Alexander Tugushev v (1) Vitaly Orlov (2) Magnus Roth (3) Andrey Petrik (2019)
The claimant, who was pursuing a claim of unlawful means conspiracy against three defendants, had a good arguable case that the first defendant, a Russian businessman, had been resident, and therefore domiciled, in England when the claim form was issued. The English courts therefore had jurisdiction to hear the claim against him.
The first defendant (D1) sought the setting aside of an order giving the claimant permission to serve proceedings on him outside the jurisdiction.
The claimant and D1 were both Russian businessmen. The claimant asserted that, along with D1 and the second defendant (D2), he had set up a corporate group which operated an international fishing business which became very successful. He claimed that he had been the victim of a conspiracy by D1 and D2 to misappropriate and/or deny the existence of his one-third interest in the group (the group conspiracy claim). He also claimed to have been the victim of the misappropriation of his direct shareholding in a Russian company within the group, as a result of a conspiracy between D1, D2 and the third defendant (D3), a senior figure within the group (the AA conspiracy claim). He brought claims in contract and conspiracy for damages, declaratory relief and an account. D1 denied any wrongdoing and challenged the jurisdiction of the English courts.
In support of his case that the English courts had jurisdiction, the claimant argued that D1 was domiciled in England, giving rise to an absolute right to serve out of the jurisdiction under Regulation 1215/2012 art.4; while D1 had a home in Russia, he also resided in an apartment (the Wharf flat) which he owned in London. Alternatively, the claimant relied on the "tort gateway" and the "necessary or proper party gateway" in, respectively, CPR PD 6B para.3.1(9) and para.3.1(3). As to the "necessary or proper party gateway", D3 was the "anchor" defendant, being domiciled in England.
Domicile - The claimant had a good arguable case that D1 was resident, and therefore domiciled, in England in July 2018 when the claim form was issued. D1 consistently spent substantial periods of time in England for a settled purpose, namely the dual purpose of business and seeing his family (his four sons all lived in England). He was nearly always accompanied on his trips to England by his partner, and some of his trips were organised to coincide with his sons' birthdays. His visits to England followed a regular and settled pattern: he usually came to London once or twice a month, with exceptions at Christmas and in the summer. He regularly stayed at the Wharf flat, often for weekends, with his partner. In 2018, he viewed the cost of maintaining the flat as one of his "ordinary living expenses". His sons occasionally visited him there. His residence there had a degree of permanence and continuity. Further, his partner had obtained indefinite leave to remain in the UK. Her application for and use of such leave as from November 2015 indicated a strong and permanent residential presence in England on both her part and that of D1. D1's business-visa status did not prohibit him from having a usual residence in England. The conclusion that D1 was domiciled in England at the relevant time was a complete answer to his jurisdiction challenge (see paras 183, 185, 191 of judgment).
Alternative jurisdictional bases - To obtain permission to serve out, the claimant had to show that the following conditions were met: there was a serious issue to be tried on the merits of his claims against D1 (D1 had accepted that there was a serious issue to be tried in relation to the group conspiracy claim); there was a good arguable case that one of the gateways was satisfied; England was the proper place to bring the claim, being clearly and distinctly the appropriate forum to try the claim. Those conditions were met. Both gateways were satisfied. As to the tort gateway, the claimant had a good arguable case that the making of a conspiratorial agreement was sufficient to amount to a substantial and efficacious act justifying D1 being brought here to answer the claim, and might constitute an act committed within the jurisdiction from which damage had been or would be sustained for the purpose of the gateway, JSC BTA Bank v Khrapunov  UKSC 19 applied. Moreover, England was clearly and distinctly the most appropriate place for all the claims to be resolved. In particular, D3 (and potentially D2) would be sued here in any event. D2, who was domiciled in Switzerland, objected to proceedings taking place in Russia. Further, the claimant had undertaken not to pursue in Russia his separate contractual claims as pleaded in the instant action. This was not a case of letting the tail wag the dog (the tail being D3, according to D1). D3 was one of three alleged conspirators in the AA conspiracy. The facts of the AA and group conspiracy claims were very closely intertwined, and it was obvious that they should be resolved together in one jurisdiction (paras 48, 111, 204, 215, 227, 237, 252-253, 283).
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