CL-2021-000649 - [2025] EWHC 1333 (Comm)

The case now made against VTBC is not concerned with the Criminal Complaint, which was the main plank of the prior pleading, no doubt because there is no evidence that VTBC was aware of the Criminal Complaint until after it had been presented. The new case is concerned with the Embezzlement Indictment launched in April 2016 against Mr Gerasimenko and others and the part VTBC allegedly played in it.

Counsel for the Claimants said that he was putting the case in two alternative ways:

In their skeleton argument VTBC pointed out that (i) these involved matters of Russian law but the Claimants had led no evidence of Russian law in support of the allegation that the statements by Mr Marinichev could be treated as statements for which VTBC were liable (ii) there was no pleaded case in relation thereto. The Claimants, no doubt taken by surprise in this regard, provided a further draft amended pleading very shortly before the hearing to cover the points and, recognising that their Russian law evidence did not cover this ground, submitted that I could reach conclusions for present purposes either through simply reading the words of the Russian statute or by a broad application of the principles relating to presumptions of foreign law being the same as English law.

Neither of these routes were at all satisfactory and I did not consider the new draft pleading properly covered the way the Claimants said they were putting the case.

That said, whilst these might well be crucial points if raised at trial, on a summary judgment hearing, if I was otherwise satisfied as to the factual arguability of the claim against VTBC, I would be very cautious about shutting out the Claimants on grounds such as these.

I turn to the merits of the claim against VTBC. In my judgment it is important to have in mind that the Claimants have all but abandoned the case against VTBC which they have relied upon for over three years and are now putting forward a new case based on a single document disclosed in the witness statement in support of VTBC’s summary judgment application. One might readily think this was a last minute attempt to save a case that had otherwise run aground. It is particularly important because the sole basis of English jurisdiction for an otherwise Russian dispute is the involvement of VTBC as anchor defendant.

Moreover, the allegation now being made does not fit very well with the allegation hitherto central to the claim. The conduct alleged against the defendants was an unlawful plan to effect the Raider Attack, principally through the Criminal Complaint. The Claimants cannot show VTBC played any part in the Criminal Complaint, or were aware of it when it was presented, so the focus on the new case is on the Embezzlement Indictment in April 2016, fifteen months after the Explanations Document.

All that is available in relation to the Explanations Document is a draft. We do not know whether the document ultimately submitted to the FSS was in the same terms. Perhaps the error in relation to Loan 2 was corrected. We do not know whether the draft was written by Mr Marinichev or (for example) a subordinate who had misunderstood the facts. However, as VTBC say they have not contacted Mr Marinichev to ask about it, it might be said that it is not open to them to take such points (and they did not do so). So I proceed on the assumption that the Explanations Document reflected the terms of the document sent to FSS.

Mr Marinichev is a partner of Morgan Lewis, a well-respected and well-known international law firm, and is apparently qualified in several different jurisdictions. The Claimants say they do not know nor can say on present information whether he was put up to making false allegations by VTBC. To say the least, it would be pretty extraordinary for him to do that without some form of encouragement or authorisation.

But the real problem with this new case is that the complaints about the Explanations Document are the thinnest possible gruel. The case is that this document was a deliberately false attempt to further the Raider Attack. But it is a relatively anodyne document. Mr Gerasimenko, apparently the target of the raid, is mentioned once, not in a context relevant to any of the alleged falsities, and there is no allegation made against him at all in the Explanations Document. It does not even say that he was the owner of any of the relevant companies.

VTBC accept that the document contains an error in the way it refers to the 2010 ACVR Judgment. The Explanations Document says the court found:

“the subsequent transfer of assets from the Borrower and the Guarantor were illegal under Russian law, as they were transactions aimed at deceiving the companies’ creditors.”

The error is to add the words “and the Guarantor.” But the transactions are highly complex and the wrong addition of those words seems a feeble basis for an allegation of serious dishonesty by a senior legal professional. It is notable that the preceding and immediately subsequent paragraphs of the document set out the position entirely accurately and are consistent with the terms of the 2010 ACVR Judgment.

This error is the most serious of the three complaints about the Explanations Document. The allegation referred to as the Settlement Agreement Statement does not contain any misstatement or error. The allegation is that it is misleading for what it does not say. But this is not a full and frank disclosure application. It is an allegation that this document deliberately created a false narrative for the purpose of furthering the Raider Attack. The worst that can be said is that in this regard it may be regarded as slightly misleading.

As for the Unlawful Asset Transfers Narrative complaint, this does not even rely on specific statements, more the general tenor of the document. Again, the worst that can be said is that it may be regarded as slightly misleading by what it does not say. As an allegation of serious wrongdoing, it does not get off the ground. If Mr Marinichev really wanted to tell untruths to the Russian authorities for the purpose of furthering the Raider Attack, this is an extraordinary and thoroughly ineffective way of implicating Mr Gerasimenko.

Moreover, the Russian judgments were public documents. Anyone writing the Explanations Document would expect that those receiving the document would have read them. The Explanations Document purports to annexe all the Russian judgments. Of course this is only a draft. But the case is based on the draft, so the Claimants must take the draft we have as a whole. It would be a very curious thing for someone seeking deliberately to misrepresent the judgments to enclose them thus knowing that the recipient was likely to read them.

The Claimants say that the misstatements in the Explanations Document were carried over into the April 2016 Embezzlement Indictment. It is certainly true that the Embezzlement Indictment makes allegations against Mr Gerasimenko which the Claimants say were wholly false. It was 15 months after the Explanations Document. And the allegations range far and wide and bear no resemblance to what is said in the Explanations Document. There is an analysis by Mr Rivkin, a further expert whose evidence is put forward by the Claimants, as to the relationship between the Explanations Document and the Embezzlement Indictment but the relationship seems very limited at best.

The Claimants emphasised that at the present stage information available is limited and it is to be expected more will be available after disclosure and at trial, and that I should not conduct a mini-trial on complex materials. But the problem is that the material before the court, and that relied on by the Claimants, does not make out any sort of case against VTBC.

There was a suggestion in the Claimants’ skeleton argument that negligence plus foreseeability of harm might be sufficient to get a Russian law case against VTBC off the ground. The point was not developed in oral argument. I do not read Russian law as having this effect, but in any event I do not consider the Claimants have established any factual basis for such a claim in any event.