Harbour Fund III LP v Kazakhstan Kagazy Plc & Anor [2022] EWHC 2613 (Comm) (14 October 2022)

Harbour Fund III LP v Kazakhstan Kagazy Plc & Anor [2022] EWHC 2613 (Comm) (14 October 2022)

JSC has the better argument as to entitlement to the £2 million CIC as between itself and Plc, based on the wording of the Investment Agreement and the Plc Assignment. The court is satisfied that, subject to appropriate undertakings and formal endorsement in the Main Proceedings, it is in the interests of justice to order release of the funds to JSC. The court refrains from making final findings on the validity of the Plc Assignment under Kazakh law but proceeds on the basis that it is valid for present purposes.

Citation
[2022] EWHC 2613 (Comm)
Parties
Claimant: Harbour Fund III, L. P.; First Defendant/respondent: Kazakhstan Kagazy PLC; Second Defendant/applicant: Kazakhstan Kagazy JSC
Jurisdiction
England and Wales
Judgment Date
14 October 2022
Procedural Posture
Commercial Court Application (ancillary to Main Proceedings) / Application for Release of Funds From Designated Account
Outcome
Application granted, subject to conditions
Legal Topics
Litigation Funding, Assignment of Proceeds, Jurisdiction, Interpretation of Contracts, Enforcement of Judgments
Commercial Law Contract Law Civil Procedure Litigation Funding Assignment of Proceeds Jurisdiction Interpretation of Contracts Enforcement of Judgments

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Parties

Harbour Fund III, L. P.

Claimant

Kazakhstan Kagazy PLC

First Defendant/respondent

Kazakhstan Kagazy JSC

Second Defendant/applicant

Procedural Posture

Commercial Court Application (ancillary to Main Proceedings) / Application for Release of Funds From Designated Account

Legal Issues

  1. 1 Whether £2 million should be released from a designated account to JSC under the Investment Agreement and Plc Assignment
  2. 2 Whether the English court has jurisdiction to order release of funds in light of Kazakh law and exclusive jurisdiction clauses
  3. 3 Whether the Plc Assignment validly assigned entitlement to Claimants' Incurred Costs (CIC) to JSC

Ratio Decidendi

JSC has the better argument as to entitlement to the £2 million CIC as between itself and Plc, based on the wording of the Investment Agreement and the Plc Assignment. The court is satisfied that, subject to appropriate undertakings and formal endorsement in the Main Proceedings, it is in the interests of justice to order release of the funds to JSC. The court refrains from making final findings on the validity of the Plc Assignment under Kazakh law but proceeds on the basis that it is valid for present purposes.

Court Disposition

Application granted, subject to conditions

Orders

  • Release of £2 million from the designated account to JSC, subject to endorsement by Henshaw J or another judge in the Main Proceedings and to undertakings from JSC to address risks of invalidation and double recovery.
  • Dispensation with service of the application on the third and fourth defendants (Peak Azkhal LLP and Prime Estate Activities Kazakhstan LLP).