JSC BTA Bank v Ablyazov  EWCA Civ 40.
This case was between JSC Bank and Mr Ablyazov (D1) and his son in-law (D2). It was appealed by JSC Bank over the decision that an English court had jurisdiction to enforce a worldwide freezing order for wrongful dealing with assets by a former chairman, Mr Ablyazoy who took asylum in the UK. The bank claimed that the defendant had breached the order, and when they attempted to act for contempt, he fled to France. This meant that judgments were granted in default of his absence, and they then began proceeding against the son in-law under the tort of conspiracy to injure by unlawful means. This was on the pretence that they conspired to prevent the order from making any Âsubstantial recoveryÂ.
The claimant relied on contempt of court as qualifying as Âunlawful meansÂ within the tort of conspiracy. This was important because the Lugano Convention in Switzerland provides that a permanent resident (which the son in-law is) must be sued in Switzerland only, unless JSC Bank could establish that the UK court had jurisdiction which initially the courts in the UK held that they did. D2 argued that the courts were wrong in their initial decision because contempt does not qualify as unlawful means for the purposes of this particular tort, plus claiming that the particular provisions in the Lugano Convention meant that his permanent residence should be applicable in this case. Â
The judge firstly deliberated on the claims by D2, and found that the convention also affords quite simply that national law was to be applied in this case because D2 cannot be held accountable for the unlawful actions committed by D1 because he was a third party.
However, it was heldÂ that: breachesÂ ofÂ aÂ courtÂ orderÂ qualifiedÂ asÂ unlawfulÂ meansÂ forÂ theÂ purposesÂ ofÂ theÂ tortÂ ofÂ conspiracyÂ to injureÂ by unlawfulÂ means.
The tort provisions in the Lugano Convention clearly state at Article 5 that: ÂaÂ personÂ domiciledÂ inÂ aÂ memberÂ stateÂ mayÂ beÂ suedÂ inÂ mattersÂ relatingÂ toÂ tortÂ inÂ theÂ courtsÂ forÂ theÂ place whereÂ theÂ harmfulÂ eventÂ occurredÂ orÂ may occurÂ.
Note that this is a point on damage, however this means direct damage, and is also why the courtÂ rejectedÂ anÂ argumentÂ thatÂ theÂ BankÂ sufferedÂ directÂ damageÂ inÂ EnglandÂ becauseÂ the financial losses after the freezing order were consequential damage.