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Rupert D’Cruz QC successfully defends an appeal against the dismissal of a jurisdiction challenge in a Part 20 Claim
Rupert D’Cruz QC of Littleton Chambers, leading Douglas James of Crown Office Chambers, has successfully defended an appeal against the dismissal of a jurisdiction challenge in a Part 20 claim.
The Part 20 Claimant, Alexey Golubovich, is a defendant to a claim by his daughter, Nataliya Golubovich (the Main Claim). In the Main Claim Ms Golubovich seeks a declaration that she owns a valuable art collection (the Collection). The Collection had been acquired during the course of the marriage of Mr Golubovich and Olga Mirimskaya (Ms Golubovich’s mother). Ms Mirimskaya purported to gift the Collection to Ms Golubovich under a Deed of Gift. Mr Golubovich’s defence to the Main Claim is that: (i) the Collection belongs to him under a Deed of Settlement between him and Ms Mirimskaya or, alternatively, under Russian matrimonial law or, alternatively under constructive or resulting trusts; and (ii) therefore, Ms Mirimskaya was not entitled to gift the Collection to Ms Golubovich. He commenced a Part 20 Claim against Ms Mirimskaya claiming declarations to this effect.
Ms Mirimskaya challenged the Court’s jurisdiction over the Part 20 Claim (the Jurisdiction Challenge) arguing that:
- It was an abuse or Mr Golubovich to assert that England was the natural forum for the Part 20 Claim because the Court had already determined that it was not in an application by Mr Golubovich for an anti-suit injunction (ASI) to restrain Ms Mirimskaya from pursuing a claim in Russia to invalidate the Deed of Settlement.
- England was not the natural forum for the Part 20 Claim because: (i) Mr Golbovich and Ms Mirimskaya are both Russian citizens; (ii) their dispute relates to assets acquired during their marriage, which was made and dissolved in Russia under Russian law; (iii) there had already been extensive proceedings between them in Russia relating to their matrimonial assets (though not involving the Collection); (iv) a significant part of the Part 20 Claim is governed by Russian matrimonial law; and (v) most of the witnesses reside in Russia.
Issues on Appeal
Deputy Master Marsh had dismissed Ms Mirimskaya’s jurisdiction challenge on the basis that she was a necessary or proper party to the Main Claim and England was the natural forum for the Part 20 Claim because it was a near mirror-image of the Main Claim. The issues raised in the appeal were whether:
- The Deputy Master was correct in concluding that it was not an abuse for Mr Golubovich to maintain that England was the natural forum for the Part 20 Claim, given the natural forum finding in the ASI application.
- He had attached excessive weight to the comments of Cooke J in Credit Agricole Indosuez v Unicof  EWHC 2676 (Comm) that where the necessary or proper party test is satisfied and proceedings on the same or closely related issues would continue in England, that virtually concludes the natural forum question.
- He gave sufficient regard to the factors said to indicate that Russia was clearly and distinctly the most appropriate forum for the Part 20 Claim.
The Appeal Judgment
In a judgment handed down on 22 June 2022, Mr Justice Edwin Johnson dismissed Ms Mirimskaya’s appeal on the following bases:
- On a proper reading, the ASI judgment had only concluded that Russia was the proper forum for a claim relating to the validity of the Deed of Settlement. It did not determine the proper forum for the entire Part 20 Claim (paras.105-106).
- In any event, there had to be a sufficient degree of equivalence between the ASI application and the Jurisdiction Challenge to justify preventing Mr Golubovich from defending the latter on the basis of findings in the former. That was not the case (paras.113-115).
- Credit Agricole did not establish a general principle that the continuation in England of proceedings on the same or closely related issues virtually concludes the natural forum question (para.128). However, the Deputy Master had not approached the natural forum question in this way. He merely regarded the continuation of such proceedings as a starting point that should ‘feature large’ in the evaluation exercise on natural forum. He was entitled to do so (paras.129-133).
Particular Issues of Interest
This is one of only two reported cases in which the necessary or proper party gateway in a Part 20 Claim has been considered. It contains a useful analysis of:
- the court’s appellate function in a jurisdiction challenge (paras.44-61);
- the application of the abuse principle to interlocutory judgments (paras.86-94 and 113-115); and
- the effect of a finding that a defendant is a necessary or proper party to the main claim on the natural forum question (paras.120-128).
Rupert D’Cruz QC and Douglas James were instructed by Withers LLP, whose excellent team was led by Tatiana Menshenina and included Julia Aldervashvili, Eliza Saunders, and Irina Orishko.
A copy of the judgment can be found here.