JSC BTA Bank v Ablyazov & Ors

JSC BTA Bank v Ablyazov & Ors

There is a very strong prima facie case that Mr Ablyazov and Mr Shalabayev pursued a strategy of concealment, deceit, perjury, forgery, and contempt in relation to their assets, using solicitors as unwitting instruments. Communications in furtherance of this iniquitous strategy do not attract legal professional privilege. The privilege against self-incrimination does not bar disclosure of documents created independently of compulsion. The court exercises discretion to order disclosure, finding the prospect of valuable material proportionate to the complexity and cost. Joint and common interest privilege must be protected for independent parties.

Parties
Claimant: JSC BTA Bank; Defendant/respondent: Mukhtar Ablyazov; Defendant/respondent: Syrym Shalabayev; Third Respondent: Clyde & Co LLP; Fourth Respondent: Stephenson Harwood LLP; Fifth Respondent: Addleshaw Goddard LLP
Jurisdiction
England and Wales
Judgment Date
08 August 2014
Procedural Posture
Commercial Court Application / Ruling on Disclosure Application and Ancillary Relief
Outcome
Application for disclosure succeeds; declaratory and preservation relief declined.
Legal Topics
Disclosure, Freezing Orders, Receivership, Privilege Against Self Incrimination, Iniquity Exception, Contempt of Court
Civil Procedure Commercial Law Fraud Legal Professional Privilege Disclosure Freezing Orders Receivership Privilege Against Self Incrimination +2 more

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Parties

JSC BTA Bank

Claimant

Mukhtar Ablyazov

Defendant/respondent

Syrym Shalabayev

Defendant/respondent

Clyde & Co LLP

Third Respondent

Stephenson Harwood LLP

Fourth Respondent

Addleshaw Goddard LLP

Fifth Respondent

Procedural Posture

Commercial Court Application / Ruling on Disclosure Application and Ancillary Relief

Legal Issues

  1. 1 Whether legal professional privilege applies to documents held by solicitors relating to assets of Mr Ablyazov and Mr Shalabayev given the alleged iniquity exception
  2. 2 Whether the privilege against self-incrimination bars disclosure
  3. 3 Whether the court should exercise discretion to order disclosure given the complexity and cost

Ratio Decidendi

There is a very strong prima facie case that Mr Ablyazov and Mr Shalabayev pursued a strategy of concealment, deceit, perjury, forgery, and contempt in relation to their assets, using solicitors as unwitting instruments. Communications in furtherance of this iniquitous strategy do not attract legal professional privilege. The privilege against self-incrimination does not bar disclosure of documents created independently of compulsion. The court exercises discretion to order disclosure, finding the prospect of valuable material proportionate to the complexity and cost. Joint and common interest privilege must be protected for independent parties.

Court Disposition

Application for disclosure succeeds; declaratory and preservation relief declined.

Orders

  • Disclosure of documents held by Clyde & Co LLP, Stephenson Harwood LLP, and Addleshaw Goddard LLP concerning current and former assets of Mr Ablyazov and Mr Shalabayev, subject to protection of joint/common interest privilege.
  • No declaratory relief granted.