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

Mr Fenwick KC submitted that the Banks and Tecnimont were in effect seeking to argue that the Firstline Trust is not in reality a discretionary trust but a bare trust. He said that it was not open to them to advance this argument, because it had not been pleaded.

This submission was incorrect as regards the content of the Defendants’ statements of case. SocGen’s Defence alleged in several places, but most prominently in paragraph 4, that Mr Melnichenko was the ultimate beneficial owner of EuroChem AG through the Firstline Trust. ING’s Defence alleged Mr Melnichenko’s de facto ownership of the Claimants at paragraph 21. Tecnimont’s Defence alleged at paragraph 28 that Mr Melnichenko retained control of the trust assets through Mr Fokin. These were all clear challenges to the Claimants’ case as to the nature of the Firstline Trust.

Furthermore, it was clear that the Claimants expected such challenges to be made at the trial, and were prepared to meet them. Mr Fenwick KC went so far as to acknowledge in his oral opening that, where there was a discretionary trust of this kind, it was incumbent on the party relying on it to meet at least an evidential burden that there was no de facto control, i.e. that the arrangements were genuine.

I therefore reject this third pleading point.