Still no dodging the question – further decision of the English Court shows tough stance on overseas parties who seek to avoid court questioning over assets

In our last update we reported on the applicable circumstances and willingness of the English court to help judgment creditors in the enforcement process, by requiring a non-resident foreign director of a debtor company (who was personally present in the jurisdiction at the relevant time of application) to attend court to produce documentation and be examined under CPR Part 71.

In yet another Ablyazov-related judgment, the English High Court has refused to adjourn the cross-examination of an individual defendant (and named party to a worldwide freezing order granted by the English court) under CPR Part 71. In the present case, an individual, Mr Ilyas Khrapunov, was ordered to attend court for cross-examination in May 2016 pursuant to an application under CPR Part 71 brought by the claimant bank. Mr Krapunov chose not to attend the cross-examination hearing and instead instructed his lawyers to seek an order that:

• he be cross-examined by video link from Switzerland;
• the examination be conducted in accordance with the Hague Evidence Convention 1970 as applied in Switzerland; and
• that the scheduled cross-examination hearing in England be vacated.

In support of this position Mr Khrapunov argued that he ran the risk of being arrested and/or extradited to face criminal proceedings in Kazakhstan, Russia or Ukraine if he attended court in England; and that he could be effectively cross-examined by video link which could be done in accordance with Swiss law under the relevant Swiss Guidelines for International Judicial Assistance in Civil Matters. 

In relation to the extradition fears the judge found that [such fears were] “…effectively non-existent, and certainly, on the face of it, no greater than the continuing risk to him in Switzerland…”. With regard to cross-examination taking place in Switzerland (where it was common ground that the proposed process would be unlawful to take place in Switzerland without Swiss judicial authorisation and in compliance with Swiss law) the judge also found this option unappealing “…I do not consider that the English court should superimpose its own requirement that a witness answer to questions during a Swiss process, where the Swiss authorities governing the process make it clear that the witness is not required to answer questions and could interrupt the proceedings at any time…”

The facts of this application suggest that the applicant sought cross-examination in Switzerland very late in the process and this may have played heavily on the judge’s mind when dismissing the application. The decision is again a useful example of the English court attempting to support parties seeking to identify assets for the purposes of enforcement in as speedy and robust a manner as possible. For more details on this judgment see: JSC BTA Bank v (1) Mukhtar Ablyazov (2) Ilyas Khrapunov [2016] EWHC 1346 (Comm).