[2025] EWHC 2036 (Comm)

From the Claimant’s termination email dated 24 November 2021, the judgment that the Claimant appears to have made was that performance of the Defendant’s voyage instructions would have “exposed Owners to risk of sanctions” for “the reasons the Owners identified to Charterers as early as 16 November 2021 and in subsequent correspondence.”

Mr Tay’s evidence was that EPS’s standard due diligence processes included use of third party tools, including Refinitiv/World-Check, which compiles information on sanctioned persons and sources for screening purposes. He said that he was involved in all the correspondence, but the Refinitiv/World-Check searches were conducted not by him, but by one of his colleagues, Olga Venzhina, who still works for EPS.

The Refinitiv report on Mr Gutseriev [Trial bundle 3450-3461]said that he was:

The Refinitiv report on Neftisa said that Neftisa was:

Ms Venzhina raised a red flag, saying that if Neftisa was involved in the cargo, the Claimant could not lift that cargo. Mr Tay was not able to give evidence from his own knowledge as to whether any Google searches were done but he was certain that there were some WhatsApp messages passing between him and Mr Green and Mr Lucas who worked in the commercial department of EPS’s London office, and who were dealing with this matter, but these messages have not been disclosed. He also spoke with them on the telephone about this matter, although there was no detail of these conversations in his witness statement.

The Claimant’s position on 18 November 2021, as appears from an email from Olga Venzhina of that date which was sent to him, was that “Owners have not been able to confirm whether Mr Gutseriev has de facto control over Neftisa.” According to Mr Tay, that remained the position at 24 November 2021.

Mr Tay was shown a document from Infospectrum, another third party, which Mr Tay said EPS used as part of their due diligence exercises. It related to a company entitled PAO Russneft, which was therein described as “an associated company of Netfisa”. It was dated 16 July 2021 and had been downloaded on 11 November 2021. At p5 of the report, under the heading “Recent Developments”, it contained the following statement:

“In its latest annual report, Russneft disclosed that "as at 31 December 2020, the person who is able to control the actions of the Company is Mikhail Safarbekovich Gutseriev". We note that since this point, Mr Gutseriev has been placed on the EU's sanctions list in June 2021, due to his close relations with, and interests in, the Belarus economy.

We emphasise that Russneft is not sanctioned. However, the event has had some ramifications for the relationship between Mr Gutseriev and Russneft, as Mr Gutseriev is widely reported as having stood down from the board of the company, with the likely intention of giving the company the freedom to manoeuver in the manner to which it is accustomed.”

It was attached to an email from Mr Green to Mr Lucas dated 11 November 2021, timed at 12:53. Mr Tay said that he had not been shown it at the time, despite being a party to other correspondence, and he accepted that it was something he would have liked to have seen at the time that EPS was making decisions about dealing with the Neftisa Cargo, because “it would have helped EPS come to the conclusion that there was nothing to be concerned about with the Neftisa cargo” [Day 2/page 67/lines 5-12]. Mr Tay was part of the group within EPS that made the decision not to accept the Netfisa cargo. That group included Olga Venzhina, who provided background information, Mr Emilianou, Director of Corporate Services and EPS General Counsel and the CEO of EPS, all based in Singapore, and Messrs Green and Lucas, based in London and who dealt with chartering, although a decision such as this was beyond their authority. He accepted in cross-examination that he personally could not have said whether Neftisa was owned or controlled in any sense by Mr Gutseriev. He knew that he was formerly the owner and Chairman of the Board of Neftisa, but “we could not be certain … from the statement that the Defendants were trying to present to them, whether that was still the case, whether he was still in control.” [Day 2/p71, lines 14-19]. He was formerly the majority shareholder but there were no source documents presented to the Claimant or EPS which demonstrated that he had effectively divested his shares.

The Defendant relied on five documents which were either available to the Claimant or which were actually provided by the Defendant to the Claimant, from which it is said that it should have concluded that Mr Gutseriev did not own or control Neftisa. I shall consider each in turn.