Durnont Enterprises Limited v Fazita Investment Limited & Ors

Durnont Enterprises Limited v Fazita Investment Limited & Ors

Permission to continue derivative claims is granted in part: the Claimant established a prima facie case under Polish, Cypriot, and English law for claims against the First to Fifth Defendants but not against the Sixth to Eighth Defendants. The English court is the proper forum, and service out of the jurisdiction is permitted for claims where a serious issue to be tried is shown and the jurisdictional gateways are satisfied. The claims are not time-barred on the evidence presented. Permission to amend the Particulars of Claim and to rely on expert evidence is granted. Applications to remove documents from the court file or restrict their use are refused.

Parties
Claimant: Durnont Enterprises Limited; First Defendant: Fazita Investment Limited; Second Defendant: Wladyslaw Jaroszewicz; Third Defendant: Michael Carl Jaroszewicz; Fourth Defendant: M-JWK-Management Spółka z Ograniczona Odpowiedzialnością; Fifth Defendant: Anna Bandurska; Sixth Defendant: Jan Czeremcha; Seventh Defendant: Maciej de Makay; Eighth Defendant: BNP Paribas Bank Polska S.A.; Ninth Defendant: Polish Real Estate Investment Limited
Jurisdiction
England and Wales
Judgment Date
11 September 2024
Procedural Posture
Derivative Action / Commercial Claim / Ruling on Permission to Continue Derivative Action and Service Out of Jurisdiction
Outcome
Permission granted in part; service out of jurisdiction granted in part; ancillary applications granted or refused as specified.
Legal Topics
Derivative Actions, Jurisdiction and Service Out, Directors' Duties, Breach of Contract, Fraud, Limitation of Actions, Reflective Loss, Restitution
Company Law Commercial Law Conflict of Laws Civil Procedure Derivative Actions Jurisdiction and Service Out Directors' Duties Breach of Contract +4 more

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Parties

Durnont Enterprises Limited

Claimant

Fazita Investment Limited

First Defendant

Wladyslaw Jaroszewicz

Second Defendant

Michael Carl Jaroszewicz

Third Defendant

M-JWK-Management Spółka z Ograniczona Odpowiedzialnością

Fourth Defendant

Anna Bandurska

Fifth Defendant

Jan Czeremcha

Sixth Defendant

Maciej de Makay

Seventh Defendant

BNP Paribas Bank Polska S.A.

Eighth Defendant

Polish Real Estate Investment Limited

Ninth Defendant

Procedural Posture

Derivative Action / Commercial Claim / Ruling on Permission to Continue Derivative Action and Service Out of Jurisdiction

Legal Issues

  1. 1 Whether permission should be granted to continue derivative claims against certain defendants under common law and CPR r. 19.15
  2. 2 Whether permission should be granted to serve the claim form and other documents out of the jurisdiction
  3. 3 Whether the claims disclose a prima facie case under Polish, Cypriot, and English law

Ratio Decidendi

Permission to continue derivative claims is granted in part: the Claimant established a prima facie case under Polish, Cypriot, and English law for claims against the First to Fifth Defendants but not against the Sixth to Eighth Defendants. The English court is the proper forum, and service out of the jurisdiction is permitted for claims where a serious issue to be tried is shown and the jurisdictional gateways are satisfied. The claims are not time-barred on the evidence presented. Permission to amend the Particulars of Claim and to rely on expert evidence is granted. Applications to remove documents from the court file or restrict their use are refused.

Court Disposition

Permission granted in part; service out of jurisdiction granted in part; ancillary applications granted or refused as specified.

Orders

  • Permission to continue derivative claims against Fazita, Wladyslaw Jaroszewicz, Michael Jaroszewicz, M-JWK, and Anna Bandurska.
  • Permission to continue fiduciary duty claims against Wladyslaw Jaroszewicz and Michael Jaroszewicz.