JSC Commercial Bank Privatbank v Igor Valeryevich Kolomoisky (2024)

[2022] EWHC 868 (Ch)

Before:

THE HONOURABLE Mr Justice Trower

Case No: BL-2017-000665

Between:

JSC Commercial Bank Privatbank

Claimant

and

(1) Igor Valeryevich Kolomoisky

(2) Gennadiy Borisovich Bogolyubov

(3) Teamtrend Limited

(4) Trade Point Agro Limited

(5) Collyer Limited

(6) Rossyn Investing Corp

(7) Milbert Ventures Inc

(8) Zao Ukrtransitservice Ltd

Defendants

Andrew Hunter QC, Robert Anderson QC, James Willan QC, Tim Akkouh QC, Christopher Lloyd, David Baker and Conor McLaughlin (instructed by Hogan Lovells International LLP) for the Claimant

Mark Howard QC, Michael Bools QC, Alec Haydon QC, Geoffrey Kuehne and Ben Woolgar (instructed by Fieldfisher LLP) for the First Defendant

Clare Montgomery QC, Matthew Parker QC, Nathaniel Bird and Alyssa Stansbury (instructed by Enyo Law LLP) for the Second Defendant

Thomas Plewman QC and Marc Delehanty (instructed by Pinsent Masons LLP) for the Third to Eighth Defendants

1

This judgment is concerned with the claimant's application for further orders in relation to the first defendant's disclosure of 26 chains of WhatsApp messages. The WhatsApp chats were collected from images of the first defendant's mobile telephones. They have been disclosed in heavily redacted form. The claimant submitted that the redactions were unjustified and sought an order that 17 of them be disclosed to its solicitors unredacted.

2

Mr Tim Akkouh QC, who argued this application for the claimant, submitted that if I was not satisfied that all the redactions must have been unjustified, I could either inspect the unredacted documents myself or I could make what he called a Hollander order, named after a suggested form of confidentiality club order, described in Hollander on Documentary Evidence (14 ^th edn, 2021 at para 10–15). This would require disclosure of the unredacted messages to named members of the claimant's team at Hogan Lovells and counsel. There could then be either an attempt to agree the way forward based on the claimant's lawyers having had sight of the relevant material or a return to court for further argument on a more informed basis.

3

The original disclosure orders with which it was said that the first defendant has not complied were made by Mann J on 26 June 2020 in accordance with CPR PD 51U. He ordered extended disclosure and set out in the attached disclosure review document the Issues for Disclosure and the models to be applied.

4

The Issues for Disclosure included issues relating to (a) the control exercised by the first defendant and the second defendant over the claimant; (b) the first and second defendants' ownership and control of other entities and assets relevant to the claimant's claim: the borrowers, the intermediary borrowers, the new borrowers, the third to eighth defendants and those alleged to be principals of the third to eighth defendants; and (c) the first and second defendants' knowledge and involvement in the transactions relating to the claimant's claim. One of the sub-issues is whether the employees of the claimant remained loyal to the first and second defendants in relation to the conduct of the claimant's affairs after the time it was nationalised in 2016.

5

The disclosure review document appended to Mann J's order obliged the parties to give model E disclosure in relation to issues concerning ownership and control of the other entities I have described in category (b) above. Model D disclosure was ordered in relation to other Issues for Disclosure and sub-issues falling within the three categories I have identified above. In accordance with the description of model D disclosure in para 8.3 of CPR PD 51U, Mann J ordered that any party giving model D disclosure was required to search for and disclose narrative documents, which means that documents must be disclosed if they are relevant only to the background or context of material facts or events and not directly relevant to the Issues for Disclosure themselves (App 1 to PD 51U).

6

The court's jurisdiction to grant the relief sought by the claimant arises under para 17 of CPR PD 51U. This provides that, where there has been or may have been a failure adequately to comply with an order for extended disclosure, the court may make such further orders as may be appropriate, including an order requiring a party to undertake further steps, such as further or more extended searches to ensure compliance with an order for extended disclosure, and orders to produce documents or make a witness statement explaining any matter relating to disclosure. The applicant must satisfy the court that making an order is reasonable and proportionate having regard to the factors referred to in para 6.4 of CPR PD 51U.

7

Redaction of disclosed documents is dealt with by para 16 of CPR PD 51U as follows:

16.1 A party may redact a part or parts of a document on the ground that the redacted data comprises data that is —

(1) irrelevant to any issue in the proceedings, and confidential; or

(2) privileged.

16.2 Any redaction must be accompanied by an explanation of the basis on which it has been undertaken and confirmation, where a legal representative has conduct of litigation for the redacting party, that the redaction has been reviewed by a legal representative with control of the disclosure process. A party wishing to challenge the redaction of data must apply to the court by application notice supported where necessary by a witness statement.

8

It was common ground at the hearing that while, for the purposes of carrying out the model D and model E search-based extended disclosure in accordance with para 8 of CPR PD 51U, the exercise is to be done by reference to the Issues for Disclosure, a para 16.1(1) redaction is only permissible if the redacted data is irrelevant to any issue in the proceedings. Once a document has been identified for disclosure by application of model D or model E, the question of whether parts of it can be excluded from inspection raises different issues, not least because the need for proportionality in the conduct of the search will not continue to be a relevant factor, anyway to the same extent. Why therefore should the positive step of redacting data relating to an issue in the proceedings be appropriate merely because that data did not also relate to an identified Issue for Disclosure?

9

As Snowden J explained in WH Holding Ltd v E20 Stadium LLP [2018] EWHC 2578 (Ch), at [37], it is well known that the court will normally be satisfied by a statement from a solicitor with responsibility for the disclosure process that the redaction in question has been properly made. However, where there has been heavy redaction of many documents, the court is justified in adopting greater vigilance to ensure that the right to redact is not being abused or too liberally interpreted, recognising all the while that the burden is on the applicant to make out a case for inspection.

10

Where the court has doubts as to whether the redactions have been properly made, there are several solutions that have been adopted. One is to order that the redactions be reconsidered in light of the court's ruling with or without a more specific statement as to why a redaction has been made. A second is that the documents be provided confidentially to the inspecting parties' lawyers – i.e., the Hollander order described above – a solution adopted by co*ckerill J in Recovery Partners GP Limited v Rukhadze [2021] EWHC 1621 (Comm), [65]–[67]. A third is the approach adopted by Snowden J in WH Holding, where he decided (at [36]) to inspect the documents himself. The court will often be reluctant to take that course, although it is sometimes the only practical way forward: see Snowden J's discussion of Bank Austria AG v Price Waterhouse [1997] CLY 464 and Atos Consulting v Avis plc [2007] EWHC 323 (TCC) at paras [33] to [35] and [40] of his judgment in WH Holding.

11

The question of how the para 16.2 explanation of the entitlement to redact is to be given was considered by Butcher J in Eurasian Natural Resources Corpn Ltd v Dechert LLP [2020] EWHC 1002 (Comm). He said in a passage at para [91] with which I agree: “I consider that what is ordinarily required under para 16.2 is a list of documents which have been redacted which identifies for each the reason for the redaction, namely whether it is irrelevance and confidentiality or privilege”. He then made suggestions as to how that could conveniently be done and went on to stress at para [92] that depending on the case it may also be desirable for an additional clear explanation of the claim of entitlement to redact to be given, particularly where the basis for redaction is not apparent.

12

This approach picked up what Sir Geoffrey Vos C had said in UTB LLC v Sheffield United [2019] EWHC 914 at para [83] in the context of a para 14 claim to privilege. It also seems to me to be consistent with what Chief Master Marsh said in Astra Asset Management UK Limited v MUSST Investments LLP [2020] EWHC 1871 (Ch) at para [20] when explaining that a generic description which simply says ‘irrelevant and confidential’ may prove to be insufficient:

“On the other hand, a highly generalised formula will not suffice unless it provides an accurate and...