Renova Industries Ltd v Emmerson International Corporation
| Jurisdiction | British Virgin Islands |
| Judge | Wallbank, J. |
| Judgment Date | 27 July 2020 |
| Judgment citation (vLex) | [2020] ECSC J0727-3 |
| Court | High Court (British Virgin Islands) |
| Docket Number | CLAIM NO. BVIHCM 2013/00160 |
| Date | 27 July 2020 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
COMMERCIAL DIVISION
CLAIM NO. BVIHCM 2013/00160
By way of Claim:
And by way of Counterclaim:
And by way of Ancillary Claim:
And by way of Third Ancillary Claim:
Mr. David Quest, QC with him Miss. Arabella di Iorio and Mr. Shane Quinn for the Applicants
Mr. Jonathan Crystal, with him Mr. Jonathan Child and Mr. Phillip Baldwin for the Respondent Mr. Andrey Titarenko
Mr. John Carrington, QC with him Ms. Reisa Singh for the Respondents Romos Limited and Goldfort Limited
Wallbank, J. (Ag.): On 25 th February 2020 the Applicants filed an application seeking orders that unless the Respondents ‘fully and properly’ comply with an Order of this Court (by Mr. Justice Jack (Ag.)) made on 17 th June 2019 (‘the 17 th June 2019 Order”) within fourteen days of now being ordered to do so, the Respondents' Amended Defence and Counterclaim and Ancillary Claim in these proceedings be struck out in their entirety. For the reasons set out below the Court's decision is that the application stands dismissed with costs to the Respondents.
The Applicants can for convenience be called the Renova Parties. The Respondents are Mr. Andrey Titarenko (‘Mr. Titarenko’), Romos Limited (‘Romos’) and Goldfort Limited (‘Goldfort’). These Respondents are connected. The Court has been informed by Romos and Goldfort's Counsel that Mr. Titarenko is the sole director of Romos and Goldfort.
The Order in question required the Respondents and certain other parties connected with the Fifth Defendant to the Claim (and other capacities in respect of these proceedings), Mr. Abyzov, to conduct reasonable searches for specified documents, and insofar as those documents were within their control, provide copies of them to the Renova Parties' legal practitioners. Insofar as documents were alleged not to be in their control, the Respondents were to serve an Affidavit confirming that by no later than 4 th November 2019.
The Applicants stated in their Notice of Application that as at the filing date of the application, none of the Respondents had complied with that Order. The other parties filed and served the Affidavit in respect of their own searches, albeit about a month late. In the circumstances the Applicants filed this application, seeking relief pursuant to rule 26.4 and/or 28.13(4), Civil Procedure Rules 2000 (‘CPR’).
The Applicants' specific disclosure application had been made on grounds that the Respondents and the other disclosure respondents had jointly filed witness statements for the purpose of the trial which had been scheduled for this matter to commence on 5 th June 2018. A number of those witness statements made various references to documents, but some of those references were said by the Applicants to be insufficiently clear to allow the Renova Parties to determine either the identity of those documents and/or whether they had already been disclosed.
The Applicants say that they followed up on their requests for disclosure through correspondence. At that time, initially, Messrs. Walkers acted for Romos and Goldfort and the other parties connected with Mr. Abyzov (who, for present purposes only, I shall refer to as ‘the Abyzov Parties’). The Applicants say Messrs. Walkers did not respond to those requests. Then on 27 th February 2020 Messrs. Walkers obtained an order to come off the record as acting for Romos and Goldfort. They continue to act for the Abyzov Parties. Mr. Titarenko instructed solicitors, Messrs. Lennox Paton, in around February 2019. Messrs. Lennox Paton likewise did not respond to the Applicants. Romos and Goldfort did not immediately instruct new solicitors.
So the Applicants issued their specific disclosure application. Shortly before the hearing on 17 th June 2019, the Abyzov Parties confirmed for the first time that certain of the documents had already been disclosed. The Abyzov Parties and the Respondents were ordered to conduct searches for and provide copies of a number of the other documents requested by the Applicants. If the disclosure respondents contended that they did not have any of the documents within their control, then they had to file and serve an Affidavit to that effect. The 17 th June 2019 Order imposed a deadline on them of 4 th November 2019 both for provision of copies and service of the Affidavit.
The 17 th June 2019 Order did not order or direct that the disclosure respondents should serve supplemental Lists of Documents. Nor did it order the disclosure respondents to provide the Applicants with document reference numbers to enable them to cross-check them against documents already disclosed and logged in the disclosure record.
The Order of 17 th June 2019 was not yet sealed as at the hearing date for the present application. The reason given by the parties was that they had failed to agree its terms. Counsel told me at the hearing of the present application that the disagreement does not concern the terms of the disclosure parts to the Order with which this application is concerned. The Respondents have seized upon the fact that the Order has not yet been sealed to argue that they had no obligation to adhere to the deadlines contained therein. Although this argument survived in correspondence and even found its way into skeleton arguments for the hearing of this application, Learned Counsel for the Respondents had the good sense not to pursue the point in oral submissions. Under our legal system the point goes nowhere. The Respondents were present at the hearing on 17 th June 2019 through their legal practitioners. By CPR 42.2(1)(b) a party who is present whether in person or by legal practitioner when an order is made is bound by its terms whether or not the order is served. The terms of the disclosure ordered that we are presently concerned with were unequivocal and there is no dispute about them. The Respondents cannot take shelter behind the disagreement over other expressions in the Order and its lack of seal to succeed with an argument that compliance has not yet been required. I will say no more about this misconceived argument.
The Applicants stated in their application that despite a small exchange of emails between their legal practitioners and those of Mr. Titarenko in the second half of November 2019 indicating that some form of compliance might soon follow, that did not prove to be the case with respect to Mr. Titarenko. He provided neither copy documents nor an Affidavit.
The Applicants also said that Romos and Goldfort did not comply either.
This non-compliance was despite the fact that the Respondents had had some four months in which to do so.
On the face of it, that the Renova parties should then file an application for an unless order should come as little surprise. They did so on 25 th February 2020.
Behind the face of the matter, however, there was, or at least appears to have been, ever increasing turmoil in the Abyzov/Titarenko camp. Following what appears to have been some kind of falling out (details of which have not been aired) between Mr. Titarenko and others on the Abyzov side, Messrs. Walkers decided to remove themselves from the record as representing Romos and...
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