Transworld Metals SA (Bahamas) et al v Bluzwed Metals Ltd (BVI) et al

IgJ 002 ;. -'­ - ..... l (!~ I BRITISH VltGIH ISLANDS IN THE HIGH COURT OF JUS'ne! (CML) CLAM NO. 8V1HCV2OC3I0178 BETWeEN: (1) (2) (3) (.4) TRANS-WORLD MeTALS SA (BAHAMAS) l.!V CHERNOY DAVID REUBEN SIMON REUBEN and BLUZ'WED IlETALS UP.lTeD (8V!) OLEG DERiPASKA. JOSEPH KARAM \ ' ·ALEXANDER BOUlYGINE ALUCOR TRADING SA (BVI) SAYANA-FOIL SA (B'JI) ! \\ (1) (2) (3) (4) (5) (6) ~ i Defendantt ,4 Appennces: " Mr. Mark I-bward QC, Mr. Roger Masefield. Mr. PhUlip Kite arK! Mr. hen Midwinter for the claimants. Mr. _hen Movertey SfriU1 QC CWld "" Michael Fay b' the defendants. 2005: Februay 21,22,23 &24; Ma"ch 22 JUDGMENT Introductory f1J a.row J (AI.): On 3QIh MafCh 2004 this c:ourt gran1ed ill order, on a without nob application, for pennisslon tI serve the second. third and rourtt1 deEndm out of the jlJristlction. The order spedled the methods or seMce. The second defendant was to be served by post in care t'f acompany in Moscow, Russia and also by post upon IORcltOr$ in London, England. The third defendant was to be saved by post at his o1JIciii ~ in LuHy, SwitzeIIl.I\d and by coulter upon two dl1ferent lawyers in Switzerland. The fourth defenda't was to be served In 1tte sane I'nSRRe[ as the second defendant There was aerYIca as of right within the jlJiadlCtion upon the ~er three defendams who were all 8fi1ish Virgin Island companies. L r2! SubstlMed service of a claim foon out of the jurisdiction is not permitted by Th. Civil Prooedure Rules 2000\ say the defendants. They therefore apply for a1 order that the permission given to the cIEima1tl to serve the dalm fonn aod stalement of ClaIm upon the second, third and fourth named defendanb be set aside. They eIao seek adaclcration that the purpariJd service upon these defendants was of no e1fect2 They further seek an order that to the extent that thl purported seNIce was vatd 1hat such service be set aside. A sep.." Iin't of the defendants' appleafon is for a stay ~ proceedlngs on the ground of forum nOll conveniens. {31 The clam CJises out of 11'1 ;iJeged jairi venture apment to which tile cIainaI1$ and the ftrst and tecond def'endams were partJes. T~ primay claim is for damages for repudiatory breach of comrtd by the defendanta' termination of the joint ventLre agreement without notice. The claimants also claim for breach or fiduciary duty as aresult of the Iilampts by those defendant8 to ~hon jOint venture assets off (0 shadow BVI COfll)8nles (tile fifth and sixth defeRdants) Wld for remedies in cormtct, tort and equity. [41 The joint vent\.re VlSS set up in late 1994 and In 1995 In VaioU6 meetings between repmentallves of the claimants and ttte defendants that look place at Transworld's London oftte$. The ~ wn1ure reIaIBd to the sourcing of alumina and oth« raw maiII1i.is from the internaflonal markets, broknd through London; the supply ofthose raN materia 10 planm in Russia; the processing ofthe mata1aI; and the sale of the processed mHlri8I on the intematJonal m«tets, again tJokered hough London. The accounting and banking functions ofthe pint ventwe were conducted in Lonoon and Geneva. 1 Rather than au\)StftutBd servloe the rules now refer to ·aJtematIve methods of $9lVice-; rule 5.13(1), for ease of expreSlion tetel'9n!)! will be m* to ahematll/e service. l There Is a oounter application ~ the cllimants for If) order to prevent the defendarlts from retylog on a ground of challenge that they aU~ly did not InOlude In their applleation or, altltmathrely. to tlopense with SONlce on the t- defendant. :I The $I,ImmaIY that fOllOwS IJ1'&iE!IU tho allegltiono Qf the claimants, It IS a paraphrase of ~ summary that appearaln tho clalmanb;' sksleton Il'gumem. and the debt Iii gratefully • (5) The I$$tnc:e of the alleged joint venture agreement was that all business ClOne with the SayanSk AII,mlnlum Plant In Russil would be done .eluslvely for the benefit o11he joint venture. save where otherwise agreed between 1he partes.

[6]Aounter of offshore· COf11>arles were inOOl1)Ormed to 8IfV8 as joinUy owned veticles fer thiI conduct of the Joint venture acHIIes. Transwcdd contributed invetiments and the ~ of rtIIf ~ and undermok the irIlerrdiionai metal aaes through IG l~on offices. The fnt and second defendanlS comnbuted the opetaIons of Russian smelting planls and helped to obbin the necesscwy lcences ft'am the Russian arthottties. [7) The joint venture wa;lSX1remeIy proitabIe for anl.Jlllber of years and net income of around USS120 minion was report&d fa' an 11 month peJ10d In 1997·1998, Then came the secret termination of the joint wnture when the defendn set up shadow BVI companieS to pass oft as the loinly owned~. This was t>Ilowed by a letter In Januay 1998 from the ftrst defendant purporting to iIIrinaIBthe joint vent1.r8 fonhwIth. (8l To reIM the anHided picture preseried by lis $\I'\'I'MY it should be mentiOned that the posHlon of 1he defendants Is that Ilefe was no I:V1I'ment that the pa1Jes wrud be botni generally orb' CIt 1.!definIte peOOd to eondldpht venkq opet"id(q. Itwas never agreed that II business done by afttJ ofttIe parties wtth the SayCllSk Plant would be done for the benefit of the joint venue. Rather. the defendu say. there were an arrangement anel a stuctLre &$UIbU$hed to enable the pa'ties to enter Into individual jOint wnture ~ on acase by case basis and tam fme" 1ime.. The defendants thet'efont deny the exIsfInce of the contract that the c/ainants say was brea::hed, 4 The tefel1tnce 1$ to (;OI"I'Ipenies formed in the eVi under the Intemat.klClal Business Companiet Act, Ch xx. and In other juli$dietlOns under similar legislation, which carry on bu$iness elsewhere theli in the courrtry oftheir foO'Mtion (hence 'offahOl"e'). Suc:h companies 8... subject to flO 1ax and I ~--- .. - 0$'11'_.... , ........... =_ ...... _"_ " The ltrUature of the ruin on teMCt (9] Mr. Moverley Smith OC. leading counsel for the cJe(endarts, submits that CPR 2000 deals with servk:e in aCOI'J1)rehensive code whth is divided IfIt) three diS1inct pd. Part 5 ServIce of ClaIm FORTI within JuriSdie1!on Part 6 Service of other DoCuments PIIt 7 SeMee of Court ProcesS out ofJwisdction. [10) RLH 5.4 expre$$Iy states that a claim fonn may be served out of the juriadlction o~y if permid8d by Part 7. Counsel Is a::curateln his observation that nowhere in Part 7appen anv provision that pem1i1s the court to order altBmatlve servtce. In contrast Part 5provides a VI/Jl'f ftexilIe regime for service within ItIe jU'ladlclon, as counsef dElSGribed It which enables aclaimant ID chooGe tis own alErnative metIOd of service and thereafter satisfy the court that suen sarvlC8 was effective (r 5.13). Provision 18 additionally made for the oourt10 speciIy the method of service of acIain bm (r 5.14). There is dingJ.at ~ those Part 5methods of seNiCG Inti Part7, counsel submllfed. [1.11 That 1he three pa1s tre (Iscre1e Is also shown by the prD'llision tnat enableS the cwt to cbpense with service of doc\rnEN11s. sutm!tled counsel. That proWlion appen In Part 6 which deals • seMce of documents CJ1her than the claim form but it does nat ~pecr i1 either Part 5 cr Part 7. AgaIn, subnilled counsel, there is nothing that Imports that provision intl HIe other parts. (12) No assl8tance Is to be gained tom the CO/11)CTatlIe J)fOYI8Iolls In the English CMI Procedurt Rules 1998, counsel subnitJed. becausalhii code deas with service of at docurrents in asingle part (pat 6) which i6livided inti three sections. Part 5corrrnences :l The claImant. urgecl that the hesolngs of the rut. Ihould not be used as an aid to thetr int~ beaw_ S 12(2) ornt.lntol'JH'Wltlon Act, Ch. 136 sap they are for convenience only and shall not be oonsbued as pan at the enactment. A.ccoc'dingly, , hive U$tcI them only for eonvenienoe. ACtually... gIea1ed from Cross etBtutolY Intetpretation, Snl ed. at pp. 124-125. If there is no doubt about the meaning of a provISIon there Is really no room to ~ hoadlngs and the like as aids to OOOItr\.ICtiOn. In the InsbInt case the", is no doubt as to tne meaning of .,y r ~:':'~.lt) ,,'.'JQ l'J1..'\ . . WIth SectIon I which is entitled IGeneral RL* abOut ServIce', It is in Section I, and ttIerefore as ageneral rule, that one finds rule a.8 which enables the court to direct &efVice by an &ltemative method and rule &.9 which enables the court1D cI&pense with service. In Knauf UK GmbH y Brtd,h Gypsum LtcP atftrst i'lstaooe Oavkl Steel J indieatlld the way til read Part a, He said that rule 6.1 makes It dear that the rules In Section I app1v to the wtw:l/e Pert {131 ~ The stnJe1Ure of N Mas on service is sigrtantly dissimilar to 1tre 6tUClure ofthe English ~ rules, I am strtJ&k WI this reg~ by their scheme of IT'lIIdng general rUes that apply to the wh%e of Part 6 and then maklng $l)8C1a ndes to apply to p~.. matters when this Is desired, /VI example of this 1$ theI' rule 6.12 which provides that tf1e general rules about service of doc\Inems n subject 10 the ~aI rules about serviCe of claim forms. tkeep open tI'Ie questan whether the tIfference In structure is a mater of drafting $t'yiI raI1'\sr " than of substlnce. Intention to IboUsh substItUted ttMce' [141 Mr. Howard QC,leading counsel for the ciaImants. argued tha: It could not have been tl1e im8ntIon of the new rules to eboIsh aHemaUva methods of senrice out d 1he j~1 which 8lds1ed under the old rules. The EM is now a corporate cenIre and the need t) permit substituted servk:e abroad Is now greaiM' not Jesa than It was before. He submitted that tl'Ie English Colli of ~ went Ott of Its way kl Knauf UK GmbH y Brfdah , Gypaum Ltd7 to endOtSO the serOnant of the Ir$t Instance judge& who sad that he •• not to be taken II conculTing with the view of counsel on both Sides that anencknents 10 !tie EngliSh CPR regime had. pertlape inadwM1ently, ellmfnatad the provision penriUing an order for alternative ~ out oftha jurisdiction. ~ [2001]2 .4.11 eR 332 7 [2002J 2 AH ER 526 at [se}. --.:: .... y(f •• ~ ... y __ , .... , ...... ' ". Special collljdntlonl about service abroad [151 It is dear from the discussion about service of process that appears In Knauf9 as well as in DtCt'l & Monts on The Conflict of LawsIO, be9lnning at 8-035, that special considerations attend the maIbIr of providing fOr litemative methods (j servICe of process } , - ' . . oufd the juriSdiCtiOn as dl6tncttom within the Jurisdiction. Two sigrificant facUs make "- . "--... ~ .-.~" .. ~ ~'.'-'-' -...-"~-' .. ,~" -----------­ ~.~ ~. Fi'8t ~ c1 collt pn)C8SS Is an act of SOYereignty. s.:ond, the civil. tradition regn 1tIe S8I\Iice r:J process on acJferent footing from tile common taw tradiUon.1' [16J A oIIiim form Is the originating process by which a clamant invokes 1m pII~'1 jurisdIcIon of the state's coufts r]oJGr a defendant. Its pl'8C1l'8Or wash \Mit cI summons which expressed what r.maRl i'npUcIt In the cIain bm; the defendalt Is comrnandGd bV sovereign power to parlcipata in tne proceeding that the court wi! conduct The defendant Is not asked " consent to the COfI'fs power over tin; It Is a mandab'y power that is exercised owr persons WIthin 1he 18n'ItorIaI reach of the court 81 an Incklent of the sovereignty of1he 81r:te over such persons. Hence the reason 1hat a'Mit(deftned as aform of wrtaBn CORll1and in the I'IiITIt of a sovereign, Stata. COLlrt. '* in The Concl. Oxford DlctionIry) was not .-ved ou1Side of the ream of the sovereign. The sovereign's command dtd not ut8nd to the realm of ftlher sovereign. [17) CoupEd WIth 1he fact that Ihn Is no rtg/t to serve the oomrnand of one &tale In ano1her is the fact that in civil law c:cunites the Id r:J aervICe c1 process is an official a::t. 10 be QITted out on behalf of the Stlie 8$ an exen:lse of Isjudk:ia sovereignty, In contrast. In corrmon law coun1Jies tenI\ce of process Is seen as a matter for tile cfaimant or his agents. me con1rast Is neatly identlftec1 in the instant case by 1he defencJan1s' conIenHon U'Iat. the private service of !he claim form on ... Ka'"crn in Swb1and Is 8 Violation of SWIss panallaw.12 I Vo1.1. 1aa" ed, 2000, London: Sweet & Maxwell l' For _ dlsaJSslon of bOth Of the$e filotom see The Sky 0,.. (19981 1 LlOydS Rep 238 It 241­ ......... ,- .. _---=...... : [181 In Eng;u,d the matter of the SGM::e of process is reoulatld Oy " number of Conventions by which England and her convention parInef$ have agraed on the manoet In whi:h the process of one coumry may be $EIV8d In another. But even as between Convention partnell it is not 1he case that all usual methods of seMce ale pennlaslble. The Court cA Appeal deolde<l In Knauf' that it was not Pemrsaible under eHher of I.M) conventions to e1rect postS service ~n aGerman defendant fhJn EngISPd to Germany.1.. .

[19]It Is fundamental that the prooes$ fA one ..can ~ be served outside its juIjsdic1km If the foreign state in whk:h the procen IS to be served pemits it15 Even In England. with its conventions whlch make provisIOn for servte in ather countries, methods as simple as personal servioe Of seNiC8 by post may be not pemiuibie for one coun1ry (J' anaher. In England Iheae Convention$ procU;9 cerliinty and enable I1e court to know wtlal method of service is pnlaelble in wNch country. The Eng5sh CPR are craft8d accordingly. It Is not $0 with OW' rUes. [2OJ It 1$ crucial »IlITIeI'TtIer that the EaSIm Caribbean Supmm Court is aregIOnal COUll that serves rine Member States and Ten1torIes. All of these stales and t.erJftories apply the same oM1 proced&n rules. However. ea'ih 8tI.ie has Its own minisfry of foreign alal'8 and - --.--., ., ._-- -- ~ < ~ -' ~.,~.~~ -' - •• - " •• coRda its own lntI!Irnalonai relations. EacI1I111t1Q InID lM oonwmtiona end IntBmalional ~ ~---..... -.-- ~~- -' -_.,,-""-....._-_. __._-_ .. ~ that It chooM. 1'hInI is no unlti:mt1. It would. no doubt. be possible for .....-.-~--.----.-. --.~.~-. judgesllllng In eiEh state and l8nib'y 1:) ascenaIn what agreemeri exists. If any. betWeen i ".ucuIar Member Sbi8 or TenitoryW and the foreign caunr, wftere $6IVice Is to be effeded. Itwould also be possible for aJudge tI detemine what rnethods of sef'lk.e aparticuIr:r' foreign courWy permlllfor &eNics of proGG&& from ap_~ar MenUr State Ot Territory lI:COI1fll9 fD whether 1hallatler 1& aconwnlon parmer or not· But there IS no 13 (200112 Aft ER 382 '4 t2OO2J 2 All ER 526 at (48). ill Hence CPR 7.8(2): "Nothing in this Pin or In .,y coun Ot(ier may authOrt1.e or require afl)' pfuton to do an~nlng In the COIJntry where the claim fOrm Is to be MlVed which 15 egai", the law Wthat country." II There I~ not neoesnrfly uniformity even In reunion to the Terttto/1eS Which are part of the unitt4 I<lngdom ~ in volume 1 Of CMI PrOClldu", AuUnn 2000 (The VIII'Ilte Book Service 2000) tbe countnes II8ted It nor. 8.24.15 underthe H~.carrtd.Q(!. JrK:ti.l98 AnJiIIk~Ia.and Mol'l1serrat bUt not the Brilsh Vi,glnlilina&T1ii-liVtdence In the Instal'll case suggeGts ttiaftl'lis j I II ---, telHng hOW reliable the process wolid ., noIB, fer pefipdve. that in Kna.nll tM court of appea relied on the scholarship of pu~htd authcn to Iea'n that Germany had formaUy objected ma pa1icular mode of transnittaI of docI.metllS.fa I have ITPJ doubts atxlut the avBilability 10 our juriarlcton cIsindat' resources. {2'J The specla ~ of h8lllng a regional court makes providing In O~ corrmmly applied rules for MlBmsttve meI\Od8 of service outof this jurisdicion not as atnigtdforward a ITIIIfer as Mr. Howard tIinki It ought 10 be. There is no imperative for rna to Infer 1I'1at beCause SU~ servICe out of the JIJfsdction exls8d urKIer 1he old rutea that the lUIe makers coukJ not have intended to ont1hal methOd from the new rules. [22J EV'IIl if I an 10 I£CeC)t Mr. HoWard's .... that aI1amaive serva ought to be avcilabfe for service out of 1he jurlsdi:llon it would not be becauae the ftrmer rules provided tor It. I accept the cadlon about that approach $01J'Ided by May LJ in Godwil v Swtndon BQn)ugh Council (2D02J 1Wl.R 991 as pa'ilphrased in the head nota: "It Is not generaIy helpful i> seek to inBpret the CIvIl Procedure Rutes by reference to the rules which they replaced and to cases decided under the bmer rule•. It is not. therefore. persuaslve either w., b observe that foImer rUes about deemed seMco contaned [<;wtain words which ate now oniUBd}. The que$1Ior1 YItlether ttere II acIsc:1eIfon Is amauer Of inleIPfetation of th8 rules in the light '" the oveniding objecllve but Wfttlout rtrerera 10 the hills ~the patticul. case." [23) M a si'aight matIar of in"'Pfetation 01 tie rules there i& no _ngaway from the deliberale atuobn that piaced service of dalm fOrms wfthln the jurisllc1lon. HMce of , other documents • servbt of comprocess out of1htjOOsdIction In three separaIe paI1I anc not a& three sedIons within eM Part That 8 provision in one Part could have been mads " !:ros& apply CD anod1er Part cannci be doUbted. TM tlftlculty Is that there Is noting that !how$ that illy d the ruI~ in t1ese three Pn cross apply. Where nJles n 1~ [2001J2 AI ER 332 e I Intended to cross apply this C8Il be easily expressed. Thus, In Part sa which deals with prHia review. r 38.3 expmsIy states that Pat 25 {case MlI'lagement- The ObjeCtive} and Part 26 (Case Management- The Court's Powers) "where appropriate. apply to aPAl­ ttlal review as they do to acase management conference,- There is ding of the &ort in the rules on service, [241 Mr. !Ward poInB as an Instance of cross 8f)PIIC8'Oon 10 rule 5.16 (4) which expresSiy '*11 to servk:& out of the jlrisdlcflon w~ thl8 Is provided for by acontractually lV'88d me1hod. That nie reads: '(4) If the claim fOrm Is S8fVed out of the jurisdiction in accordance wirh the contract. It is not to be treated as having been served on the ~d8nt unless eeMee out of the ).rIsdi*" Is permIted under Part 7,· [251 I an not sure how much this provision advaooes 1he claimants' argWlellt It doe$ t) the exant tits an.e in the Part that <leas witt1 service within the JurlSdlclbn refers to service out. But in $0 doing the rute demonstr.des the very poim ttIat where itis the inenton tNt a rullt $oould CrtISS apply ttU intention Is expressed. Also. it reInb'ces 1he fao! that ItIs PIIt 7 alone that permits senbout beCause its effect Is that even if the parties connctu~y agree 01'1 service oLt such servM:e Is not to be 1reetsd as etrective IKIIess seNce out of the jurisdtcfion Is permitted under Part 7. Mr. Honlf also argued thut Me 7.8 speaks 10 personal service but1here is no definition c( ~aI aervlc& In this Part Therefore, he 8'gUed. there was need to rely on the meaning given In Pat 5 and this showed the cross appllCaOon ofthe rules. In response Mr. Mwarley Snlilh drew aIIBntion ID 1he teainent of personal &eM.:e in aecton 26 Of the Intapretdon Act. ell 136 t> make the point lIlat Part 7 tid not need roftf1nce 10 Pai 5 ~ be undefSt)od, Repetilon d pmvlslons fll] In my view the repetiIion of treab'nent of the sane subject matter ill Pat 5 and P::n 7 I r theI'e appears in rule 5.2 the r&qulJement of aervice of the statement or ~alm iOOng with the cIeim form in these terma: "5.2(1) The general rui! is ttlat the clalmanrs atatament of clam rust be served with the claim fan'n.' . i (2) The cfaIm form may be served witil:lut the ~nt of claim in accordance with rUe 8.2. (3) In this Part r.eflrenae to seMce ofthe Claim fonn reqtJires lhat (&) the aaa1ement ofclaim; Of (c) acopy1any order thatmay have been made; and (d) acopy of any order or applcm made under rule 8.2;: i must be senA!td IIIfth the claim form unless the statement of claiml is contained in the claim form. i I ! 128] Part 7 gives Its own treatnlBllt., the 881TK1 subject maUBr: I '7.1(2} In tis Patreterences 10 service orting copies ottn. cIaImironn Indud&­ (a) the stBIBrr8nt ofclan (unless contained in the clain form); (b) an aftIdavit In support ofthe cIain, ifthese rules so require; and {c} if permission has been gtveft under rule 8.2 to serve 1he claim term wlthout1he statement ofClaim - a copy d the ordBr giving pemiSGlon. ,

[29]Had It been tha the provisions of PIIt 5 were intended ., be of general apptication 1here would have been no nBed Jrestate in Part 7the general rule that app~ In Part 5 that the statement of claim ITIU6t be Gervocl with the olam form. IIl$t8a(I it C~ld have been I simply $akI that 1he general nie applies. I i . [ A &biking Instance of whit would be unnecessart repei1ion. If the rules In the dfieteot Pn cross appned, is found In Part 7.8 which sets out the geMial provisions as to mode of seMce of a claim farm. tv, wit 1M equivalent In the En~ish CPR 1998 (r 5.24) proVIsIon is made in our rule b' serva (I) through foreign govemmel'lts, judicial or conslJw authorities, (d) on a•• (1il) In aCcordance with Ule law ci the country in wbich service Is to occur, and (Iv) Iniaccordanca with aConventlon.tli However, lMiIike Its english , I 8q1oW1Ii8nt our rlM 7.8 goes on to sta19 one lIrtber n8hcd of seNlce: peraqnaI &erVice by the claimant or the claimant's agent i [311 The signilcance of the Indusion In Part 7.8 of personal service 18 a ~ method of serva is that It is &heer repetitlofl. Pat S. Service of ClaIm Fonn ~n Jurisdiction, belJn& will the ~ "Setvice d ctaim fonn - normal rrBIlOd". U~ UU heading appe;n Me 5.1 (1): ' rrbI gellfJl"llll I1.IIe Is that a claim form I1JISt be &eMI(\ ~nally on each .tJefendant. , \ [321 I cat oNy concIud81tlal the Nason why Itwas Ihought ~ 10 provide in PtJ17.8 ti:Ir \ persooat seMce of adaim _ is because the general rule In Part 5 does not apply to . "---.~.----.~-- ~ ... Pat 7. ItIs no coinctdence that Part 7.8 has its own general ~ GLltseMC8. Each Part Pert has .;~ gQnerainsiS-~ the ienenl rule in-one Part does ~.Il i~~~ . \ -- . \ ~~ ~ ~;r;.!;:::~.:=;~.a:~jP=:~ I. utra:JrdInay method, needed fa' rrore to have been sta8d in Part 7toja permissible \; ~tilod of serVic80ut of the judsdiclon. I aill1)ly ~not _ t,at"UiR1~~~id"h~~ ,. been "80 ~~as-to"proVide in this partle.liar nM for pel10mi ~cd and so etyptie as t> not prcMde for substituted ~ but Intsnd It10 be available. 1. A$. mailer of ICOUrlay, ..Moe undarthe Hlgua Convention or other Conventions is dealt I [ I(/Juua '. Iam left 10 conclude that the rUes In Parts 5, 6end 7... detiberatJty ~d so as tJ apply to their pat1icul. subject matters and ~t to cross apply. ACCOl'(ln~y ,I !@old ttlJ" def8Manta' 8Ubn1$sion 11181: our Rules do not permit aIiDmatM,JDQthQdI..~~e Of a .~Im: 101m eM :!"UffiJi&dClO"~jI-~r grtlerei~,c sue 1IMCe. , .. '" ' '" , ' ~ The defendants submit that I shoYkt, as weI~ set aside the service e~ pursuant to I _' • _____._____ C!:~ ~------.- ••.•-.--,.~ _.--­ 1I1at order. The defend81is say 'that order was procured by tho claimanIs leading the court ~.".-~-- . into the error of acting In reliance on arule 1ttat did not apply so at was el1l'ely the fd of 1he delments thatthe colJt made an ordtr that itought netm have made. Forthatreaaon, /1 urge the defendants. the claImMts are natdeSeNino of any specla consideratIOn to s1aVe I olfthe normal consequenbl orclet setting..seMce. I The ctai1alIs submit that ~ of the claim 1bm1 and of the intImto~ ~ make the derendanta pa1ies to 1he claim ceme to the 8If8ntion of the' defend-* There is no dispute about hi. It Is an arid and de8peralal)' ilChnicat objection to ~ that the defendants iIki. according to h ...,They submit that the court s~ tbeIefore dl8pense • saMce pursualt to CPR 6.8 ~ 1M basis that, sendee. I, fact. if not jn JCCOtdance wIIh 1M rules. has elteady beeo ~ AIt8mativeIY. they I~ the court should cum the defect In MrvIce by regardlng the service that has liIIreac:Iy been effected as good service, pursuant to CPR 26.9(3). I note the delandants' _ tlta the cIainants did not include arequest iY lis court 10 exercise lis ouring power In their notiCe of application» and they ~hOufcI not now be I*fIVU8d 10 seek an order b whi:h they cld not apply. I do not see that It WOIJd prr.juclci !he defend_ to ... the claimants to amend ttJer application to so claim' and I therefore treat the notice ~,appllcalJon as amended acconIngIy. 2C See the refel'8llQ8 to the aalmams' notice or IP,PIloation in the nota to parag4 1. 04/0i'/20!S 22:28 FA! ., Dispensing with ..-vIce {37J 6.8 8tate$: "6.8(1) ecourt may dispense wijt service of adocument if lis appropriate ~ (i) so.· Pat 6. wllhln wtIich this ruIe:faI., deSs • ServIce of Other DOcuments. This Pat and ttMs rule deal with documentsother' than a dam form as appan both from a rea:Jlng of --.......- ..-,.,~.. -.--~-.. -._-­ th& table of contlnts of the Rules and from areading of the contents of ~ PM. Part 6 doIG not.yb cUim forms. I nave Pead, held thBt1h8 rUes in these ~ do notcross appy and, in rebJIion to this p"ul. rule. 1here Ie noIlIng that makes ~ CIO$S apply. I ~ ! ---~ ~~_~ tbat1bls~~ dL~se ~~-1_~IcbJs.~.. does1lDl .. apply to aeNice ofaclaim form. i . ------_._-_.... i Proctctural erroror non-compllance l38l Rule 26.9(3) is patofthe court's case rnanagementpowers, The rule is In these 1erms: "26.9(1) Ths .. applies only where the consequence of_Ie lD CGmpIy with arule, practtce di1JCIIon. oourt order or dlndlon has not been speciled by an1 n.ie. prdce direclon or court CIder, (3) Nt errtI' 01 ~1Q or faIkn to ~ with a rule, practice di'ecIfon, court "t-- ---.....,.. . ~---.-- ..•- .. -.. . ....,. .. .... Order or direction ~ not iwaildabJ any st8p taken In 1he p~ngs. unless . 'iit-coUrt so ~--.-....-- , ,------- .-.- : (4) Ifthere hB5 been an errorofprocedureorfaiureilooll1)lYwithlariJe. prac1ICe direcion. COtJt order or direction, the court may mt*e an ordef to pt"t matters (5) ::ccartmay make IUCh .. Older on orwfllloutan app/lcaIioIl ~ • party: , [ O;l'O'T/201S 21:29 FA! I4J OOS .' -", 139] This rule, like the comparab18 english rule 3.1 0, provides 121at aprocedural error or non­ COI'f1I)liance does not nullfy the proceedings or any step taken In 1he p~inga unless f 1he coLlt 80 orders. More thanrnerely saving from ~a!dity tnis ruJe. In par~h (3), posIIveIy confers power on the court to m~e an «del' to put mattBrs rlghti ~~~~ rely on two e_ deCiSions on the rxe-CPR 1998 provision 'ttm saved an irregliartty . fi'om being I nullity tl show ~w fle court exercise81ts ~tion.22 (40) In The GoJcIaIn MarineID the clamant ~y $ented merely an ackl'ldWledgement of service and not the claim form upon one dlfendalt in dDmp1lng '0 serve abroad. At first InstIJ1Ce the judge held thllt no service could be said ~ have ~n place. The Court of ApcJtaI decided that It should use Its general power to CII'8 the detaclve servlca.Z4 Sf JaM Megaw saicf211 'The procedural mistake which was made by the plainitfs agentS in the Unlted i States d Amerta ~. of course, tanentable. and, so far as can be seen on the I matenaI beb'e !.1St 11'I8ICI.IIabIe. The pIaIntIII have ~ bea' 1t1a r8sp0nslblllty for 1hatmlstake. HIthad rasUted in any misunderstanding by. or any preJudice to. any oftile defendamB concerned: 1he consequeooes would have been \Iery dltfnnt in 1heae procee<irIgs.. But It Is ax:eptad that the misiIkea caused n+e of1hem any preiudce; 1hey knew • concment writs had been lsuo and +In eJdstDnee In respect of each of them, and that It had been fie InteAlkm that ~e appropriele documentsholid be served•••• In the absence of mal hflm tD 1hGse defendart.& ~ . as ara6UIt of the process serve(s emn. the only rround on wtilch It would-be :Il'11le proCCIIS that Is here being OIXIducted I.e to see hOwthe court previOUsly 8X9rdsed Its dbcretJon in deciding What IhoWCI tJe the oonaequence or non-compllanc:e; I. not to see how to Intatpr'8t the rule. AccortUng~ the cawon of May U in Godwin v 8w1ndon BoroUgh CounGiJ, I.2OO2J 1 WlR 917 referred to in paragraph 221boYe. m-v not be panfeulady applICable. It Is stili a relevant COnJIderatlOn, ~. because 1I1e whole a~ch to compliance wae intendtd to Change uncill'the new rules. I corCinue to hold to tIIo view that I attempted to state In Grenada Civil Caso No. 0084 of 1998 8t. ~ Y AG. of GMnada, rvllng deUvered eApril 2003, ~~ ~OWC1 be no -X ,.~mod,uOl1 ,of nOf)-Q)mpllance witht..... rules. [19S0] 2 Uoyd', Rap 21& (CA) . . 2. It Is Int.~ to note that there was then no provision in the NIO$ that geve tho oourt power to dispense with 581Vk:e. That absenCe did not pnwent tile court from, In effect, dl8P.fnalng wftn service by refusing to set 8$kIe 1118 Improper aarvIce 1f'Iat had taken place In relatllfn to II number I I ~ 04.07/2013 22:~O FAX ""006 ! proper to refuse to allow the plaintifs 10 carect #Ie mistake would be if It were -.~-.~~.- . ".~. . -~" light to punllh the plaintiffs In the interest of upholding the Importjince rJ proper OIIIgerx:e in the service c:I pl'OCMdings. Should the plaintiffs be punished pour -,. . -~..,.... emcourager/e$ autrss? Ithink ncl-._ -In the ca&e of1he 1CJ1h dlflmdants, by an oversight no vntwas sewed upon them I ' at all, but only a fon,n of acJcnowIedgement of service which GM the tide of tltl proceedinos and is1ed them armng the defendanfs sued. ThIs was, if} my I jl.ldwnent. P.,~~~~l.!' aUlrnptiJ ~~~~tI!~ilJlt nanSly to BeNe the writ. ~. faDed to comply with I raqlirement or hese na as t> what shOuld be -'---'--~---------'--''''-.----_.~__ ~.. _ ... --_.~_-i-"... served. By virtue Of O. 2, r. 1, ~Is failure IS t> be treat8d as an lnegulartty and '. i dCieSnot nullify the aarvIce. 'Itmay well be that In mmJY cases wbere no more was served on I! ' defendant than . ., acknowtedgemert of service h woUld be held in exercise! cI the OO~8 ttscreIon lbat servtce must be set aside. In this case, hoWever, 1he 1Qth Clef&ndanl8 raDd In no way d~ Wm the oller six def'endants to wIIlch t have reI'emId. The risk had been placed with them Ik8wise by JohIl F. Cuny, there was the SEm8 ~OfI"~~'quick &ne ~~_on their ~~W8I1I.~Jlg­ _1he._~.~t ~_~~. ,TIMn Is no evidenee berore the court that they ware aver In any doubt ~1M plaintiff Irdendad *> sue them or as to ~. natura of tt.le proceecIngs, orthatthey SUffered any pntJuclce by the Irregtidy ~ SflVice.­ ; The dalmanIs regarded as parllcularty sptttle remcrks Of Phillips Jin ThemaD Instead of serving In Gilntta', as 1hey had been given pemIssion to do; ihe ~ served tne defendards' agent9. In Lb1aco. In decking til8I: the defect shoUd be c~ under the courts generai power the judge stai3d: i :'III alp. m. L ", .... Nor do I ttIInk it :reasonabte to haw objected 10 the service efteeled on 1he I defendants l manager$ in Monaco.... ~ obJeCt ofservice of p~_o~ ap~!~ to t.11ng 'the process 10 the notice of !he paty served. SmvIce 00 ~ defendants' ~~;;:S--;MO~ '~u- b*.calculat.;d'.,'-;' this than ~ on their (_ registered ob In Gibraltar. ~ defendantI were making life ~ procedurally dlI'Jicl.ft for the ptainft, as possible" ' • SUch, B postu,Ii may be 1eg,I ~, , " but It Is not one I And aaracttve. The rnaruwr i1 whIoh service WIS, ~ caused no ~Udb'tD'lne de~Mil~ ~~~,ct"fitdiscretiOn I ~ that. I showd be l1Iowed ~P.d.• I / I In this case tie ctamanIa stIIf the methods r.I seM:e used were eft8ctive w:bring the claim ,-.~___ ~_._. __ •• ~~~e~ .. _' •• ____ • -.-~-__ " __._. -- ~ • ____ "."" •• _._~ __•• ___ ••'"___ - ..--••• ~~"« ') =-.;. • to 1he atenIon of all three d~~_~ quickly. They each filed an ack~~~___ ('''? ,,<-"" of S8IVIGe very 'qUiCkiy' and-~ t) ch_ aervice and forum. None rIthem has :,;.j;", I ,l S ". - ---_... ---~--~,..-q~ .-.~- ... ..",.---"'~-.------------­ suffered prejudice as antault of the meIhOd of seMce Spied.,In the crwnstances tee court ShOuId'iiG8 HI gener~-_~fu;Procedural en'Or. the ~sutmtted:'''' - _._---_.------- ~ .-------.~..

Th' curratIIfJIRICh to non.compIance

[44]The casas upon wtich the ~ rely belong b an earfier era. Mr. ~~ey SmltJt tubmittad. and reflect adifferent ethos, The prqJer position Is InstBad shown by recent caaes. he argued. In Ehee y Hygtldl Food Products PIc- Si~n Brown LJ conaidarecl the situation where aclaim bon had been SItVed In tine on ~ defendants' InNerI insl8ad of on the ~ tbem6GIves. The insurers had ~/l negotisiing ill , settlement of the claim and t was a:cepiKf that no prejudice was ! icaused to ttle defendants by GeM:e upon the insurers raher than upon the defendants liemselves, The \ question that arose for decision was wtletber there was power In the court, on the daimanfs 8Pr*aIon uPder CPR 3.10 (b) (ttII ~Iance ~sion) and CPR 6.8 (alternative method of seMCS) to remedy the error by an order deerring the servioe to have been good service by an alternative method I'dpeI'Il'lit1ed by h rules. r I [45} The court analyzed What remedy nw8$lhat the claimant was aeeldng and ~Oncluded that , It could only hi/lVe been 0.11 order under the English r 3.10 (the eqUIValent ci our 26,9) that an order fix altemrilve soNtce under r 6.8, not In B:t made, should be deemed to have been made. The court refused tc so order. The court decide<! that such M Ixller could not be ma retrospectively, only prospectively.

[46]AndIrton v aw,d CounLy CouncD (No 2)1' decided that the coLlt had power to dispense wI1h service under r 6.9 both retrospectively as well as prospecfNeJy.ltwas said that 1he ardBr would only be made reIrospectvely in exceptonaI clrcutnstances. The alSl)ell$lng discretion was h~d ID be exercisable In faVO\I' of a cIiimant ymo has in fact already made an IneIfeclIve ~t in _10serve aclaim fam by a~bIe method. It was I'ICOgRi.ad that 1he grou,.;J of tuth an appIcation is that the ~ant does not I dispute Ulat he or his legal adviser has in fact received, and had his aue~ drawn to, the claim form by a permJUed method or ~ k11he prescribed time. 1pe basis of his ~ 18 IIat Ulire Is no point in ~uiring tim to go 1hrough the _ of asecond , ~tt) ~ In law what he has liteady achieved in fact . leaving aside b' the moment the point that tnj1'9 16 no power In Part 7 to dispense with '"" _'W' serIIice d 1hI claim form. I would ODn1TIJnt tha this ca&8 sL43Pons the argument of ttte_ . . cIaImant& that they auld receive the benell of the ~ w.IIn.rt-~ is 8 . ~. ~-.-------------- .. ..-.--..,--_.._--------­ foonaity n no prejudbt has ~~~J)!Jte~JIaot .,,-- -- ..--~-~---.­ .--_.. --"-----­ [48J In Bat Capital Funclng ~ v Uedeftnco lJ.cPO Lawrence Colina J found that there had beeII no valid HfVIC8 of EnglIsh prcx:eec:ings In Malta either under EngIsh or I . ~ M8Bietaw. It is inslnJdlve i) see 1M teab'nI!Int ihe Jeaned judge gave!., It!e o~n thatthere had been irr(,)rOpoI' aeMce. ~ set ol.lthe daimants il'gumtnts ~ follows: I , '168. The clailTl8l"ll1 accept that the claim rcrm has not been ~I served on tne defanda'lls In a:cordance with uatase taw 1$ reqund by CP 6.24. But they say 1hat the defendants have: (s) ha:llnformaI service ~ the cIaI Jam weB within 1be four fTl)nth period for IEIfViCei (b) received copies of all the relevant ZII [20021 1 WLR 817. I ~U\H' '. documents: (c) i_ct8d english dcitorI; and (d) taken an actille pil1 in the -_._"----­ prOCMlings. Any _dant, acting sensibly and in ax:ordarce w1tt11he oventding objeetive would - on Nieipt of 1tIe relevant docI.Inent5 well wiIIIn the four month . I period and hcMng InS1ruc1td E~lsh solicitors - have walyed the need for formal ~ or ~d have InS1rOOted their english SOfiCItors il ~ service In the ju~n. : I [491 AIM dealing wifb other aspects of the case the judge returned 10 1be ~ of serviGa (at para 216): I , ~16 Pille time of the heartng of this matier seMce had not .n elfected in Malta. afthough of COUf'S6 the COf'I1)IlIY. and Its Board of Ad~f have had the docurnBnIs .•. (for six weeki]. It II true 1tlatadefendaIt Is filly entitled to Insist ____ ••. "M".__ ____ ___..., ___ •·__._",,"--­ on proper aeMca. Proper IIlVfce is par&ularty i~i in international cases. .. -~--.-----.. -----.--.-... ~-. -_.. -. where the basis ofjwfadldlon Is service. I would therafofe heSitate betbAt ordering -.. _-- ---~.-.--~ -~~ ~..-..~- - ... ~-~--.-,,- .- '- ("--------..------~-- _.._. aerva by a'I alIetI1lIIve method, or dispensing with senrice. ~ I would hq:Io -...... -.. --.-.".-.'~-.-----,.---...-----'-'-. '" ...-­ thai, on mab.n raIecIon Mr. Tabona would not be advised to take Ell)' PurelY --..._ .. --.._-._-._.t--.--.. . . ---.--------.. .'j'.....-- ...... - .... tachnk:al pant on~'-Wru.1 propose to dO is to adjourn detafmnaHon ofthe question ~ I ahoUd make aspecial order with regard to ~ ... by ~ tilN I can be InIonnId whether IIMce has 1aken place 01"1' ncr. What Mr. Taboos's poSition Is.' i {5Ol It is not appnrt from these cases decided under ,CPR 19981hat thssals illY general propoeiUon Ihat dellcUve service wi. be ine~YI ()('_~__u~falaLlt is cieN1hat(be COIIt wi exercise '8 discretion In dlcldJlYJ whel the consequence should btS. I {611 In this regard it Is undoubldy 1nI8 that the ethos of the new rUes requires that there sIlould be sfJicter COfJ1lIlance with the RIles. Ivl May lJ staI8d In VInos 'II Mart, & SpenwPICI' ~U10 ! "If you then look up from the wording of the rules and at abroader ~n. one of the main alms of the CMI Procedure Rules and 1heir overriding O~ective is that clVllltigation snowd be undertaken and pLnUed with proper expe(Qon.· (52) That objecdve Is enforced by the ams r:i!he RlAes themselves. The eotllt'has given due efl'ect 10 CIa inlltntion or U1e rules as is 11U&iaI8d. ilr txan'l'1e. by the court'8 approach 10 fsiUe 10 serve aclaim foml wI1hin VIe prescdbed time by recogNzing the limit that the rules pia upon the OOUIfs abilty to extend 1Ime. The coort sounded awarning on 1his rnalW In And.-tDn vCIwyd:Z . . "2. The conseqtJel1lf8S of failure ~ COIJl)Iy w1t11ht • governing service of a claim fonn are __ ser10us ror 8 clilimant and for his legal advlsera... , Now 1tlat the lIsputli!d lnierpretdona of the CIvIl Procedure Rules have; been resolved by GocWm's case and by DIis judgment, u.e will be very few (If "y) accept.atje elCCuse8 b' falne to observe the ruin b'service Of aclaim ti:Irmj The couf1s wilt be entIIed to aqrt a SIrict approacl'l, even though the consj,quences may sornaIIme$ appear10 be harsh in Individual casoa." , (53] It ~ o~ that ~_~.~ distinGIion In.~ R_ .~.,Itwii)os Where 1here is a fimltatgn on tho etXefCise of dlscreaon. such as the discretion t) exiH1dJimttitserve a .----.,:; . --- -. ~fomtD, and 1tlose where there.!I nos1:atutclyJi~. Even where there Is ~ such I1mitatJon on the eun::ise of 1he collfs CIscrebI that dlceton fIUit be exertJsed upon '-'e eontideniion of altho reilWart factDrs. CPR 2000 provide In ruJe 26.8 astatemelt of 1M d:H1a for the ~ of a dlscreton when bre is an appIcatIon for relief from sanction. These include the :conlilion8 tJl8t fail", to comply was not IrrtanDonal and there . j . : is agood explanafJcin for u.., failure and the considerations of what would lbe the effect on each party of granlng f'8IIf, the in8'ests of the admnisi'ation of jus~, Whether tile fallI'8 10 ~ c:an be remadled wI1hln 8 reasonable time. whethIr ~uIt lies wi1h the lawyer or t.he lIoatt and the etl8ct upon atria data. . IS see, tor .ample, Godwin v Iwlndon Borough Councll)2002] 1 WLR 997 ~ 1006 B (21S1. ( I/tOJV.U " Tho wide 'tIlcretion under r26,1(3) ~ The dl&cre1lon that the dai~nts Invoke is in fact abroad d\8CretiOn. The daimants do not , seek refief from sardon In ttus case because no sanction is prescribed, Rule 26,9(3) on whtch 1he cIaIrnIns rely glvek tile court "th& widest possible discretion and the court cat! look at all the clrcumstanc:es- according ID note 3.10.2 In The Whle Book ~ 2000 on the comparable Ef9lsh JlrovtaIon (r 3.10), i I """" [551 In considering at the circurnst.anees Iconsider In pa1ic!.dar the fact that ttte/clamants took ---------_.- _._-_.. ........ ------.--.--.-.-------~.--....---.-­ the vety proper _ of obtaHng acourt order that speclfied the methOds bt which $SI'Vbt _~be-~·~dtheyeon.wllh1heb~~.·.Th.~~~~~y -tlYJ~~_~'~ ORSer they ob;';:;;;..~.~~~~:~~_thit_~.~~~.14.­ appied. It was areason~view Of ~ 1aw:..~.~.P.~~I~t~E!'.~~a.Q.tIg!Jgtrt the, .c:tanaii were correct. I have decided tha rule 5.14 doe8 ~.., seMc8 of aclaim -- .....-_.__._- ­ .~----~. bIn out 'Ofh juisdlGtiort. But this Is not setI8d law. Counsel bale not ~ my -..__..._---- "'-'-----­ aIIention ta any deCiGJon on the rna.tfBr by 0tI" COtJtcIappeal. - ---'

[56].~ becaIae 1tIe cI~ ~ I!~ 10 acout order. _ wei as tor the other ~~~i-appetl' In uf ~~ ~ ;;some ~which-j··have advInId, I.~.!!_~ to exercise my ~ under Rue ~A(2) i).~~~. /~ seMc:e en 1he 111... defendants that did not comply with nJe 7.8 81 loot invalidated / - -.....--.J.---..--.--­ "'-~ ..~--.....--" •••- -.--.-~.--.­ -- -_ ---. -- .. + ... ..­ L~__thereby. -~--=::::=:::::-:."""-'"'----.-.'''-.. -.--.-----.----- SlMce In violation of fonI~ law ... _­ J ·i

[57]Be6n I decide wheller I CII'I or ShOUd exerdse my dlscration in 1hat ~ I must first consider the defendants' submission that service was effeded in violation of foreign law. The defendants say thai service on all tine relevant defendanlS did not Con'f>Iy WIth the local law of the places where serva was eIfeoted and that in 1tIe case of Mr. Karam such service was probably, violation ofCI1nina law. To this contention the daimanls have taken a ~ o~n. The c:1ai'nMtS ask (or an order that the defendants be refused permiSsIon to rely on the aftIdlNlt evidence of Mr. ! ! UatJeo Inaudi. who deposed tha $eMce on Mr. Karam In Switzerland w~ probabfy a violation of SWi&s penal law. The !1OUnds of the application are 1ftatMr. 1Rf.udrs affidavit takea them by SI.I'f)rIae with amatter that was not i'**<i before CIld tnatltnls argument fA violation of SWIss penal law was deHberateiy I'X1t raised until attar 1he ~piration of the , I tine In which rHeI'Vt8 of tie claim form was pennItled $0 that the claljnants can no longer fK81V1. The claImanfB argue thathy n prejUdiced. [591 In f8SPOI188 the defendants .explain Why the aIIdavIt was not filed before, Also, the defendantlll'glle 1ftat the alleged violation of Swiss penal law COITIeS within the ambit of 1hair ."Ucatlon 10 Sit asi1e'servia!!. I accept that the aleged viotalton may ~ .~ in the defen~' appiicatlon for a deClaration U1at the pulpor1ed servte was of no e«act. BIi 1nat pOc;tion Is undemined by tie grounds 8taIBd in the nofico of I , appbdion wtlJCh ~ UJat 1M Rlies did not pemit atbatIkdad sarvice out of the \ I jur11d1ctJ9n and that It was not appropriate m~ an order for B8rVlce of~ proceedings on 1be three b'elgn defendantS out dthe jlOdlctoR. Rule 11.7 reqtires"" a no1Ice of application must _ bfI8fty the grounde on wticII an applicant seeks If' order. How I should treat the fain to stIta 1fte groUnd now 8Ou~ to be AIled on! Is a matter of discreton..l I

[60]The defendants refened ., an exchange d IetIIn about def1ctl1le setvlce befOre they made their ~ic*n 10 ahow that they had. shol1ly Ifter8ervlc$, alerted the claimants to their posiIi>n that foreign lew had been YiDlated by the service that occulTed. That teUer specIfi::aIIy asser1ed that seNce on Mr. Karam was 'n contrauen1Ion d SwIss 1aw".1t W8$ the dtiy of the claillarIt8 fhar88ftar to make 1tIetown InqtJIte$ inID 1he maaer or to ask tile defendarD b' pw1IcuIcn. que the defandants. Instead ft1e claimants seld WI will de this In court. [811 In my" ihe c:IefendaI*''' gM adequate nob ill the cIaIrnttlts of1he objec;tlon to seNice on the ground that itWi aviolation or SwIss law. I am tberefore d,ncIlned to view the lata atftdavlt of Mr. Inw as an ambush or as deliberately lied lata &0 las to allow b I for re-serving to expire. Iacknowledge d18 fac10r that the cJalmants were 'f,longer ~e10 reserve by the line they got1he affldavt But the prejudiCe the clainants ~red was from ., their faillll'B to look after their own Int8rt$ta when they got the defendants' ~. Had they obtained proper advice on the aleged vlolailOn of Swiss law they would not have needed tI bIanI the defendants for not sooner glvilY4l them the benefit of Mr. Inaudfs aftIcJavit. I cannot fBLIt ttIe defenclanta fer the situation in which the clainan1S Ind themsetves. Ireject their spplJcajon to rvfuH ~ tc 1h8 defendant to rely on Mr. Inaudrs affidavit. I give pennJuion to ~/yaJend the notice ci appIk:a8on to state the g~~that aet'Vice W8S In viOIaIIon orforeign law and Ilreat the notice of appliCatIon as 80 r.nerided. (62) The alliClaVtt of tk. tnaud elWUnler8 another dificuIly. however. In It M~lnaudi .. expert evidence as 10 Swiss law. He sa~ thst seMce by courier on . lawyers In Switzertand • had a::ted ., oller pl'OC8lClngs for Mr. Karam Is -in I ProbabiIlY a c:rIrrina otfence under SwIss 1aYf. He says 1tIe s.neln reIaton to &ervIce iby post on Mr. Kwcm at hit tlm1er ...Idence in Wiy, SwItzet1and. He dI8s the relevant provision as being'" 271 of the Swiss penal Code: ·Anf person who wittIIut proper aultIorizaIon carrie& out on ~ of a mign sID In SwItzGf1and 'I1'f'J lid, the peri'onnance of whCh 1$ reaerv8d tc the public autIIdes and any person who facilitalu the performance or $td\ acts wiD be $UbjIctto I pe~ Or ImprISOnment ar, in cases ofsettoU5 oft'enl»of det8ntion.­ ,

[63]I do not know what Mr. Inau.1:I means ~ what he IIJS. Who conmIted a~ oIfence under SwiSs laW? The postat worker? Would the postal wart.er be rag~ II\der Swiss laW as carying out an act on behalof aforeign stiB1 Or II M'. lnaudi ~ng looaeIy tl I violation fA IN spift of artIcte 271? In TIle SkJ One the PI'OC88S aerverjwent ~Iy to seNe the writ upon the pNSIdent of the defendant company In Swttzet1and. In the Instant case IhIre was service by post fIld by ccxrIer. PI; arruit8r rJ .nilg I dld not I see how service by post. aapeclaIy, COUld equate tc ~ se"" by a p1vata IndMduai who Is engaged by achlmantto effect service. Itis thIS dash ~ reasoning and Mr. Inu'. co/Ousion that drew atemIon to Mr. maucl', ~ of IQ duty 88 an expert. r .,.v...,. . . , I [64} Rute 32.3 stales that the duty of an expert witness Is to help thB'court iT1J~ally on tho I matIIr relevant to his expertise. That duty overrides any otxigation to ~ person whO I Ins1ructs (I" pays bin. Rules 32.4(1) and (2) atia that expert evidence p~ to the court I1IIR be arK! shoukl be seen to be the Independent product qf the expert uninftulnced a to fonn or content by 1M demands of 1he IiIigaion. He 'must prcMde independent assistanC:& to tile court by way of objective. unbiased opillOn. Rule 32.14(2} staI8& 1hat at the end of CIrl expert's repcrt he moat a1at8 th. he unclerltands lis duty to the COI.I1 as setoutin rules 3~3 and 32.4 and that he has ~Iied with that!duty. (65) MrJnaudrs aIIIdlNit contains ~ stalDmelt th. he underatx>d that he had, aduty i> the court or 1I'Iat he 00fIl)1ed with any. This was titling. Because h". lnaudi co~ that he had ECtad In SWill praceeclngs brougtt by Transworld ag;inst Mesal'l ~.ka and I3oulygine. that he had actsd • Swiss legal acMser to Bluzwed since 1997 and that he was auI'Iortzed 10 make bls atIIdavi on behalf of Bluzwed. He then P~ to q,J& Swiss law In fIvo&I' fI his cientI. The lflldawit did not pretend 10 be the ~ of an impa1al. independaC1t and unbiased upert ! [661 It II In that cormxt that Ioonsider tta opiion r:I Mr. Inaudl1hBt postal serviCe of the claim fonn at Mr. Kaan's acktress was In III probability avioIaUon tiSwiss orIrrinailaw. That is cItSIic expert opinion evidence _ iJ b'eign I•• That IWldence needed to have been given by an Independentexpert In the same way 1hat Ihe Ruarlan law ~for either side gave tis WdenCe in the Instant cae: In CCI'I1'llance with Part 32: In anon-partf$an WI. Had the absence of 1he 08fIIcaI8 d complfance, requied by rue 32.14(2), been only I technical breach It may ttJ been an IPII'OPdaIB exercise 01 the ~ as iJ how to treat 1'IOIH:OI'I1J1anc:e. confen'ed by rule 26.7(2), for the court iJ non~ rely upon the expert's evidence. 1iowMr, i_ad of thin being amere tecbnIcaI ~h of af'orn1aI requlrQrnent It is undeniable ttlat Mr. lnaucfs oPinion is that of a paa1laan ~ an advocate. It Is predseIy Ute sort of oxpat evidence 1hat Piri 32 of CPR 2000 is Inten~ed to exclude. In 1he exercise of my discration as to how to treat the vioIalion of the rul, regardng the evidence of an expert witness Ireject the oplnk)n evidence ofMr. InaKfi. • IIZlOUl r

[67]In 1he event that I an wrong to J'i]ect Mr. Inaudl's evidence I go en to consld$' how to treat the \/IoI8IIon of SwIll law that he said occurred In effectlng service upon ~r. Karam. It appecn on the authority of lbe Sky On,as recognlzed by Lawrence Co~ins J In Baa I CIPitII Funclng Corporation v Mldlftnco IJ&P4 that even where the patjcular method I ofIII'Vk:e was expressly prohibited by foreign taw the court has a;dIacratIon:to 8bw such senrice to S1and. stauQhIOn Jsaid in lb. Sky On.. that It wouIcttake a very strono case for him mexercise such adI$Ctefton. The poIrt was not ergued and he simply expressed the _I without elabcnIon, 1hat he could not find su1Iciant grounds for exercising his discretion In favotJ' d lie pIajnIIftL It is Intorea1Ing that Staugbton J then !proeeeded tI decide that there were exoeptIonai clrcum&tances which jusflftedrenewal of the writ The ctamanta were thus able to i'werve. In the Instant case It Is conm:H1 groond that ra- I service Is no lOnger possible. : I • Two matters distinguisll1he InstIIt case from Th' Sky One. The first is ~ there was no personal service In viJlaIiDn of Swiss pen~ law in the Instant case as there was In that CiI5& The second matter Is that in that case the order that the plalnIHfIJ ct$llned WiB for ser.ice out cl1he JurisdIctiOn eimpllcllar. The order dd not&peCify 1hi ~ ofseIVice to I • 1Bg~ ~ serve1he be adop1Id. NrfIl tile ,... had obtained leave mserve the writ out of ttl$ juI1sd(aIan hi pliintilfs then conta:lIId 8 Swiss firm who advised that It w. defendants in person. Amember Of 1he ftrm than pwsonafly served tbe PfiSsident rJ the defenClant COfI1)lI'Iy35. StatghtDn J heId31 that 'Service r:I the writ by Dr.' Rossi was a I brea:fl of Swiss law. By reason of O. 11, r. 5(2) itcannot be held tI have been authortzed by the order of..... Ju8lce Turner,·

[89]In the instant case the Cl'der Of 1he cout that permb.!Id ~ce out of tne jurisdiction actuaI1,. specified the numlf of service. It is undoLbtDdly true. as Mr. MMI1ey Smith urged, that the claimanlB ~ their view as to what SWIss law permItEd fld invited tile , • I 301 No (157). =No p. 244. col. 1 3S see tne chronology of events at p 2.010, COl. 1. .' ',. court to ~ on tnat view. The court did not go wrong on Its own Initiative, it was led into error. That. twever. does ~ aI18r the tact that the court has Br8ady ft1I8d8 an order authcri2ing the ¥elY seMce ~rttick place. The COtJt is not being asked 10 .Iow service U1at Will done without ~ to stnI; it 18 being' asked to set aside seMce that was done pursuant to the speciftc'dIreeUon thaiit gM. Ifcomitv has been alleflded or Swiss I , f law has been 'JIoIaiad It is now too late fer the court mdistanCe I1seIf frOn1 the offending I ~ !, II .

[10]Lawrence CQlns pa In BIt CIPbi seemed favoUf8biy II'q)f8S$ed by thelobiW IIiew of the GOUt Of appeal In KnauP that Itwas pennI$sIlle m1reat ~ service ~ Germany as pernisSIbte Ht'Vice under En,-1Sh law aIIhough It was a vIoIaaon d ~n law. I respecfully share the sentiment Even If I had accepted Mr. InBUdI', ~ opinion ftlat seMce by post at Mr. Knn's residence Wa$ avIdIIiJn of &.Iss pensllaw Iwolid have ~ 1he fact 1hat there was poataI &eNce IS cIatInct tern pnanaI service and that such MnIIce tack pita pursuantkl acourtorder as maJdng it pemissIbIe to dow service tolfand. 171) ",.lnaudI depo&ed tbatseverall..ge boxes W8f8 deIveIed by poGttlltle addl'8$8ln Lully ! tIOUnd 161' April 2004. He deposed tI'IIi that adcress was the former reraera of Mr. K8'CII\ now occupied by Mr. Karam's bmer wIe. The boxes, he 1rIcbfi!d. were not opened. The thoughtOGGI.I'I8d i) 11m thatthey may have contained CIain dopJments since the bores went delivered fIOOOd the sane ana as claim documents were 18GMtd an Mr, Kaan'S Swi&a lawyerS. ButIhI boxes were netopened. In my _It does not matIIIr that tAr. Kawn did not open the boxes. I am perfectly clear In my nfnd 1hat service by post was effectIva to trlng fie cilim form and doclJ11ll'lts to his atIBfiion. H I lull any dOlI. about 1he etrecllveness of service ~n Mr. KInm the fact 1hat. on a wJttlout prejudice basist he lEknowiedged seNeI woWi have l'errYJved those doubCs. I should also nntkln.that aapeclal feab.lre of this case is the fact. as alleged, that :III (2001) 2 All ER 332 • Mr. Karam was at all Urnes an associate of Mr. Oerlpaska and iil&gedly dd In d relevant mattsrs as su:h. Service on Mr. Dertpaka's London solicilPrs who are row acting in connection witIl the lnstart case for all three defendants would have been faCtUally e1f8Otive nolce10 Mr. KIIlIfl•. (73) Pursuant 10 rule 26.9(3) I decline to set aside ~_~_~h. 1ftad)' bien ~.in_ ~----..---....I..--'----"'.­ I accordanca with 1he ex pll1e order. UntJI set aside th. order remained aad order; see _.e-'~~ ______ ~._. ____~__--.--~-..-. ----r_-'.---.-,.--- RabtttIon V 1....<40 It Is now ~ized 1tIit when til order !! set~.c!!.!t_~_.nD!. iutliri8tica1y ...,tin-the IDvaktliOn ci_s-UUrt~~ !);een takln ~ ~..~-11JI!I o.. _-eip.rttJ.~4(--··· .__._.- :­ - -~---~---­ i Itsboljd be Glded theIt tie order that &lows defeettva service ., stand is ~ in disguise. ..- -.~.- -- - - ··---·~------T--····-·-···--· . a ~~_«darfor.~ serJk;a because the impu~nf)4 .ex. p~ order was distinctly a prospective order for aIemetIve sery~. It Is thIs t3JtOr that pemits acI1l'erent OlEome in the instant caee from the O~ In EIrnH y Hygrade Food: ~ PIc. where 1he f1fusat of the court to flow service to stand was because the court decided that It could not make I reln)spective order for alllmalive service.42

[75]Before leaving the mabr of altEmative seNtoo Itmay be Aelpful1D obs8rve thct substituted service may be available In: eases rA service out ~ the judsdc1Ion when service takes Place. pursunfD rule 7.8(1) (bt in ~ with the law ofthe counlry wIvn service Is to occw. The relevant foreign law may permit 1 Tbis was counlEts su~on ~d, if this II so. It seems natural that It shotJd be &0. For what It Is worth, Mr. I..,i stated that SWIss law parmlUBd SwIss oIIcias responsible b' efrecIng service to effect sub&lituted HIVfce. The forum challenge 176] The defendants seek 8ft order b stay proceecIngs In this court on ttle gr1X!nd that there is I MOther forum w*h Is clearly or disfJrdy 1he more appropriate forum than the BV1 In ~'~2D!J seeillQpha 44 and 451 GlbOve. It is material that there ,hould not be the doIJble dofoct Of . I " Q4j(l~/2013 00: 11 F.U which the case may be 1rIed more suitably for the In1Ir8s1s of all1he partiesland the ends of justice. This IS the burden l1at the Uerendant bears, as was established i~ the landmark C.i1S8 of BpI'" ........ vCensuJexa. The reason b' IlI1>OSing that buftJen upon the defendants is to pay pro~ regard 10 the fact thatjurisdiction has been founded as of right In R!4aIon to hat of the defendants which have been sued in the jurisdiction In which they wens illCQl'POt8led44, {77) Elnghan LJ (as he It1en was),identiIed the four qUElGtlonS which the Judge had to consider on tie application for a stay lin Banco Atl.vdJco v BBU!.4 These wenr. (1) is there a I . contact? (2) If so, what appears to be Ita pIOp8r law? (3) what issues t-een theSe p8I1ies have i) be decided IJI'lder the pres_V8 proper law? and (4} ~ the defendant show 1hat1t1It foreign bum i& cIeaI1y and MncIy mDI'8 appropriIItB fo( ttMf detemination of these Issues having regII'CI .., the Inb'e&ts of tile pa1ies and the ~lieYement Of justice? It seems appropriaIB to me i) proceed In simlai' _him in ,Instant caae athou(tt my consideration must go fII1tIer. : i i (18] Ntmie Wi~ the SUI1Ing poi1t.on the ~ for a stay in BancO A~ In the&8 words: "Where III English CoI.It Is 8&k8d, on the ground offorum non conVeriens•., stay an action. a8t!rtmust be made somewhere; and, wtuHe 1h8 actionlls far breach of acontactwhoA t1Js1enoe 1& adIritI8d or ostaDIshed astart can only be made by IdllldllJlng the praptIr law d 1M coniract an exerdae wl10h can only be carried out under the gui~C8 of our own rules ofconllct Hale, • Lord Justice Bingham I • has demonstratad, It It vert probable. peritaps InevbbIe. 1hat1hqSe rules lead to I the condusfon 1hat tie proper law Is Spllish. AGoorc2ingl~. applying the I .., have asked fundamental principle apJKOWd In tlplfJadl« ... the judge ou~ himaelUhl8 question: I 4 [19871 AC 4eO 404 8ee Splllada{1gen AC .ceo It p. 4n. 4Il [1990] 2 UO)IdG rep 5G41t. 508, eo!. 2­ 04/061 ::01$ 00: U F.U L .. '-' " , .. " " 'it, , Am I sausted ttt.. the issU4$. arising under ttlis Sperish q;,n1ract will be tried more suitably for the Interest of the parties and the e~ ofJusUce in the courts of Sharjah? : i '7hat being the queatian whlch ouGht to have been but was not aSked, there has been an ifI'Q" In principle to be cooectad by this Olwt. AskiClg myself 1hat question, I answer It In the neg. on tile groll1da advaooed by L.Ord JusUee Bingham, two cf which have eapedally impressed' me: 1h~ the Shajah Courts woutd not apply the proper I(!VI of the conta;:t secondly, 8arx:o can sue B8ME in the Englsh o,uns as rJ right.· I

[79]kcording to 1he defendan~ submission it Is only wi1ere the ul6t9nce qt a contract is , , iprina fide its 'admIIed or ~ishecf that 1tl8 coLlt Gatt proceed i> conakJet what Is proper law. If the exisBI:e of the contract Is in cispti8, as I: is in the Instzm case, then there is no basis upon which the ~urt can form aprlma ,.. view that ~ contract even , extsts. Counsel accepted that pem\luIon to serve the claim 1crmout ofthe 1urisdiction was given on the basis that 1he claimant: had shown (ex PA, he rerrinded) algood .-guable case that there uis1Bd a contract. HOweuef, the dsfandants' posiUon is ! that no such contact exlSlBd. Therefore, counsel &ubmitt8d, 1he coll't was left in the position, a this· stage, 1hat1he exIstInce of I conh':twas no men than 8 malterrit avum8nt (80] In examinilg 1M submission that I atndd make no prima facie fIndiIg as to the existence rJ • conlract I noaa that this proposition runs countsr to the express guidance of BlnghllTl Win Banco AtIInIico.. ThIIlla the tnt question that he said ajudge has to consider: is there aconhct1 Why would ! he hcwe de$cribed it as 8 questloa j) consider ifIt could rm be considered becaUse Iiiii ~ queation? • is true that III that casethere waS no diSPute as to 1tIe existence of II conlract ItlI'IU$I tiso be true, ~US8 Mr. Moverty snilh said so, tim In none of the cases In this area has there been a dispute aa tn the eldstenGe Of the contract. Non_leu, the reason, III rrrt respect1\Il WM. why Blngh~ LJ mpealBdly 411 [19SO] 2 lJoydI rep ~ at page 506. J6UU'JV ; .., ... .feietred t/;) f.t\8 exlstenoe of a contract as a"question' that the judge has to ponalder was , because whtn the ftJCi*ce of the coniract was In question it was the duty Orthe Judge to ..war It In the aaTI8 Wr/ a& he was reQUI~ to answer other ql8Stions. ~ as What was the proper law ofthe connet If, at thl~ stage, the court is able to mak~ aprima facie decIIlon as to 1he proper law of acontra:t Ican see no reason why at1* ~e the court should not allO be able to make aprtma facie decision as ID the existence ofi pmIract. [81} On ·tIle fa::tJ of the In&tant case, hOWever, It is not necessary to perfonn ~ven the very ilmitDd 8ItercIae of making a prima fa::ie choice betvmen the I1vaI pos~ons. This is t1eCause ewn wlthout deciding ifthera was acontract there s1ti1 artsos the ~ t» make a prima faie dedIIon as 10 the proper law. [821 The short veraim of the cIaInants' case4& Is ...the pil'ties (the IV Partners) enIBred Into a joint va00Jr8 agreementlnYolving the sourcing and purchasing of ,alumna their pftlC)8$$ing at a plant In RU$SIa and the ,,,rehase and onward sale of the proceue<1 pmduct to third ptl'tie$. ,. bU$inesa done wfth fbat plant by tbe N Partners, whether , , acing dIreCtly or Indlredty, would be done exclusively fOr 1tIe benefit of ~ IV Pa1ners. ! The .-rangement was 10 be of IndafinllD dLdion end coW,! orly be 1IImIn$<l by B yeats notice. I i The short .., of the defendants' ease ~ bas not yet been ~) Is that. the relevant paries enIInd it*J 8fI arrangement that was loosely and In~r8tsIY calrId a joint venture. The ananoernent amounted t> no more than establishing ~ frarnewafk for certan corporaIB vehICleS whk:tI the relev8ltp8'Ie$ crealad and·joinIy ~ to entIr. on acase by case DM. Into nnsactions wIh the plant in RUSlia The ~ was not acon1raet; ft Involved no excluSMty and required no notce pec1od, [84J It seems 10 mo that at this stage It Is enough lhatl1lnd, 81d I so findl that there was an arrangement which one paty says anounted 1D acontract and the other pI.f1y says did not anount to acontract The ~ Issue between 1he paries Is prlmaiy a q~n of ~­ what was the srrangement?i But It Is also dfallncUy a quedon of taw - ~at are the legal III The fulltrv ....lon appM'" at paragraphs 3 to 7, 'bove. 0410~/Z015 00:13 ~\I ~V.\I1 '" f. ;. , ';" consequences, If any, of that arrangement? This Ineluctably Mads to Ute question, by rererence to whiCh system of law should 1hat Issue be resolved? In other 'MOnis, 10 the extant 1hat this factual _ute as to what was fQ"Bed (or arrenged. as I am sure tht deflndantJ would prefer It to De expresa~CI) Involves a question fllaw•. by refe,.nce to which county's law must 1hat queatfOfl be answered? In short. what Is the proper law? (85) It is settf8d U1it ImJng the proper law Involves tine considerdons, as appears m the speech of Viscount DnhDme in Whlworth ... EItateI Ltd V ......ID The first consldarallon. whether 1heAt Is an express ctIJice of law, dces not a1$e i1 the instant case. The second consldendon 1$ whether any choa of law is to be ~d tom the conduct of the parties that shows 8 decJaIon In reaS'd to the proper lawj It appears from the Judgment of BlnghMllJ In Du Pont vAptwIf that the tanns of thejconi'a::t aM the roIevant s~ circumstances are &Iso to be regII'ded In i~ Intention. If It appears that Ule pilries never applied their trinds to the question tt1tn 1tI~ court mol/lS to tte UWd consideration, lD &Ie what sy&tam oftaw Ie the one with whi:h the 1ran&acUon has ItS Closest and most tBaI COCH18CIIon. AI. boIh of those cases show. the court does not proceed 10 the third Ctm8Ideration tRea II falls to Infar Intentiofl. ThIs position had liso , been stated by Lord Olplook in AmIn RatI1ttd ShIpping Corpordon v Kuwait IllIur'IftCI Co,G2 The declsbn In WhItY«N1h snet Eetates ltd vIller«' shows that one answer may be pJOduoed as amatter of infem!d Jntention while iI dIrerent answer VlQUd be produCed on athid staqe Inqulrf4. 5<) [1 mOl AC 583 at 811 11 [1 i871 2 Uoyds "'op 585 at 5Q2, 0011 O~ [1984] AC 50 It 61 i J86] Inten'ad lntlntion has bean said il refer to the a:tual, not the Imputed, itdention of the I parties: if they had been 8Sk.e(I at the time what sysEm of law shoulfl'govem their aoreement what woukj they have answtnd? see Hellenic Steel ~~ SIIlppIng Co.

Ltd (The Komnlnol S) per Bingham LJ. l1li

[87]In 1h& instant case I am convinced by the wrItIBn and oral submissions of Mr. Howa-d that there was aclear, deillerale atrort bV ttle parties 1c oonnecttheir venture to systems oflaw au. tnal RussIa The oIf8RDr8 elemert In1M aIfairs of the patIes Is ovawhelmlng. Tte 111 claimant 1& Incorporal8d In The BahamaS. The itt defendant is Incorporated under 1he Inlema60nal Business ~anl88 Act of ttis Ten1by. The ablrious reason why ~anles lnoorporata undet an oI$tae regime is to avoid the ~ and regulatDry laws of I , , other couniies in whi:h such coq)luieS operaIB. The ct...... an~ the relevant I defendartt$ established two Babanian companies, ., Irish company and • BVI coFr()sny to serve as flo vehiclH tD conduct the joint venture operations. AftI:Ir the defendara ceased to a:tthrQ.l9n the jant venture strucb.n the defendants set up bw ~ ctJrI1)anies ID carry on tie buSinea& !hit the two Bahanian COII1>IDes had been car.ng on. Eight companies were Involved. Not asingle Russian ~y was creat&d to p,,~ in any aspect of the deIIlngs bIiween the parties. I &1* cannot ~ ~n the present 8lrillenee, that. the Intention of the parttes could have been other than ~ I connect theM' arrangement m one or more of U. comnon law juri.sdIcIons in wtiCh' 1hey cId their Incorponilona. [681 Mr. Dertpaska deposed that the fact that the meetings at wti:h the joint venture cmogement was made toak place in London was In no way aconscbua decision to avoid the 81J1)1cabl Of Russian taW or to apply English lar. I note the 6nVt of whet he said and , , also what he cid net say.- He said nothing to elaplace the obvIOus InfwQe that flows ,i 116 [199111 Uo~ Rep 370 at $74. cot 1 i 151 Mr. Der1paska does not contradiCt Ole evidence of Mr. L.ev Chemoy. at paragra~ 6 of hIS amdavlt fiJed 28 July 2OC4. that "the paltlat Onctud1ng Mr. Dettpaska) aid not wentlthe agreement govomld by Ru.lan laW '*-UIiIIB of the tMICII 1M admlflistnltive reqUirements ~t'would entaU the 1886 meedngG end WhICh were let up preolsely to avoid Auslian oVerslllht ovr U'Ie jOint venture agrv.ement.· • f t .. L "" .. ". ",. _.. _... . .. - -.. ~ '" frOm tnt choice of incorporations. IhOld, Mfora, that It is ~ be 1nferT8d that 1he par1!es Intended EnGllh common law, as the law d~ofshore jurisclldions. to :govern. [89J If 1he offshore faeIor had not been so a1rong I wOlid aao have been influenced by the I nature of the joint venture activities. Mr. Howard <lesctibed 1hem r having four components, onfy one of which fDok place In Russia. Frst, raw material ¥ifpurchased on 118 workI martBts chiefty throu;h UIe London MetaJs exchangrJ. Second, there was the tolling of tJaal material in Russia InID finished produots. 1l11rd, 1he I~ produe\s were sokI on the world mar1cBII and chie1ly In London. Fourth, the accoun1Ing and flnancing of Ule JoInt V8rUe took pia In' Geneva. The component IGIivities do not lead me to Infer that there was MY bierlnon that Russian lav was to apptY i» 1118 joint ventUre. 19O1 Aroong the od1er faokn on which Iha clanan1s reIed to argue that Russian raw was spaciftcaly Inll:lnded not ~ apply was that Ruaian law reqund an agreemeri of this nall.n \D be In writing. Eac~ ... ~ opinion evidence tram a RUGSlan law ~rt that spoke 10 the p~on advanced by the alaimant that II1der ~U$8ian law Ilis , , ~ needed to hM been In dog ., be enbceable and be(;~ It was not In writing aRusalan court would hold the agnIeITI8nt tD be INnforceable. :re claimant also advanced the propoaItIon that aRU88Ian court would. apply that RU88Ian If principle even If SUCh a cowt we to dlelde thal the agrwemant was governed by inQUsh ... The opinion cltha ctamanr.I' eJCp8(t was dear In lis support b' both ~. The opinion d 1he defendants' expert was that while It was possl* that iii ~ussIan cqurt would so act the matJsr was not as Clear as 1he opposing expwt had It and, , there were , other probable decisions that aRussla1 court ~d tiM so U1at unenforoeatilly wo~ nptbe the result. I think It Is afair posllkm to ,. in rUtian mille conftIct III the evidence at·this stage to say that there is at least areal risk that aRussian court would a:tas the ctarnants contend. {91] Iask myselffie question tttat No~ Wsaid 1he judge In 8anco1l tel into error In failng 10 ask: an Isallstied that tpe issues Mslnll under U\Is common law ...angement will be . trtad mere suitably tlr the lnteres1s d the ptrIIes and 1he ends of JUS1ica In 11, courta of Russia? I answer It in the negative on grounds siTila' to ft1e \'No Which especially • .. .. , • '''I­ ~ Nourse LJ In BInco": first. them Is at Ie8st i risk that the Russian court would not apply the proper law of the arrangement as repds the requirement of form but would apply Russian taw that the ~ contract is unenb'ceabla bl!lcause ofthe absence or , . writing; secondly, the CI~ can sue the three BVI defendants in this flirt as of right N repda 1he 10ft Md Id\lClary aspedI of the claim there Is notnin9 about them that aullclenty aIIIcts my discreIion as fD lead me fD adiffereJi.deCision. Othll" connecting factDn The ptrJP« law is ony one of'the factDrs at wI1Ch the court must look ~ d.nnlne the , forum with whCh the dispute has the most real and subsbrltial CDnnectio~; tihers include , ' ~nse and canveliera such as the avallabity of witnesses and doquments and 1he language1h8y spOlk or in which they are wrttlen. i 193] Mr. Moverfey smth was ~rnnslvo In tu advertBra 10 these f'acIors. He pelSuaded me lhat there would be me need tw Russian based and speaking witnesses to be brought i) IBstfy and for docwnenis in the Russian Iquage tJ be rnIated and produced. He I~ me with his avdysis ofttle eIemenfI ofthe claim and 1he view ~the evideooe WOIid need mdO far ~ than apeak " what was agreed at the ~ in londOn. I ' Among OCher things, it wo~d be relevant to a detamination d What the ~1I'tkIS agreed fOr the eowt i> be Infonned ofwNtthe parties kneW aboutthe metal V'D ape! IndusIry when they were making their arrangement. EvidelD rI ;d\ ftle surrounding circLll'lStances I ' including !he nature of "'Ing coni'actl and the Russian reguIab'y ~me wII aso be nect88ary. tf an egreemeIi were estabIIahed there Is the fur1her siglJicant "'*'" of C'.IarnegI& on wtiIh ltteIe WOUld be fie need for rrMd1 evidence. I notei tilt the present suggestion Is that damages would be In excess of ahundred niI60n Un~ States doIars. (94J I CIa not .. the need to replt)duce aI the subnisslons rI Counsel Oil this point (and, I Indaed. Idij not see such aneed In relaion to lOme of the points previously dUt w/ltt) but Instead adopt the approach of Sfaughton J In The Sky One" thBt the spirit of Lord 51 (1988] 1 All ER m a1244, 0015.1-2 I \I" \lVI .v-..:~ ~...._-­ ... , . TIJlT4)lemal's observations In $pI11d... should prevail: a forUm ChsJlebge should be hen in houri, not days, and the exercise rA 8 judge's clscn:ttion shoU~ ra-ely be the subject of appea WhIle those sentiments may have been tIO hopefil they Po indicate that the laborious setting out of all points and the judge's observations on them stIould no longer be J1gJdly required. Alrat Instance Judge must resist anfiCip~g ttlEI complaint on appeal that ttle judge gave no, or no suIIIclent weight tllM factoIs that counsel contends ought to have produced arefult In "I~ favo\.l'. (95] HavinQ dHIgent1y atu&ted Mr.i Movertey Sn1th·s wr1U8n and oral subrrissionS on the f&:t)rs Ulst he·eaya conna:t the claim with Russia and that nv.«e it converielt ror the dlsputa 10 be iied it Russia, I am not persuaded that Russia is the naIlIra tJn.m Qr otherwise the clell1y more approprtaiB forum. I am guldad by lie obsefvdon In ~ ttlat one must kx* at 1he fDnIn with wHch the Issues hive 81e cIoeest connection and ~s\nlIIy weigh tan without IlII'erera tl fie Is$ues; (12-023, nota 18). That obsetvauoo bas some r be.Irfng on the ~ncewthe Issues, as connecting factors. r:I aI that ~unsel sad 1DOk place at the plants In RUM. The other connecting factors to whiCh Ih. adVerted In the lmnwdI.y preceding pcngraphs. while undoublDcly slgnltcant, we I not enough 1D , petSUade me that Russia Is afOrUm In which the case could roore dabIy be iied fer the ir1ln8t& Of eI the pat1Ie& and b' the ends r:I juStice. Lord Gal 8t*J In SplladaG that there SI'I cases where no pm1icuIar forwn can be described as the nabJraI lforum and 1here is then 00 reason to gnmt astilt, wtlere JLI1adJction Is founded as r:I right I beI.1Ie tI'Ils Is such acase. kcOrdl1gIy. , refuse to stay proceedings. I [96) In tI'Ia ~ ofU*iease my order as .,costs Is delemVled by ~ ITixed result of , I 1he application. The derendant$ succeeded on theI challenge that servife W8$ bad and 1IIat SUCGeSS is unaffacfed by tile decision tllX8l'Cise the dJsctetion to cu", the defect The clainants shoutd normaly bell" the costs of tta challenge. The cler8nda~ failed on 1her Challenge 10 the ~ropriaIBness ct the bum. The defendants should npnnaDy bear the costs of 1hat ctlaIIenge. It seems 10 me that the pracfjcli order ftlat I $hJuId make Is that eo [1987] AC 460 Lt1 [1987) At; 4160 at P. 477 • ... I each side sMUd be. b 0W11 costs. I do rd draW • dlstlrdon, for p~ purposa6, I betWeen the defendanb. Itherefore order that each paty shall be.itS or N~own costs. ! ~ i.~ . ~a.row,S.C. . HIgh ~Judge (Ag.)

IN THE HIGH COURT OF JUSTICE BRITISH VIRGIN ISLANDS CLAIM NO. BVIHCV2O03/0179 BETWeEN: Transworld MeTALS SA (BAHAMAS) et al v Bluzwed Metals Ltd (BVI) et al Between Transworld Metal SA (Bahamas) Lev CHERNOY DAVID REUBEN SIMON REUBEN and Bluzwed Metals Limited BVI OLEG DERiPASKA. JOSEPH KARAM ·ALEXANDER BOUlYGINE ALUCOR TRADING SA (BVI) SAYANA-FOIL SA BVI Barrow J (AG): On 30th March 2004 this court granted an order, on a withough … application, for permission to server the second. third and forth defendant out of the jurisdiction. The order specified the methods of services. The seconde defandated was to be serverd by the post in care of a company in Moscow, Russle and also by post upon solictors in London, England. The third defendatand was to be served by post…