BL-2023-000501 - [2025] EWHC 2334 (Ch)

In light of the points above, and for the following additional reasons, I am not persuaded that Mr Anisimov, by his words and conduct, demonstrated an intention to create an express trust over the Payment in favour of Mr Stein.

The focus of enquiry must be on Mr Anisimov himself. That enquiry is obscured by lack of evidence about Mr Anisimov, including in relation to the transaction in issue. As I have indicated, there are no particular words that he used which are said to point to the establishment of a trust. There is no suggestion that he would have understood the concept of a trust, with a separation of legal and beneficial ownership. As the test of whether there was certainty of intention to create a trust is objective, that is not itself fatal, but it requires some careful analysis to ascertain whether Mr Anisimov intended that beneficial ownership in the money was to pass to Mr Stein as soon as the Payment was made from Dryden to Pumula.

There is no suggestion from either side that Mr Anisimov had any concern with the way in which Pumula was structured; Mr Jaffe’s case is that Mr Stein’s entitlement to any of the Payment was contingent on an appropriate structure being put in pace, but not that Mr Anisimov was in any way concerned with the ownership or control of Pumula. Given that his evidence was that his wife acted in accordance with his requests, I do not consider that it matters whether Pumula was controlled by Mr or Mrs Jaffe; in either case there would be no impediment in fact to the constitution of a trust, if intended, with Pumula as nominee. But I also assume in the claimant’s favour, without needing to decide the point on the question of Mr Anisimov’s intention, that Mr Jaffe controlled Pumula. It is clear that Mr Jaffe was able in fact to access the money held by Pumula, as shown by his evidence that he was able to borrow the money from Pumula (which he also characterised at times as borrowing from his wife).

Ms Lacob submitted on behalf of Mr Jaffe that it is improbable that Mr Stein would at his second-ever meeting with a powerful oligarch demand an up-front and non-refundable payment of USD1 million, and equally improbable that Mr Anisimov would unconditionally agree to this. Mr Stein’s evidence suggested that he was to a significant extent awed by the oligarchs with whom he dealt. He said that when he sued three powerful oligarchs, he had to change his life completely and go into hiding. I have set out above Mr Stein’s evidence that he was diffident when meeting Mr Anisimov at Claridge’s Hotel in September 2012. He also described the agreements he made with other oligarchs as ‘life-changing’.

It is clear from Mr Jaffe’s evidence that a request for an up-front payment of USD1 million was made. In light of Mr Anisimov’s subsequent conduct, including shortly after the meetings and before the Payment was made, I do not consider that it has been established that he intended the Payment to be non-refundable such that Mr Stein would be beneficially entitled to it, regardless of whether a structure as discussed was created and indeed of whether Mr Stein continued to provide services. I consider it most likely that Mr Stein left the 2 June 2012 meeting without a clear understanding of precisely when he would get his money, even though it was to be paid to or on behalf of Mr Jaffe forthwith. I also consider that, after 13 years and much rumination on this very point, Mr Stein’s recollection of what was orally agreed at the meeting is entirely unreliable, however honestly he now believes it to be correct (and I consider his evidence to have been given in good faith).

Ms Lacob suggested that it was improbable that Mr Stein did not realise when told by Mr Jaffe on 4 July 2012 that he had ‘got the money’, that he was or at least may be referring to the Payment. I agree. By then, several weeks had passed since the June meetings, and Mr Stein had begun his work. He did not satisfactorily explain why he was prepared to work for so long if he had indicated in early June that he would not do any work without up-front payment for six months. This is so especially when he said in cross examination that he thought at the outset that if Mr Jaffe had said after a couple of weeks or so that he did not have the money, he would have stopped work.

Mr Stein now accepts via his closing submissions that Mr Jaffe was referring in the 4 July 2012 message to the Payment, although he denies that he realised that at the time. When he was asked in cross examination about his contemporaneous understanding of the message, he suggested to Ms Lacob that she was being cryptic and then became highly exercised and raised his voice. With all that has happened in the years since, and with the emotions caused by his rift with Mr Jaffe, I again consider that Mr Stein’s recollection of what he understood at the time is likely to be unreliable.

I think it more likely than not that Mr Stein either knew at the time that Mr Jaffe was referring to the Payment, or at least realised that he might have been referring to the Payment and chose not to pursue matters while discussions with Mr Anisimov about the parties’ ongoing roles continued. While I accept that Mr Stein and Mr Jaffe spoke frequently as well as exchanging messages, the absence over many weeks of any chasing for payment in the many messages which have been disclosed leads me to consider that Mr Stein was not chasing Mr Jaffe for the Payment on the telephone in the weeks after the June meetings as he now suggests.

Mr Stein’s evidence is that his question, ‘Which money did u get? The second 3.5?’ was a reference to different sum of USD3.5 million than that which had been discussed with Mr Anisimov in relation to Salford and/or the Revoker Proceedings. He indicated that he thought this additional sum was to come from Mr Anisimov or from a Mr Vladimir Palikhata. It is clear because he mentioned it that the figure of USD3.5 million was known to him as something that Mr Anisimov might be sending, and this must most likely have been communicated to him by Mr Jaffe. This accords with Mr Jaffe’s message to Ms Gabbert of 14 June 2012. In circumstances where there has been no evidence elsewhere of any other discussion of USD3.5 million, I consider that only one such sum had been discussed as well as the Payment of USD2 million, and that Mr Stein knew that Mr Jaffe, or his nominee, had received the Payment. It does not seem to me that Mr Jaffe was concealing the fact of the Payment. Accordingly, I do not accept Mr Stein’s forcefully delivered evidence that Mr Jaffe’s case is ‘lie upon lie upon lie upon lie’. I consider that the unshakeable belief Mr Stein has formed that this is so has clouded both his recollection and his assessment of events.

Mr Stein indicated when cross examined that, when he had learnt of the receipt of the Payment, he would have asked Mr Jaffe to transfer some small part of it to him so that he could take advice on setting up a structure. I do not accept this. I find that the advice provided by Macfarlanes was not concerned with a structure for separate litigation of future claims, but in relation to the services which were being provided and to be provided by Mr Stein in the Berezovsky Claim Project.

I find on the balance of probabilities that the parties to this claim and Mr Anisimov left the meeting on 2 June 2012 with an understanding that the payment of any sums to an entity on behalf of Mr Stein (which entity had not then been identified, and other than in general terms never was) would be subject to further discussion and negotiation. The fact that, even on Mr Stein’s case, the payment was not to be made to him directly but to a structure yet to be created itself is a factor pointing to a lack of intention objectively to create an immediate bare trust upon the Payment being made to a company on behalf of Mr Jaffe.

As I have already indicated, I find that Mr Anisimov caused the Payment to be made to enable Mr Stein’s work to commence, but subject to further negotiation before he would be entitled to payment of his fee. The fact that Mr Anisimov indicated at the Claridge’s meeting words along the lines of ‘I already gave everything’ does not in my view assist in determining his intention back in June 2012. Mr Stein does not purport to recall any of the precise words used by either party at that meeting. He explains why he was understandably reticent. His explanation of what he said himself at the meeting is vague. He does not state what words he used in order to explain his understanding of what had been agreed in June 2012. I consider it inherently improbable that Mr Stein would have said to Mr Anisimov that he had been entitled to full payment before starting any work, not least because of his fear of antagonising him and the repercussions that he might anticipate. It is also improbable that he would have said that because, as I have found, discussions had until recently continued through Mr Emme as to the terms of the services agreement concerning the Berezovsky Claim Project.

I also consider it to be improbable that Mr Anisimov would have caused £50,000 to be paid to Mr Stein’s wife’s company if he believed that he had agreed to pay USD2m to Mr Stein and that this had already been fully satisfied. If that had been his belief, he would likely at the very least have remonstrated with Mr Jaffe, but there is no evidence that he did so. Mr Stein suggested that the £50,000 may have been paid because Mr Jaffe asked Mr Anisimov not to say anything, but that does not explain why Mr Anisimov would have gone along with such a request. Further, the words which Mr Stein recalls Mr Anisimov having used, along the lines of ‘I already gave everything’, are themselves ambiguous. They would be consistent with an agreement to pay USD2 million to Mr Jaffe’s nominee subject to conditions before Mr Stein would be entitled to anything.

I should finally mention two matters, one relied on by each party, neither of which I consider to have much weight, and which do not affect the view I have expressed above.

Ms Lacob submitted that the evidence suggested that Mr Stein did not complain about the use Mr Jaffe had made of the Payment until after the conclusion of the phase 2 trial in the Revoker Proceedings, including during the preparation for trial in those proceedings. Largely, I suspect, because she ran out of time, this was not explored in any real detail in cross examination. It seems to me likely that an issue was raised by Mr Stein before the phase 2 trial took place, not least because Mr Jaffe indicated in evidence that there was or may be an issue between him and the third party (i.e. Mr Stein) as to what had happened to the Payment.

By the same token, Mr Page submitted that Mr Jaffe had changed his account of what was said at the 2 June 2012 meeting several times, with particular reference to what he said in evidence in the Revoker Proceedings. He points out that in his fifth witness statement there, Mr Jaffe said that the ‘deal was that the money would be paid in advance on a non-refundable basis’, which was later qualified, and which he does not say in his principal witness statement in these proceedings, where he indicates that the Payment was ‘partly a sign of his commitment to the project’.

Mr Jaffe was not cross examined on the material ways in which it might be said that his evidence in the Revoker Proceedings was inconsistent with his current evidence. Mr Page asked Mr Jaffe to confirm that he believed at the time that the evidence he gave in 2021 was accurate, but he was not cross examined about the evidence he then gave. In all the circumstances of this case, I consider Mr Jaffe’s statement that the money was paid on a ‘non-refundable basis’ to be capable of bearing more than one meaning, and that it can be read consistently with Mr Jaffe’s case that the money, once paid over, belonged beneficially to Pumula and no longer to Mr Anisimov. Furthermore, I do not consider anything Mr Jaffe said in 2021 to have been an admission of liability to Mr Stein, although he seems by then to have recognised, when saying that any issue concerning the Payment was an issue between him and Mr Stein, that Mr Stein may have a sense of grievance at not having received any of the Payment.

Further, I do not consider that the hesitation which Cockerill J expressed in phase 2 of the Revoker Proceedings regarding Mr Jaffe’s evidence is material in the present dispute. She indicated in terms that evidence as to his credibility was of no moment and, in relation to the Payment, referred to ‘Mr Jaffe’s slightly uncharacteristic reticence after the event’ (see the Appendix to the phase 2 judgment at [51]). It seems to me that Mr Jaffe’s inability to identify Mr Stein in order to protect his identity affected Cockerill J’s assessment of his evidence.

Accordingly, and for all the reasons I have set out above, I am not satisfied that the claimant has established that the words and conduct of Mr Anisimov demonstrate a sufficiently clear intention to create a trust. In the absence of any trust having been constituted, it follows that the claim for breach of trust must be dismissed.