CL-2022-000456 - [2025] EWHC 1938 (Comm)

Few cases turn on the burden of proof. The reason why the topic attracted the attention that it did in this case was that the various parties each wanted to lay the ground for their submissions as to whether or not it was proper for the court to draw inferences from the absence of witnesses or from documentary shortcomings. Ultimately, however, all the parties accepted that the position here was explained by Lord Leggatt in Efobi v Royal Mail Group [2021] UKSC 33, at [41]:

“[41] The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority [1998] PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.”

Submissions about inferences were made in relation to a number of people and matters. Above all, it was repeatedly suggested by the Banks and Tecnimont that I should draw inferences from the fact that Mr Melnichenko was not called by the Claimants and did not give evidence.

Given that the Claimants’ case is that they have no real relationship with Mr Melnichenko, who does not control them or vice versa, it is in a sense unsurprising that they did not call him: if they had, this would no doubt have been relied on by the other parties as evidence of his interest in the Claimants. In any event, I could only draw any inference from the non-appearance of Mr Melnichenko if I first assumed that the Claimants were in a position to call him; but that, in effect, is what I have to decide. I have not drawn any such inference, on this basis.

The Claimants were also criticised for not calling any witnesses who currently hold positions at Linetrust PTC or AIM Capital. I agree that each of these companies appears to have played a very significant part. However, while it is fair to note that the Claimants did not call the current directors of Linetrust PTC (Ms Skittides and Mr Lillikas) or any current officer of AIM Capital, they did call evidence from Mr Fokin and Noble. They were both directors of Linetrust PTC over much of the relevant period. Mr Fokin was also formerly a director of AIM Capital. There is a limit to the number of overlapping witnesses any party can be expected to call. Rather than drawing an adverse inference because the Claimants did not call any additional witnesses who could give evidence in relation to Linetrust PTC or AIM Capital, it seems to me more realistic to assume that the evidence of any such witnesses would have been similar to that of Mr Fokin and Mr Noble. I therefore repeat the comments made in Section XIII above.

I have been rather more impressed by the fact that, before and during the hearing, no information was forthcoming from the Claimants about how and by whom decisions were made about the re-structuring that took place in 2022/2023; and that no information has been forthcoming about how or by whom decisions have been made at the level of MCC EuroChem (or above) regarding EuroChem NW2 and the progression of the Kingisepp project (notably, the decisions about contracting with a new construction company and new finance-providers).

Given that the Claimants pleaded a positive case as to the control of EuroChem NW2, and given issue 12 in the agreed list of issues, it seems to me reasonable to expect that the Claimants might have thought to demonstrate how these decisions were made. Even if this had not occurred to them before the exchanges of written opening submissions (which I think it should), it certainly must have been apparent to them from that stage that they would be challenged on this, at trial, if they produced no evidence. I have already noted that I was not told of any reason why evidence could not be led from (say) Mr Shiryaev or Mr Vanyushin.

It should have been possible, at the very least, to produce documents evidencing these decisions. The ease with which the Claimants produced documents relating to the transaction involving the 10% holding in EuroChem AG previously held by MCC EuroChem, within days after the hearing had ended and without being required (or even invited) to do so, confirms this.

In these circumstances, I consider it legitimate, in principle, to draw an inference that such evidence was not produced because it would have been unhelpful to the Claimants, in relation to control of MCC EuroChem. This was certainly the case with the very late evidence regarding the 10% transaction.

However, I must stress that this is not something that has made a material difference to my decision on any of the issues before me. I have been much more impressed by the other matters that I have identified in Sections XVIII, XX, XXI, XXII, and XXIV above; and, especially, by the evidence of Mr Beloborodov and by the opinion that I formed of Mr Fokin and of Mr Noble.

Furthermore, as set out in Section XXXVI above, it generally falls to the NCAs to make the relevant determinations, for the purposes of Article 2. Whether or not any particular NCA has made such a determination, or to what effect, is not something that can be decided by drawing the kind of inferences that were pressed on me in submissions. Rather, it necessitates examining what the various NCAs have said and done.