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Notes for Closing on Behalf of the Defendant

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Notes for Closing on Behalf of the Defendant Claim No. HC14D02752 IN THE HIGH COURT OF JUSTICE CHANCERY DIVISION BETWEEN: (1) JSC MEZHDUNARODNIY PROMYSHLENNIY BANK (2) STATE CORPORATION "DEPOSIT INSURANCE AGENCY" Claimants – and – SERGEI VIKTOROVICH PUGACHEV Defendant NOTES FOR CLOSING ON BEHALF OF THE DEFENDANT TABLE OF CONTENTS I. INTRODUCTION......................................................................................................... - 1 - II. BACKGROUND ........................................................................................................... - 3 - A. Expropriation .................................................................................................... - 4 - B. Russian legal proceedings against the Defendant .......................................... - 8 - C. Life and safety concerns ................................................................................... - 9 - III. LEGAL PRINCIPLES ............................................................................................... - 18 - A. Burden and standard of proof ....................................................................... - 18 - B. False statements .............................................................................................. - 19 - C. Inference .......................................................................................................... - 21 - D. Ambiguity ........................................................................................................ - 23 - IV. ALLEGED BREACHES OF THE PASSPORT ORDERS .................................... - 24 - A. Allegation A1: Failure to deliver up his French passport in breach of paragraph 1(2) of the Ex Parte Passport Order [C/17] .......................... - 24 - B. Allegation A3: Failure to identify and/or deliver up to HL all travel documents belonging to or available to him in breach of paragraph 1(2) of the Ex Parte Passport Order [C/17], paragraph 1(2) of the Return Date Passport Order [C/18] and paragraph 3(d) of the Rose J Order [C/27] ............................................................................. - 31 - (1) The French passport ........................................................................... - 31 - (2) All other travel documents ................................................................. - 31 - C. Allegation A2: Left the jurisdiction in breach of paragraph 4(a) of the Hildyard J Order [C/24] .......................................................................... - 35 - V. ALLEGED DEALING WITH ASSETS IN BREACH OF THE WFO ................. - 41 - A. Allegation B1: Disposal of Petrovka-Rent .................................................... - 41 - B. Allegation B2: Disposal of the MV Victoria in breach of paragraphs 2(1) and/or 2(2) of the WFO [C/14] (as continued by the WFO Continuation Order [C/23]) .......................................................... - 46 - C. Allegation B3: Dealing with the Hediard Sale Proceeds in breach of the WFO [C/14] and/or in breach of the Living Expenses Order .......... - 53 - (1) Payments to Luxury Consulting ........................................................ - 53 - (2) Payments by Luxury Consulting ....................................................... - 55 - D. Allegation B4: Disposal of motor vehicles .................................................... - 61 - E. Allegation B5: Disposal of part of proceeds of the Defendant’s BIT claim ................................................................................................................. - 66 - VI. ALLEGED BREACHES OF SEARCH ORDERS .................................................. - 70 - A. Allegation C1: Failure to deliver up mobile phone and iPad ...................... - 71 - B. Allegation C2: Failure to provide passwords ............................................... - 73 - VII. ALLEGED BREACHES OF THE ROSE J ORDER .............................................. - 74 - A. Allegation D1: Safelight (para 1(b) of the Rose J Order) ............................ - 79 - B. Allegation D2: Creative (para 1(c) of the Rose J Order) ............................ - 82 - C. Allegation D3: Devecom (para 1(d) of the Rose J Order) ........................... - 84 - i VIII. ALLEGED FALSE EVIDENCE UNDER OATH ................................................... - 84 - A. Permission ........................................................................................................ - 84 - B. The short answer to the allegations ............................................................... - 85 - C. Allegation E1: False evidence in respect of EPK and Basterre .................. - 92 - D. Allegation E2: False evidence in respect of Safelight and Oreon ............... - 95 - E. Allegation E3: False evidence in relation to Creative .................................. - 97 - F. Allegation E4: False evidence in relation to impecuniosity ......................... - 99 - IX. SENTENCING .......................................................................................................... - 101 - APPENDIX LIFE AND SAFETY CONCERNS ................................................................ - 103 - ii I. INTRODUCTION 1. By application notices dated 21 September 2015 [A/1] and 8 October 2015 [A/3] the Claimants allege various contempts on the part of the Defendant that relate to five broad areas: 1.1 breaches of the passport orders [C/17] and [C/18]; 1.2 dealing with assets in breach of the worldwide freezing order made by Henderson J dated 29 July 2014 (“the WFO”) [C/14]; 1.3 breaches of the ex parte search order made by Rose J on 1 July 2015 (“the Ex Parte Search Order”) [C/25], the inter partes search and seizure order made by Henderson J on 9 July 2015 on the initial return date (“the Return Date Search Order”) [C/26] and the order in relation to the search and seizure made by Rose J on 27 July 2015 on the further return date (“the Search Protocol Order”) [C/28]; 1.4 breaches of the order made by Rose J on 27 July 2015 relating to further asset information and enquiries (“the Rose J Order”) [C/27]; 1.5 false evidence given under oath. 2. In relation to the allegation that the Defendant gave false evidence under oath, the Claimants additionally alleged that each instance of false evidence constituted a deliberate attempt to interference with the administration of justice (see para 41 of the Schedule of Contempts [A/2]). However, in their opening the Claimants said that this was not being pursued as a separate head of contempt.1 This specific allegation could only have been made with the permission of the court, which had not been sought. Even if it had been sought before being abandoned it should have been refused. 3. The Claimants have also abandoned the allegation set out at paragraph 35(1) of the Schedule of Contempts appended to their application dated 21 September 2015.2 The 1 08.12.15 25/25 – 26/1 [D3/67C/7] 2 Cs’ Closing Submissions para 135. That allegation was that the Defendant allegedly gave false evidence during his cross-examination before Hildyard J when he claimed not to recognise the names of Safelight Enterprises Limited and Oreon Limited. - 1 - Defendant consequently makes no further comment on this abandoned allegation at this stage. 4. As elaborated below, it is the Defendant’s primary case that the Claimants’ application3 is overstated has been presented unfairly. These are quasi-criminal proceedings and the Claimant bears the burden of proving its allegations to the criminal standard of proof. It is submitted that the Claimant has fallen far short of meeting that standard on the evidence before the court. 5. In particular, the Claimants’ case is based in large part on conclusions that are sought to be drawn from alleged inference, but in fact are frequently based on no or inadequate evidence and in some cases are in truth based on mere supposition or suggestion which is insufficient to ground findings of contempt. 6. The weakness of the Claimants’ case is evident from the way their case was put during their closing submissions on 15 December 2015, during the course of which the Claimants’ counsel used the following language: 6.1 “We strongly suspect, although we haven’t got the linkage because we haven’t been told – ”;4 6.2 “He almost certainly, we believe …”;5 6.3 “Our suspicion is that he didn’t fly …”;6 6.4 “one would expect him to be required”;7 6.5 “it seemed to us to be entirely implausible”;8 6.6 “So our suspicion, which doesn’t really count for very much because it is just a suspicion”;9 3 Whilst there are two separate application notices containing the allegations of contempt dated 21.9.15 [A/1] and 8.10.15 [A/4] respectively, for ease of reference, they are referred to in these submissions as one application. 4 15.12.15 8/8-9 [D3/67G/2]. 5 15.12.15 20/18-19 [D3/67G/5]. 6 15.12.15 52/17 [D3/67G/13]. 7 15.12.15 53/3-4 [D3/67G/14]. 8 15.12.15 54/5-6 [D3/67G/14]. 9 15.12.15 54/7-8 [D3/67G/14]. - 2 - 6.7 “So we think the likelihood”;10 6.8 “we say it is inconceivable that he didn’t directly or indirectly give instructions”;11 6.9 “So it seems that it is just implausible”;12 6.10 “We don’t know, because we haven’t seen any corroborating evidence”.13 7. The various references reveal that the Claimants’ case in many instances, on their own words, falls far short of discharging the burden of proof to the criminal standard. It is also noteworthy too in this context that, apart from a claim against Luxury Consulting Limited and several New Zealand trusts, no Chabra claims have been pursued against Victor Pugachev or
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