Douglas James successfully defends a jurisdiction challenge by a Part 20 Defendant in a dispute over the ownership of a valuable art collection
Douglas James, led by Rupert D’Cruz KC of Littleton Chambers, representing the Defendant, Alexey Golubovich, has successfully defended a jurisdiction challenge by a Part 20 Defendant, Olga Mirimskaya, in a family dispute about the ownership of a valuable art collection.
Mr Golubovich is defending a claim by his (and Ms Mirimskaya’s) daughter, Nataliya Golubovich, for a declaration as to who owns the collection. Ms Golubovich claims ownership of the collection under a deed of gift from Ms Mirimskaya. Mr Golubovich defends the claim on the primary basis that he and Ms Mirimskaya had already entered a deed of settlement in which Ms Mirimskaya gave her interest in the art collection to Mr Golubovich in return for his stake in valuable jewellery, and therefore that Ms Mirimskaya was not entitled to gift the art collection to Ms Golubovich. Mr Golubovich joined Ms Mirimskaya as a Part 20 Defendant to the main claim, claiming declarations against her about his interest in the collection; those declarations are sought on the basis of the deed of settlement, but also on provisions of Russian matrimonial law and on constructive and resulting trusts.
Ms Mirimskaya challenged the Court’s jurisdiction over the Part 20 Claim. She argued that:-
- There was no purpose to be served in the declarations sought against her (and, therefore, she was not a necessary or proper party to the main claim) because she no longer asserted any right to the collection.
- The Court had determined that England was not the natural forum for the Part 20 claim in a previous anti-suit injunction application by Mr Golubovich to restrain Ms Mirimskaya from pursuing a claim in Moscow that the deed of settlement was invalid.
- In any event, England was not the natural forum for the Part 20 claim because of various connections to Russia, including proceedings started in Moscow by Ms Mirimskaya (after permission for service out was granted) that had, by the time of this application, determined that the deed of settlement was invalid.
In a judgment handed down on 30 July 2021, Deputy Master Marsh dismissed Ms Mirimskaya’s challenge. He held that:
- Ms Mirimskaya is a necessary or proper party to the main claim because: (i) the Court will have to determine whether Ms Golubovich acquired any title to the collection from Ms Mirimskaya, and if she was not joined to the proceedings Ms Mirimskaya would not be bound by a determination about items that once belonged to her; (ii) the Court will have to determine a number of issues relating to Ms Mirimskaya, including the basis on which the collection was acquired, who paid for it, whether there was a common understanding between Mr Golubovich and Ms Mirimskaya about the collection’s ownership when it was acquired, and the validity of the deed of settlement. In that respect, the main claim and the Part 20 claim are “closely bound up” and involve “a common thread” and “single investigation” – all factors that indicate a Part 20 Defendant is a proper party to the main claim (see Massey v Heynes & Co(1888) 21 QBD 330; Petroleo Brasiliero SA v Mellitus Shipping Inc (The Baltic Flame) [2001] EWCA Civ 418; and Carvill America Inc v Camperdown UK Ltd [2005] EWCA Civ 645).
- Mr Golubovich is not estopped by the judgment in the anti-suit application because that only concerned the natural forum for determining the deed of settlement and not the wider points arising in the Part 20 claim.
- In determining the natural forum, the Court is only entitled to take into account factors in existence at the time of the original decision to grant permission to serve the Part 20 Claim on Ms Mirimskaya outside the jurisdiction (see ISC Technologies Ltd v Guerin [1992] 2 Lloyd’s Rep 430; Erste Group Bank v JSC ‘VMZ Red October’[2015] EWCA Civ 379; Microsoft Mobile Oy v Sony Europe Ltd [2017] EWHC 374; and Satfinance Investments v Phillbrick [2020] EWHC 3527 (Ch)). Therefore, no weight could be given to the Russian proceedings that were started after permission was given to serve Ms Mirimskaya in Russia.
- Applying the reasoning in Credit Agricole Indosuez v Unicof[2003] EWHC 2676 (Comm), the conclusion that Ms Mirimskaya was a proper party to the main claim virtually concludes the question of appropriate forum in favour of England.
Douglas and Rupert were instructed by Withers LLP, whose excellent team was led by Tatiana Menshenina and included Eliza Saunders, Elisa Wahnon and Valeriia Repina.
A copy of the judgment can be found here.
