Harbour Fund III, LP v Kazakhstan Kagazy PLC & Anor.

Harbour Fund III, LP v Kazakhstan Kagazy PLC & Anor.

On the material before the court, JSC has the better argument for entitlement to the £2 million as Claimants' Incurred Costs under the Investment Agreement and Plc Assignment. The balance of justice favours release of the funds to JSC, subject to protective undertakings and formal endorsement in the main proceedings. The court refrains from making final findings on the validity or effect of the Plc Assignment under Kazakh law but is satisfied that, procedurally, the funds should be released to JSC.

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 Application (ancillary to Main Proceedings) / Ruling on Application for Release of Funds
Outcome
Application granted, subject to conditions
Legal Topics
Litigation Funding, Assignment of Proceeds, Jurisdiction, Enforcement of Judgments, Interpretation of Contracts
Commercial Law Contract Law Civil Procedure Litigation Funding Assignment of Proceeds Jurisdiction Enforcement of Judgments Interpretation of Contracts

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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 Application (ancillary to Main Proceedings) / Ruling on Application for Release of Funds

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 given Kazakh law and jurisdiction clauses
  3. 3 Whether the Plc Assignment validly assigned entitlement to the Claimants' Incurred Costs (CIC) to JSC

Ratio Decidendi

On the material before the court, JSC has the better argument for entitlement to the £2 million as Claimants' Incurred Costs under the Investment Agreement and Plc Assignment. The balance of justice favours release of the funds to JSC, subject to protective undertakings and formal endorsement in the main proceedings. The court refrains from making final findings on the validity or effect of the Plc Assignment under Kazakh law but is satisfied that, procedurally, the funds should be released to JSC.

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.
  • JSC to provide undertakings to protect Plc against double recovery and to address risk of invalidation claims in Kazakhstan.