committal defendant is usually some breach or non-compliance with an order of the court or undertaking given to the court in the proceedings. Thus, in civil contempt proceedings certain procedural and evidential principles have evolved and been adopted routinely by courts dealing with civil contempt proceedings. These procedural and evidential principles serve first and foremost to protect and maintain a contempt respondent’s right to silence and his or her non-compellability to lead or to give evidence in answer to the allegations of contempt, either before the contempt applicant has led his evidence fully and there is a case for the contempt defendant to answer, or after.

[48]I summarize the principles applicable to civil contempt proceedings (as gleaned from some applicable case law and from Grant & Mumford Civil Fraud: Law, Practice & Procedure 1st ed 35-061 to 35-066) as follows: - (a) generally, an applicant for a committal order must have marshalled the totality of his or her evidence on which they seek or will be seeking to rely by the time the committal application is filed; (b) an application for contempt must specify the exact nature of the alleged breach or breaches of the order or undertaking by the judgment debtor (committal respondent) and the precise term or terms of the order or undertaking which it is alleged that the judgment debtor (committal respondent) has disobeyed or broken CPR 2023 r. 53.7(1)(a)&(b), and be supported by evidence on affidavit containing all the evidence relied or to be relied upon by the applicant to establish the allegations of contempt (breach of the court order) particularized in the application; 24 (c) the evidence may consist of one or more affidavits with exhibits, all of which must be filed and served on the committal defendant with the committal application but, subject to any directions or orders of the court, prior to the hearing of the application, so that the committal defendant knows well in advance of the hearing the allegations of contempt and the evidence in support thereof which he or she will face and may elect to answer or address in the contempt proceedings; (d) once the committal application and affidavit evidence has been served on the committal defendant, the court will generally give directions for the service of any evidence in response or in answer to the committal application, such response evidence to be usually by affidavit(s) also, and directions for evidence in rely by the committal applicant. However, in keeping with his/her right to silence, the committal defendant need not serve or may elect not to serve any evidence in response to the committal application, but the court is entitled to order that any written evidence which he wishes to put in must be served by a specific date.25 (e) where the committal defendant elects not to put in written evidence, this will not affect his right to give oral evidence at the hearing if he or she chooses, and the court finds that there is a case to answer, or to apply for and to have the court require the committal applicant and any other affiant to present themselves to be cross-examined during the hearing, and before the closing of the case for the committal applicant; (f) Importantly, although a committal respondent may file and serve evidence in response to the committal application in advance of the hearing, that evidence may not be relied upon or use of by the committal applicant until the committal respondent has formally adduced that evidence in answer to the allegations of contempt in the proceedings. Simply by obeying a direction for filing and service of such evidence in advance of the hearing, the committal respondent does not deploy the evidence in support of his own case.26 (g) it will be a question of fact as to whether, in the particular case, a committal respondent has gone beyond merely swearing and filing his or her evidence in accordance with a court order, such that the committal applicant would be entitled to rely on it or aspects of it in answer to a submission of no case to answer or, additionally, in submitting at the conclusion of the evidential phases of the hearing, that they had proven the allegations of contempt to the criminal standard.

[49]This question arose in and is aptly illustrated by the decision in Templeton Insurance Ltd v Motorcare Warranties Ltd et al27. There the court held that the committal applicant in response to a submission of no case to answer, was entitled to rely upon the affidavits sworn by the committal respondent, because the latter had gone beyond merely swearing and filing the affidavits in compliance with the directions order of the court, as the affidavits has been put in the hearing bundle, counsel for the respondent had invited the court to read the affidavits and he had made references to that evidence in the respondent’s skeleton arguments served in advance of the hearing. This brings me to the evidential and procedural issue raised by Mr. Morgan KC, learned counsel for the respondent, in these proceedings, and opposed Mr. Pillow KC, learned counsel for the appellants. I will address this as a preliminary issue before going on to consider the grounds of appeal because the way in which this issue is resolved may affect this Court’s consideration of ground 2 (the right to silence) and ground 3 (the assessment of the evidence at the no case to answer stage). Preliminary Issue: what evidence was properly before the judge in the contempt application and does this include the so-called Additional Evidence?

[50]The only common ground between the appellants and the respondent on this issue is that Browne 1 and the exhibits thereto were in evidence before the learned judge below in the contempt application. In responding to questions about this from the Court, counsel for the appellants explained that while there was no formal objection by the appellants to the admissibility of any of the evidence in Brown 1 or any exhibit thereto, nor did the appellants specifically invite or request the learned judge below to rule on their admissibility, including the admissibility of the purported transcript documents in exhibit RB-1 relative to the 6th October 2023 interrogation and the 26th October 2023 bail hearing in the Ukraine, and accordingly, these exhibits were technically before the judge on the contempt application, their position submission concerning these pieces of evidence or objection was to their provenance, authenticity and accuracy. More specifically, that the transcript documents exhibits could not be relied upon at all to prove to the criminal standard that the appellants had committed a contempt by disclosing that restrictive information in breach of the CUU.

[51]It is to be noted that the appellants/contempt respondents, in their written submissions filed 17th May 2023 in the committal proceedings, made clear their position on what evidence could be read and relied on by the judge on the contempt application (at page 1’Important Note of Pre-Reading’):- “As such, although Rs have pre-emptively served written factual evidence in accordance with the Court’s directions, it is not open to Mr. Kaufman to reply upon or to refer to that punitive factual evidence in making his application (including counsel’s skeleton argument); and it should not therefore be read or taken into account by the Court, unless and until (and then only to the extent) that Rs elect in due course to adduce it in the Committal Application.”

[52]It is correct to say that there was no demur to this stated position from either the committal applicant Mr. Kaufman or the judge, and this seems to have been the accepted position at the hearing of the committal application. The committal respondents also made clear in the said note that their application for retrospective permission and the evidence in support thereof was contingent on and “should not be considered by the Court until after the determination of the committal hearing”; accordingly, it was not open to Mr. Kaufman to refer or to rely upon that application or supporting evidence when making his Committal Application. Again, this stated position seems to have been agreed by counsel for the committal applicant and the learned judge.

[53]At section E1, paras. 31-35 of their written submissions below, the appellants/committal respondents made certain ‘Preliminary and evidential objections’. These consisted, in the main, not strictly of points of objection on admissibility, but attacking the authenticity, provenance, and accuracy of the main exhibits to Browne 1, namely, the translations of the transcript of the Interrogation by the Ukrainian authorities on 6th October 2023 of Ms. Gutovska, which points have been maintained before this Court in presenting the appeal.28

[54]At paragraph 33, the appellants/committal respondents underscore that these are not “arid or technical points”, since an application for committal must be established by “sworn evidence of the provenance, authenticity, and accuracy of documentary material “, and it cannot be presumed that the committal respondent will admit to the contempt allegations, as the appellant/committal respondents in the instant matter do not. At paragraph 35 of their written submissions below the appellants submitted – “35. For all these reasons, there is no proper evidential foundation for the allegations of contempt made in relation to the interrogation, which Mr.

Kaufman cannot therefore prove by evidence (on oath and served with the

Committal Application) to the required criminal standard.”

[55]With regard to the documentary evidence of the Bail Hearing,29 the appellants/committal respondents made certain ‘evidential objections’ in their written submissions in the court below to the Ukrainian version of the transcript of the said hearing, including that it is completely devoid of any marking or other indication to show or to evidence who prepared it; when, why and from what underlying source it was derived; and how Mr. Brown had come by it.

[56]Also, at paragraph 43, counsel for the committal respondents in the court below refers to correspondence (no specifics given of type or date) that “Mr. Kaufman says that the transcript is taken from a video recording of the hearing”, which video he has failed to adduce in evidence, and has “expressly eschewed any such reliance (presumably because of some concern over his right to have or to deploy it).” Also, at paragraph 45, further criticism is levied at the Ukrainian transcript, it having been redacted “presumably to remove the very evidence that is claimed to prove the alleged contempt”; and that the English version has been redacted in different respects, with these differences not having been explained by the affiant Mr. Brown.

[57]Finally, no mention was made in this written submission below by the appellants/committal respondents of the letters of 4th March 2024 and 22nd December 2023, or to Brown 2 or the matters addressed therein or documents exhibited thereto.

[58]During the hearing of this appeal, counsel for the respondent/committal applicant accepted that the response evidence of Ms. Gutovska was not in evidence before the learned judge on the Committal Application, and therefore, not evidence to be taken into account when deciding on the no case submission itself. This was on the basis that an applicant for committal for contempt must lead and can only rely on its evidence to prove the contempt allegations to the criminal standard, and cannot rely on evidence filed but not yet adduced by the committal respondent, unless the committal respondent has adduced that evidence or sought to rely on certain parts of it during the presentation of the applicant’s case in answer to the charges or allegations of contempt. As stated above, this principle is well-supported by authority.

[59]However, counsel for the respondent seeks to go further on this issue. He asserted before this Court that although the portions of Brown 2 which are in response to Ms. Gutovska’s affidavit in answer to the allegations of contempt of court are also admittedly caught by the same exclusionary principle and was not in evidence before the judge below on the committal application, the other portions of Brown 2 which sought to put before the judge the correspondence passing between the lawyers were properly evidence before the judge, to the extent that they contained admissions by or on behalf of the appellants of breaches of the CUU.

[60]The respondent/committal applicant went on to submit that were this Court to set aside the judge’s decision on the no case submission and to revisit and access afresh the evidential material in determining for itself whether there was a case to answer, this exercise would be complicated by certain “further considerations”. The first is that counsel for the appellants/committal respondents in his oral no case to answer application “referred to material contained in their evidence in answer”, which material was subject to their right to silence and therefore not evidence adduced in the committal proceedings up to the stage of the no case submission. Examples of these references or extracts are set out in Schedule 1 to the respondent/committal applicant’s appeal skeleton argument.

[61]I observe that these submissions were made under the section of the written submissions addressing what evidence would be open to this Court to consider should it decide to reassess anew the question whether the respondent/committal applicant had met the standard of a prima facie case to answer. This observation also relates to the point concerning the appellant/committal respondents Application for Retrospective Permission, and the two letters dated 4th March and 22nd December 2023 all of which were addressed under that same section of the appeal submissions.

[62]At Schedule 1, the respondent/committal applicant sets out several instances in or extracts from the oral address of Mr. Pillow KC when making the application of no case to answer, together with the references to where they can be found in the transcript of the proceedings below. Many of these passages are references to the correspondence between the respective lawyers, without having referred to any specific piece of correspondence by type or date; and some are references to the existence of a “video”, which video is notably not exhibited and not in evidence. As to these references, counsel Mr. Pillow KC expressly states that the correspondence is not part of the evidence before the judge. As to the reference in five of the extracts to a “video” being somewhere out there, these too are, in my view, of no moment.

[63]They submit that there are two consequences which flow from them having done so. The first is that they thereby invited the learned judge to “embark upon an assessment of the weight of the evidence” prior to them formally making a case submission and prior to the entirety of the evidence available to the court being argued”. This approach changed the whole nature of the contempt application “into something unknown to the law”. The second consequence of them having done so is that they had thereby “Crossed the Rubicon” by having made an election to adduce some of their evidence in answer. The effect of this, argued the respondent/committal applicant is that it brought into play “all” of the evidence in Brown 2 filed in reply. However, because this occurred in the way in which it did and at such a stage of the proceedings, the learned judge did not have the opportunity to consider this further evidence and its possible impact on his decision on the no case submission.

[64]The respondent/committal applicant also cites as further considerations the fact of the appellants/committal respondents Retrospective Permission Application as an admission or implied admission that Ms. Gutovska had breached the CUU in the manner alleged in the Committal Application and exhibits to Brown 1. By referring to this application, counsel argued, the appellants/committal respondents implicitly accepted that the Restrictive Information has been used improperly and in breach of the CUU, that being a reasonable inference to draw from them having formally applied to retroactively “cure” the breach of the CUU.

[65]Also, they seek to rely evidentially on the two letters dated, respectively, 4th March 2024 and 22nd December 2023 by which it is said that the committal respondents had admitted that they took no issue with the contents of the transcripts of the Interrogation and the Bail hearing in the Ukraine, save for a limited number of discrepancies, which alleged discrepancies are dealt with in Brown 2. This submission was based on the principle that an applicant in contempt of court application is permitted to rely, as part of its case in prosecution of the alleged contempt, on open admissions made by the respondent to the application.30

[66]The respondent/committal applicant also submitted that Mr. Brown had been in court and available to be cross-examined in relation to his evidence, but the appellants/committal respondents elected not to avail themselves of that opportunity. Thus, they did not put to him any of their evidential points. Had they done so, “they would have elicited the responses set out in [Brown 2].” In this respect, they cite from paragraph 12-12 of Phipson on Evidence 20th Ed where the learned editors deal with the positive requirement on a party to litigation to challenge in cross-examination the evidence of a witness of the opposing party, “if he wishes to submit to the court that the evidence should not be accepted on that point”, a principle which has not been altered by the CPR. And, finally, they also stress that the appellants/committal respondents never applied to strike out or to exclude any of the evidence in either Brown 1 or Brown 2.

Conclusion on preliminary issue

[67]In my considered view, the extracts in Schedule 1 of what was said by Mr. Pillow do not cross the line or cross the Rubicon, such as to lead to the conclusion that the matter to which mention was made or the pre-hearing correspondence or the video was evidence before the learned judge in the contempt proceedings at the stage of the no case submission. Neither of these matters or items of potential evidence had actually or formally been adduced, deployed or made part of the evidence before the judge at that stage of the proceedings. What is clear is that the judge was not invited to treat these matters as now further evidence adduced in the contempt proceedings, neither by counsel for the committal applicant or the committal respondents, and he did not reference them or treat them as evidence upon which he could assess and make a decision on the no case submission. Likewise, these matters could not be considered evidence in the proceedings by virtue of there being some passing reference to or mention of them by counsel for the appellants/committal respondents in his oral submission of no case to answer. I have read and reviewed counsel’s oral submission of no case to answer and his reply submissions before the judge, and I do not accept the submission of the respondent/committal applicant that based upon these passages the appellants/committal respondents had crossed the line or Crossed the Rubicon, so that the said matters referenced by the respondent/committal applicant at paragraph 23 a.-g of his appeal skeleton as ‘further considerations could be taken int account either by the judge or by this Court, should it become necessary to conduct an assessment of the evidence afresh. It follows, therefore, that I do not accept and I am not convinced that it was open to the learned judge and now to this Court to take such matters into account when assessing the evidence and determining whether the no case submission ought properly to be upheld or dismissed. I am certainly not satisfied that Brown 2 (or aspects of the evidence in Brown 2) were before the court below in this, as argued by the respondent/committal applicant.

[68]In my judgement, the circumstances of this case are very different from the circumstances in Templeton Insurance which led to response evidence being considered as having been adduced or deployed in the contempt proceedings in that case. This was not evidence which had been included in the hearing bundles without demur, and the judge was not invited to read it in advance of the hearing, nor where passages from parts of the appellant/committal respondents’ response evidence extracted in the written submissions or read to the judge on the no case submissions made by their counsel. In fact, the judge was told not to read that evidence, to which he obviously complied. This accepted position did not change throughout the hearing. Not surprisingly, nowhere in the judge’s ex tempore decision were any such evidence specifically mentioned, except for the “purported” video recording.

[69]Accordingly, I respectfully reject Mr. Morgan KC’s attempt to convince this court that by virtue of the matters set out in Schedule 1, the appellants/committal respondents had “Crossed the Rubicon” or somehow deployed aspects of their intended defence, such that these matters could then be taken into account by the judge, and if necessary, by this Court in assessing whether there was a case to answer in the contempt proceedings. For the avoidance of doubt, I also come to the same conclusion and ruling regarding the appellants/committal respondent’s Application for Retrospective Permission, which was expressly said to be contingent upon the outcome of the Committal Application, and the hearing of the latter was proceeded with on that basis before the learned judge, and which it clearly did.

[70]What then of the two letters dated, respectively 4th March 2024 and 22nd December 2024. The letter of 4th March 2024 was written without prejudice as to jurisdiction. Neither of these letters were mentioned or considered by the learned judge in his decision on the no case submission. Furthermore, they were not exhibited to Brown 1 (having come after this first affidavit had been filed and served with the Committal Application). They were, apparently, exhibited to Brown 2. However, not surprisingly, neither of them were relied on by the respondent/committal applicant in proof of his Committal Application. I say not surprisingly because when explaining the source of evidence before the judge at the hearing of the application, the respondent/committal applicant, while referring in its skeleton submissions (para. 6) to there being two affidavits in support of the application from Mr. Brown, expressly stated that: “the facts and matters set out below are from Mr. Brown’s first affidavit (“Brown 1”) and exhibit RB-1”. Counsel went on to state, “If they [the committal respondents] do seek to rely on that evidence [as reference to the committal respondents two witness statements], BK [the respondent/committal applicant] will rely on Mr. Brown’s second affidavit (“Brown 2”) and the Expert Report of Bohdan Shabarovsky.” Moreover, nowhere in the said written submission is there any mention of the two letters dated respectively 4th March 2024 and 22nd December 2023.

[71]Based on the foregoing, I conclude, and it is my ruling, that the only evidence before the Court on the Committal Application at the stage of the submission of no case to answer was Brown 1 and exhibit RB-1 thereto. Accordingly, I respectfully reject Mr. Morgan KC attempt to convince this court that by virtue of the matters set out in Schedule 1, the appellants/committal respondents had “Crossed the Rubicon” or somehow deployed aspects of their intended defence such that the said matters became evidence in the committal proceedings to be taken into account by the judge, and if necessary, this Court in assessing whether there was a case to answer in the contempt proceedings. Likewise, there is no proper basis made out by the respondent/committal applicant for this court to hold that the learned judge was entitled to consider the matters in Brown 2 and/or the exhibits thereto, including the letters dated, respectively, 4th March 2024 and 22nd December 2023. The law and principes applicable to submission of no case to answer

[72]The starting point of any discourse into the principles applicable to a court deciding whether to uphold or to reject a submission of no case to answer in civil contempt proceedings is the ‘canonical’ statement of law by Lord Lane CJ in the seminal decision of the English Court of Appeal in the criminal appeal Regina v Galbraith31. This oft cited statement of the test and applicable principles apply with equal force and relevance to a no case submission made in civil contempt proceedings. In delivering the judgment of the Court of Appeal, Lord Lane CJ opined: - “How should the judge approach a submission of “no case”? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.” (at page 1042B-E)

[73]As opined by Baptiste JA in Edwin Gomez and Isaiah Benjamin v The Queen32 the test and principles in Galbraith consists, broadly speaking, of two limbs. The first limb deals with cases where there is no evidence that the crime was committed by the defendant/accused. In such cases, the presiding judge is duty bound to uphold a submission of no case to answer if made or, if not made by the defendant, to stop the case and discharge the accused. The second limb is where the prosecution (or applicant for committal) has led some evidence pointing to the accused having committed the crime as charged, but such evidence is of a tenuous character because of its inherent weakness or vagueness or because it is inconsistent with other evidence in the case at the close of the case for the prosecution (or committal applicant). There may be other cogent reasons why the evidence adduced by the prosecution may be said to be tenuous or weak.

[74]I would add that generally in determining based on the principles in Galbraith whether to uphold or dismiss a submission of no case to answer, the judge’s assessment of the evidence and his decision must be based on properly admissible and relevant evidence in the proceedings, be they criminal proceedings or civil contempt proceedings. Where the judge considers that certain of the prosecution’s evidence as led may be inadmissible in the proceedings, he ought to hold a voir dire or, in civil contempt proceedings, he ought to invite submissions on the point of admissibility and make a ruling thereon. This more conveniently ought to be done in civil contempt proceedings either at the point where the questionable evidence is sought to be introduced or relied upon. However, this does not preclude a judge when ruling of a submission of no case to answer, from considering and ruling on the admissibility of the evidence or for that matter on its provenance, authenticity and accuracy as evidence capable of proving the alleged breach of the order of the court to the criminal standard.

[75]The rule in Galbraith was considered by the Board in Director of Public Prosecutions (British Virgin Islands) v Varlack33. At paragraph 21 the Board restated the basis rule: “The basis rule in deciding on a submission of no case to answer at the end of the evidence adduced by the prosecution is that the judge should not withdraw the case of a reasonable jury properly directed could on that evidence find the charge in question proved beyond a reasonable doubt. The canonical statement of the law, as stated above is to be found in the judgment of Lord Lane CJ in T v Galbraith…. That decision concerned the weight which could properly be attached to testimony relied upon by the Crown as implicating the defendant, but the underlying principle, that the assessment of the strength of the evidence should be left to the jury rather than being undertaken by the judge, is equally applicable in cases … concerned with the drawing of inferences.”

[76]This statement of applicable principles focuses the function of an appellate court to not simply deciding whether in reaching his decision to dismiss or to uphold a no case submission the judge below committed errors of law or principles or adopted generally the incorrect approach and test, but ultimately the real question for determination by the Court of Appeal is whether “his assessment of the sufficiency the evidence was correct.”34

[77]Based on these principles, in the instant matter, it is necessary for this Court to determine whether the learned judge below committed the errors of law contended for by the appellants/committal respondents in their notice of appeal and submissions, that is, whether the learned judge effectively shifted the burden of proof from the respondent/committal applicant to the appellants/committal respondents and/or whether in doing so he improperly or erroneously undermined or eroded the appellants/committal respondents’ right to silence, and which errors led him to adopted an incorrect and flawed approach to his assessment of the sufficiency of the evidence. Should this Court reach the conclusion that the learned judge’s assessment of the evidence was fundamentally flawed, the matter does not end there. This Court must then go on to consider whether, upon a correct approach to and assessment of the adduced evidence, the judge’s decision was ultimately correct in dismissing the submission of no case to answer or not. It is this question or issue which will be determinative of the appeal.

Ground 1 – Did the judge wrongly shift the burden of proof

[78]In the instant matter, that the burden of proof rests squarely on the applicant in committal proceedings for civil contempt and to the criminal standard, is not in dispute. This is pellucid from such authorities as Masri, Templeton and Comet considered above. Accordingly, an applicant for civil contempt has the burden of proving each element of the alleged contempt so that the presiding judge can feel sure that a case of contempt by breach or breaches of a court order, the terms of which were known to the alleged contemnor, have been made out on the evidence adduced or deployed in the contempt proceedings, to the standard of beyond a reasonable doubt.

[79]The appellants/contempt applicants argue under this ground of appeal that the learned judge, having correctly acknowledged that the burden of proof lay squarely on the contempt applicant, Mr. Kaufman, in rendering his ex tempore decision failed properly to focus on whether Mr. Kaufman had proven the provenance, authenticity and accuracy of the transcripts and translation documents exhibited to Brown 1 to the relevant standard, that is, beyond a reasonable doubt, and whether these documents, with their admitted deficiencies, could possibly establish to the criminal standard that the Ms. Gutovska had knowingly and deliberately breached the CUU. Instead, the learned judge sought wrongly to determine and to dismiss the no case submission on account of the absence of any evidence from the appellants that the said documents were not accurate or that Ms. Gutovska had not made the alleged statements at the 6th October 2023 Interrogation by the Ukrainian authorities and or at the 26th October Bail Hearing in the criminal case in Ukraine against Ms. Kaufman. The effect of this, the appellants submitted, was to wrongly create a burden of disproof and to shift the burden of proof to the appellants/committal respondents.

[80]In support of this submission, counsel for the appellants/committal respondents point to several parts of the judge’s decision on the no case submission, which they argue, it is clear that the learned judge had, in his assessment and analysis of the evidence adduced in Brown 1, wrongly placed emphasis on the absence of evidence from the appellants/committal respondents to show that what was in the impugned exhibits relied on by the respondent/committal applicant as having been said or disclosed by Ms. Gutovska in breach of the CUU, was incorrect or simply wrong. These extracts of what the learned judge in fact said were set out at paragraph 17.1 to 17.4 of the appellants/committal respondents’ appeal skeleton argument.

[81]In response to this first ground of appeal, the respondent/committal applicant submitted firstly that the evidence adduced before the judge in the committal proceedings was sufficient to establish to the criminal standard that the appellants had committed breaches of the CUU and were in contempt of the court in BVI. Furthermore, even if upon an assessment of the evidence adduced in the committal proceedings this can be categorized as a ‘borderline case’, based on the canonical statement of Lord Lane CJ in Galbraith, it was within the discretion of the learned judge, and he was correct to dismiss the submission of no case to answer and to allow the committal proceedings to continue. Accordingly, it was submitted that there is no appeal against the judge’s exercise of discretion nor could there properly be.35 I return to this point below.

[82]The respondent/committal applicant argues that upon a careful reading and proper understanding of the entire decision of the judge below, it cannot reasonably be shown that he did shift the burden of proof on to the appellants/committal respondents. The judge’s statements (as complained of at para. 17.1-17.4 of the appellants’ written submissions) were merely his observations, which were simply that there was a case to answer on the basis of the evidence before him and that the appellants/committal respondents had not answered it.36 Analysis and conclusion -ground 1

[83]I deal first with the respondent/committal applicant’s point regarding borderline cases and the exercise of discretion by the judge below based on this statement by Lord Lane CJ in Galbraith: ‘There will of course, always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.’

[84]I am of the opinion that this statement is simply meant to identify what may be considered to be a subset of the second category of cases identified by the Chief Justice as ‘borderline’ cases, and how, in such cases, the presiding judge ought to approach his or her determination of a submission of no case to answer. The second category comprises cases where there is some connecting or incriminating evidence which is of a tenuous character, but could satisfy the requirement of a prima facie case to answer or not. Where the evidence led by the prosecution/contempt applicant is so tenuous or flimsy as to be a ‘borderline’ case, a judge may, applying the test in Galbraith, uphold or dismiss the no case submission. In such circumstances, an appellate court charged with reviewing the decision of the judge below is unlikely to overturn it and substitute a different outcome, since the decision was a matter of the judgment if the presiding judge. Another judge may, in the identical circumstances, come to the opposite conclusion on the no case submission, and it is not for this Court to set aside the judge’s ruling on the basis that it would have come to a different decision.

[85]If it is that the instant matter is to be properly characterized as a ‘borderline’ case, then the decision being appealed fell squarely to the judgment of the judge below as to whether to allow the contempt proceedings to continue or to stop and dismiss them. This, in my view, is what is meant by the above quoted statement of Lord Lane CJ in Galbraith when the Chief Justice used the word “discretion”. If this is a borderline case then it is difficult to conceive of the appeal against such a decision succeeding, even if the learned judge had committed some errors in his approach to an assessment of the evidence before him. (R v McLeod and others and Isaiah Benjamin)

[86]Did the learned judge consider that he was dealing with a borderline case? He certainly did not use that adjective to characterize the case he was dealing with at the no case to answer stage of the committal proceedings. Interestingly, the learned judge had this to say at the very beginning of his oral decision: “I have to admit that I find it very difficult to make this one choice of two roads that we talked about earlier. And I have gone through this hearing convinced in my mind that I should take the first one and then the other and then back again and then the other. So that’s never a very prepossessing starting point for a ruling.” “Where I think I come down is that with a no case to answer submission, they normally take various different forms, and the form that this one takes is that it involved a qualitative analysis of the evidence of, lets call it for what they are for present purposes, the prosecution. So it was a question of looking at the reliability or the weight, one could possibly call it, of, in essence, two documents”

[87]The judge then identified the two documents purporting to be, respectively, translations of what transpired with Ms. Gutovska at the 6th October 2023 Interrogation by the police and of what transpired at the 26th October 2023 Bail Hearing testimony of Ms. Gutovska. He identified the issues with each document evidentially. He also referred to what he understands is a video recording (not in evidence before him) of the 26th October 2023 Bail Hearing testimony of Ms. Gutovska. As to the first document, the judge says: “So that is a weakness, obviously, in Mr. Kaufman’s case here.” As to the second document and the purported video recording, the judge states: - “Now, it has to be said that when this Court hears that, it is not a good start to a contempt application for which the Applicant or prosecutor, in this case, Mr. Kaufman, has a burden of proof to the criminal standard of beyond a reasonable doubt. So that’s not a good start.”

[88]Later on in his decision (transcript p.17 L20-21), the learned judge comes closest to characterizing the case before him when he opines: “It is not one of those clear-cut no case to answer type cases.” Saying it is not clear cut does not equate with saying or characterizing the case as a ‘borderline’ case. Essentially, from this statement and a full reading of the judge’s decision, it would seem to be the case that he treated the case as one where there was some evidence implicating Ms. Gutovska, and by extension her company WWRT, in having knowingly and deliberately disclosed in the two proceedings in the Ukraine (6th and 26th October 2024) the Restrictive Information obtained by WWRT pursuant to the disclosure orders in the BVI WFO in breach of the Collateral Use Undertaking (CUU) given by WWRT.

[89]For these reasons, I do not accept that the judge below classified this as being a ‘borderline’ case at the close of the case for the respondent/committal applicant. With that said, however, should this Court conclude that the judge’s assessment of the evidence and decision was flawed or was arrived at through a flawed approach such that this Court should conduct its own assessment, it is for this Court to consider and to characterize the case, whether as a ‘borderline’ case or simply a category 2 case.

[90]In my considered view, ground 1 of the appellants/committal respondents has some merit and force of argument. I reach this conclusion having given careful consideration to the various passages in the decision which are identified at paragraph 17.1 to 17.4 of the appellants’/committal respondents’ appeal skeleton and which are said to have offended against the fundamental principle that the burden of proof rests throughout in civil contempt proceedings on the applicant; and also having also given careful consideration to the submissions from both the appellants and the respondents on this issue and ground of appeal. I refer (with one addition of my own) in particular to the following statements by the learned judge in rendering his decision on the no case submission: - “… we haven’t been shown any evidence that those crucial statements, either inaccurately recorded or not made at all”37 “…in my view, because we don’t have evidence that demonstrates or even prima facie demonstrates or that the alleged things that Ms. Gutovska is said to have said had not been said and because we have got the peripheral doubt that has been raised around the provenance of those documents, then I think it would be a strong step to grant a no case submission at this point.”38 “ … Frankly, she [Ms. Gutovska] may have said these things, she may very well have said these things, and nobody is pointing to any evidence that she didn’t.”39 “… but I get the sense that all these points really need to be argued out further, because I am not sure that this is the entire story on either side.”40 “I don’t think it is the end of the story for the simple reason is that there is, in fact, no evidence yet before the Court that Ms. Gutovska didn’t say these things, and I think that’s important.”41 “…I think your have to balance what the document says with what people are not saying, balance that.42

[91]While the learned judge had clearly identified where the burden of proof lies, it would impermissible in my view for the learned judge when assessing the evidence and reasoning to his conclusion on the submission of no case to answer to, essentially infect his thought proceed and more crucially his assessment, with these various statements which places or tends to consider it of importance that he did not have before him any denial, explanatory or defensive story or evidence from the committal respondents, and that this weighed against him upholding the submission of no case to answer.

[92]The duty and parameters of a judge when considering a no case submission is the first and foremost bear in mind continuously that the committal respondent does not have to prove or disprove any of the allegations of breaches of a court order made against him or her by a committal applicant; and that it is imperative to consider only the admissible evidence adduced or deployed by the committal applicant in the committal proceedings and to ask himself and answer the question whether that evidence was such that if left uncontradicted or unanswered was capable of proving the specific and particularized contemptuous allegations against the contemnor to the criminal standard of proof beyond reasonable doubt. This the learned judge, with the greatest respect, did not do. Instead, he allowed himself to be infected with irrelevant considerations, as demonstrated by the extracts above, and to use such considerations in reasoning to his decision in a way which smack of shifting or eroding the burden of proof from the committal applicant/respondent on to the appellants/committal respondents, when determining the no case submission. Moreover, the objective of a ruling on a submission of no case to answer is not to force the respondent into putting in or deploying evidence or to answer the allegations, but to assess whether on the admissible evidence before the court at that stage of the contempt proceedings, there is properly a case to answer or whether he ought to stop the proceedings and dismiss the application for committal for contempt.

[93]For these reasons ground 1 succeeds.

Ground 2 – the Right to Silence

[94]As with the burden and standard of proof, there is no dispute between the parties that a committal respondent has a right to silence in contempt proceedings. Concomitant with and an important feature of the right to silence is the principle that it is the absolute right and domain of the committal respondent to exercise and to maintain his or her silence when facing committal proceedings and exclusively to decide if and when to respond or to mount evidentially a defence or answer to the allegations of contempt by adducing or deploying evidence in committal proceedings. The court or judge cannot compel the committal respondent to adduce any evidence in the committal proceedings, either before or during the hearing, and even after the presiding judge has concluded or ruled that there is a case to answer. In short, the right to silence or the rule against self-incrimination, which applies equally in criminal contempt proceedings and civil contempt proceedings, means fundamentally that the alleged contemnor is not a compellable witness and as such cannot be compelled to adduce or to deploy evidence in answer to the allegations of contempt.

[95]These principles are fundamental to civil contempt proceedings, which are quasi- criminal proceedings wherein the liberty of the subject is involved. Likewise, it is accepted by the parties that in BVI there are no statutory or other inroads into the right to silence, and it is not open to a court or judge hearing contempt allegations to draw any adverse inferences against the alleged contemnor who maintains his or her right to silence and does not adduce or deploy any evidence (even where there is a case to answer) in answer to the alleged contemptuous acts. It is with these fundamental principles in mind that I go on to consider the submissions of the parties on this ground of appeal.

[96]In support of this ground of appeal the appellants/committal respondents contend that notwithstanding the judge and the parties having recognized and accepted the appellants/committal respondents’ right to silence in the committal proceedings, in his decision on the no case submission the learned judge erred by failing to observe and to apply the procedural and substantive consequences which properly flowed from this acknowledged right. Moreover, it was accepted that, unlike the position in England, the position in the BVI remains that at common law whereby it is impermissible for the BVI court to draw adverse inferences for a respondent’s choice to avail himself or herself of the right to silence, which right is an absolute one. Moreover, in accordance with this absolute right, although the appellants/committal respondents had filed and served evidence in response to the committal application and Brown 1 in compliance with the court’s directions to do so, procedurally and substantively that ‘response’ evidence was not evidence adduced or deployed in the contempt proceedings unless and until the appellants/contempt respondents had positively deployed or adduced that evidence in the proceedings, which they never did.

[97]It is the appellants/committal respondents’ contention that notwithstanding their right to silence and the rule against adverse inferences being drawn, the learned judge erred by dismissing the no case submission based on the absence of evidence from them. In so doing, the judge effectively anticipated the possibility of an adverse inference being drawn against them if they elected not to adduce any positive evidence tending to disprove the authenticity and/or accuracy of the purported transcripts of the Interrogation record and the Bail Hearing.43

[98]It is posited by the appellants/committal respondents that had the learned judge adopted the correct approach and correctly directed himself, he would have been bound to conclude that the existence (potentially) of responsive evidence was irrelevant and inadmissible at that stage of the proceedings. He should simply have asked himself whether the respondent/committal applicant had at the close of his case adduced admissible evidence proving or capable of proving beyond reasonable doubt what Ms. Gutovska is alleged to have said at the Interrogation and the Bail Hearing in the Ukraine in beach of the CUU. This they submit, the judge did not do in deciding on the no case submission. Instead, he wrongly took account of the absence of any evidence from the appellants/committal respondents tending to disprove or to discredit the evidence of the respondent/committal applicant in the exhibits to Brown 1 and to that extent speculated on the affidavit evidence filed by the appellants/committal respondents in compliance with the court’s directions and about evidence in Brown 2, both of which were not evidence adduced in the proceedings and therefore not available to the learned judge when deciding on the submission of no case to answer.

[99]The appellants/committal respondents also submit that the learned judge “trespassed on the appellants’ absolute right to silence and failed properly to apply the heightened procedural safeguards applicable to committal applications on account of their quasi-criminal nature,”44 In support of this submission and illustrative of the seriousness of the right to silence as an aspect of procedural fairness and the judge’s alleged failure in this regard, they rely on the decision in Housing v Okonkwo45, at para. [1]. They also cite for the same principle the decision in Navigator Equities Ltd v Deripaska46 at para.

[132]where the English Court of Appeal stressed the need for “a corresponding high standard of fairness” in civil contempt proceedings where the “loss of liberty” is at stake.

[100]The appellants also rely on this passage from this Court’s decision in Fred Toppin et al v Rudolf’s Limited47 dealing with the crucial necessity for compliance with procedural rules where the liberty of the subject is involved: - ‘I would hold that where the liberty of the subject is involved, procedural rules must be strictly complied with. Adopting some wise words uttered by the learned Chief during the hearing of this matter, “the Constitution of Grenada, the Rules of the Supreme Court, and judicial principles have all shown great sensitivity where the liberty of the subject is concerned and the Court must be ever so vigilant in matters of this kind.’

[101]In response to this second ground of appeal, the respondent/committal applicant argued that nowhere did the learned judge infringe on the appellants/committal respondents’ right to silence. This is notwithstanding that at the committal hearing and in this appeal – “they put their case too high in relation to material that was available to the judge at the conclusion of the [no case to answer application] …, and they waived that right by referring to their own position…”(para. 21b) In support of this proposition, the respondent/committal applicant contended that the appellants cannot rely fully on their right to silence when they themselves derogated from the absolute nature of that right by “pre-reading correspondence and events, including express admissions, the [appellants’] own reference to the existence of the Release Application, and responsive evidence dealing with that correspondence in the form of Mr. Brown’s Second Affidavit, and then pretending that material generated as a result of those engagements does not exist and/or is not admissible. Indeed, the [appellants] made reference to material in their responsive evidence in answer to the Committal Application when addressing the Judge on the [no case to answer application]: by so doing they opened up evidence of [Boris Kaufman’s] responses.”

[102]In expanding on this submission, the respondent/committal applicant addressed what he categorized as ‘further considerations”48. It is submitted that ultimately the learned judge made an “evaluative assessment” of the evidence that he had been shown, exercised hid discretion to the extent that he had any doubts, and allowed the case to proceed. It is submitted that in doing so he conducted “an unimpeachable exercise of his function as a judge” and there could be no proper basis for arguing that he got it wrong.

Analysis and conclusion - ground 2

[103]Ground 2 in the appeal overlaps, to some extent, with the bases relied upon in support of ground 1(shifting the of proof), albeit they each deal with two different alleged breaches of principle. The commonality lies in the various statements made by the learned judge when giving his decision on no case submission. From the various extracts from the judge’s decision relied on by the appellants/committal respondents, they invite this Court to find that effectively the learned judge wrongly shifted the burden of proof to them by referring to a lack of evidence of denial of the allegations of contempt, which approach also impermissibly undermined and eroded their unquestionable right to silence and the correctness of the learned judge’s assessment of the adduced evidence and decision dismissing the no case submission.

[104]In my view this ground can be dealt with shortly. To the extent that I have found in relation to ground 1 that those very passages from the learned judge’s ex tempore decision had impermissibly shifted the burden, or some of the burden, on to the appellants as the respondents in the Contempt Application, those same offending passages also served to undermine and to impermissibly derogate from the appellants/committal respondents right to silence. This is especially the case since in those passages or the quoted extracts, the learned judge indulged impermissibly in speculating as to what evidence the appellants/committal respondents may lead in answering the allegations of contempt and that they had not denied the purported transcript evidence of the allegation that Ms. Gutovska had disclosed the restrictive evidence in the interrogation proceedings on 6th October and the bail hearing proceedings on 26th October 2023.

[105]Moreover, I have above determined that none of the so-called ‘additional evidence’ now sought to be relied on by the respondent/committal applicant, including the letters of 4th March 2024 and 22nd December 2023, the retrospective permission application and the parts of Brown 2 not directly in reply to what was said in the appellants/committal respondents response evidence, was adduced or made properly in evidence in the contempt proceedings up to and including the stage of the no case submission. In effect, I have found that during the hearing of the contempt application, the appellants/committal respondents did not seek to rely on some of their response evidence which was subject to their right to silence such that parts or portions of their response evidence filed in compliance with the directions of the judge thereby became no longer caught by that right to silence and was therefore evidence before the learned judge to take into account in deciding on the submission of no case to answer; or evidence which along with Brown 1 and exhibit RB-1, are evidence which this Court can and should take into account should it have to properly assess the evidence and decide whether the no case submission ought to have been upheld or dismissed.

[106]The upshot of all this is that the only evidence before the learned judge at that stage of the contempt proceedings was the evidence adduced by the respondent in the first affidavit of Richard Brown (“Brown 1”) and the documents exhibited thereto. Accordingly, the appellants/committal respondents were fully entitled throughout the committal proceedings before the learned judge to rely on their right to silence, and to the extent that the learned judge alluded to what evidence they may give or have not yet given in response to the allegations of contempt, this was an incorrect and impermissible derogation of their right to silence. Accordingly, ground 2 also succeeds.

Ground 3 - the evidential deficiencies -no case to answer

[107]The gravamen of the appellants/committal respondents argument on this ground of appeal is that the evidential deficiencies in the respondent/applicant’s evidence in the committal proceedings was so profound, as recognized by the judge, that on the test in Galbraith there was no case to answer and the learned judge erred in holding that there was a case to answer and in dismissing the application. Additionally, the appellants/committal respondents argue that the learned judge failed to give weight or any adequate weight to certain key factors and criticisms of the evidence led by the respondent/committal applicant in Brown 1 and exhibit RB-1 thereto. These factors concerning the evidence in Brown 1 relating to the alleged breaches of the CUU by Ms. Gutovska during the Interrogation on 6th October and the Bail Hearing on 26th October 2023 (see para.33 appellants’ appeal skeleton), have been well traversed earlier in this judgment, as they were also traversed and underscored before the learned judge below. Accordingly, they do not bear repeating again here. Likewise, the “evidential deficiencies” relied on by the appellants/committal respondents49 were also summarized above, and do not bear repeating here.

[108]The appellants/committal respondents also argue that the learned judge erred in giving weight to evidence which he had not been adduced and which he said he had not heard from the appellants/committal respondents and erred in taking into account irrelevant considerations. This included that (i) had not been shown any evidence that the statements allegedly made by Ms. Gutovska (during the Interrogation and also the Bail Hearing) were inaccurately recorded or not made at all (Transcript p. 227 l 23-25); (ii) there was no evidence which demonstrated that the alleged statements made by Ms. Gutovska were not said50; and (iii) nobody was pointing to any evidence that Ms. Gutovska did not say those things.51

[109]The appellants/committal respondents describe the respondent/committal applicant’s evidence in the contempt proceedings (based solely on Brown 1 and exhibit RB-1) as “threadbare”. They submit that, instead of confining himself to that evidence in deciding upon the no case submission, the learned judge “determined the application based on what may hypothetically have been in, or indeed missing from, the appellants’ responsive evidence”, which was not before the court and was inadmissible at that stage of the proceedings. These errors, it is argued, rendered the appellants’ absolute right to silence nugatory. Moreover, the learned judge went on improperly to speculate: “I am not sure that this is the entire story on either side”52, as a basis for dismissing the no case submission. In adopting this approach, the learned judge “plainly failed to confine himself to the question of whether there was a case to answer solely on the basis of such limited admissible evidence as was set out in Brown 1 and exhibit RB-1. Had he done so, he would have been bound to conclude that there was not”53

[110]To further buttress the force of their submissions on this issue, the appellants/committal respondents refer specifically to that learned judge’s statements in rendering his decision on the no case submission, where he recognizes his inherent uncertainty as to the outcome of the no case submission54, and acknowledged that the appellants/committal respondents attacks on the relevant documents exhibited to Brown 1, could be “profound” and sufficient to ”knock out” the contempt application “in limine on the threshold”55.

[111]In response to this ground of appeal the respondent/committal applicant submitted that it was not permissible for the learned judge at that stage of the contempt proceedings to have assessed the weight of the evidence in determining the no case submission. Instead, the judge’s duty was to apply the analysis in Galbraith. Weight is something to be considered only at the conclusion of the contempt hearing: BTA Bank v Ablyazov56; and Masri57. The latter paragraphs from Masri do not assist the respond on this point as they deal with the court’s power to draw inferences from primary facts and its approach to circumstantial evidence. However, I do accept that as a matter of sound principle, it was not open to the judge to decide what weight he ought to give to the evidence adduced before him at the stage of considering a submission of no case to answer. I also accept that the judge faced with a no case submission was to approach the matter and to apply the principles enunciated in Galbraith.

[112]However, the primary submission of the respondent/committal applicant in answer to ground 3, is that the judge applied the correct test in assessing the evidence adduced and reached the correct conclusion that that evidence had established a case to answer from the appellants/committal respondents, as the documentary evidence adduced (the transcripts), even taking into account the evidential deficiencies identified by the appellants/committal respondents which it seems the judge had accepted as part of his reasoning, were sufficient such that the judge could find, to the criminal standard, that Ms. Gutovska (and hence WWRT) had breached the CUU in the BVI WFO and had done so deliberately.

Analysis and conclusion on ground 3

[113]The standard of proof in contempt proceedings is the criminal standard of proof beyond a reasonable doubt. The submission of no case to answer in the contempt proceedings before the learned judge below must be decided on the evidence adduced in Brown 1 and exhibit RB-1. Crucially, this concerned the documents exhibits which purported to be transcripts of the interrogation proceedings by the Ukrainian detective on 6th October 2023 and of the Bail Hearing on 26th October 2023.

[114]The learned judge accepted and openly admitted at the beginning of his ex tempore decision on the no case submission his difficulty and level of prevarication in deciding which way to rule on the submission – “I have to admit that I find it very difficult to make this one choice of two roads that we talked about earlier. And I have gone through this hearing convinced in my mind that I should take the first one and then the other and then back again and then the other. So that’s never a very prepossessing starting point for a ruling.”58

[115]He then goes on to say that this no case submission “involves a qualitative analysis of the evidence… of the prosecution [the committal applicant, Mr. Kaufman]”; and that it was a “question of looking at the reliability or the weight one could possibly call it, of, in essence, two documents.”59 Having considered the first document, what purports to be an English translation of an undisclosed ad not exhibited Ukrainian transcript of the Interrogation of Ms. Gutovska on 6th October 2023, he observed – “And we don’t have some kind of assertion or certification that this is a certified translation or in what circumstances and so we are not able to evaluate properly the accuracy of that translation.

So that is a weakness, obviously, in Mr. Kaufman’s case here.”

[116]Next the judge considered the second document said to be of the bail hearing on 26th October 2023 at which Ms. Gutovska gave evidence. He observes first that the purported transcript (English version) “is not an entire document”, but part of a much longer document of an 11-hour long hearing. Then he comments that “there was also purportedly a video recording and possibly even an audio recording” of the Bail Hearing (P.227 L2-6, 11-12) which he had been told is of poor quality, neither of which had been adduced into evidence by the respondent/committal applicant, and no mention of either of them made in Brown 1.

[117]Next came these statements from the learned judge: “Now, it has to be said that when this Court hears that, it is not a good start to a contempt application for which the applicant or prosecutor, in this case, Mr. Kaufman, has a burden of proof to the criminal standard of beyond a reasonable doubt. So that’s not a good start.”60

[118]At page 228 (lines 19 onwards), the learned judge seems to have strayed from the test in Galbraith, by commenting that he has not seen any evidence (presumably from the appellants/committal respondents) – “to show that in relation to the crucial alleged breaches of the undertaking not to use the documents obtained in this jurisdiction from Mr. Kaufman, we haven’t been shown any evidence that those crucial alleged statements, either inaccurately recorded or not made at all. And what we have is, we have a, let us say, peripheral attack against those two main documents, the so-called translation of the interrogation and the purported transcript of the bail hearing. So we have an attack on the fringes of both documents in essence.”61

[119]In my judgment, the above extract from the learned judge’s decision is not only indicative of him having strayed from the test in Galbraith but is demonstrative of a shifting or, at minimum confusing, where the burden of proof lay, and improperly undermines the appellants/committal respondents right to silence. It indulges in speculation. Moreover, the learned judge’s characterization of the appellants/ committal respondents’ attacks on the two main documents as “peripheral” and an “attack on the fringes” is wholly misplaced, incorrect and wrong as a matter of principle. These attacks were substantive and not peripheral. They were profound, as the learned judge himself acknowledged and bore the marking of a knockout point evidentially and substantively as this further extract from his decision illustrates: - “Now, those attacks could be very profound and they could be sufficient to knock the application for contempt, for committal for contempt out in limine on the threshold, it could be. And that’s clearly what Ms. Gutovska want.”

[120]The difficulty with these documents evidentially, is underscored when later on the learned judge said this about the inadmissibility of one of the two key documents: - “There is one element of Mr. Brown’s evidence where he didn’t give the source of his information, and I think that’s in relation to the transcript of the bail hearing. And as a matter of our Civil Procedure Rules, that probably makes this evidence inadmissible.”

[121]In my view, this point regarding admissibility applies with equal force to the document exhibited to Brown 1 purporting to be an English translation of a Ukrainian transcript or record of the interrogation, when as the judge accepted, that record or a certified copy of it from which a translation could properly be made, was never adduced into evidence by or on behalf of the committal applicant, Mr. Kaufman. What then can that document in English purport to establish, to the criminal standard?

[122]However, the learned judge having advised himself that this is not one of those “clear cut” no case submission type of cases62, went on to comment or to advise himself of the lack of evidence from the appellant/committal respondents “that demonstrates or even prima facie demonstrates or that the alleged things that Ms. Gutovska is said to have said had not been said and because we have got the peripheral doubt that has been raised around the provenance of those documents, then I think it would be a strong step to grant a no case submission at this point.”63

[123]Again, apart from seeming to improperly shift an evidential burden on to the appellants/committal respondents at that stage of the proceedings and applying an incorrect analysis of the evidence adduced and of the burden of proof, the above extract also incorrectly characterizes the appellants/committal respondents’ criticism of the evidence adduced as simply the “provenance” of the key documents exhibited to Brown 1. The objection to these key documents evidentially was also (and more fundamentally) that they were incapable of proving, to the criminal standard, what they purported to show as no reliance could be placed upon such documents in the absence of other cogent evidence speaking to their provenance, authenticity and accuracy.

[124]In my judgment, for the same reasons already given, it was also not permissible for the learned judge, in reasoning to his decision, to have speculated in the following ways: - (a) that Ms. Gutovska “may very well have said these things, and nobody is pointing to any evidence that she didn’t”64; (b) “there has to be further argument on a number of things”65; (c)“… but I get the sense that all these points really do need to be argued out further, because I am not sure that this is the entire story on either side”66; (d)“I don’t think it is the end of the story for the simple reason is that there is, in fact, no evidence yet before the Court that Ms. Gutovska didn’t say these things, and I think that’s important”67; and (e) “I think you have to balance what the document says with what people are not saying, balance that.”68 Respondent’s Notice

[125]In his respondent’s notice filed 16th August 2024, Ms. Kaufman advanced three additional grounds upon which the judge’s dismissal of the no case submission ought to be upheld. The first concerns the letter dated 4th October 2024 from the legal practitioners for the appellants/committal respondents, which is dealt with above, and a finding made that it was not evidence adduced or deployed before the judge in the contempt proceedings. The second ground also concerns matters argued against the appeal and dealt with in this judgment as to whether the appellants/committal respondents had gone beyond a proper no case submission, and thereby introduced parts of their response evidence and by extension the evidence in Brown 2. The third is that having not sought to exclude the evidence in Brown 1 and to cross-examine Mr. Brown who was present and available to be cross-examined by counsel for the appellants/committal respondents, has also been addressed and disposed of in this judgment. For those reasons, there is no merit in any of these grounds and the Respondent’s Notice accordingly stands to be dismissed.

[126]In my judgment, having regard to the several errors of principle identified and accepted above, the learned judge’s decision and ruling dismissing the no case submission must be set aside. In such circumstances, it is accepted that this Court may come to its own decision as to whether, applying the principles in Galbraith, the submission of no case to answer ought to be upheld or dismissed. In our view, the evidence adduced by the respondent/committal applicant in Brown 1 and the exhibits there, particularly as it related to proving what Ms. Gutovska is alleged to have said at the Interrogation on 6th October and at the Bail Hearing on 26th October 2023 as being in breach of the CUU in the BVI WFO, is so patently defective and deficient as to be incapable of proving the allegations of contempt to the criminal standard. There are, as has been foreshadowed by the learned judge, profound issues with the key documents (the purported transcripts) which issues go to the admissibility of those documents without more. Accordingly, in the judgment of this Court, the submission of no case to answer should be upheld and the Committal Application dismissed. In my view, the appellants/committal respondents having been successful are entitled to their coasts in the court below, and in the appeal and respondent’s notice.

Disposition

[127]Accordingly, I would make the following orders: - (1) the appeal is allowed and the order of the judge below dismissing the submission of no case to answer set aside; (2) the Respondent’s Notice filed 16th August 2024 is dismissed; (3) the submission of no case to answer in the court below is upheld and the Committal Application filed 20th December 2023 is dismissed; (4) the appellants/committal respondents shall have their costs of the committal proceedings below and cost of the appeal and respondent’s notice, to be assessed by a judge of the Commercial Court, if not agreed within 21 days of the date of delivery of this decision, and paid by the respondent, Mr. Kaufman.

I concur

Trevor M. Ward

Justice of Appeal

I concur

Eddy D. Ventose

Justice of Appeal

By the Court

Chief Registrar

THE EASTERN CARIBBEAN SUPREME COURT IN THE COURT OF APPEAL TERRITORY OF THE VIRGIN ISLANDS BVIHCMAP2024/0015 BETWEEN:

[1]WWRT Limited

[2]OLGA GUTOVSKA Committal Respondents/Appellants and

[3]The claim no. BVIHC (Com) 96 of 2021 (“the Claim”) was commenced by WWRT against Carosan and Mr. Kaufman on the basis that WWRT is an assignee of various rights of claim from a Ukrainian bank, JSC Platinum Bank, alleged to have been owned and/or controlled by Mr. Kaufman.

[4]The BVI WFO was applied for and granted ex parte on 17th June 2021 against both defendants. By order dated 15th July 2021 made after the parties had agreed to certain changes to the terms of the (original) BVI WFO, the BVI WFO was continued pending the return date. The BVI WFO (as continued) included a Collateral Use Undertaking substantially in the same terms as in the CUU in the ex parte BVI WFO.

[5]WWRT also obtained a supportive worldwide freezing order from the English High Court in London on 21st June 2021 in proceedings there against Mr. Kaufman (“English WFO”). The English WFO was continued on 30th June 2021. Its validity was further extended by the English High Court until it was discharged by Consent Order dated 26th January 2023.

[6]The CUU in the BVI WFO is in these terms:- “(7) The Applicant [WWRT] will not without the permission of the use any information obtained as a result of this order for the purpose of any civil or criminal proceedings, either in the British Virgin Islands or in any other jurisdiction, other than (i) this claim, and/or (ii) any civil proceedings in this jurisdiction concerning any assets within the scope of paragraphs 5 – 10 of this Order.”

[7]By the BVI WFO, Carosan and Mr. Kaufman were each injuncted not to remove from the BVI or to dispose of, deal with, or diminish any of their assets whether inside or outside the BVI up to the value of 56 million pounds sterling. The defendants were also severally ordered to inform the lawyers for WWRT of all their assets worldwide exceeding 50,000 pounds sterling in value, whether held in their own name or not and whether solely or jointly owned, and giving the value, location and details of all such assets. By the terms of the BVI WFO Carosan was also ordered to disclose the identity of the directors, officers, shareholders and ultimate beneficial owners of the shareholding, a copy of the Register of Charges, and the full name of the mandate as appears on any relevant records for bank accounts held by the first defendant, Carosan. In response to the BVI WFO (as continued) Mr. Kaufman, by affidavit filed 28th July 2021, disclosed his assets and shareholding. This disclosed information is what is referred to as the “Restricted Information” and was subject to the CUU in the BVI WFO, the breach of which undertaking is the basis for the contempt application in the court below.

[8]As matters transpired, Mr. Kaufman’s application filed 24th September 2021 to set aside the claim form in the proceedings below and its service on him on jurisdictional grounds, was granted by Jack J on 10th December 2012 (written judgment dated 30th December 2021). This decision was reached on the basis that the foundational basis of WWRT’s claim against the defendants – the assignment of various rights of claim from an insolvent Ukrainian bank, JSC Platinum Bank- had not validly transferred the rights of claim asserted or relied on by WWRT in the claim (but only the contractual rights to certain loans) and, accordingly, there was no serious issue to be tried in the claim. In addition, Jack J found that Ukraine and not the BVI was clearly and distinctly the appropriate forum for the trial of the dispute. Accordingly, Jack J set aside service of the claim form on Mr. Kaufman and stayed the said claim against Carosan.

[9]WWRT subsequently applied for and was granted leave to appeal to the Court of Appeal from the order of Jack J on jurisdiction, which appeal was dismissed by the Court of Appeal on 20th July 2022. By order of a single judge dated 14th January 2022, this Court refused to extend the BVI WFO. WWRT was granted by this Court conditional leave to appeal to His Majesty in Council on 11th May 2023 and final leave on 14th August 2023. WWRT’s notice of appeal to the Privy Council was served on 9th October 2023. Based on the above, the position at this time is that the BVI WFO is no longer in place since the temporary extension granted by Jack J on 30th December 2021 fell away upon this Court refusing WWRT’s extension application on 14th January 2022. Contempt Proceedings

[10]By notice of application filed 20th December 2023 Mr. Kaufman sought, inter alia, a declaration that the appellants are in contempt of court by reason of their collateral use in two specified proceedings in Ukraine, in breach of the CUU, of the Restricted Information (as defined) obtained by the appellants pursuant to the mandatory disclosure provisions of the BVI WFO; and an order for the committal of the appellants (WWRT and Ms. Gutovska) for the said contempt. The Contempt Application was supported by the affidavit of Mr. Richard Brown, a legal practitioner and partner of Carey Olsen, the Committal Applicant’s BVI lawyers of record in the Claim, filed 20th December 2023 (“Brown 1”). The Restricted Information was provided to WWRT by way of affidavits filed by Mr. Kaufman in compliance with the disclosure orders in the BVI WFO. The BVI WFO (with the Collateral Use Undertaking), was by order of the court below continued on 15th July 2021. Application for Retrospective Permission

[11]By notice of application filed 15th March 2024 in the proceedings below, the appellants have sought the retrospective permission of the court (should it be required) to disclose the Restrictive Information in the Ukrainian criminal proceedings on, respectively, 6th and 26th October 2023, as alleged in the Contempt Application. It was accepted that the evidence filed in support of the appellants’ Retrospective permission Application cannot be considered in the Contempt Application filed by Mr. Kaufman. Hearing of the Contempt Application

[12]At the hearing of the Contempt Application before Wallbank J on 21st May 2024, Mr. Richard Brown attended in person and was available to be cross-examined on his affidavit evidence if the appellants “identified a relevant issue of fact which may be elucidated by cross-examination and persuaded the Court to exercise its discretion in favour of cross-examination.” The appellants did not seek to cross-examine Mr. Brown at the said hearing, but made a submission that there was no case to answer on the affidavit and documentary evidence adduced by the respondents from Mr. Brown. The learned judge in an ex tempore ruling dismissed the no case submission, and adjourned the Contempt Application and the Release Application to a further hearing on a date or dates to be fixed. The grounds of appeal and the evidential issue

[13]By notice of appeal filed 16th July 2024, the appellants appeal against paragraph 1 of the learned judge’s order dated 21st May 2024 dismissing their no case to answer submission with costs reserved. They rely on three grounds of appeal as formulated in the notice. However, these three grounds were conveniently distilled by the appellants’ counsel at paragraph 19 of their written submissions (filed 16th July 2024), as follows: – Ground 1: The judge erred in wrongly shifting the burden of proof from Mr. Kaufman to the appellants. Instead of considering whether Mr. Kaufman had proven provenance, authenticity, and accuracy of the documents, the judge (sic) wrongly focused on whether there was or might be evidence from the appellants that the documents were not accurate or that Ms. Gutovska had not made the alleged statements. (“Shifting the Burden of Proof”) Ground 2: The judge erred in failing to recognize and apply the procedural and substantive consequences which properly flowed from the appellants’ acknowledged right to silence. (“the Right to Silence”) Ground 3: The judge erred in ruling that there was a case to answer on the evidence filed in support of the Committal Application. In so doing the judge failed to give any weight, or any adequate weight, to key evidential deficiencies which the judge himself had identified; and incorrectly gave weight to irrelevant considerations, such as the lack of evidence showing that the documents were inaccurate. (“the Evidential Deficiencies”)

[14]The respondent, Mr. Kaufman, in his written submission took the salutary view that although there are three separate grounds of appeal, the appellants’ appeal should in reality be confined to a single ground or question: “ was there evidence available to the judge which, if unanswered, was capable of being accepted as proving that the appellants were in contempt [I would add, to the criminal standard], which is the approach identified by Lord Lane CJ in the seminal English case of R v Galbraith [1981] 1 WLR 1039, at 1042B-E, and applied by this Court in AG v Spicer and ors Criminal Appeal No. 6 of 2001.”

[15]In my considered view, while the question posed by the respondents (which roughly accords with the appellants’ ground 3) is the ultimate question to be answered in this appeal, it is nevertheless necessary to first consider shifting grounds 1 and 2 of the appellant’s notice of appeal (respectively, shifting the burden of proof and the ‘right to silence’ grounds), each being issues of law or mixed law and fact. This is because it is necessary to first determine whether the learned judge committed any errors of law regarding the burden of proof and in derogation of the appellants’/committal respondents’ unquestionable right to silence and, if so found, whether any such error corrupted or rendered erroneous his assessment and analysis of the evidence adduced at the stage of the “no case” submission, leading to his decision that the respondent/committal applicant had on that evidence made out a case to answer and the no case submission should be dismissed, being impugned.

[16]This approach leads first to a consideration of the ‘evidential issue’, that is, what evidence had been properly adduced or deployed in the contempt proceedings up to and including the stage of the appellants’ submission of no case to answer. Put differently, what was the evidence adduced or deployed at that stage of the contempt proceedings, whether from the committal applicant or the committal respondents (if any), whether by way of affidavit or documentary evidence, upon which the judge could properly decide the no case submission.

[17]With this approach, I now turn to consider seriatim with the following: (1) a consideration of the evidence adduced or deployed in the contempt proceedings by the respondent/committal applicant; (2) the applicable principles of law and procedure with regard to the conduct of civil contempt committal proceedings, including a committal respondent’s ‘Right to Silence’, and whether the judge was entitled to draw adverse inferences from the appellants/committal respondents’ exercising their right to silence; (3) the preliminary “evidential issue”: a determination, of whether having regard to the manner in which counsel for the appellants/committal respondents had presented the submission of no case to answer, they must be considered to have deployed or adduced or relied upon their filed evidence in response to Brown 1 (or any parts of it) in seeking to make good the no case submission and in derogation from their absolute right to silence, and to have effectively crossed the Rubicon and, by extension, whether the respondent/committal applicant was thereupon entitled to rely also on his reply evidence thereto in Brown 2 (or parts thereof) in answer to the no case submission; (4) the test, standard and principles to be applied when determining a submission of no case to answer; and (5) a consideration of the three grounds of appeal. The Contempt Application and evidence in support

[18]As mentioned before, the notice of application for committal for contempt was filed on 20th December 2023 by and on behalf of Mr. Kaufman, seeking a declaration of breach(es) by WWRT and Ms. Gutovska of the Collateral Use Undertaking on two separate occasions during aspects of the extant criminal proceedings in the Ukraine against him. Both occasions are said to involve the improper and intentional disclosure by Ms. Gutovska of the Restricted Information (or some of it) obtained by WWRT by virtue of the BVI WFO. Accordingly, Mr. Kaufman has sought orders for the committal of WWRT (effectively Ms. Gutovska) to prison in BVI.

[19]The grounds upon which Committal Application was made are summarized in the notice of application. The first 12 paragraphs are a chronological account of the steps in the Claim before the Commercial Court in BVI, from the ex parte application for the BVI WFO up to and including its discharge, the unsuccessful appeals against the jurisdiction order, and the grant of leave to appeal to the Privy Council.

[20]The particulars of contempt relied on to ground a finding of breach of the CUU and contempt of court are described at paragraphs 13 to 17 (inclusive) of the notice. The gravamen of these particulars is set out at paragraph 13(a) and (b). These are: – (a) On 6 October 2023, Ms. Gutovska attended an interview at the National Anti-Corruption Bureau of Ukraine in Kyiv, Ukraine, with Senior Detective Brauerman Stanislaw Oleksandrovych. In that interview, Ms. Gutovska was asked to provide details of the Restricted Information. Ms. Gutovska initially refused to provide such information, referring to her duties (under the Collateral Use Undertaking) not to use that information, but later did so. This interview has been referred to as the “NABU Interrogation”. (b) On 26th October 2023, Ms. Gutovska appeared as a witness in criminal proceedings in the High Anticorruption Court in Kyiv, Ukraine, Case No.991/9393/23, proceeding No. 1-kc/991/9486/23, in which Mr. Kaufman is a defendant. During her testimony, which was given in open court. Ms. Gutovska extensively referred to the Restricted Information. These proceedings are referred to as the “Bail Hearing”.

[21]At paragraph 15 of the notice of application, Mr. Kaufman contends that as a director and majority shareholder of WWRT (the applicant for the BVI WFO), Ms. Gutovska was aware at all times of the CUU, its scope, meaning and effect, and must have instructed solicitors to apply for it on behalf of WWRT, and to take the other steps in the litigation below, including the appeals. It is also stressed that she had attended the ex parte hearing at which the BVI WFO was granted and all other material hearings in the said proceedings. Mr. Kaufman also invited the judge to find that the alleged breaches of the CUU had been deliberate and done with the intention of causing prejudice to him, to discredit his defence of the Ukrainian criminal proceedings, and to prevent his release from custody pending trial in Ukraine – “in circumstances where Ms. Gutovska has publicly admitted having a “commercial interest” in the outcome of the criminal proceedings against Mr. Kaufman. Ms Gutovska has publicly admitted to sharing information relating to these BVI proceedings with Ukrainian investigators with the stated intention of assisting in the prosecution of Mr. Kaufman.”

[22]The notice of application expressly stated that it was supported by the affidavit of Richard Brown filed therewith. This is clearly a reference to the affidavit of Richard Brown filed on 20th December 2023 (“Brown1”). At paragraphs 34 to 37 of Brown 1 a summary is given of the criminal proceedings in Ukraine against Mr. Kaufman, including him being held in custody until he had satisfied the monetary terms of his bail as first ordered; and his subsequent release on bail upon satisfying a lower value of bail agreed upon in the said criminal proceedings. In the Ukraine criminal proceedings, Mr. Kaufman is charged (together with certain other defendants) of being concerned in the alleged misappropriation of property of Odesa Airport in Kyiv, Ukraine during the period 2009 to 2011, and misappropriation of airport revenues over a 10-year period.

[23]At paragraphs 40 to 42 of Brown 1, Mr. Brown deals with the NABU Interrogation. At paragraph 40, he avers (in part) that – “On 6 October 2023, Ms Gutovska attended for interrogation by the National Anti-Corruption Bureau of Ukraine in Kyiv. An English translation of the transcript of her interrogation, which has been obtained by Mr. Kaufman, is at [194-200].”

[24]It is to be noted that a copy of the original or official record of the Interrogation of Ms. Gutovska on 6th October 2023 in the Ukrainian language was not specifically referred to by Mr. Brown nor was a copy of it exhibited to Brown 1. Furthermore, it was not produced in the contempt proceedings by Mr. Brown or Mr. Kaufman. Only what purports to be the English translation from presumably the official transcript of the interrogation, was exhibited to Brown 1. Neither has Mr. Brown addressed whether and if so, when, from whom, and by what means (lawful or unlawful) Mr. Kaufman had obtained a copy of the original transcript of the interrogation. Moreover, the document exhibited which purports to be the English version of the transcript of the interrogation, does not disclose, and Mr. Brown does not address, who did the actual translation from Ukraine to English, when it was done, and whether it was a translation from the original Ukrainian transcript of the interrogation, much less the actual qualifications or certification of the purported translator.

[25]These are all glaring evidential deficiencies, all of which were identified and underscored by counsel for the appellants/committal respondents to the judge below their written submissions filed 17th May 2024 in advance of the hearing (paras. 32-35), and in the submission of no case to answer on 21st May 2024. These glaring deficiencies were also identified and catalogued by the learned judge in rendering his decision on the no case submission. They clearly go to the provenance, authenticity, and accuracy of this evidence of what transpired during the interrogation of Ms. Gutovska on 6th October 2023 by the Ukrainian police authorities. Importantly, they go to the cogency and reliability of this evidence, whether viewed as a separate piece of evidence or in the round with other evidence adduced. These are all legitimate deficiencies of this exhibit to Brown 1, which exhibit is crucial to discharging the burden and standard of proof of the alleged breach of the CUU by Ms. Gutovska at the NABU Interrogation on 6th October 2023 by the disclose of the Restrictive Information obtained by WWRT under the BVI WFO.

[26]Mr. Brown goes on at paragraph 40 of Brown 1, to question or to cast doubt on the account of Ms. Gutovska’s initial response (as set out in the English version exhibited) when asked by the interrogating detective to disclose the Restricted Information. His criticism is of her response in answer to a question from the Ukrainian detective that, according to BVI law, she had a duty not to disclose the information about assets and proceedings concerning Mr. Kaufman and, therefore, she cannot answer that question, leaving or creating the impression that she later provided the information under compulsion. (see para.40). Mr. Brown deposes: “the reality is that she must have chosen to travel to Ukraine and I infer that she volunteered herself as a witness with the intention of relaying information to the Ukrainian authorities relating to the BVI proceedings against Mr. Kaufman. Further, when she attended for this interrogation, I infer that she must reasonably have anticipated that she would be asked about the Restricted Information.” From the above statement, Mr. Brown invites the judge to draw the inference that Ms. Gutovska had declined initially to give the evidence and make the disclosure of restrictive information in breach of the CUU, merely to create the impression that when she did disclose the said information to the detective, which she intended to do anyway, she did so under legal compulsion and not voluntarily.

[27]As to the alleged disclosure at the Bail Hearing on 26th October 2023, Mr. Brown avers that Ms. Gutovska was a witness for the prosecution and during her testimony she “openly and (extensively) referred to the contents of Mr. Kaufman’s protected asset disclosure affidavit, in clear breach of the Collateral Use Undertaking; admitting that the source of her information given in testimony was Mr. Kaufman’s asset disclosure affidavit given in the BVI proceedings, which she knew was protected from disclosure by the CUU. In support of this allegation of contempt, two documents were exhibited to Brown 1. One is an incomplete Ukrainian version of what purports to be a transcript of the Bail Hearing. The second purports to be an incomplete English translation of the Ukrainian transcript.

[28]The criticism of or challenge to this evidence by the appellants/committal respondents, is that each of the two versions (Ukrainian and English) of the purported transcript are incomplete, devoid of any markings or other indication as to who prepared them, and Mr. Brown gave no evidence as to when, why and from whom they were derived or sourced. Mr. Brown provides no evidence as to the provenance or authenticity of either of these documents, nor any evidence seeking to establish their accuracy or reliability. Also, while the existence of a video of Ms. Gutovska testimony at the bail hearing proceedings on 26th October 2024 has been mentioned at paragraphs 43 and 44 of the committal respondents’ written submissions filed 17th May 2024, there is no mention whatsoever in Brown 1 of a video recording of her testimony, nor was the video exhibited to Brown 1. Additionally, the appellants/committal respondents state that Mr. Kaufman’s expressed position at the committal hearing was that he did not rely on the video recording, but only on the transcript as exhibited to Brown 1.

[29]Mr. Brown goes on to aver in Brown 1, that it is clear Ms. Gutovska made these disclosures with malicious intent which he has inferred from her threat, made in the public domain in Ukraine, to “Ramp up Publicity” against Mr. Kaufman. This latter assertion is based on an alleged telephone call on 17th August 2013 which he (Mr. Brown) had “with Kate Rigby, the partner in Rosing King LLB with conduct of the case for WWRT”, which was admittedly a ‘without prejudice” call, but was being disclosed in Brown 1 since “reference was made by Ms. Rigby, in the context of WWRT’s appeal to the Privy Council (sic), to WWRT’s intention that “publicity would be ramped up.” Accordingly, Mr. Brown’s belief is that “WWRT’s and Ms. Gutovska’s intention was to deploy information relating to the BVI proceedings in Ukraine to cause as much prejudice as possible to Mr. Kaufman, and that the “publicity” threatened by WWRT would include disclosing Restricted Information, including in the Ukraine criminal proceedings.”

[30]Mr. Brown also addresses in Brown 1, what is described therein as “Ms. Gutovska’s prejudicial media campaign” . There he speaks to what he describes as her admission of having voluntarily attended and being personally interested in proliferating proceedings against Ms. Kaufman, and that she had undertaken certain public activities to further those interests. Mr. Brown also recounts several examples of what was reported in the media in Ukraine of what Ms. Gutovska has said in answer or in response to questions from journalists on different occasions.

[31]These are (chronologically): – (a) a 16th October 2023 article entitled “HACC upheld the decision on the measure of restraint for the scandalous Odessa businessman”, published by Top-News.com.ua, a Ukraine news website and other news outlets ; (b) a 26th October 2023 interview outside the court in Kyiv “during which she made it clear that she had voluntarily offered assistance to the Ukrainian authorities admitted that she, via WWRT, had a direct commercial interest in the matter.” ; (c) also on 26th October 2023, a transcript of a video interview given by Ms. Gutovska outside the courtroom before the Bail Hearing on that day in which she is alleged to have said in response to a question as to why out of some 150 witnesses she is the only one who actually goes to court: “You see, obviously, I have a commercial interest, right? As for the WWRT, I’m just curious about what’s going on. Our lawyers and colleagues are here, we are curious, we would like to know what is going on.” (d) 31st October 2023 during which Ms. Gutovska is reported as saying, inter alia, “From what I can tell you so far…we are certainly following the case closely; we have a significant amount of evidence that will certainly be very useful to the prosecution and to the state and the city of Odesa in obtaining compensation and damages, we have undisputed evidence provided by Mr. Kaufman himself, about his enormous wealth, that is, we have evidence that he himself actually submitted – an affidavit to the court in the British Virgin Islands that only one of his assets is worth (redacted) million dollars, which is a lot of money, which I think Ukraine will need at this time. That’s probably the … those are the details that I can shares with you at the moment” (emphasis added); (e) a 2nd November 2023 article entitled « HACC did not allow representatives of the public to announce the decision to change the measure of restraint for Kaufman, – Gutovska” ; and (f) a 20th November 2023 article in Politeka titled “Kaufman’s Defence is trying to delay the trial by filing a motion to disqualify the prosecutor and detective, -Gutovska”

[32]In Brown 1, the affiant also addressed what is termed the “false and misleading statements” made by Ms. Gutovska in her evidence before the Ukrainian court about the outcome and status of the BVI proceedings, giving certain examples; her false representation that she is a solicitor in the United Kingdon; and her false statement that the British government and British pension funds have invested in WWRT through a related company, Asertis Limited. It is to be observed that each of these allegations of false and/or misleading statements are taken from what Ms. Gutovska is alleged to have said as taken from the impugned transcripts of her interrogation on 6th October 2023 by the Ukrainian authorities, and her testimony at the bail hearing on 26th October 2023.

[33]Before leaving what evidence was adduced in the contempt proceedings below, I should mention, as was revealed during the hearing of this appeal, that the appellants did file affidavit evidence of Ms. Gutovska in response to the notice of application for committal and what was said in Brown 1. To this the respondent, Mr. Kaufman filed a second affidavit of Mr. Brown (“Brown 2”). Apparently, Brown 2 not only responded to Ms. Gutovska’s evidence, but also addressed and exhibited certain correspondence passing between the lawyers for the parties between the service of the notice of application and the filing of Brown 2. More specifically, exhibited to Brown 2 is a letter dated 4th March 2024 from the BVI lawyers for WWRT, and a letter dated 22nd December 2023 also from the said lawyers.

[34]I observe that neither of these letters were referred to by the learned judge when giving his ex tempore decision dismissing the appellants’ no case submission. This notwithstanding, before this Court learned counsel for the respondent sought to rely on both letters as evidence properly before the learned judge on the contempt application, to be taken into account in determining the correctness of the judge’s dismissal of the appellant’s no case submission in the event that this Court finds that the learned judge committed certain errors of law or procedure warranting the setting aside of his dismissal order. Furthermore, Mr. Morgan also sought to rely in his appeal submissions (oral and written) on behalf of the respondent/contempt applicant, on matters which it is asserted counsel for the appellants/committal respondents had referred to in his oral submissions in support of the submission of no case to answer, which matters form part of the appellants/committal respondents response evidence filed in compliance with the directions of the court below and which response evidence was admittedly not adduced evidence in the said proceedings but were subject to the appellants’/committal respondents’ right to silence. This submission that additional matters were made part of the contempt proceedings and evidence, was premised on the basis that by mentioned or relying on them in support of the no case submission, the appellants/committal respondents had adduced some of their filed response evidence in answer to the contempt application, notwithstanding their admitted ‘right to silence’, and had thereby “Crossed the Rubicon”.

[35]I shall return later in this judgment to consider these evidential issues. However, before doing so I deal in the next sections with the law and principles applicable to contempt proceedings and to the correct approach of a judge to the submission of no case to answer. Suffice it to be noted at this juncture, that the appellants/committal respondents take issue with the overall approach and submissions of the respondent/committal applicant to this so-called ‘additional evidence’ being somehow evidence adduced by them in the committal proceedings up to the stage of the no case submission. The law and procedure: Contempt of Court

[36]Several important principles have emerged from the authorities on the law of contempt, the burden and standard of proof, how a court or judge ought to approach contempt of court proceedings, what matters are to be considered to be adduced in evidence on a contempt application, and the court’s assessment of the evidence adduced or relied on by the parties. Most, if not all of these principles are uncontroversial and, in that sense, may be said to be trite. They have been set out in several English cases and in decisions of this Court.

[37]The overarching principle is that the law and principles relative to the burden and standard of proof and to the applicable procedure in contempt proceedings are the same whether the court is concerned with criminal contempt (contempt in the face of the court) or civil contempt for alleged breaches or non-compliance with an order of the court. The second fundamental principle is that the burden of proof lies upon the prosecution or committal applicant and the standard of proof is to the criminal standard, that is, proof beyond a reasonable doubt. Accordingly, a respondent or committal defendant is entitled to the benefit of any reasonable doubt as to whether the specific charges or allegations of contempt are proven to the criminal standard. In Munib Masri v Consolidated Contractors International and ors , Christopher Clarke J stated at para. 144: – “The onus of proving the acts of contempt of which he complains rests on the judgment creditor. He must satisfy the court so that it is sure that the judgment (sic) debtors are in contempt in the respects alleged i.e. to the criminal standard. The judgment debtors are to have the benefit of any reasonable doubt.”

[38]In seeking to discharge the burden of proof in contempt proceedings for breach or non-compliance with a court order, the committal applicant must show that (i) the committal defendant knew the terms of the order alleged to have been breached; (ii) he acted or failed to act in a manner which breached the terms of the said order; and (iii) he knew of facts which made his conduct or lack thereof a breach of the said order.

[39]In considering whether an applicant for contempt has made out to the criminal standard a case of breach of an order of the court, the judge must consider each of the allegations of contempt and the totality of the admitted evidence in the round. It is not correct to simply consider each individual head of contempt in isolation, albeit the evidence as to each breach alleged must be weighed and a determination as to its proof made to the criminal standard. In Gulf Azov Shipping Co Ltd v Idisi it was stated in this way at para.

[40]Because of the criminal nature and potential consequences of a breach or non-compliance of a court order, the committal defendant is entitled fundamentally to the right to silence, which right is his or her to elect to maintain throughout the contempt proceedings. This is because, as stated above, the onus and burden of proof in contempt proceedings rests on the committal applicant throughout. This right is oft referred to as the rule or privilege against self-incrimination and has been enshrined in the statute laws of certain jurisdictions. That the appellants in the instant matter had the benefit of the right to silence is not disputed.

[41]As a core feature of the right to silence, a committal defendant is not required and cannot be compelled by the court to put evidence before the court in answer to or in rebuttal of the allegations of contempt. Likewise, it is well established that a committal defendant cannot be compelled to offer himself for cross-examination by the committal applicant or those representing him in the civil contempt proceedings. However, where he does voluntarily give evidence, he has no right to decline to be cross-examined. Comet Products U.K. Ltd v Hawkex Plastics Ltd : – “I hold that a man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him prove his guilt.’ ‘Where, however, the person whose committal is sought in civil contempt proceedings has voluntarily given evidence, I see no reason why he should be entitled, as of right, to decline to be cross-examined.”

[42]However, the question arises as to whether the judge in committal proceedings is entitled to draw adverse inferences where a committal defendant does not put forward or adduce any positive defence in answer or in response to the specific charges or allegations of breach of the court’s order. This issue was considered in a number of English cases. Two examples are: Inplayer Ltd v Thorogood ; and VIS Trading Co Ltd v Nazarov , both of which dealt with the ability of a judge in civil contempt proceedings to draw adverse inferences from an accused standing on his or her ‘right to silence’ at the end of the case for the committal applicant, and not giving or leading any evidence in response to or in defence of the contempt allegations laid against him.

[43]The position at common law is that a defendant in a criminal case has a right to silence and no adverse inferences can be drawn from his or her failure to give or to lead evidence in their defence to the criminal charges. However, section 35 of the Criminal Justice (Public Order) Act, 1994 of the Parliament of the United Kingdom, had made some inroads into the position at common law in relation to criminal trials whereby, in determining whether the accused is guilty of the offence or offences to which he or she has been charged, it is permissible for the judge or the jury ‘to draw such inferences as appears proper from his failure to give evidence or his refusal, without good cause, to answer any question’ if he had taken the step to testify. (s. 35(2) & (3)). By section 35(4), section 35 ‘does not render the accused compellable to give evidence on his own behalf, and he shall accordingly not be guilty of contempt of court by reason of a failure to do so.’ Suffice it to be said that there is no equivalent statutory provision to section 35 in the laws of BVI.

[44]The question of drawing adverse inferences in civil contempt cases for a failure to lead evidence in answer to the allegations of contempt, was also considered by Christopher Clarke J in Marsi. There the judge, having considered the submissions of counsel on this issue and reasoning by analogy with the position in England in criminal cases, accepted as the correct approach in cases of civil contempt the principles set out by the learned editors of Archibold – Criminal Law and Procedure at para. 4-398 in relation to an accused failure to testify in criminal proceedings. That position is that where an accused fails to testify (i) an inference from that failure cannot on its own prove guilt; and (ii) the court must be satisfied that the prosecution has established a case sufficiently compelling to call for an answer before drawing any inference from silence, and if it is concluded that the silence could only sensibly be attributed to the accused’s having no answer, or none that could stand up to cross-examination, the court could then draw an adverse inference.

[45]What is clear from the authorities is that where the common law position remains unaltered as in the BVI, no adverse inferences can be drawn by a judge for the failure of a committal respondent to adduce, deploy or to lead evidence in answer to the committal applicant’s case in support of the contempt allegations or charges, such as breaches or non-compliance with an order of the court. Moreover, were it open to a judge to draw adverse inferences in such circumstances, this cannot be done unless and until the court finds that the committal defendant has a case to answer or the hearing proceeds on the basis that there is at that stage a case for the committal respondent to answer. In short, no adverse inference can be drawn by the judge from the exercise by a committal respondent of his or her right to silence when considering whether a submission of no case to answer made at the end of the case for the committal applicant ought to be allowed to proceed.

[46]This is because a committal defendant is not required to put forward any evidence in rebuttal or in answer to the committal applicant’s case before the conclusion of the latter’s case in proof of the allegations or charges of contempt. The corollary to this principle is that where the committal defendant has, in derogation from his or her right to silence, adduced or deployed evidence in answer to or in rebuttal of the allegations of breach of the court’s order for consideration by the judge in determining whether there is a case to answer, the judge is entitled and indeed compelled to consider all the evidence adduced at that stage in determining whether to accede to a submission of no case to answer. Adducing evidence in civil contempt proceedings

[47]With that said, there are, however, some differences in the approach procedurally to the evidence in cases of criminal contempt as compared with, as in the instant matter, civil contempt for alleged breaches of an order of the court or undertaking given to the court by a party to the said civil proceedings. Whereas in criminal proceedings the alleged contemptuous act of the alleged contemnor would usually have occurred in the face of the court, in civil contempt proceedings the alleged contemptuous act or failure to act by the committal defendant is usually some breach or non-compliance with an order of the court or undertaking given to the court in the proceedings. Thus, in civil contempt proceedings certain procedural and evidential principles have evolved and been adopted routinely by courts dealing with civil contempt proceedings. These procedural and evidential principles serve first and foremost to protect and maintain a contempt respondent’s right to silence and his or her non-compellability to lead or to give evidence in answer to the allegations of contempt, either before the contempt applicant has led his evidence fully and there is a case for the contempt defendant to answer, or after.

[48]I summarize the principles applicable to civil contempt proceedings (as gleaned from some applicable case law and from Grant & Mumford Civil Fraud: Law, Practice & Procedure 1st ed 35-061 to 35-066) as follows: – (a) generally, an applicant for a committal order must have marshalled the totality of his or her evidence on which they seek or will be seeking to rely by the time the committal application is filed; (b) an application for contempt must specify the exact nature of the alleged breach or breaches of the order or undertaking by the judgment debtor (committal respondent) and the precise term or terms of the order or undertaking which it is alleged that the judgment debtor (committal respondent) has disobeyed or broken CPR 2023 r. 53.7(1)(a)&(b), and be supported by evidence on affidavit containing all the evidence relied or to be relied upon by the applicant to establish the allegations of contempt (breach of the court order) particularized in the application; (c) the evidence may consist of one or more affidavits with exhibits, all of which must be filed and served on the committal defendant with the committal application but, subject to any directions or orders of the court, prior to the hearing of the application, so that the committal defendant knows well in advance of the hearing the allegations of contempt and the evidence in support thereof which he or she will face and may elect to answer or address in the contempt proceedings; (d) once the committal application and affidavit evidence has been served on the committal defendant, the court will generally give directions for the service of any evidence in response or in answer to the committal application, such response evidence to be usually by affidavit(s) also, and directions for evidence in rely by the committal applicant. However, in keeping with his/her right to silence, the committal defendant need not serve or may elect not to serve any evidence in response to the committal application, but the court is entitled to order that any written evidence which he wishes to put in must be served by a specific date. (e) where the committal defendant elects not to put in written evidence, this will not affect his right to give oral evidence at the hearing if he or she chooses, and the court finds that there is a case to answer, or to apply for and to have the court require the committal applicant and any other affiant to present themselves to be cross-examined during the hearing, and before the closing of the case for the committal applicant; (f) Importantly, although a committal respondent may file and serve evidence in response to the committal application in advance of the hearing, that evidence may not be relied upon or use of by the committal applicant until the committal respondent has formally adduced that evidence in answer to the allegations of contempt in the proceedings. Simply by obeying a direction for filing and service of such evidence in advance of the hearing, the committal respondent does not deploy the evidence in support of his own case. (g) it will be a question of fact as to whether, in the particular case, a committal respondent has gone beyond merely swearing and filing his or her evidence in accordance with a court order, such that the committal applicant would be entitled to rely on it or aspects of it in answer to a submission of no case to answer or, additionally, in submitting at the conclusion of the evidential phases of the hearing, that they had proven the allegations of contempt to the criminal standard.

[49]This question arose in and is aptly illustrated by the decision in Templeton Insurance Ltd v Motorcare Warranties Ltd et al . There the court held that the committal applicant in response to a submission of no case to answer, was entitled to rely upon the affidavits sworn by the committal respondent, because the latter had gone beyond merely swearing and filing the affidavits in compliance with the directions order of the court, as the affidavits has been put in the hearing bundle, counsel for the respondent had invited the court to read the affidavits and he had made references to that evidence in the respondent’s skeleton arguments served in advance of the hearing. This brings me to the evidential and procedural issue raised by Mr. Morgan KC, learned counsel for the respondent, in these proceedings, and opposed Mr. Pillow KC, learned counsel for the appellants. I will address this as a preliminary issue before going on to consider the grounds of appeal because the way in which this issue is resolved may affect this Court’s consideration of ground 2 (the right to silence) and ground 3 (the assessment of the evidence at the no case to answer stage). Preliminary Issue: what evidence was properly before the judge in the contempt application and does this include the so-called Additional Evidence?

[50]The only common ground between the appellants and the respondent on this issue is that Browne 1 and the exhibits thereto were in evidence before the learned judge below in the contempt application. In responding to questions about this from the Court, counsel for the appellants explained that while there was no formal objection by the appellants to the admissibility of any of the evidence in Brown 1 or any exhibit thereto, nor did the appellants specifically invite or request the learned judge below to rule on their admissibility, including the admissibility of the purported transcript documents in exhibit RB-1 relative to the 6th October 2023 interrogation and the 26th October 2023 bail hearing in the Ukraine, and accordingly, these exhibits were technically before the judge on the contempt application, their position submission concerning these pieces of evidence or objection was to their provenance, authenticity and accuracy. More specifically, that the transcript documents exhibits could not be relied upon at all to prove to the criminal standard that the appellants had committed a contempt by disclosing that restrictive information in breach of the CUU.

[51]It is to be noted that the appellants/contempt respondents, in their written submissions filed 17th May 2023 in the committal proceedings, made clear their position on what evidence could be read and relied on by the judge on the contempt application (at page 1’Important Note of Pre-Reading’):- “As such, although Rs have pre-emptively served written factual evidence in accordance with the Court’s directions, it is not open to Mr. Kaufman to reply upon or to refer to that punitive factual evidence in making his application (including counsel’s skeleton argument); and it should not therefore be read or taken into account by the Court, unless and until (and then only to the extent) that Rs elect in due course to adduce it in the Committal Application.”

[52]It is correct to say that there was no demur to this stated position from either the committal applicant Mr. Kaufman or the judge, and this seems to have been the accepted position at the hearing of the committal application. The committal respondents also made clear in the said note that their application for retrospective permission and the evidence in support thereof was contingent on and “should not be considered by the Court until after the determination of the committal hearing”; accordingly, it was not open to Mr. Kaufman to refer or to rely upon that application or supporting evidence when making his Committal Application. Again, this stated position seems to have been agreed by counsel for the committal applicant and the learned judge.

[53]At section E1, paras. 31-35 of their written submissions below, the appellants/committal respondents made certain ‘Preliminary and evidential objections’. These consisted, in the main, not strictly of points of objection on admissibility, but attacking the authenticity, provenance, and accuracy of the main exhibits to Browne 1, namely, the translations of the transcript of the Interrogation by the Ukrainian authorities on 6th October 2023 of Ms. Gutovska, which points have been maintained before this Court in presenting the appeal.

[54]At paragraph 33, the appellants/committal respondents underscore that these are not “arid or technical points”, since an application for committal must be established by “sworn evidence of the provenance, authenticity, and accuracy of documentary material “, and it cannot be presumed that the committal respondent will admit to the contempt allegations, as the appellant/committal respondents in the instant matter do not. At paragraph 35 of their written submissions below the appellants submitted – “35. For all these reasons, there is no proper evidential foundation for the allegations of contempt made in relation to the interrogation, which Mr. Kaufman cannot therefore prove by evidence (on oath and served with the Committal Application) to the required criminal standard.”

[55]With regard to the documentary evidence of the Bail Hearing, the appellants/committal respondents made certain ‘evidential objections’ in their written submissions in the court below to the Ukrainian version of the transcript of the said hearing, including that it is completely devoid of any marking or other indication to show or to evidence who prepared it; when, why and from what underlying source it was derived; and how Mr. Brown had come by it.

[56]Also, at paragraph 43, counsel for the committal respondents in the court below refers to correspondence (no specifics given of type or date) that “Mr. Kaufman says that the transcript is taken from a video recording of the hearing”, which video he has failed to adduce in evidence, and has “expressly eschewed any such reliance (presumably because of some concern over his right to have or to deploy it).” Also, at paragraph 45, further criticism is levied at the Ukrainian transcript, it having been redacted “presumably to remove the very evidence that is claimed to prove the alleged contempt”; and that the English version has been redacted in different respects, with these differences not having been explained by the affiant Mr. Brown.

[57]Finally, no mention was made in this written submission below by the appellants/committal respondents of the letters of 4th March 2024 and 22nd December 2023, or to Brown 2 or the matters addressed therein or documents exhibited thereto.

[58]During the hearing of this appeal, counsel for the respondent/committal applicant accepted that the response evidence of Ms. Gutovska was not in evidence before the learned judge on the Committal Application, and therefore, not evidence to be taken into account when deciding on the no case submission itself. This was on the basis that an applicant for committal for contempt must lead and can only rely on its evidence to prove the contempt allegations to the criminal standard, and cannot rely on evidence filed but not yet adduced by the committal respondent, unless the committal respondent has adduced that evidence or sought to rely on certain parts of it during the presentation of the applicant’s case in answer to the charges or allegations of contempt. As stated above, this principle is well-supported by authority.

[59]However, counsel for the respondent seeks to go further on this issue. He asserted before this Court that although the portions of Brown 2 which are in response to Ms. Gutovska’s affidavit in answer to the allegations of contempt of court are also admittedly caught by the same exclusionary principle and was not in evidence before the judge below on the committal application, the other portions of Brown 2 which sought to put before the judge the correspondence passing between the lawyers were properly evidence before the judge, to the extent that they contained admissions by or on behalf of the appellants of breaches of the CUU.

[60]The respondent/committal applicant went on to submit that were this Court to set aside the judge’s decision on the no case submission and to revisit and access afresh the evidential material in determining for itself whether there was a case to answer, this exercise would be complicated by certain “further considerations”. The first is that counsel for the appellants/committal respondents in his oral no case to answer application “referred to material contained in their evidence in answer”, which material was subject to their right to silence and therefore not evidence adduced in the committal proceedings up to the stage of the no case submission. Examples of these references or extracts are set out in Schedule 1 to the respondent/committal applicant’s appeal skeleton argument.

[61]I observe that these submissions were made under the section of the written submissions addressing what evidence would be open to this Court to consider should it decide to reassess anew the question whether the respondent/committal applicant had met the standard of a prima facie case to answer. This observation also relates to the point concerning the appellant/committal respondents Application for Retrospective Permission, and the two letters dated 4th March and 22nd December 2023 all of which were addressed under that same section of the appeal submissions.

[62]At Schedule 1, the respondent/committal applicant sets out several instances in or extracts from the oral address of Mr. Pillow KC when making the application of no case to answer, together with the references to where they can be found in the transcript of the proceedings below. Many of these passages are references to the correspondence between the respective lawyers, without having referred to any specific piece of correspondence by type or date; and some are references to the existence of a “video”, which video is notably not exhibited and not in evidence. As to these references, counsel Mr. Pillow KC expressly states that the correspondence is not part of the evidence before the judge. As to the reference in five of the extracts to a “video” being somewhere out there, these too are, in my view, of no moment.

[63]They submit that there are two consequences which flow from them having done so. The first is that they thereby invited the learned judge to “embark upon an assessment of the weight of the evidence” prior to them formally making a case submission and prior to the entirety of the evidence available to the court being argued”. This approach changed the whole nature of the contempt application “into something unknown to the law”. The second consequence of them having done so is that they had thereby “Crossed the Rubicon” by having made an election to adduce some of their evidence in answer. The effect of this, argued the respondent/committal applicant is that it brought into play “all” of the evidence in Brown 2 filed in reply. However, because this occurred in the way in which it did and at such a stage of the proceedings, the learned judge did not have the opportunity to consider this further evidence and its possible impact on his decision on the no case submission.

[64]The respondent/committal applicant also cites as further considerations the fact of the appellants/committal respondents Retrospective Permission Application as an admission or implied admission that Ms. Gutovska had breached the CUU in the manner alleged in the Committal Application and exhibits to Brown 1. By referring to this application, counsel argued, the appellants/committal respondents implicitly accepted that the Restrictive Information has been used improperly and in breach of the CUU, that being a reasonable inference to draw from them having formally applied to retroactively “cure” the breach of the CUU.

[65]Also, they seek to rely evidentially on the two letters dated, respectively, 4th March 2024 and 22nd December 2023 by which it is said that the committal respondents had admitted that they took no issue with the contents of the transcripts of the Interrogation and the Bail hearing in the Ukraine, save for a limited number of discrepancies, which alleged discrepancies are dealt with in Brown 2. This submission was based on the principle that an applicant in contempt of court application is permitted to rely, as part of its case in prosecution of the alleged contempt, on open admissions made by the respondent to the application.

[66]The respondent/committal applicant also submitted that Mr. Brown had been in court and available to be cross-examined in relation to his evidence, but the appellants/committal respondents elected not to avail themselves of that opportunity. Thus, they did not put to him any of their evidential points. Had they done so, “they would have elicited the responses set out in [Brown 2].” In this respect, they cite from paragraph 12-12 of Phipson on Evidence 20th Ed where the learned editors deal with the positive requirement on a party to litigation to challenge in cross-examination the evidence of a witness of the opposing party, “if he wishes to submit to the court that the evidence should not be accepted on that point”, a principle which has not been altered by the CPR. And, finally, they also stress that the appellants/committal respondents never applied to strike out or to exclude any of the evidence in either Brown 1 or Brown 2. Conclusion on preliminary issue

[67]In my considered view, the extracts in Schedule 1 of what was said by Mr. Pillow do not cross the line or cross the Rubicon, such as to lead to the conclusion that the matter to which mention was made or the pre-hearing correspondence or the video was evidence before the learned judge in the contempt proceedings at the stage of the no case submission. Neither of these matters or items of potential evidence had actually or formally been adduced, deployed or made part of the evidence before the judge at that stage of the proceedings. What is clear is that the judge was not invited to treat these matters as now further evidence adduced in the contempt proceedings, neither by counsel for the committal applicant or the committal respondents, and he did not reference them or treat them as evidence upon which he could assess and make a decision on the no case submission. Likewise, these matters could not be considered evidence in the proceedings by virtue of there being some passing reference to or mention of them by counsel for the appellants/committal respondents in his oral submission of no case to answer. I have read and reviewed counsel’s oral submission of no case to answer and his reply submissions before the judge, and I do not accept the submission of the respondent/committal applicant that based upon these passages the appellants/committal respondents had crossed the line or Crossed the Rubicon, so that the said matters referenced by the respondent/committal applicant at paragraph 23 a.-g of his appeal skeleton as ‘further considerations could be taken int account either by the judge or by this Court, should it become necessary to conduct an assessment of the evidence afresh. It follows, therefore, that I do not accept and I am not convinced that it was open to the learned judge and now to this Court to take such matters into account when assessing the evidence and determining whether the no case submission ought properly to be upheld or dismissed. I am certainly not satisfied that Brown 2 (or aspects of the evidence in Brown 2) were before the court below in this, as argued by the respondent/committal applicant.

[68]In my judgement, the circumstances of this case are very different from the circumstances in Templeton Insurance which led to response evidence being considered as having been adduced or deployed in the contempt proceedings in that case. This was not evidence which had been included in the hearing bundles without demur, and the judge was not invited to read it in advance of the hearing, nor where passages from parts of the appellant/committal respondents’ response evidence extracted in the written submissions or read to the judge on the no case submissions made by their counsel. In fact, the judge was told not to read that evidence, to which he obviously complied. This accepted position did not change throughout the hearing. Not surprisingly, nowhere in the judge’s ex tempore decision were any such evidence specifically mentioned, except for the “purported” video recording.

[69]Accordingly, I respectfully reject Mr. Morgan KC’s attempt to convince this court that by virtue of the matters set out in Schedule 1, the appellants/committal respondents had “Crossed the Rubicon” or somehow deployed aspects of their intended defence, such that these matters could then be taken into account by the judge, and if necessary, by this Court in assessing whether there was a case to answer in the contempt proceedings. For the avoidance of doubt, I also come to the same conclusion and ruling regarding the appellants/committal respondent’s Application for Retrospective Permission, which was expressly said to be contingent upon the outcome of the Committal Application, and the hearing of the latter was proceeded with on that basis before the learned judge, and which it clearly did.

[70]What then of the two letters dated, respectively 4th March 2024 and 22nd December 2024. The letter of 4th March 2024 was written without prejudice as to jurisdiction. Neither of these letters were mentioned or considered by the learned judge in his decision on the no case submission. Furthermore, they were not exhibited to Brown 1 (having come after this first affidavit had been filed and served with the Committal Application). They were, apparently, exhibited to Brown 2. However, not surprisingly, neither of them were relied on by the respondent/committal applicant in proof of his Committal Application. I say not surprisingly because when explaining the source of evidence before the judge at the hearing of the application, the respondent/committal applicant, while referring in its skeleton submissions (para. 6) to there being two affidavits in support of the application from Mr. Brown, expressly stated that: “the facts and matters set out below are from Mr. Brown’s first affidavit (“Brown 1”) and exhibit RB-1”. Counsel went on to state, “If they [the committal respondents] do seek to rely on that evidence [as reference to the committal respondents two witness statements], BK [the respondent/committal applicant] will rely on Mr. Brown’s second affidavit (“Brown 2”) and the Expert Report of Bohdan Shabarovsky.” Moreover, nowhere in the said written submission is there any mention of the two letters dated respectively 4th March 2024 and 22nd December 2023.

[71]Based on the foregoing, I conclude, and it is my ruling, that the only evidence before the Court on the Committal Application at the stage of the submission of no case to answer was Brown 1 and exhibit RB-1 thereto. Accordingly, I respectfully reject Mr. Morgan KC attempt to convince this court that by virtue of the matters set out in Schedule 1, the appellants/committal respondents had “Crossed the Rubicon” or somehow deployed aspects of their intended defence such that the said matters became evidence in the committal proceedings to be taken into account by the judge, and if necessary, this Court in assessing whether there was a case to answer in the contempt proceedings. Likewise, there is no proper basis made out by the respondent/committal applicant for this court to hold that the learned judge was entitled to consider the matters in Brown 2 and/or the exhibits thereto, including the letters dated, respectively, 4th March 2024 and 22nd December 2023. The law and principes applicable to submission of no case to answer

[72]The starting point of any discourse into the principles applicable to a court deciding whether to uphold or to reject a submission of no case to answer in civil contempt proceedings is the ‘canonical’ statement of law by Lord Lane CJ in the seminal decision of the English Court of Appeal in the criminal appeal Regina v Galbraith . This oft cited statement of the test and applicable principles apply with equal force and relevance to a no case submission made in civil contempt proceedings. In delivering the judgment of the Court of Appeal, Lord Lane CJ opined: – “How should the judge approach a submission of “no case”? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.” (at page 1042B-E)

[73]As opined by Baptiste JA in Edwin Gomez and Isaiah Benjamin v The Queen the test and principles in Galbraith consists, broadly speaking, of two limbs. The first limb deals with cases where there is no evidence that the crime was committed by the defendant/accused. In such cases, the presiding judge is duty bound to uphold a submission of no case to answer if made or, if not made by the defendant, to stop the case and discharge the accused. The second limb is where the prosecution (or applicant for committal) has led some evidence pointing to the accused having committed the crime as charged, but such evidence is of a tenuous character because of its inherent weakness or vagueness or because it is inconsistent with other evidence in the case at the close of the case for the prosecution (or committal applicant). There may be other cogent reasons why the evidence adduced by the prosecution may be said to be tenuous or weak.

[74]I would add that generally in determining based on the principles in Galbraith whether to uphold or dismiss a submission of no case to answer, the judge’s assessment of the evidence and his decision must be based on properly admissible and relevant evidence in the proceedings, be they criminal proceedings or civil contempt proceedings. Where the judge considers that certain of the prosecution’s evidence as led may be inadmissible in the proceedings, he ought to hold a voir dire or, in civil contempt proceedings, he ought to invite submissions on the point of admissibility and make a ruling thereon. This more conveniently ought to be done in civil contempt proceedings either at the point where the questionable evidence is sought to be introduced or relied upon. However, this does not preclude a judge when ruling of a submission of no case to answer, from considering and ruling on the admissibility of the evidence or for that matter on its provenance, authenticity and accuracy as evidence capable of proving the alleged breach of the order of the court to the criminal standard.

[75]The rule in Galbraith was considered by the Board in Director of Public Prosecutions (British Virgin Islands) v Varlack . At paragraph 21 the Board restated the basis rule: “The basis rule in deciding on a submission of no case to answer at the end of the evidence adduced by the prosecution is that the judge should not withdraw the case of a reasonable jury properly directed could on that evidence find the charge in question proved beyond a reasonable doubt. The canonical statement of the law, as stated above is to be found in the judgment of Lord Lane CJ in T v Galbraith…. That decision concerned the weight which could properly be attached to testimony relied upon by the Crown as implicating the defendant, but the underlying principle, that the assessment of the strength of the evidence should be left to the jury rather than being undertaken by the judge, is equally applicable in cases … concerned with the drawing of inferences.”

[76]This statement of applicable principles focuses the function of an appellate court to not simply deciding whether in reaching his decision to dismiss or to uphold a no case submission the judge below committed errors of law or principles or adopted generally the incorrect approach and test, but ultimately the real question for determination by the Court of Appeal is whether “his assessment of the sufficiency the evidence was correct.”

[77]Based on these principles, in the instant matter, it is necessary for this Court to determine whether the learned judge below committed the errors of law contended for by the appellants/committal respondents in their notice of appeal and submissions, that is, whether the learned judge effectively shifted the burden of proof from the respondent/committal applicant to the appellants/committal respondents and/or whether in doing so he improperly or erroneously undermined or eroded the appellants/committal respondents’ right to silence, and which errors led him to adopted an incorrect and flawed approach to his assessment of the sufficiency of the evidence. Should this Court reach the conclusion that the learned judge’s assessment of the evidence was fundamentally flawed, the matter does not end there. This Court must then go on to consider whether, upon a correct approach to and assessment of the adduced evidence, the judge’s decision was ultimately correct in dismissing the submission of no case to answer or not. It is this question or issue which will be determinative of the appeal. Ground 1 – Did the judge wrongly shift the burden of proof

[78]In the instant matter, that the burden of proof rests squarely on the applicant in committal proceedings for civil contempt and to the criminal standard, is not in dispute. This is pellucid from such authorities as Masri, Templeton and Comet considered above. Accordingly, an applicant for civil contempt has the burden of proving each element of the alleged contempt so that the presiding judge can feel sure that a case of contempt by breach or breaches of a court order, the terms of which were known to the alleged contemnor, have been made out on the evidence adduced or deployed in the contempt proceedings, to the standard of beyond a reasonable doubt.

[79]The appellants/contempt applicants argue under this ground of appeal that the learned judge, having correctly acknowledged that the burden of proof lay squarely on the contempt applicant, Mr. Kaufman, in rendering his ex tempore decision failed properly to focus on whether Mr. Kaufman had proven the provenance, authenticity and accuracy of the transcripts and translation documents exhibited to Brown 1 to the relevant standard, that is, beyond a reasonable doubt, and whether these documents, with their admitted deficiencies, could possibly establish to the criminal standard that the Ms. Gutovska had knowingly and deliberately breached the CUU. Instead, the learned judge sought wrongly to determine and to dismiss the no case submission on account of the absence of any evidence from the appellants that the said documents were not accurate or that Ms. Gutovska had not made the alleged statements at the 6th October 2023 Interrogation by the Ukrainian authorities and or at the 26th October Bail Hearing in the criminal case in Ukraine against Ms. Kaufman. The effect of this, the appellants submitted, was to wrongly create a burden of disproof and to shift the burden of proof to the appellants/committal respondents.

[80]In support of this submission, counsel for the appellants/committal respondents point to several parts of the judge’s decision on the no case submission, which they argue, it is clear that the learned judge had, in his assessment and analysis of the evidence adduced in Brown 1, wrongly placed emphasis on the absence of evidence from the appellants/committal respondents to show that what was in the impugned exhibits relied on by the respondent/committal applicant as having been said or disclosed by Ms. Gutovska in breach of the CUU, was incorrect or simply wrong. These extracts of what the learned judge in fact said were set out at paragraph 17.1 to 17.4 of the appellants/committal respondents’ appeal skeleton argument.

[81]In response to this first ground of appeal, the respondent/committal applicant submitted firstly that the evidence adduced before the judge in the committal proceedings was sufficient to establish to the criminal standard that the appellants had committed breaches of the CUU and were in contempt of the court in BVI. Furthermore, even if upon an assessment of the evidence adduced in the committal proceedings this can be categorized as a ‘borderline case’, based on the canonical statement of Lord Lane CJ in Galbraith, it was within the discretion of the learned judge, and he was correct to dismiss the submission of no case to answer and to allow the committal proceedings to continue. Accordingly, it was submitted that there is no appeal against the judge’s exercise of discretion nor could there properly be. I return to this point below.

[82]The respondent/committal applicant argues that upon a careful reading and proper understanding of the entire decision of the judge below, it cannot reasonably be shown that he did shift the burden of proof on to the appellants/committal respondents. The judge’s statements (as complained of at para. 17.1-17.4 of the appellants’ written submissions) were merely his observations, which were simply that there was a case to answer on the basis of the evidence before him and that the appellants/committal respondents had not answered it. Analysis and conclusion -ground 1

[83]I deal first with the respondent/committal applicant’s point regarding borderline cases and the exercise of discretion by the judge below based on this statement by Lord Lane CJ in Galbraith: ‘There will of course, always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.’

[84]I am of the opinion that this statement is simply meant to identify what may be considered to be a subset of the second category of cases identified by the Chief Justice as ‘borderline’ cases, and how, in such cases, the presiding judge ought to approach his or her determination of a submission of no case to answer. The second category comprises cases where there is some connecting or incriminating evidence which is of a tenuous character, but could satisfy the requirement of a prima facie case to answer or not. Where the evidence led by the prosecution/contempt applicant is so tenuous or flimsy as to be a ‘borderline’ case, a judge may, applying the test in Galbraith, uphold or dismiss the no case submission. In such circumstances, an appellate court charged with reviewing the decision of the judge below is unlikely to overturn it and substitute a different outcome, since the decision was a matter of the judgment if the presiding judge. Another judge may, in the identical circumstances, come to the opposite conclusion on the no case submission, and it is not for this Court to set aside the judge’s ruling on the basis that it would have come to a different decision.

[85]If it is that the instant matter is to be properly characterized as a ‘borderline’ case, then the decision being appealed fell squarely to the judgment of the judge below as to whether to allow the contempt proceedings to continue or to stop and dismiss them. This, in my view, is what is meant by the above quoted statement of Lord Lane CJ in Galbraith when the Chief Justice used the word “discretion”. If this is a borderline case then it is difficult to conceive of the appeal against such a decision succeeding, even if the learned judge had committed some errors in his approach to an assessment of the evidence before him. (R v McLeod and others and Isaiah Benjamin)

[86]Did the learned judge consider that he was dealing with a borderline case? He certainly did not use that adjective to characterize the case he was dealing with at the no case to answer stage of the committal proceedings. Interestingly, the learned judge had this to say at the very beginning of his oral decision: “I have to admit that I find it very difficult to make this one choice of two roads that we talked about earlier. And I have gone through this hearing convinced in my mind that I should take the first one and then the other and then back again and then the other. So that’s never a very prepossessing starting point for a ruling.” “Where I think I come down is that with a no case to answer submission, they normally take various different forms, and the form that this one takes is that it involved a qualitative analysis of the evidence of, lets call it for what they are for present purposes, the prosecution. So it was a question of looking at the reliability or the weight, one could possibly call it, of, in essence, two documents”

[87]The judge then identified the two documents purporting to be, respectively, translations of what transpired with Ms. Gutovska at the 6th October 2023 Interrogation by the police and of what transpired at the 26th October 2023 Bail Hearing testimony of Ms. Gutovska. He identified the issues with each document evidentially. He also referred to what he understands is a video recording (not in evidence before him) of the 26th October 2023 Bail Hearing testimony of Ms. Gutovska. As to the first document, the judge says: “So that is a weakness, obviously, in Mr. Kaufman’s case here.” As to the second document and the purported video recording, the judge states: – “Now, it has to be said that when this Court hears that, it is not a good start to a contempt application for which the Applicant or prosecutor, in this case, Mr. Kaufman, has a burden of proof to the criminal standard of beyond a reasonable doubt. So that’s not a good start.”

[88]Later on in his decision (transcript p.17 L20-21), the learned judge comes closest to characterizing the case before him when he opines: “It is not one of those clear-cut no case to answer type cases.” Saying it is not clear cut does not equate with saying or characterizing the case as a ‘borderline’ case. Essentially, from this statement and a full reading of the judge’s decision, it would seem to be the case that he treated the case as one where there was some evidence implicating Ms. Gutovska, and by extension her company WWRT, in having knowingly and deliberately disclosed in the two proceedings in the Ukraine (6th and 26th October 2024) the Restrictive Information obtained by WWRT pursuant to the disclosure orders in the BVI WFO in breach of the Collateral Use Undertaking (CUU) given by WWRT.

[89]For these reasons, I do not accept that the judge below classified this as being a ‘borderline’ case at the close of the case for the respondent/committal applicant. With that said, however, should this Court conclude that the judge’s assessment of the evidence and decision was flawed or was arrived at through a flawed approach such that this Court should conduct its own assessment, it is for this Court to consider and to characterize the case, whether as a ‘borderline’ case or simply a category 2 case.

[90]In my considered view, ground 1 of the appellants/committal respondents has some merit and force of argument. I reach this conclusion having given careful consideration to the various passages in the decision which are identified at paragraph 17.1 to 17.4 of the appellants’/committal respondents’ appeal skeleton and which are said to have offended against the fundamental principle that the burden of proof rests throughout in civil contempt proceedings on the applicant; and also having also given careful consideration to the submissions from both the appellants and the respondents on this issue and ground of appeal. I refer (with one addition of my own) in particular to the following statements by the learned judge in rendering his decision on the no case submission: – “… we haven’t been shown any evidence that those crucial statements, either inaccurately recorded or not made at all” “…in my view, because we don’t have evidence that demonstrates or even prima facie demonstrates or that the alleged things that Ms. Gutovska is said to have said had not been said and because we have got the peripheral doubt that has been raised around the provenance of those documents, then I think it would be a strong step to grant a no case submission at this point.” “ … Frankly, she [Ms. Gutovska] may have said these things, she may very well have said these things, and nobody is pointing to any evidence that she didn’t.” “… but I get the sense that all these points really need to be argued out further, because I am not sure that this is the entire story on either side.” “I don’t think it is the end of the story for the simple reason is that there is, in fact, no evidence yet before the Court that Ms. Gutovska didn’t say these things, and I think that’s important.” “…I think your have to balance what the document says with what people are not saying, balance that.

[91]While the learned judge had clearly identified where the burden of proof lies, it would impermissible in my view for the learned judge when assessing the evidence and reasoning to his conclusion on the submission of no case to answer to, essentially infect his thought proceed and more crucially his assessment, with these various statements which places or tends to consider it of importance that he did not have before him any denial, explanatory or defensive story or evidence from the committal respondents, and that this weighed against him upholding the submission of no case to answer.

[92]The duty and parameters of a judge when considering a no case submission is the first and foremost bear in mind continuously that the committal respondent does not have to prove or disprove any of the allegations of breaches of a court order made against him or her by a committal applicant; and that it is imperative to consider only the admissible evidence adduced or deployed by the committal applicant in the committal proceedings and to ask himself and answer the question whether that evidence was such that if left uncontradicted or unanswered was capable of proving the specific and particularized contemptuous allegations against the contemnor to the criminal standard of proof beyond reasonable doubt. This the learned judge, with the greatest respect, did not do. Instead, he allowed himself to be infected with irrelevant considerations, as demonstrated by the extracts above, and to use such considerations in reasoning to his decision in a way which smack of shifting or eroding the burden of proof from the committal applicant/respondent on to the appellants/committal respondents, when determining the no case submission. Moreover, the objective of a ruling on a submission of no case to answer is not to force the respondent into putting in or deploying evidence or to answer the allegations, but to assess whether on the admissible evidence before the court at that stage of the contempt proceedings, there is properly a case to answer or whether he ought to stop the proceedings and dismiss the application for committal for contempt.

[93]For these reasons ground 1 succeeds. Ground 2 – the Right to Silence

[94]As with the burden and standard of proof, there is no dispute between the parties that a committal respondent has a Right to Silence in contempt proceedings. Concomitant with and an important feature of the right to silence is the principle that it is the absolute right and domain of the committal respondent to exercise and to maintain his or her silence when facing committal proceedings and exclusively to decide if and when to respond or to mount evidentially a defence or answer to the allegations of contempt by adducing or deploying evidence in committal proceedings. The court or judge cannot compel the committal respondent to adduce any evidence in the committal proceedings, either before or during the hearing, and even after the presiding judge has concluded or ruled that there is a case to answer. In short, the right to silence or the rule against self-incrimination, which applies equally in criminal contempt proceedings and civil contempt proceedings, means fundamentally that the alleged contemnor is not a compellable witness and as such cannot be compelled to adduce or to deploy evidence in answer to the allegations of contempt.

[95]These principles are fundamental to civil contempt proceedings, which are quasi-criminal proceedings wherein the liberty of the subject is involved. Likewise, it is accepted by the parties that in BVI there are no statutory or other inroads into the right to silence, and it is not open to a court or judge hearing contempt allegations to draw any adverse inferences against the alleged contemnor who maintains his or her right to silence and does not adduce or deploy any evidence (even where there is a case to answer) in answer to the alleged contemptuous acts. It is with these fundamental principles in mind that I go on to consider the submissions of the parties on this ground of appeal.

[96]In support of this ground of appeal the appellants/committal respondents contend that notwithstanding the judge and the parties having recognized and accepted the appellants/committal respondents’ right to silence in the committal proceedings, in his decision on the no case submission the learned judge erred by failing to observe and to apply the procedural and substantive consequences which properly flowed from this acknowledged right. Moreover, it was accepted that, unlike the position in England, the position in the BVI remains that at common law whereby it is impermissible for the BVI court to draw adverse inferences for a respondent’s choice to avail himself or herself of the right to silence, which right is an absolute one. Moreover, in accordance with this absolute right, although the appellants/committal respondents had filed and served evidence in response to the committal application and Brown 1 in compliance with the court’s directions to do so, procedurally and substantively that ‘response’ evidence was not evidence adduced or deployed in the contempt proceedings unless and until the appellants/contempt respondents had positively deployed or adduced that evidence in the proceedings, which they never did.

[97]It is the appellants/committal respondents’ contention that notwithstanding their right to silence and the rule against adverse inferences being drawn, the learned judge erred by dismissing the no case submission based on the absence of evidence from them. In so doing, the judge effectively anticipated the possibility of an adverse inference being drawn against them if they elected not to adduce any positive evidence tending to disprove the authenticity and/or accuracy of the purported transcripts of the Interrogation record and the Bail Hearing.

[98]It is posited by the appellants/committal respondents that had the learned judge adopted the correct approach and correctly directed himself, he would have been bound to conclude that the existence (potentially) of responsive evidence was irrelevant and inadmissible at that stage of the proceedings. He should simply have asked himself whether the respondent/committal applicant had at the close of his case adduced admissible evidence proving or capable of proving beyond reasonable doubt what Ms. Gutovska is alleged to have said at the Interrogation and the Bail Hearing in the Ukraine in beach of the CUU. This they submit, the judge did not do in deciding on the no case submission. Instead, he wrongly took account of the absence of any evidence from the appellants/committal respondents tending to disprove or to discredit the evidence of the respondent/committal applicant in the exhibits to Brown 1 and to that extent speculated on the affidavit evidence filed by the appellants/committal respondents in compliance with the court’s directions and about evidence in Brown 2, both of which were not evidence adduced in the proceedings and therefore not available to the learned judge when deciding on the submission of no case to answer.

[99]The appellants/committal respondents also submit that the learned judge “trespassed on the appellants’ absolute right to silence and failed properly to apply the heightened procedural safeguards applicable to committal applications on account of their quasi-criminal nature,” In support of this submission and illustrative of the seriousness of the right to silence as an aspect of procedural fairness and the judge’s alleged failure in this regard, they rely on the decision in Housing v Okonkwo , at para. [1]. They also cite for the same principle the decision in Navigator Equities Ltd v Deripaska at para.

[132]where the English Court of Appeal stressed the need for “a corresponding high standard of fairness” in civil contempt proceedings where the “loss of liberty” is at stake.

[100]The appellants also rely on this passage from this Court’s decision in Fred Toppin et al v Rudolf’s Limited dealing with the crucial necessity for compliance with procedural rules where the liberty of the subject is involved: – ‘I would hold that where the liberty of the subject is involved, procedural rules must be strictly complied with. Adopting some wise words uttered by the learned Chief during the hearing of this matter, “the Constitution of Grenada, the Rules of the Supreme Court, and judicial principles have all shown great sensitivity where the liberty of the subject is concerned and the Court must be ever so vigilant in matters of this kind.’

[101]In response to this second ground of appeal, the respondent/committal applicant argued that nowhere did the learned judge infringe on the appellants/committal respondents’ right to silence. This is notwithstanding that at the committal hearing and in this appeal – “they put their case too high in relation to material that was available to the judge at the conclusion of the [no case to answer application] …, and they waived that right by referring to their own position…”(para. 21b) In support of this proposition, the respondent/committal applicant contended that the appellants cannot rely fully on their right to silence when they themselves derogated from the absolute nature of that right by “pre-reading correspondence and events, including express admissions, the [appellants’] own reference to the existence of the Release Application, and responsive evidence dealing with that correspondence in the form of Mr. Brown’s Second Affidavit, and then pretending that material generated as a result of those engagements does not exist and/or is not admissible. Indeed, the [appellants] made reference to material in their responsive evidence in answer to the Committal Application when addressing the Judge on the [no case to answer application]: by so doing they opened up evidence of [Boris Kaufman’s] responses.”

[102]In expanding on this submission, the respondent/committal applicant addressed what he categorized as ‘further considerations” . It is submitted that ultimately the learned judge made an “evaluative assessment” of the evidence that he had been shown, exercised hid discretion to the extent that he had any doubts, and allowed the case to proceed. It is submitted that in doing so he conducted “an unimpeachable exercise of his function as a judge” and there could be no proper basis for arguing that he got it wrong. Analysis and conclusion – ground 2

[104]In my view this ground can be dealt with shortly. To the extent that I have found in relation to ground 1 that those very passages from the learned judge’s ex tempore decision had impermissibly shifted the burden, or some of the burden, on to the appellants as the respondents in the Contempt Application, those same offending passages also served to undermine and to impermissibly derogate from the appellants/committal respondents right to silence. This is especially the case since in those passages or the quoted extracts, the learned judge indulged impermissibly in speculating as to what evidence the appellants/committal respondents may lead in answering the allegations of contempt and that they had not denied the purported transcript evidence of the allegation that Ms. Gutovska had disclosed the restrictive evidence in the interrogation proceedings on 6th October and the bail hearing proceedings on 26th October 2023.

[103]Ground 2 in the appeal overlaps, to some extent, with the bases relied upon in support of ground 1(shifting the of proof), albeit they each deal with two different alleged breaches of principle. The commonality lies in the various statements made by the learned judge when giving his decision on no case submission. From the various extracts from the judge’s decision relied on by the appellants/committal respondents, they invite this Court to find that effectively the learned judge wrongly shifted the burden of proof to them by referring to a lack of evidence of denial of the allegations of contempt, which approach also impermissibly undermined and eroded their unquestionable right to silence and the correctness of the learned judge’s assessment of the adduced evidence and decision dismissing the no case submission.

[105]Moreover, I have above determined that none of the so-called ‘additional evidence’ now sought to be relied on by the respondent/committal applicant, including the letters of 4th March 2024 and 22nd December 2023, the retrospective permission application and the parts of Brown 2 not directly in reply to what was said in the appellants/committal respondents response evidence, was adduced or made properly in evidence in the contempt proceedings up to and including the stage of the no case submission. In effect, I have found that during the hearing of the contempt application, the appellants/committal respondents did not seek to rely on some of their response evidence which was subject to their right to silence such that parts or portions of their response evidence filed in compliance with the directions of the judge thereby became no longer caught by that right to silence and was therefore evidence before the learned judge to take into account in deciding on the submission of no case to answer; or evidence which along with Brown 1 and exhibit RB-1, are evidence which this Court can and should take into account should it have to properly assess the evidence and decide whether the no case submission ought to have been upheld or dismissed.

[106]The upshot of all this is that the only evidence before the learned judge at that stage of the contempt proceedings was the evidence adduced by the respondent in the first affidavit of Richard Brown (“Brown 1”) and the documents exhibited thereto. Accordingly, the appellants/committal respondents were fully entitled throughout the committal proceedings before the learned judge to rely on their right to silence, and to the extent that the learned judge alluded to what evidence they may give or have not yet given in response to the allegations of contempt, this was an incorrect and impermissible derogation of their right to silence. Accordingly, ground 2 also succeeds. Ground 3 – the evidential deficiencies -no case to answer

[109]the appellants/committal respondents describe the respondent/committal applicant’s evidence in the contempt proceedings (based solely on Brown 1 and exhibit RB-1) as “threadbare”. They submit that, instead of confining himself to that evidence in deciding upon the -no case submission, the learned judge “determined the application based on what may hypothetically have been in, or indeed missing from, the appellants’ responsive evidence”, which was not before the court and was inadmissible at that stage of the proceedings. These errors, it is argued, rendered the appellants’ absolute right to silence nugatory. Moreover, the learned judge went on improperly to speculate: “I am not sure that this is the entire story on either side” , as a basis for dismissing the no case submission. In adopting this approach, the learned judge “plainly failed to confine himself to the question of whether there was a case to answer solely on the basis of such limited admissible evidence as was set out in Brown 1 and exhibit RB-1. Had he done so, he would have been bound to conclude that there was not”

[107]The gravamen of the appellants/committal respondents argument on this ground of appeal is that the evidential deficiencies in the respondent/applicant’s evidence in the committal proceedings was so profound, as recognized by the judge, that on the test in Galbraith there was no case to answer and the learned judge erred in holding that there was a case to answer and in dismissing the application. Additionally, the appellants/committal respondents argue that the learned judge failed to give weight or any adequate weight to certain key factors and criticisms of the evidence led by the respondent/committal applicant in Brown 1 and exhibit RB-1 thereto. These factors concerning the evidence in Brown 1 relating to the alleged breaches of the CUU by Ms. Gutovska during the Interrogation on 6th October and the Bail Hearing on 26th October 2023 (see para.33 appellants’ appeal skeleton), have been well traversed earlier in this judgment, as they were also traversed and underscored before the learned judge below. Accordingly, they do not bear repeating again here. Likewise, the “evidential deficiencies” relied on by the appellants/committal respondents were also summarized above, and do not bear repeating here.

[108]The appellants/committal respondents also argue that the learned judge erred in giving weight to evidence which he had not been adduced and which he said he had not heard from the appellants/committal respondents and erred in taking into account irrelevant considerations. This included that (i) had not been shown any evidence that the statements allegedly made by Ms. Gutovska (during the Interrogation and also the Bail Hearing) were inaccurately recorded or not made at all (Transcript p. 227 l 23-25); (ii) there was no evidence which demonstrated that the alleged statements made by Ms. Gutovska were not said ; and (iii) nobody was pointing to any evidence that Ms. Gutovska did not say those things.

[110]To further buttress the force of their submissions on this issue, the appellants/committal respondents refer specifically to that learned judge’s statements in rendering his decision on the no case submission, where he recognizes his inherent uncertainty as to the outcome of the no case submission , and acknowledged that the appellants/committal respondents attacks on the relevant documents exhibited to Brown 1, could be “profound” and sufficient to ”knock out” the contempt application “in limine on the threshold” .

[111]In response to this ground of appeal the respondent/committal applicant submitted that it was not permissible for the learned judge at that stage of the contempt proceedings to have assessed the weight of the evidence in determining the no case submission. Instead, the judge’s duty was to apply the analysis in Galbraith. Weight is something to be considered only at the conclusion of the contempt hearing: BTA Bank v Ablyazov ; and Masri . The latter paragraphs from Masri do not assist the respond on this point as they deal with the court’s power to draw inferences from primary facts and its approach to circumstantial evidence. However, I do accept that as a matter of sound principle, it was not open to the judge to decide what weight he ought to give to the evidence adduced before him at the stage of considering a submission of no case to answer. I also accept that the judge faced with a no case submission was to approach the matter and to apply the principles enunciated in Galbraith.

[112]However, the primary submission of the respondent/committal applicant in answer to ground 3, is that the judge applied the correct test in assessing the evidence adduced and reached the correct conclusion that that evidence had established a case to answer from the appellants/committal respondents, as the documentary evidence adduced (the transcripts), even taking into account the evidential deficiencies identified by the appellants/committal respondents which it seems the judge had accepted as part of his reasoning, were sufficient such that the judge could find, to the criminal standard, that Ms. Gutovska (and hence WWRT) had breached the CUU in the BVI WFO and had done so deliberately. Analysis and conclusion on ground 3

[116]Next the judge considered the second document said to be of the bail hearing on 26th October 2023 at which Ms. Gutovska gave evidence. He observes first that the purported transcript (English version) “is not an entire document”, but part of a much longer document of an 11-hour long hearing. Then he comments that “there was also purportedly a video recording and possibly even an audio recording” of the Bail Hearing (P.227 L2-6, 11-12) which he had been told is of poor quality, neither of which had been adduced into evidence by the respondent/committal applicant, and no mention of either of them made in Brown 1.

[113]The standard of proof in contempt proceedings is the criminal standard of proof beyond a reasonable doubt. The submission of no case to answer in the contempt proceedings before the learned judge below must be decided on the evidence adduced in Brown 1 and exhibit RB-1. Crucially, this concerned the documents exhibits which purported to be transcripts of the interrogation proceedings by the Ukrainian detective on 6th October 2023 and of the Bail Hearing on 26th October 2023.

[114]The learned judge accepted and openly admitted at the beginning of his ex tempore decision on the no case submission his difficulty and level of prevarication in deciding which way to rule on the submission – “I have to admit that I find it very difficult to make this one choice of two roads that we talked about earlier. And I have gone through this hearing convinced in my mind that I should take the first one and then the other and then back again and then the other. So that’s never a very prepossessing starting point for a ruling.”

[115]He then goes on to say that this no case submission “involves a qualitative analysis of the evidence… of the prosecution [the committal applicant, Mr. Kaufman]”; and that it was a “question of looking at the reliability or the weight one could possibly call it, of, in essence, two documents.” Having considered the first document, what purports to be an English translation of an undisclosed ad not exhibited Ukrainian transcript of the Interrogation of Ms. Gutovska on 6th October 2023, he observed – “And we don’t have some kind of assertion or certification that this is a certified translation or in what circumstances and so we are not able to evaluate properly the accuracy of that translation. So that is a weakness, obviously, in Mr. Kaufman’s case here.”

[120]The difficulty with these documents evidentially, is underscored when later on the learned judge said this about the inadmissibility of one of the two key documents: – “There is one element of Mr. Brown’s evidence where he didn’t give the source of his information, and I think that’s in relation to the transcript of the bail hearing. And as a matter of our Civil Procedure Rules, that probably makes this evidence inadmissible.”

[117]Next came these statements from the learned judge: “Now, it has to be said that when this Court hears that, it is not a good start to a contempt application for which the applicant or prosecutor, in this case, Mr. Kaufman, has a burden of proof to the criminal standard of beyond a reasonable doubt. So that’s not a good start.”

[118]At page 228 (lines 19 onwards), the learned judge seems to have strayed from the test in Galbraith, by commenting that he has not seen any evidence (presumably from the appellants/committal respondents) – “to show that in relation to the crucial alleged breaches of the undertaking not to use the documents obtained in this jurisdiction from Mr. Kaufman, we haven’t been shown any evidence that those crucial alleged statements, either inaccurately recorded or not made at all. And what we have is, we have a, let us say, peripheral attack against those two main documents, the so-called translation of the interrogation and the purported transcript of the bail hearing. So we have an attack on the fringes of both documents in essence.”

[119]In my judgment, the above extract from the learned judge’s decision is not only indicative of him having strayed from the test in Galbraith but is demonstrative of a shifting or, at minimum confusing, where the burden of proof lay, and improperly undermines the appellants/committal respondents right to silence. It indulges in speculation. Moreover, the learned judge’s characterization of the appellants/ committal respondents’ attacks on the two main documents as “peripheral” and an “attack on the fringes” is wholly misplaced, incorrect and wrong as a matter of principle. These attacks were substantive and not peripheral. They were profound, as the learned judge himself acknowledged and bore the marking of a knockout point evidentially and substantively as this further extract from his decision illustrates: – “Now, those attacks could be very profound and they could be sufficient to knock the application for contempt, for committal for contempt out in limine on the threshold, it could be. And that’s clearly what Ms. Gutovska want.”

[121]In my view, this point regarding admissibility applies with equal force to the document exhibited to Brown 1 purporting to be an English translation of a Ukrainian transcript or record of the interrogation, when as the judge accepted, that record or a certified copy of it from which a translation could properly be made, was never adduced into evidence by or on behalf of the committal applicant, Mr. Kaufman. What then can that document in English purport to establish, to the criminal standard?

[122]However, the learned judge having advised himself that this is not one of those “clear cut” no case submission type of cases , went on to comment or to advise himself of the lack of evidence from the appellant/committal respondents “that demonstrates or even prima facie demonstrates or that the alleged things that Ms. Gutovska is said to have said had not been said and because we have got the peripheral doubt that has been raised around the provenance of those documents, then I think it would be a strong step to grant a no case submission at this point.”

[123]Again, apart from seeming to improperly shift an evidential burden on to the appellants/committal respondents at that stage of the proceedings and applying an incorrect analysis of the evidence adduced and of the burden of proof, the above extract also incorrectly characterizes the appellants/committal respondents’ criticism of the evidence adduced as simply the “provenance” of the key documents exhibited to Brown 1. The objection to these key documents evidentially was also (and more fundamentally) that they were incapable of proving, to the criminal standard, what they purported to show as no reliance could be placed upon such documents in the absence of other cogent evidence speaking to their provenance, authenticity and accuracy.

[124]In my judgment, for the same reasons already given, it was also not permissible for the learned judge, in reasoning to his decision, to have speculated in the following ways: – (a) that Ms. Gutovska “may very well have said these things, and nobody is pointing to any evidence that she didn’t” ; (b) “there has to be further argument on a number of things” ; (c)“… but I get the sense that all these points really do need to be argued out further, because I am not sure that this is the entire story on either side” ; (d)“I don’t think it is the end of the story for the simple reason is that there is, in fact, no evidence yet before the Court that Ms. Gutovska didn’t say these things, and I think that’s important” ; and (e) “I think you have to balance what the document says with what people are not saying, balance that.” Respondent’s Notice

[125]In his respondent’s notice filed 16th August 2024, Ms. Kaufman advanced three additional grounds upon which the judge’s dismissal of the no case submission ought to be upheld. The first concerns the letter dated 4th October 2024 from the legal practitioners for the appellants/committal respondents, which is dealt with above, and a finding made that it was not evidence adduced or deployed before the judge in the contempt proceedings. The second ground also concerns matters argued against the appeal and dealt with in this judgment as to whether the appellants/committal respondents had gone beyond a proper no case submission, and thereby introduced parts of their response evidence and by extension the evidence in Brown 2. The third is that having not sought to exclude the evidence in Brown 1 and to cross-examine Mr. Brown who was present and available to be cross-examined by counsel for the appellants/committal respondents, has also been addressed and disposed of in this judgment. For those reasons, there is no merit in any of these grounds and the Respondent’s Notice accordingly stands to be dismissed.

[126]In my judgment, having regard to the several errors of principle identified and accepted above, the learned judge’s decision and ruling dismissing the no case submission must be set aside. In such circumstances, it is accepted that this Court may come to its own decision as to whether, applying the principles in Galbraith, the submission of no case to answer ought to be upheld or dismissed. In our view, the evidence adduced by the respondent/committal applicant in Brown 1 and the exhibits there, particularly as it related to proving what Ms. Gutovska is alleged to have said at the Interrogation on 6th October and at the Bail Hearing on 26th October 2023 as being in breach of the CUU in the BVI WFO, is so patently defective and deficient as to be incapable of proving the allegations of contempt to the criminal standard. There are, as has been foreshadowed by the learned judge, profound issues with the key documents (the purported transcripts) which issues go to the admissibility of those documents without more. Accordingly, in the judgment of this Court, the submission of no case to answer should be upheld and the Committal Application dismissed. In my view, the appellants/committal respondents having been successful are entitled to their coasts in the court below, and in the appeal and respondent’s notice. Disposition

[127]Accordingly, I would make the following orders: – (1) the appeal is allowed and the order of the judge below dismissing the submission of no case to answer set aside; (2) the Respondent’s Notice filed 16th August 2024 is dismissed; (3) the submission of no case to answer in the court below is upheld and the Committal Application filed 20th December 2023 is dismissed; (4) the appellants/committal respondents shall have their costs of the committal proceedings below and cost of the appeal and respondent’s notice, to be assessed by a judge of the Commercial Court, if not agreed within 21 days of the date of delivery of this decision, and paid by the respondent, Mr. Kaufman. I concur Trevor M. Ward Justice of Appeal I concur Eddy D. Ventose Justice of Appeal By the Court Chief Registrar

[1]CAROSAN TRADING LIMITED First Defendant

[2]BORIS KAUFMAN Committal Applicant/Respondent Before: The Hon. Mr. Trevor Ward Justice of Appeal The Hon. Mr. Eddy D. Ventose Justice of Appeal The Hon. Mr. Gerard St. C Farara Justice of Appeal [Ag.] Appearances: Mr. Nathan Pillow KC for the Committal Respondents/Appellants Mr. Richard Morgan KC with him Mr. Christopher McCarthy for the Committal Applicant/Respondents ______________________________ 2024: November 28; 2025: January 13. ______________________________ Commercial Appeal – Appeal against the decision of the learned trial judge to dismiss a no case to answer submission with costs reserved – Shifting the burden of proof – Whether the learned trial judge erred in wrongly shifting the burden of proof from the committal applicant/respondent to the committal respondents/appellants – Right to Silence – Whether the learned trial judge erred in failing to recognize and apply the procedural and substantive consequences which properly flowed from the appellants’ acknowledged right to silence Evidential Deficiencies – Whether the learned trial judge erred in ruling that there was a case to answer on the evidence filed in support of the committal application – Whether the learned trial judge failed to give any weight, or any adequate weight, to key evidential deficiencies which the judge himself had identified – Whether the learned trial judge incorrectly gave weight to irrelevant considerations such as the lack of evidence from the appellants showing that the documents were inaccurate Claim No. BVIHC (Com) 96 of 2021 was commenced by WWRT Limited (“WWRT”) against Carosan Trading Limited (“Carosan”) and Mr. Boris Kaufman (“Mr. Kaufman”) as defendants on the basis that WWRT is an assignee of various rights of claim from a Ukrainian bank, JSC Platinum Bank, alleged to have been owned and/or controlled by Mr. Kaufman. A worldwide freezing order was applied for by WWRT and granted ex parte on 17th June 2021 against both defendants (“the ex parte BVI WFO”). The ex parte BVI WFO contained a Collateral Use Undertaking (“the CCU”) given by WWRT. By order dated 15th July 2021, made after the parties had agreed to certain changes to the terms of the ex parte BVI WFO, the said order was continued pending the return date (“the BVI WFO”). The BVI WFO (as continued) included a collateral use undertaking substantially in the same terms as in the collateral use undertaking (“CUU”) in the ex parte BVI WFO. WWRT also obtained a supportive worldwide freezing order from the English High Court in London on 21st June 2021 in proceedings there against Mr. Kaufman (“the English WFO”). The English WFO was continued on 30th June 2021. Its validity was further extended by the High Court in England until it was discharged by consent order dated 26th January 2023. By the BVI WFO, Carosan and Mr. Kaufman were each injuncted not to remove from the BVI or to dispose of, deal with, or diminish any of their respective assets whether inside or outside the BVI up to the value of 56 million pounds sterling. The said defendants were also severally ordered to inform the lawyers for WWRT of all their assets worldwide exceeding 50,000 pounds sterling in value, whether held in their own name or not and whether solely or jointly owned, giving the value, location and details of all such assets. By the terms of the BVI WFO, the first defendant, Carosan, was also ordered to disclose the identity of the directors, officers, shareholders and ultimate beneficial owners of its shareholding, a copy of its Register of Charges, and the full name of the mandate as appears on any relevant records for bank accounts held by Carosan. In response to the BVI WFO (as continued) Mr. Kaufman, by affidavit served (but not filed) on 28th July 2021, disclosed his assets and shareholding. This disclosed information is referred to as the “Restricted Information” and was subject to the CUU in the BVI WFO, the breach of which undertaking is the basis for the contempt application in the court below. As matters transpired, Mr. Kaufman’s application filed 24th September 2021 to set aside the claim form in the proceedings below and its service on him on jurisdictional grounds, was granted by Jack J on 10th December 2012 (written judgment dated 30th December 2021). This decision was reached on the basis that the foundational basis of WWRT’s claim against the defendants – the assignment of various rights of claim from an insolvent Ukrainian bank, JSC Platinum Bank- had not validly transferred the rights of claim asserted or relied on by WWRT in the Claim, but only the contractual rights to certain loans; and, accordingly, there was no serious issue to be tried in the Claim. In addition, Jack J found that Ukraine and not the BVI was clearly and distinctly the appropriate forum for the trial of the dispute. Accordingly, Jack J set aside service of the claim form on Mr. Kaufman and stayed the said Claim against Carosan. Carosan has taken no part in the proceedings in the court below, including the Contempt Application, and this appeal. WWRT subsequently applied for and was granted leave to appeal to the Court of Appeal from the order of Jack J on jurisdiction, which appeal was dismissed by the Court of Appeal on 20th July 2022. By order of a single judge dated 14th January 2022, this Court refused to extend the BVI WFO. WWRT was granted by this Court conditional leave to appeal to His Majesty in Council on 11th May 2023 and final leave on 14th August 2023. WWRT’s notice of appeal to the Privy Council was served on 9th October 2023. Based on the above, the position at the time the appeal in this matter was heard is that the BVI WFO is no longer in place since the temporary extension granted by Jack J on 30th December 2021 fell away upon this Court refusing WWRT’s extension application on 14th January 2022. By notice of application filed 20th December 2023 Mr. Kaufman sought, inter alia, a declaration that the appellants, WWRT and its director Ms. Olga Gutovska, are in contempt of court by reason of their collateral use in two specified proceedings in Ukraine, in breach of the CUU in the BVI WFO, of the Restricted Information (as defined) obtained by the appellants pursuant to the mandatory disclosure provisions of the BVI WFO; and an order for the committal of Ms. Gutovska for the said contempt. The Contempt Application was supported by evidence on affidavit of Mr. Richard Brown, a lawyer and partner in the firm of lawyers representing the Applicant, Mr. Kaufman and Carosan (“Brown 1”) and the documents exhibited thereto as “RB-1”. By notice of application filed 15th March 2024 in the proceedings below, the appellants sought the retrospective permission of the court (should it be required) to disclose the Restrictive Information in the Ukrainian criminal proceedings on, respectively, 6th and 26th October 2023, as alleged in the Contempt Application. It was accepted for the purposes of the hearing of the Contempt Application in the Commercial Court below, that the evidence filed in support of the appellants’ Retrospective Permission Application cannot be considered in the Contempt Application filed by Mr. Kaufman. Likewise, it was accepted that the evidence filed by appellants in opposition to the Contempt Application, which evidence was filed in compliance with the order and direction of the court below, was subject to the appellants’ right to silence and was not evidence in the Contempt proceedings unless and until the appellants had expressly adduced or deployed it as such in the said proceedings. At the hearing of the Contempt Application before Wallbank J on 21st May 2024, the affiant, Mr. Richard Brown, attended in person and was available to be cross-examined on his affidavit evidence if the appellants “identified a relevant issue of fact which may be elucidated by cross-examination and persuaded the Court to exercise its discretion in favour of cross-examination.” The appellants did not seek to cross-examine Mr. Brown at the said hearing. However, at the close of the case for the committal applicant Mr. Kaufman, the appellants’ legal counsel made a submission that there was no case to answer on the affidavit and documentary evidence adduced by the respondents from Mr. Brown. The learned judge in an ex tempore ruling dismissed the no case submission, and adjourned the Contempt Application and the Release Application to a further hearing on a date or dates to be fixed. Dissatisfied with the learned judge’s order dated 21st May 2024 dismissing their no case to answer submission with costs reserved, the appellants, by notice of appeal filed 16th July 2024, appeal against paragraph 1 of the learned judge’s order on the following grounds: (1) the judge erred in wrongly shifting the burden of proof from Mr. Kaufman to the appellants: instead of considering whether Mr. Kaufman had proven provenance, authenticity, and accuracy of the documents by the judge (sic) wrongly focusing on whether there was or might be evidence from the appellants that the documents were not accurate or that Ms. Gutovska had not made the alleged statements; (2) the judge erred in failing to recognize and apply the procedural and substantive consequences which properly flowed from the appellants’ acknowledged right to silence; and (3) the judge erred in ruling that there was a case to answer on the evidence filed in support of the Committal Application in so doing the judge failed to give any weight, or any adequate weight, to key evidential deficiencies which the judge himself had identified in his ruling, and incorrectly gave weight to irrelevant considerations, such as the lack of evidence showing that the documents were inaccurate. Held: allowing the appeal, setting aside the order of the judge below dismissing the submission of no case to answer, dismissing the Respondent’s Notice filed in this appeal on16th August 2024, dismissing the Committal Application filed 20th December 2023, and ordering that the appellants/committal respondents shall have their costs of the committal proceedings below and cost of the appeal and respondent’s notice, to be assessed by a judge of the Commercial Court, if not agreed within 21 days of the date of delivery of this decision, that:

1.The duty and parameters of a judge when considering a no case submission is to first and foremost bear in mind continuously that the committal respondent does not have to prove or disprove any of the allegations of breaches of a court order made against him or her by a committal applicant; and that it is imperative to consider only the admissible evidence adduced or deployed by the committal applicant in the committal proceedings and to ask himself and to answer the question whether that evidence was such that if left uncontradicted or unanswered was capable of proving the specific and particularized contemptuous allegations against the contemnor to the criminal standard of proof beyond reasonable doubt. This the learned judge, with the greatest respect, did not do. Instead, he allowed himself to be infected with irrelevant considerations and to use such considerations in reasoning to his decision in a way which smack of shifting or eroding the burden of proof from the committal applicant Mr. Kaufman, on to the appellants/committal respondents, when determining the no case submission. Moreover, the objective of a ruling on a submission of no case to answer is not to force or coerce the respondent into putting in or deploying evidence or to answer the allegations, but to assess whether on the admissible evidence before the court at that stage of the contempt proceedings, there is properly a case to answer or whether he ought to stop the proceedings and dismiss the application for committal for contempt. For these reasons ground 1 succeeds. Regina v Galbraith [1981] 1 WLR 1039 applied, Edwin Gomez and Isaiah Benjamin v The Queen ANUHCRAP2014/0012 & ANUHCRAP2014/0013 (delivered 17th August 2022, unreported) followed; Director of Public Prosecutions (British Virgin Islands) v Varlack [2008] UKPC 56 applied; Templeton Insurance Limited v Motorcare Warranties Limited & Ors [2012] EWHC 795 (Comm) applied; R v McLeod and others [2017] EWCA Crim 800; Munib Masri v Consolidated Contractors International and ors [2011] EWHC 1024 (Comm) applied; Comet Products UK Ltd v Hawkex Plastics Ltd [1971] 2 QB 67 applied.

2.During the hearing of the Contempt Application, the appellants/committal respondents did not by their legal counsel seek to rely on some of their response evidence which was subject to their right to silence, such that parts or portions of their response evidence filed in compliance with the directions of the judge thereby became no longer caught by that right to silence and thereby became evidence before the learned judge to take into account in deciding on the submission of no case to answer; or evidence upon which this Court can and should take into account should it have to de novo properly assess the evidence and decide whether the no case submission ought to have been upheld or dismissed. The upshot of all this is that the only evidence before the learned judge at that stage of the contempt proceedings was the evidence adduced by the respondent in the first affidavit of Richard Brown (“Brown 1”) and the documents exhibited thereto. Accordingly, the appellants/committal respondents were fully entitled throughout the committal proceedings before the learned judge to rely on their right to silence, and to the extent that the learned judge alluded to what evidence they may give or have not yet given in response to the allegations of contempt, this was an incorrect and impermissible derogation from or erosion of their right to silence. Accordingly, ground 2 also succeeds.

3.The standard of proof in contempt proceedings is the criminal standard of proof beyond a reasonable doubt. In this Court’s judgment, the extract from the learned judge’s decision (at page 228 of the transcript (lines 19 onwards) is not only indicative of him having strayed from the test in Galbraith and an impermissible indulgence in speculation, but is demonstrative of a shifting of or, at minimum, confusing, where the burden of proof lies, and improperly undermines the appellants/committal respondents right to silence. Moreover, the learned judge’s characterization of the appellants/committal respondents’ attacks on the two main documents as “peripheral” and an “attack on the fringes” is wholly misplaced, incorrect and wrong as a matter of principle. These attacks were justified, substantive and not peripheral. They were profound, as the learned judge himself acknowledged and bore the makings of a knockout point evidentially and substantively.

4.Apart from seeming to improperly shift an evidential burden on to the appellants/committal respondents and applying an incorrect analysis of the evidence adduced and of the burden of proof, the extract from the learned judge’s decision (at page 228 line 25 & page 229 lines 1-6) also incorrectly characterize the appellants/committal respondents’ criticism of the evidence adduced as simply the “provenance” of the key documents exhibited to Brown 1. The objection to these key documents evidentially was also (and more fundamentally) that they were incapable of proving, to the criminal standard, what they purported to show, as no reliance could be placed upon such documents in the absence of other cogent evidence speaking to their provenance, authenticity and accuracy. In the Court’s judgment, for the same reasons already given, it was also not permissible for the learned judge, in reasoning to his decision, to have speculated in the following ways: – (a) that Ms. Gutovska “may very well have said these things, and nobody is pointing to any evidence that she didn’t”; (b) “there has to be further argument on a number of things”; (c)“… but I get the sense that all these points really do need to be argued out further, because I am not sure that this is the entire story on either side”; (d) “I don’t think it is the end of the story for the simple reason is that there is, in fact, no evidence yet before the Court that Ms. Gutovska didn’t say these things, and I think that’s important”; and (e) “I think you have to balance what the document says with what people are not saying, balance that.” Regina v Galbraith [1981] 1 WLR 1039 applied. JUDGMENT

[1]FARARA JA [AG]: This is an appeal by WWRT Limited and Olga Gutovska (“the committal respondents/appellants” and individually “WWRT” and “Ms. Gutovska”) against the ex tempore decision and order made 21st May 2024 by a judge (Walbank J) of the Commercial Division of the High Court of Justice in the Territory of the Virgin islands (“the Commercial Court”), dismissing the appellants’ submission of no case to answer in civil contempt proceedings (“the Committal Proceedings”) brought by Boris Kaufman (“the committal applicant/respondent” or “Mr. Kaufman”) for alleged breaches by WWRT and Ms. Gutovska of the Collateral Use Undertaking (“the CUU”) given by WWRT in a worldwide freezing order (the BVI WFO”) in the said proceedings. Overview

[2]WWRT, the first appellant, is a company incorporated under the laws of England and the claimant in the claim. The second appellant, Ms. Olga Gutovska, is the majority shareholder and a director of WWRT. While not a party to the claim, Ms. Gutovska was added as a committal defendant to the notice of application filed 20th December 2023 for contempt of court (“the contempt application”). Her place of residence is London, England. Mr. Kaufman is a national of Ukraine, based in Odessa, and the second defendant in the Claim. The first defendant, Carosan Trading Limited (“Carosan”) is a company incorporated under the laws of the British Virgin Islands (“BVI”). Carosan has taken no part in the proceedings in the court below, including the Contempt Application, and this appeal. The Claim, the WFO and Collateral Use Undertaking (“CUU”)

[18]– “It is not right to consider individual heads of contempt in isolation. They are details on a broad canvas. An important question when that canvas is considered is whether it portrays the picture of a Defendant seeking to comply with the orders of the Court or a Defendant bent on flouting them. It is right that the individual details of the canvas should be informed by the overall picture. But, having said that, each head of contempt that has been proved must be established beyond reasonable doubt.” Right to Silence and Adverse Inferences