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Rupert D’Cruz QC successfully defends Kazakhstan Kagazy JSC in the latest saga of the Kagazy v Zhunus litigation

05.05.21

Rupert D’Cruz QC of Littleton Chambers, leading James Egan of 10 Old Square Chambers, has successfully defended Kazakhstan Kagazy JSC (“KK JSC”) against numerous claims by Harbour Litigation Fund (“Harbour”) in relation to the c.US $300m judgment (“the Zhunus Judgment”) obtained in the Kagazy v Zhunus litigation (“the Zhunus Litigation”).

KK JSC (which owns one of Central Asia’s largest paper and packaging manufacturers) and Harbour entered a funding agreement (“the Funding Agreement”) by which Harbour agreed to fund the Zhunus Litigation (a large fraud claim by KK JSC (and its affiliates) against its former management).

Harbour’s claims in these proceedings were for declarations about its rights to the proceeds of the Zhunus Judgment. The effect of those declarations would (likely) have been to deprive KK JSC (and it affiliates) of any part of those proceeds.

The principal issues were:

• The authority of KK JSC’s former CEO/Rehabilitation Manager to execute several variations to the Funding Agreement that purported to increase Harbour’s share of the Zhunus Judgment.
• If those variations were invalid for lack of authority: whether, as a matter of construction, Harbour was nevertheless entitled under the terms of the original Funding Agreement to ‘a return’ on substantial additional sums it had spent in the Zhunus Litigation.
• If the variations were invalid and Harbour was not entitled to such a return: whether it was nevertheless entitled to reimbursement for those additional sums by way of restitution in unjust enrichment.

Having heard expert evidence on Kazakhstani law (on Rehabilitation and Bankruptcy) and witness evidence from Harbour’s Chief Investment Officer and one of Harbour’s Senior Directors of Litigation Funding, Mrs Justice Moulder found in favour of KK JSC on all these issues in her 72-page judgment handed down on 5 May 2021.

Rupert D’Cruz QC and James Egan were instructed by Marriott Harrison LLP, whose team was led by Tamar Halevy (Head of Dispute Resolution) and included Despina Devons and Mariya Uzunova.

Please click here to view the full judgment.