[2025] EWHC 2036 (Comm)

In summary, these made the following points:

In preparing the Legal Opinions, the authors had reviewed, among other documents, the Charter of Neftisa (2nd ed), a list of holders of securities of Neftisa and a letter from Neftisa regarding control of Neftisa, an extract from Neftisa’s shareholders register dated 31 May 2021 and certificates of shareholders which “disclosed the namesof Neftisa’s ultimate beneficiary owners”.

The Claimant made a series of complaints about these Legal Opinions.

First, the key question of Mr Gutseriev’s ownership and control of Neftisa was fundamentally a question of fact. Yet neither Herbert Smith nor Baker McKenzie verified, or expressed any opinion on, matters of fact. On the contrary, they proceeded on the basis of factual assumptions. Herbert Smith went out of their way to make clear that they expressed no view on the facts, had reached conclusions based solely on information provided to them and had not verified that information and that their stated assumptions had not been verified or investigated.

Baker McKenzie began their memorandum by stating “[p]lease note that the memorandum is only for your purposes and may not be used by third parties” and went on to set out four “key assumptions that have informed this memorandum” and to state “[s]hould any of the below assumptions be incorrect (or subsequently change), this may impact upon our legal analysis and may potentially expose Neftisa to EU sanctions compliance risks”. The assumptions ranged from an assumption as to Mr Gutseriev’s percentage share in Neftisa to assumptions that various individuals (including Mr Gutseriev’s brother and son) hold their shares for their own benefit and act independently from, receive no instructions from and are not influenced in the exercise of their voting rights by Mr Gutseriev. Mr Coldrick submitted that no competent lawyer could reasonably have advised the Claimant that the Herbert Smith or Baker McKenzie memoranda provided a reliable basis for discounting the Refinitiv reports and changing its mind.

In essence, the Claimant’s position was that it was entitled to rely upon the Refinitiv reports, that shifted the evidential burden onto the Defendant and the only real issue is as to whether the materials on which the Defendant relies ought to have provided such reassurance that it can be concluded that no prudent shipowner could reasonably have judged that there was a sanction risk. They submitted for the reasons set out above that the documents on which the Defendant relies fall very far short in that regard.