Court of Appeal allows appeal to set aside service, ruling joinder was a mere device to oust foreign jurisdiction.

Final but unapproved

No redaction required

THE COURT OF APPEAL

CIVIL

Appeal Number: 2022/139

Neutral Citation [2025] IECA 280

Collins J. Binchy J. Butler J.

TRAFALGAR DEVELOPMENTS LIMITED, INSTANTANIA HOLDINGS

LIMITED, KAMARA LIMITED AND BAIRIKI INCORPORATED

Plaintiffs/Respondents

AND

DMITRY MAZEPIN, OJSC UNITED CHEMICAL COMPANY URALCHEM,

URALCHEM HOLDING PLC, EUROTOAZ LIMITED, ANDREY GENNADYEVICH

BABICHEV, YULIA BOLOTNIKOVA, BELPORT INVESTMENTS LIMITED,

MILKO EMILOV MINKOVSKI, ANDROULA CHARILAOU,

DMITRY KONYAEV AND YEVGENIY YAKOVLEVICH SEDYKIN

AND BY ORDER

JSC KHIMAKTIVINVEST AND AKTUM LIMITED LIABILITY COMPANY

Defendants/Appellants

JUDGMENT of the Court delivered on 19 December 2025

INDEX

Page

Preliminary ............................................................................................................................... 5 Background and Procedural History ................................................................................... 13 The Proceedings................................................................................................................... 13 The Case Made in the Statement of Claim ........................................................................... 14 Application for Leave to Serve Out ...................................................................................... 20 Application to Set Aside ....................................................................................................... 22 The Second Statement of Claim and the (draft) Third Statement of Claim ......................... 24 THE HIGH COURT JUDGMENT ...................................................................................... 30 Jurisdiction Over the Russian UCCU Defendants under Order 11 RSC ............................ 31 The Burden of Proof on a Set Aside Application ............................................................ 31 The Threshold Test/Standard of Proof ............................................................................. 32 “Necessary or Proper Party” ............................................................................................ 37 Good Arguable Case on the Merits (§§203-224) ............................................................. 40 Act of State/Related Doctrines......................................................................................... 42 Order 11 Rules 2 & 5 RSC:

Proper Forum ...................................................................... 43 Jurisdiction in Respect of the Claim Against Holding – Article 8(1) of the Recast Brussels Regulation ............................................................................................................................ 49 Sole Object/Abuse of Rights ............................................................................................ 49 Burden of Proof................................................................................................................ 51 Standard of Proof ............................................................................................................. 51 Application of those Principles ........................................................................................ 52 The Merits of the Plaintiffs’ Claim Against Eurotoaz;

Article 8(1)..................................... 53 APPEAL.................................................................................................................................. 56 MOTION TO ADDUCE NEW EVIDENCE ....................................................................... 58 The “New Evidence” ........................................................................................................... 58 Assessment and Decision ..................................................................................................... 63 THE ARGUMENTS ON THE APPEAL ............................................................................. 71 Order 11 – Service out on the Russian UCCU Defendants ................................................. 71 Submissions of the UCCU Defendants ............................................................................ 71 Submissions of the Plaintiffs ........................................................................................... 80 Article 8(1) – Jurisdiction over Holding .............................................................................. 88 Submissions of the UCCU Defendants ............................................................................ 88 Submissions of the Plaintiffs ........................................................................................... 95 ASSESSMENT ....................................................................................................................... 98 The Standard of Review on this Appeal ............................................................................... 98 Service out of the Jurisdiction under Order 11 RSC ......................................................... 102 The Provisions of Order 11 RSC ................................................................................... 105 Irish Case Law ............................................................................................................... 113 Case Law from England and Wales ............................................................................... 142 Discussion of the Legal Principles ................................................................................. 166 Order 11(1)(h) RSC ....................................................................................................... 167 “Good Arguable Case” Test........................................................................................... 169 “Mere Device”? ............................................................................................................. 172 Action against Eurotoaz “Properly Brought? – Alternative Analysis ........................... 181 Necessary or Proper Parties ........................................................................................... 196 Discretion Under Order 11(2) & (5) – Is Ireland the Proper Forum? ............................ 206 Jurisdiction in respect of claim against Holding ............................................................... 245 Articles 4, 5 and 8 of the Recast Brussels Regulation ................................................... 245 Article 8(1) – A Derogation to be Narrowly Construed ................................................ 247 Establishing the Close Connection on the Balance of Probabilities .............................. 251 The Meaning of “irreconcilable judgments”.................................................................. 256 Summary of Applicable Principles..................................................................................... 265 The High Court Judgment .............................................................................................. 266 Grounds of Appeal ......................................................................................................... 270 The Burden and Standard of Proof ................................................................................ 271 The Application of the Close Connection Test .............................................................. 271 The Claim against Holding ............................................................................................ 273 Close Connection? ......................................................................................................... 276 The “Sole Object” Ground ............................................................................................. 279

CONCLUSION AND ORDERS ......................................................................................... 291 PRELIMINARY

1. This is the judgment of the Court, to which all members have contributed.

2. The judgment relates to the appeal of the First, Second, Third, Sixth and Tenth Defendants from the Judgment of the High Court (Barniville J, as the President of the High Court then was) (Judgment of 24 March 2022; [2022] IEHC 167) and consequent Order of 25 April 2022 by which he dismissed their application challenging the jurisdiction of the Irish courts to hear and determine the Plaintiffs’ action against them.

3. In the judgment under appeal, the Judge referred to these Defendants as the “UCCU Defendants”, referred to the First, Second, Sixth and Tenth Defendants as the “Russian UCCU Defendants” and we shall follow this usage here. We shall refer to the Third Defendant as “Holding”.

4. The Russian UCCU Defendants are all based in Russia and were served with these proceedings in Russia pursuant to an Order of the High Court (McDermott J) made on

7 November 2016 giving the Plaintiffs leave to serve out of the jurisdiction under Order 11, Rule 1(h) of the Rules of the Superior Courts (RSC). Order 11, Rule 1(h) provides that service out of the jurisdiction may be allowed by the High Court whenever “any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction” and the Order of 7 November 2016 was made on the basis that each of the Russian UCCU Defendants was “a necessary or proper party” to the action brought by the Plaintiffs against the Fourth Defendant, Eurotoaz Limited (“Eurotoaz”), an Irish-registered company. The Russian UCCU Defendants subsequently applied pursuant to Order 12, Rule 26 RSC to have the Order of 7 November 2016 discharged on the basis that the Plaintiffs’ claims did not properly come within the scope of Order 11, Rule 1(h) and that, in any event, the case was not a proper one for service out of the jurisdiction, having regard to Order 11, Rules 2 and 5 RSC.1 For the reasons set out in the judgment under appeal, that application was refused by the Judge and the Russian UCCU Defendants now appeal from that refusal.

5. The appeal raises a number of difficult issues regarding the interpretation and application of the Order 11, Rule 1(h) jurisdictional “gateway” and its interaction with Rules 2 and 5. These issues are addressed in detail below. Ultimately, however, the So far as relevant, Order 11, Rule 2 provides that “[w]here leave is asked from the Court to serve a summons or notice thereof under rule 1, the Court to whom such application shall be made shall have regard to the amount or value of the claim or property affected and to the comparative cost and convenience of proceedings in Ireland, or in the place of the defendant’s residence…” Rule 5 provides that “[e]very application for leave to serve a summons or notice of a summons on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a citizen of Ireland or not, and where leave is asked to serve a summons or notice thereof under rule 1 stating the particulars necessary for enabling the Court to exercise a due discretion in the manner in rule 2 specified; and no leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.” A new Order 11 was substituted by the Rules of the Superior Courts (Order 11) 2024 (SI No 362/2024) but that has no application to these proceedings: Regulation 2. In any event, Order 11, Rule 1(h) remains as it was and Rule 5 is in the substance the same, though Order 11, Rule 2 is significantly altered, now providing that “[w]here leave is asked from the Court to serve a summons or notice thereof under rule 1, the Court shall have regard to the generally recognised principles of international law (and may for that purpose require the filing of written legal submissions) and whether the applicant has shown prima facie grounds that he or she has a good cause of action on the merits.” For the avoidance of doubt, references to Order 11 in this judgment refer to the Order prior to its amendment by SI No 362/2024.

fundamental issue presented by this aspect of the appeal is whether, on the material placed before the Court by the parties, it has been demonstrated that Ireland is the appropriate forum for the trial of the Plaintiffs’ action against the UCCU Defendants, so that the Irish courts should accept and exercise jurisdiction over those Defendants, notwithstanding that none of them have any connection to Ireland. The appropriate resolution of that issue is, in this Court’s view, very clear on the material before it (which differs from the material before the High Court in significant respects): Russia, rather than Ireland, is the natural forum for the trial of the Plaintiffs’ claims against the UCCU Defendants and the factors relied on by the Plaintiffs to contend that Ireland is nonetheless the appropriate forum fall far short of demonstrating that the Irish courts should hear and adjudicate on claims which do not, as to their substance, have even the most tenuous connection with this jurisdiction.

6. Holding is a Cypriot company. It follows that the jurisdiction of the High Court to hear and determine the Plaintiffs’ claims against Holding is governed by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (“the Recast Brussels Regulation”). The basic rule in the Recast Brussels Regulation is that persons (including companies) domiciled in a Member State must be sued in the courts of that Member State: Article 4(1). There are, however, a number of qualifications to that default rule. Article 8(1) contains one such qualification. It provides that a person domiciled in a Member State may also be sued “where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. Here the Plaintiffs relied on Article 8(1) in order to issue and serve proceedings on Holding in Cyprus, on the basis of an asserted close connection between the claims against Holding and the claims made against Eurotoaz. Civil and commercial proceedings within the scope of the Recast Brussels Regulation do not require leave to serve out under Order 11 RSC. Subsequently, Holding applied to set aside the service on it, contending that Article 8(1) did not apply and that therefore the Irish High Court did not have jurisdiction to determine the claim against it. For the reasons set out in the judgment under appeal, Holding’s application was refused by the Judge and it now appeals from that refusal. Holding’s appeal raises a number of issues regarding the interpretation and application of Article 8(1).

7. As regards the claim against Holding, for the reasons set out later we conclude that the Plaintiffs – on whom the burden lies – have failed to establish any risk of irreconcilable judgments, as that term has been explained by the CJEU, in the event that the claims against Eurotoaz and Holding are determined separately in Ireland and Cyprus respectively. It follows that those claims are not “closely connected” for the purposes of Article 8(1) and so that basis for asserting Irish jurisdiction over Holding is not made out. Furthermore, and separately, we consider that the “sole object” of the joinder of Eurotoaz as a Defendant to these proceedings was to seek to establish a basis for suing Holding here and to oust the jurisdiction of the Cypriot courts and we would set aside service on Holding on that basis also.

8. A huge volume of material was put before the High Court for the purposes of the application and before this Court for the purposes of this appeal. As will become apparent, these proceedings relate to alleged events in Russia over many years, including various sets of proceedings before a variety of different courts in Russia. Whether the Russian courts have dealt appropriately with those proceedings or rather, whether they have improperly facilitated the alleged wrongdoing of the UCCU Defendants (and the other Defendants) is a matter of intense controversy. There is also a very significant dispute as to whether the claims made in these proceedings against the UCCU Defendants could effectively be pursued in Russia. No less than 18 affidavits or affirmations were exchanged by the parties, including multiple affidavits sworn by their respective Russian law experts, each exhibiting a detailed report on matters of Russian law and procedure. These affidavits/affirmations and the exhibits to them run to some 1,000 pages of text.2

9. In addition, while this appeal was pending the UCCU Defendants brought an application to this Court seeking leave to adduce further evidence on the appeal. The nature of that evidence is discussed later. The affidavits exchanged on that application, along with the exhibits to them, run to some additional 900 pages.

10. To add further complexity, the Statement of Claim delivered in November 2016 has been amended on a number of occasions subsequently. An Amended Statement of This is, if anything, an underestimate of the volume of material before the High Court. As the Judge explains in his judgment (§94), the Plaintiffs also sought to rely on further affidavit material, including an affidavit and expert opinion from an expert in contemporary Russian affairs and politics, Professor Richard Sakwa, sworn for the purposes of resisting the unsuccessful application by Eurotoaz and Mr Babichev to have the action against them dismissed as bound to fail and (in the case of Mr Babichev) for a stay of the action on grounds of forum non conveniens: see also Judgment, §37. Most of that material was exhibited by Ms Harty in her first affidavit in response to the set aside application (though Professor Sakwa’s affidavit and report was in fact exhibited by Mr Breen in his grounding affidavit).

Claim was delivered in April 2018 pursuant to an order of Barniville J (as he then was). The 2018 amendment appears to have been purely formal, involving the insertion of a plea that the Plaintiffs intended to adduce expert evidence, including the evidence of “an expert in Russian contemporary politics” as to the existence of “raider attacks” (a phenomenon explained further below) and the political and legal context in which such attacks are said to take place, as well as expert evidence of Russian law (Order 20, Rule

12 RSC now requires such matters to be pleaded).

11. In January 2022 – after the hearing of the set-aside application but before the Judge’s judgment – the High Court (McDonald J) gave permission for the delivery of a Second Amended Statement of Claim. The amendments in that iteration of the Statement of Claim were quite extensive, involving the addition of two further Defendants, JSC Khimaktivinvest (“KAI”) and AKTUM Limited Liability Company (“Aktum”) – both Russian companies – and the inclusion of extensive additional pleas directed to events occurring in Russia subsequent to the commencement of the proceedings (and many of which occurred subsequent to the hearing of the set aside application in the High Court) as well as the addition of further reliefs.

12. By the time this appeal came on for hearing, the Plaintiffs had indicated an intention to further amend the Statement of Claim and a draft Third Amended Statement of Claim was put before the Court. At that point, no permission had been granted for the delivery of a further amended statement of claim in that form but it was put before the Court without objection and referred to extensively at the hearing of the appeal. For reasons which it will be necessary to explain, the draft Third Amended Statement of Claim proposed the joinder of ten additional plaintiffs and proposed further amendments to the body of the pleading, largely addressing the status and standing of the proposed new plaintiffs. Subsequent to the hearing of this appeal, the High Court (McDonald J) made an order permitting the joinder of those new plaintiffs, subject to the preparation of revised summonses and a revised Third Amended Statement of Claim setting out the basis in Russian law for the claim sought to be advanced by the new plaintiffs: [2023] IEHC 235.

13. Thus, the contours of the proceedings have changed significantly since their commencement and since the hearing of the set aside application by Barniville J. There are both additional plaintiffs and additional defendants. New reliefs are sought by reference to events that post-date the commencement of the proceedings and which, while they were not part of the Plaintiffs’ case at the time of the High Court hearing, figured significantly in the arguments on appeal. The complexion of the action has altered – arguably significantly – since the High Court hearing.

14. This appeal relates only to the Plaintiffs’ action against the UCCU Defendants. As mentioned, Eurotoaz is an Irish company and so is sued here as of right. However, in 2017 Eurotoaz and Mr Babichev, the Fifth Defendant and a Russian director of Eurotoaz, applied to have the actions against them dismissed on the basis that they were frivolous and vexatious and/or bound to fail or alternatively amounted to an abuse of process. Mr Babichev also sought (in the alternative) an order staying the action against him on grounds of forum non conveniens. That application was dismissed by the High Court (Haughton J): [2017] IEHC 721. Further reference is made to the judgment of Haughton J below. Mr Babichev did not appeal the High Court’s refusal to stay the action on grounds of forum non conveniens but he and Eurotoaz both appealed the refusal to dismiss the actions against them as being bound to fail. However, their appeal was unsuccessful: [2019] IECA 218. Eurotoaz and Mr Babichev delivered a joint Defence in these proceedings in 2018, subsequent to the decision of the High Court. The Ninth Defendant, Ms Charilaou, did not seek to challenge jurisdiction and instead entered an unconditional appearance and subsequently delivered a full Defence. The Seventh Defendant, Belport Investments Limited (“Belport”) and the Eleventh Defendant, Mr Sedykin, failed to enter any appearance and the High Court (Barniville J) gave judgment in default against those Defendants in January 2019, with damages to be assessed later, presumptively at the same time as the trial against the other Defendants: [2019] IEHC 7.

15. As will appear, the fact that there are Defendants in respect of which the jurisdiction of the Irish High Court is not (or is no longer) open to challenge was a significant factor in the decision under appeal, particularly with reference to the Russian UCCU Defendants served out pursuant to Order 11(1)(h).

16. For completeness, we mention that, subsequent to the High Court hearing and judgment the subject of this appeal, KAI applied to the High Court pursuant to Order 12, Rule 26 RSC to discharge that Court’s earlier Order giving leave to serve the proceedings (or, more correctly, notice of the proceedings) on KAI in Moscow under Order 11, Rule 1(h) RSC. That application was refused by McDonald J: [2023] IEHC 195. That

decision is not the subject of this appeal and so we will not refer to it further.

BACKGROUND AND PROCEDURAL HISTORY

The Proceedings

17. These proceedings were commenced by the four Plaintiffs in the High Court in November 2016. Those Plaintiffs are companies incorporated in various Caribbean jurisdictions. The First Plaintiff, Trafalgar Developments Limited (“Trafalgar”) has its registered offices in Anguilla. The Second Plaintiff, Instantania Holdings Limited (“Instantania”) has its registered offices in the British Virgin Islands. The Third Plaintiff, Kamara Limited (“Kamara”) has its registered offices in St Lucia. The Fourth Plaintiff, Bairiki Incorporated (“Bariki”) has its registered offices in Nevis. None of the Plaintiffs have any connection with Ireland.

18. The proceedings are fundamentally concerned with the ownership of a Russian company, OJSC Togliattiazot (“ToAZ”). The Statement of Claim describes ToAZ as a producer of mineral based fertilisers, including ammonia carbamide and carbamide formaldehyde nitrate, on a global scale and as one of the world’s largest producers and exporters of ammonia in the world. It is not suggested that ToAZ has any connection to Ireland. According to the Statement of Claim, ToAZ was worth between USD2.5 bn – USD3 bn or at least would be but for the matters complained of in these proceedings. In the original Statement of Claim (that delivered in November 2016), the Plaintiffs pleaded that they are each shareholders in ToAZ, owning shareholdings of 15.95%, 18.75%, 19.99% and 16.08% respectively (cumulatively 70.77%).

The Case Made in the Statement of Claim

19. According to that first Statement of Claim, the then Defendants (not including KAI and Aktum) had conspired to damage and injure the Plaintiffs by defrauding them of their shares in ToAZ through depriving them of those shares and/or substantially devaluing them and/or by infringing and/or damaging the property rights in the Plaintiffs’ shares and/or preventing the exercise by the Plaintiffs of their rights deriving from their shares. That scheme to damage the Plaintiffs (“the Scheme”) was, it is pleaded, carried out so as to enable the Defendants (or their nominees) to acquire the Plaintiffs’ shares in ToAZ at a “gross undervalue” and thus gain control of the company.3

20. According to the Plaintiffs, the Scheme should be seen as part of what is said to be the internationally recognised phenomenon of “raider attacks” (a translation of the Russian term “reiderstvo”), a practice said to be prevalent in the Russian Federation and which is described in the following terms in the Statement of Claim:

“38. Raider attacks typically involve the so-called ‘raider’ acquiring a minority shareholding in the company that is the target of the attack. Thereafter, a series of improper civil and criminal lawsuits are repeatedly issued on behalf of, or at the behest of, the raider against the target in order to devalue the company’s stock; unlawful pressure is placed on judicial authorities to bring regulatory and tax prosecutions against the principals of the target and searches and seizures of confidential information are made at the target’s Statement of Claim, §§3-4.

offices. Ultimately, the raider procures the freezing of the shares, dividends and cash in the target with the result that the business collapses and effective control is wrested from the owners of the target company.”

21. The narrative set out in the Statement of Claim appears to be consistent with this paradigm. The Plaintiffs assert that the Defendants, led by the First Defendant (“Mr Mazepin”) who controls the Second Defendant (“UCCU”) which in turn owns a minority interest in ToAZ (or did so at the time the proceedings commenced; the position has changed significantly since, as will be explained), engaged in a series of unlawful acts for the purpose of defrauding the Plaintiffs, including making direct and indirect threats against shareholders and officers of ToAZ and persons perceived to be connected with it to the effect that improper legal proceedings would be brought against them unless the Plaintiffs’ shares were sold to the Defendants at an undervalue; repeatedly bringing “unfounded” civil actions, inter alia in the name of Eurotoaz against officers of ToAZ and persons perceived to be connected with it, including “fraudulent claims” that Eurotoaz was entitled to shares in ToAZ; repeatedly making “unfounded criminal complaints” in Russia, inter alia in the name of Eurotoaz, against ToAZ officers and persons perceived to be connected to ToAZ; deploying “false” evidence and producing “forged or sham” documents in such criminal and civil proceedings; procuring “oppressive and unjust” orders against the Plaintiffs, including “improper and unlawful” freezing orders against the Plaintiffs’ ToAZ shares and dividends; procuring “improper” arrest warrants and Interpol Red Notices against officers and individuals perceived to be connected to ToAZ;4 “illegally” procuring the suspension of the Chairman of ToAZ from its board; purporting to remove ToAZ’s lawful directors and replace them with nominees of the Defendants by the use of “false evidence and/or documents”; unlawfully purporting to pass board resolutions which would de facto empower the Defendants’ nominees on the board to dilute or misappropriate the Plaintiffs’ ToAZ shares and putting “undue and unlawful pressure” on judges, criminal investigators, court-appointed experts and judicial officers in Russia to make improper and unfounded adverse orders against ToAZ, its officers and shareholders.5

22. The Statement of Claim pleads that Mr Mazepin is a Belarus born Russian businessman who is resident in Moscow. He is said to be the ultimate beneficial owner and controller of “the Uralchem Group”. The Second Defendant, UCCU, is described as a Russian company involved in the production and sale of chemical products, including ammonia and ammonia-based products, in competition with ToAZ. The Statement of Claim pleads that UCCU was (as at the time of the delivery of the Statement of Claim) the holder of approximately 9.9% of the issued shares in ToAZ. The Third Defendant, Holding, is registered in Cyprus and is the holding company of UCCU. Mr Mazepin is said to be the ultimate beneficial owner of UCCU and Holding through his beneficial ownership of another Cypriot company, Chemical Invest Limited, which owns 95% of the shares in Holding. The Fourth Defendant, Eurotoaz, is an Irish company. The A Red Notice is a request to law enforcement worldwide to locate and provisionally arrest a person pending extradition, surrender, or similar legal action. Statement of Claim, §6. These allegations are subsequently set out in much greater detail in the Statement of Claim, §41 and following.

Statement of Claim asserts that Eurotoaz was central to the Scheme and alleges that it conducted a “a campaign of vexatious litigation based on false and/or sham evidence” falsely asserting an entitlement to a shareholding in ToAZ. The Statement of Claim asserts that Mr Mazepin owns and controls Eurotoaz. The Fifth Defendant, Mr Babichev, is a director of Eurotoaz, with a residential address in Voronezh, Russia. The Sixth Defendant is a lawyer employed by UCCU, who resides in Moscow. The Seventh Defendant, Belport, is a BVI company said to operate from Cyprus. The Eighth Defendant, a resident of Bulgaria, is said to be the beneficial owner of Belport. The Ninth Defendant, Ms Charilaou is said to be a director of Belport who is resident in Cyprus. The Tenth Defendant is a director and CEO of UCCU who also resides in Moscow. The Eleventh Defendant is a Russian citizen, resident in Moscow, who is said to have acted by power of attorney on behalf of Eurotoaz in its claims against ToAZ. Each of the Fourth to the Eleventh Defendants is said to be linked through a common relationship with Mr Mazepin, UCCU and/or Holding.

23. Eurotoaz is the “anchor defendant” for the purposes of asserting Irish jurisdiction in respect of the claims against the UCCU Defendants. The UCCU Defendants maintain that the claim against Eurotoaz is a “mere device” in order to “haul” them before the Irish courts. That is hotly contested but given that dispute, the claim made against Eurotoaz warrants particular attention.

24. The Statement of Claim pleads that Mr Mazepin owns and controls Eurotoaz. That does not appear to be in dispute, at least as and from 2011. The Statement of Claim pleads that in the course of 2009 and 2010 Eurotoaz made five separate and “equally unfounded” complaints to both criminal and regulatory bodies (the regulatory body being the Federal Service for the Securities Markets (FSSM)), all of which appear to have been to the effect that Eurotoaz was a shareholder in ToAZ but that it had been wrongfully deprived of its rights as shareholder (a claim which, according to the Plaintiffs, was put forward on differing and inconsistent bases by Eurotoaz). The Statement of Claim pleads that Eurotoaz, and/or Mr Sedykin on its behalf, submitted forged and/or false documents in an attempt to substantiate its complaints. However, all such complaints were “either dismissed or not pursued by the relevant bodies.”6 The Plaintiffs also allege that in the course of 2010, Eurotoaz conducted “a campaign of vexatious civil litigation” based on the same “false evidence”, involving a number of civil claims seeking to establish that Eurotoaz was the owner of shares in ToAZ. Again, however, none of those claims were successful.7 However, the Statement of Claim pleads that Eurotoaz’s unlawful actions were continuing and that further criminal complaints and civil claims had been made, in furtherance of the conspiracy and with the intention of enabling Mr Mazepin to gain an additional shareholding in ToAZ and, with it, additional shareholder rights that could be used to further the aims of the conspiracy.8

25. The Statement of Claim also pleads that UCCU engaged in a distinct campaign of vexatious litigation alleging that its rights as shareholder in ToAZ had not been respected, including (so it is said) false complaints to the effect that UCCU had been denied access to the list of ToAZ shareholders. A criminal investigation into those Statement of Claim, §§56-67. Statement of Claim, §§68-86. Statement of Claim, §87.

complaints was terminated, on the basis that “the necessary elements of a crime had not been made out.”9 However, a further criminal investigation was then commenced under Article 159(4) of the Russian Federation Criminal Code on the basis of allegations made by UCCU that those in control of ToAZ had diverted funds from the company. UCCU filed notice of an intended civil claim within the Article 159(4) Criminal Case (a procedure commonly found in civil law jurisdictions) seeking substantial damages. It is said that the Article 159(4) Criminal Case and the civil damages claim were then used “as a pretext for the making of oppressive, unjust and hugely damaging orders of the Russian Courts” including freezing orders extending (inter alia) to the Plaintiffs’ shares in ToAZ (and other shares in the company).10 It is said of this freezing order (which was made by the Komsomolsky District Court of the Samara Region) that “[n]o court acting properly” could have regarded the grounds advanced as justifying the order and it is also said that the value of the Plaintiffs’ shares in ToAZ was “many multiples” of the value of the damages claim intimated by UCCU.11 The Statement of Claim refers to other freezing orders made by the Russian Courts which were, it is said, made “improperly” and “unjustifiably”. It goes on to refer to pre-trial detention orders made in respect of a number of persons, including Sergei Makhlai (then Chairman of the ToAZ board of directors and who is said by the UCCU Defendants to be the ultimate owner of the Plaintiffs’ shares in ToAZ), which “no court acting properly would have made”. Mr Makhlai had also been suspended from the board by order of another court (the Basmanny District Court) which was said to have been “oppressive, unjust, Statement of Claim, §109. Statement of Claim, §113. Statement of Claim, §116-117.

improper and unlawful.” The Statement of Claim then refers to a tax investigation instigated by UCCU and/or Mr Mazepin as a result of which ToAZ had been assessed as liable to pay additional tax under transfer pricing rules. Courts hearing appeals against those assessments had, it is said, breached rules of procedure and evidence which “would not have been committed by any court acting properly”. The Statement of Claim goes on to plead expressly that “the Defendants” – not just UCCU – caused “improper pressure” to be placed on and/or offered “inducements” to members of the Russian investigative and judicial authorities overseeing cases involving ToAZ and/or its officers.12

26. On foot of the claims made in the Statement of Claim, the Plaintiffs sought a number of declarations, including a declaration to the effect that the Defendants “have wrongfully and unlawfully conspired to defraud and injure the Plaintiffs by wrongfully divesting the Plaintiffs of their shareholdings in ToAZ and/or to cause catastrophic damage to the value of their shareholdings.” The Statement of Claim also claims damages for conspiracy, damages for intentionally causing loss to the Plaintiffs by unlawful means and damages for tortious interference with the Plaintiffs’ contractual and business relationships.

Application for Leave to Serve Out

27. This was the Statement of Claim which (in draft) was put before the High Court when the Plaintiffs successfully applied for leave to serve out on the Russian UCCU Statement of Claim, §119-138.

Defendants. In the Affidavit grounding the application for leave, Ms Harty averred to the intended Plaintiffs’ ownership of a 70.77% majority interest in ToAZ and explained that the balance of the shares were held by UCCU (9.9%) and by a Swiss company, Maxim Invest and Finance Inc (“Maxim”) (12.9%) with the Maxim shares held for the benefit of a number of Swiss nationals, including a Mr Andreas Zivy. Ms Harty averred as to the Scheme and the Defendants’ alleged role in it, alleging (inter alia) that the Defendants had procured “oppressive and unjust court orders” against the intended Plaintiffs and had put “undue and unlawful pressure on judges, criminal investigators, court-appointed experts and judicial officers in Russia to make unfounded adverse orders against ToAZ, its officers and shareholders.”13 She then addressed what she described as the “Irish Connection”, namely the actions of Eurotoaz which she characterised as “central to the Scheme.” That characterisation of the role of Eurotoaz is strenuously disputed. Ms Harty averred that each of the intended Defendants was “a necessary and proper party” to the action properly brought against Eurotoaz within the meaning of Order 11, Rule 1(h) RSC on the basis that they were co-conspirators with Eurotoaz in the Scheme to gain control of ToAZ. Ms Harty also averred that the Plaintiffs had a good cause of action against the intended Defendants and that it was just and convenient that the intended proceedings should be heard in Ireland. In support of that contention Ms Harty referred to the fact that “key individuals” connected or perceived to be connected to ToAZ, including Mr Makhlai and a Mr Korolev, were subject to arrest in the event that they returned to Russia and therefore could not attend or participate in proceedings in Russia. She also referred to the risk of inconsistent judgments in the event that the Plaintiffs could not proceed against all the intended Affidavit of 4 November 2016, §11.

Defendants in this jurisdiction. Finally, she stated her belief that there was in the circumstances a “significant risk” that the intended Plaintiffs would be unable to secure a fair hearing if required to proceed in Russia.

28. In addition to seeking leave to serve out on the Russian UCCU Defendants under Order 11, Rule 1(h) RSC, the application also sought an order pursuant to Order 10 RSC permitting service to be effected by post, rather than being effected in the manner prescribed by the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Hague Convention) and Order 11E RSC. That order was duly made by McDermott J. While it was challenged before Barniville J, that challenge was dismissed for the reasons set out in the judgment under appeal. No appeal is brought against that aspect of the Judge’s judgment and so no further reference will be made to the Hague Convention issue here.

Application to Set Aside

29. After some considerable delay – which was itself an issue in the High Court – the UCCU Defendants brought the set aside application in October 2018. At that point, the First Amended Statement of Claim had been delivered. The application was grounded on an affidavit sworn by Garrett Breen, a partner in the firm of solicitors acting for the UCCU Defendants. Mr Breen stated that he was not aware of proceedings such as these ever having been prosecuted in the State, emphasised that the issues raised in the Amended Statement of Claim had no connection to Ireland and characterised the claim against Eurotoaz as “wholly artificial” and asserted that its joinder was “a mere device to establish jurisdiction over the other defendants.” Mr Breen’s affidavit was accompanied by an affidavit of Roman Bevzenko, a Russian lawyer practising in Moscow, which exhibited a lengthy report on issues of Russian law and procedure. The essential thrust of that report (which is lengthy and detailed) was that the Plaintiffs’ claims could be tried effectively and fairly in Russia. Such claims would be heard by the Russian commercial court which, in Mr Bevzenko’s experience, generally (“… in a large number of cases…”) provided a fair trial to the parties in dispute. Mr Bevzenko also addressed the manner in which evidence is received in Russian courts and identified a number of procedures by which evidence from a witness outside Russia might be given in proceedings taking place in Russia.

30. The set aside application was met with a further affidavit from Ms Harty taking issue with the affidavit of Mr Breen and an affidavit and detailed report from another Russian lawyer, Vladimir Gladyshev. While Mr Gladyshev agreed that the Arbitrazh courts (the commercial courts) were for “the most (overwhelming) part independent and produce high-quality decisions”, ample evidence suggested that the “ToAZ case is one of the existing exceptions to the general rule” and, in his view the ToAZ case was a case of corporate raiding co-ordinated by the Defendants. According to Mr Gladyshev there was strong evidence that the use of criminal proceedings had been “instrumentalised to achieve the corporate raiding purposes”. Mr Gladyshev also criticised the adequacy of Russian court procedures, particularly in relation to disclosure of documents.

31. Many further affidavits/affirmations followed, from Mr Breen, Ms Harty, the Russian law experts and from James Walfenzao, a director of Trafalgar. We will not summarise the contents of this material here. Insofar as appears necessary or appropriate, it will be referred to later in this judgment.

The Second Statement of Claim and the (draft) Third Statement of Claim

32. As already noted, significant amendments have been made to the Statement of Claim subsequent to the commencement of the proceedings. The set aside application proceeded in the High Court by reference to the First Amended Statement of Claim (essentially in the same terms as the original Statement of Claim). But, in the Court’s view, it would be wholly artificial for this appeal to be determined on that basis. At the hearing of the appeal, Mr McCullough SC (for the Plaintiffs) confirmed that the draft Third Amended Statement of Claim (which is largely in the form of the Second Amended Statement of Claim but with the addition of 10 further Plaintiffs) sets out the case that the Plaintiffs now seek to make (subject to the possibility of further updating amendments). That is the case that the Irish courts are asked to hear and determine and, in this Court’s view, it is by reference to that case that the jurisdictional issues arising in this appeal must be resolved. That was the express submission of the UCCU Defendants and we did not understand the Plaintiffs to suggest otherwise. In any event, in our view any other approach would be an exercise in artificiality.

33. The principal amendments in the Second Amended Statement of Claim (§§156-211) update the narrative of the ongoing litigation in Russia relating to ToAZ. It is there pleaded that, after an initial refusal, the Plaintiffs were belatedly and improperly joined as civil defendants in the Article 159(4) proceedings by order of Judge Kirillov in the Komsomolsky District Court. Their joinder is characterised as “an abuse of process,” the sole purpose of which was to procure a money judgment against the Plaintiffs. UCCU then issued a new damages claim against the Plaintiffs in the sum of 88bn roubles and (according to the Plaintiffs) Judge Kirillov then acceded to UCCU’s application to have their damages claim heard “out of turn”, terminated the hearing of that claim on a false pretext and then, in July 2019, gave judgment against all the Defendants in the total amount of 87,665,334,675 roubles (approx. USD1.37 bn), of which 10bn roubles was awarded to UCCU with the balance awarded to ToAZ. That judgment is said to have been “wholly unjustified, without legal or factual basis” and “devoid of logic” and the Plaintiffs complain that the proceedings which led to it were conducted in breach of fair procedures and were used by UCCU to procure a huge money judgment on a “false pretext” and in a manner contrary to the procedural and substantive rules of Russian law.14 When the judgment was appealed, the Appeal Court “failed to correct the procedural and substantive errors” made by the lower court and conducted the appeal hearing “in a manner which was procedurally novel, wholly unfair and deprived the appellants of a fair hearing”.15

34. The July 2019 money judgment was enforceable from the date of the Appeal Court

decision. The Second Statement of Claim then refers to an undertaking given by UCCU to the High Court here, prior to that judgment being given, not to execute any award of damages that might be made in its favour against the Plaintiffs’ assets, including their ToAZ shares (referred to in the Statement of Claim as “the First Undertaking”). In June 2020, UCCU gave notice of its intention to withdraw the undertaking (as it was permitted to do by its terms), which prompted the Plaintiffs to apply for an injunction. At the conclusion of the hearing of that injunction application, UCCU gave a further Second Amended Statement of Claim, §§156-164. Ibid, §166.

undertaking (“the Second Undertaking”) not to deal with or alienate any assets of the Plaintiffs that might come into its possession as a result of the enforcement by any person of the July 2019 judgment. It is then pleaded that, under a pretext, and following further court proceedings in Moscow, Judge Kirillov revoked the writs of execution that had issued to UCCU pursuant to the 2019 judgment (which UCCU had undertaken not to enforce against the Plaintiffs) and those writs were returned to the Bailiff in March 2021, who immediately commenced enforcement proceedings against the Plaintiffs.16

35. It is next pleaded that in August 2021 Mr Makhlai was declared bankrupt, on the basis of his failure to pay the damages awarded in July 2019 (Mr Makhlai was a defendant in those proceedings) and an administrator appointed to administer his estate. UCCU then sought to have an EGM of the shareholders of ToAZ convened, proposing the replacement of the entire board with UCCU nominees. After a disputed postponement (it is said that the ToAZ board resolved to postpone the meeting but that its decision was successfully challenged in the Arbitrazh Court) the EGM was held on 27 November 2021. The Second Statement of Claim pleads that the Plaintiffs’ Russian lawyers were not permitted to attend to vote the Plaintiffs’ shares and that those shares were voted by the bankruptcy administrator in support of the replacement of the board by the nominees of UCCU, thus giving UCCU control of ToAZ. That, it is said, was “a key development in the Scheme” and a manifest departure from the status quo. Subsequently, the bankruptcy administrator – acting, so it is said, unlawfully and based on a false pretext that he was entitled to exercise voting rights and rights of ownership over the ToAZ shares as a result of the bankruptcy of Mr Makhlai – put the shares held by the Plaintiffs Ibid, §§167-176.

up for auction. These actions by the First, Second and Third Defendants are alleged to have been part of the continuing conspiracy unlawfully to defraud and injure the Plaintiffs by wrongfully divesting them of their shareholdings or the benefit of their shareholdings in ToAZ and to constitute unlawful acts and thereby to constitute conspiracy by unlawful means.17 Those Defendants (which, it should be noted, do not include Eurotoaz) are alleged to have caused or permitted the unlawful expropriation of the Plaintiffs’ shares in a manner “congruent with that of the Scheme”, namely to deprive the Plaintiffs of their rights in the ToAZ shares held by them and to force the sale of those shares at an undervalue for the ultimate benefit of Mr Mazepin, who “will thereby gain ownership of ToAZ having gained managerial control in the manner pleaded herein.”

36. The auction of the Plaintiffs’ shares had not taken place when the Second Amended Statement of Claim was finalised. But the Plaintiffs clearly anticipated that the shares would be acquired by KAI and/or Aktum. KAI is said to be owned by a company owned by Mr Mazepin,18 while Aktum is said to have close commercial connections with the Uralchem Group.19 According to the Plaintiffs, neither had the resources to acquire the Plaintiffs’ shares without outside financial support and each was said to be a “stalking horse for the Scheme.” Each was said to have sought and obtained clearance from the Russian Federal Monopoly Service acquire the bulk of the shares in ToAZ. KAI and Aktum are said to be active and knowing participants in the Scheme and to be acting in Ibid, §210. Second Amended Statement of Claim, §35. See also §§177-183. Ibid, §36. See also §§184-188.

concert with the First and Second Defendants to expropriate the Plaintiffs’ shares.20 It is pleaded in the alternative that they are on notice that the auction of the shares is unlawful and therefore (so it is pleaded), if they purchase the shares, they will be in knowing and/or unconscionable receipt of shares and liable to account for them and/or their value accordingly.21

37. Consequent on the joinder of KAI and Aktum and the additional pleading summarised above, the Second Amended Statement of Claim added three further reliefs. The first is an order directing the return of the Plaintiffs’ shares “sold pursuant to any unlawful auction or sale or transfer” or the proceeds and/or value of those shares or damages in lieu. The second is a declaration that the Defendants are on notice that the proposed sale of the shares arises from the misappropriation of those shares and that in the event that the Defendants acquire the shares, directly or indirectly, they would be liable to account to the Plaintiffs as constructive trustees of the shares. The third and final new relief is a claim for damages for unjust enrichment against any of the Defendants acquiring the shares.

38. The principal amendment proposed in the draft Third Amended Statement of Claim is the addition of ten new Plaintiffs but it also included a new plea that, on 8 and 18 February 2022, KAI had successfully bid for the shares held by each of the Plaintiffs (now said to have been held on behalf of the intended new Plaintiffs) and had acquired those shares.22 It also pleads that UCCU has transferred its 9.9% interest in ToAZ to Ibid, §41. Ibid, §42. Draft Third Amended Statement of Claim, §221.

KAI. As regards the intended additional Plaintiffs, the draft pleads that the original Plaintiffs held the shares in ToAZ as trust managers (and not as owners), those shares having been transferred to their management by the intended new Plaintiffs (referred to as “Settlors”). The Settlors are companies incorporated in various jurisdictions around the globe. None is an Irish company or appears to have any connection to this jurisdiction.

THE HIGH COURT JUDGMENT

39. The judgment of Barniville J is lengthy. He began by addressing a number of preliminary objections raised by the Plaintiffs, concluding that while there had been substantial delay on the part of the UCCU Defendants in bringing the application to set aside which should be taken into account when the Court came to consider whether to exercise its discretion to permit service out, the delay was not such as to warrant the dismissal of the application in limine.23 He also rejected the Plaintiffs’ argument that the decisions of the High Court (Haughton J) and the Court of Appeal dismissing the application brought by Eurotoaz and Mr Babichev had the effect of precluding the UCCU Defendants’ jurisdictional challenge or rendering it an abuse of process. While those decisions were relevant, they were not in his view determinative of the issues arising on the UCCU Defendants’ application.24 Finally, he rejected the Plaintiffs’ complaint that none of the UCCU Defendants had sworn any affidavit denying the allegations against them: while one might have expected them to do so, the UCCU Defendants were nonetheless entitled to proceed on the basis of the affidavits they had put before the court.25 He also rejected a number of preliminary objections raised by the UCCU Defendants regarding the late delivery of affidavits and the hearsay character of the affidavits.26 The UCCU Defendants did not seek to revive these preliminary objections on appeal and nothing further is said about them.

Judgment, §25 and §§101-107. Ibid, §25 and §§108-114. Ibid, §§115-116. Ibid, §§117-121.

Jurisdiction Over the Russian UCCU Defendants under Order 11 RSC

40. The Judge then turned to the Russian UCCU Defendants’ jurisdictional challenge. He began his analysis by making an “overarching point”, namely that a challenge to jurisdiction – whether under Order 11 or under the Recast Brussels Regulation – should not be turned into a “mini-trial”. Warnings to that effect had been expressed in many decisions both of the Irish courts and the courts of England and Wales, all of which stressed the importance of “judicial restraint” when dealing with jurisdictional disputes (Judgment, §§124-125).

The Burden of Proof on a Set Aside Application

41. The Judge then considered the burden of proof, concluding that the UCCU Defendants were correct in their contention that the Plaintiffs bore the burden of proving that their case against the Russian UCCU Defendants was one which fell within the Order 11, Rule 1(h) jurisdictional “gateway” and that it was a proper case for service out of the jurisdiction under Order 11, Rules 2 and 5. In his view, the decision of this Court in Albaniabeg Ambient Sh.p.k. v Enel S.p.A. [2018] IECA 46 (“Albaniabeg”) was clear authority to that effect and he rejected the Plaintiffs’ submission that this Court’s

decision in O’ Flynn v Carbon Finance Ltd [2015] IECA 93 (which endorsed an earlier

decision of the High Court, Chambers v Kenefick [2005] IEHC 402, [2007] 3 IR 526) supported a different approach. This aspect of the Judge’s judgment was not in issue before this Court.

The Threshold Test/Standard of Proof

42. Barniville J began his discussion of this issue by stressing that the court must be “cautious” in its consideration of an application for leave to serve out and had to approach such applications with “care and circumspection”, referring in that context to the observations of Fennelly J (nem diss) in Analog Devices BV v Zurich Insurance Company [2002] IESC 1, [2002] 1 IR 272 (“Analog Devices”). The need for caution was even greater where the application for leave to serve out was made under Order 11, Rule 1(h) or its equivalent (citing, inter alia, the decision of the Privy Council in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Limited [2012] 1 WLR 1804 (“Altimo Holdings”)) because Rule 1(h) was “anomalous” in that, unlike the jurisdictional gateways provided for in many of the other subparagraphs of Rule 1, the Rule 1(h) gateway was not dependent on the existence of any territorial connection between the claim made and the jurisdiction of the Irish courts (Judgment, §144).

43. The Judge noted that the parties had agreed on a “description of the component parts of the test” even though they were “poles apart” as to whether that test was satisfied or not. The test requires an applicant for leave to provide evidence and submissions to demonstrate (a) that it has a “good arguable case” on the merits of its claim against the foreign defendant in respect of which leave to serve out is sought and (b) that there is a “good arguable case” that the cause(s) of action relied on by the applicant as against the foreign defendant falls within one or more of the Order 11, Rule 1 jurisdictional gateways and would have also have to demonstrate – again to the “good arguable case”

standard – that the case was a proper one for service out of the jurisdiction (Judgment, §§145-146). The Judge was satisfied that this agreement was correct and gave effect to the principles set out by the Supreme Court in Analog Devices and its subsequent

decision in Irish Bank Resolution Corporation Limited v Quinn [2016] IESC 50, [2016]

3 IR 197 (“IBRC v Quinn”), both of which are discussed at length by the Judge.

44. Barniville J cited passages from the judgment of Fennelly J in Analog Devices in which he stated that it had to be borne in mind that the issue of jurisdiction was being determined irrevocably and that a foreign defendant was being “summoned involuntarily before our Courts”. On that basis, the standard was that of “good arguable case” and while disputes of fact could not always be resolved on affidavit, the court had to look at the matter carefully, without assuming that the applicant’s allegations were true. The foreign party’s affidavit evidence also had to be considered (Judgment, §151). At §152 of his judgment, Barniville J set out what he characterised as a “very significant passage” from Analog Devices, in which Fennelly J stated that there must be a “sound basis” for contending that a party to be served out is a proper party; that there must be “reality in law and in fact” in the case made against the party within the jurisdiction; that the inclusion of that party must not be “a mere device to get a foreign party before the Irish courts”; and there must be “a substantial element” to the claims against the two parties. He noted the UCCU Defendants’ contention that there was no reality to the claim made against Eurotoaz and that it had been included as a Defendant as a “mere device” to get the Russian UCCU Defendants before the Irish courts and also noted that these contentions were “hotly contested” but indicated that he would defer addressing those issues until after he had considered further what had to be established in order to satisfy the “good arguable test” standard with reference to (1) the merits of the case and

(2) the claim that the case falls within Order 11, Rule 1(h) (Judgment, §153).

45. The Judge then considered IBRC v Quinn at length, noting various statements made by Clarke CJ (giving the only judgment in the Supreme Court) to the effect that it was not necessary for the Court to resolve any issues as to the substance of the case (whether of fact or law) save to the “minimal extent” necessary to determine whether the claim was “reasonably capable of being proven” which assessment would “in the main” be based on the evidence and materials put forward by the plaintiffs. Defence evidence which went no further than establishing that the claim was disputed would not be relevant, though there might be cases where the defence evidence might amount to a “knock-out blow.” Clarke CJ referred variously in his judgment to a “low bar”, a “low barrier” and a “very low threshold” and explicitly rejected the contention that the plaintiff was required to establish a prima facie case — the threshold was a case that, both on the law and on the facts, was “reasonably capable of being proven”. That did not involve weighing up the conflicting evidence.

46. There are obvious differences – not least of tone and emphasis – between Analog Devices and IBRC v Quinn. Surprisingly, Analog Devices was not referred to in the relevant part of Clarke CJ’s analysis (it is referred to in another part of the judgment addressing the question of forum non conveniens). In any event, the Judge considered that IBRC v Quinn was not intended to alter the test set down in Analog Devices but was rather concerned with setting out, in a practical way, how the test should be applied. He articulated the approach to be applied in the following terms:

“172 I must assess the evidence and arguments advanced by the parties on the

O. 11 issue by reference to the test and principles set out by Fennelly J. in Analog and by reference to those set out by Clarke J. in IBRC v. Quinn. In assessing whether the plaintiffs have a good arguable case on the merits, I must bear in mind the care, caution and circumspection referred to by Fennelly J. in Analog. I must carefully consider the affidavit evidence and submissions put forward by the parties including the affidavit evidence put forward by the Russian UCCU defendants. I must consider whether there is a sound basis for the plaintiffs' contention that the UCCU defendants are necessary or proper parties to the case against Eurotoaz. I must in that context consider whether there is reality in law and in fact to the case the plaintiffs make against Eurotoaz and must be satisfied that the joinder of Eurotoaz was not a ‘mere device’ to get the Russian UCCU defendants before the court. I must also be satisfied that there is a substantial element to the claim against Eurotoaz and against the Russian UCCU defendants.

173 In carrying out these tasks I must take into account and apply the guidance given by Clarke J. in IBRC v. Quinn. I must consider the pleadings and affidavit evidence (including that adduced by the UCCU defendants) and must be satisfied that the plaintiffs’ claim falls within O. 11, r. 1(h) and is one which is shown to be ‘reasonably capable of been proven’. I must refrain from resolving disputed issues as to the substance of the case (whether of fact or law) unless such is necessary to determine whether the plaintiffs’ claim (whether as against Eurotoaz or as against the Russian UCCU defendants) is ‘reasonably capable of been proven’. In that regard, while I must assess the UCCU defendants’ affidavit, the fact that a plaintiff’s allegations are denied on affidavit or by submissions is not conclusive or even relevant unless they demonstrate that the claim is unstateable. I must not engage in an assessment of the relevant strengths of the respective parties. I must be satisfied that the plaintiffs’ claim falls within one of the paragraphs of O. 11, r. 1 and that it is not an unstateable claim which has no reasonable prospect of being capable of proof. It seems to me that I must be satisfied that that is so, both in relation to the claims against Eurotoaz and in relation to the claims against the Russian UCCU defendants. Both of those claims must be reasonably capable of proof. However, I must proceed on the basis that there is a ‘low bar’ a ‘low barrier’ and a ‘very low threshold’ as Clarke J. has stated. I must be satisfied that the Russian UCCU defendants are not being brought to Ireland to defend proceedings which have ‘no prospect of being capable of been proven’. I must bear in mind that it is not necessary for the plaintiffs to establish a prima facie case and it is enough if they put forward sufficient evidence on affidavit to persuade the court that their case, on the law and on the facts, is ‘reasonably capable of being proven’. I must do my best to assess the evidence and submissions by reference to these criteria.”

47. Barniville J went on to reject the UCCU Defendants’ suggestion, relying on English authority including Brownlie v Four Seasons Holdings International [2018] 1 WLR

192 (“Brownlie”), Goldman Sachs International v Novo Banco SA [2018] UKSC 34 (“Goldman Sachs”) and Kaefer Aislimientos SA de CV v AMS Drilling Mexico SA de CV [2019] EWCA Civ 10 (“Kaefer”) that the “good arguable case” test was a relative one, in which the court had to assess the relative merits of evidence and arguments put forward by each side. That suggestion was, in his view, inconsistent with IBRC v Quinn and such an approach would run the risk of the court having to embark on the sort of “mini-trial” which the authorities here and elsewhere had deprecated. He preferred the Plaintiffs’ submission that the court “should apply the ‘good arguable case’ test, as interpreted and applied in Analog and IBRC v Quinn, which sets a low evidential threshold and avoids the court being dragged into the sort of mini trial condemned in the authorities” though clearly “where a defendant has a ‘knockout blow’ it will prevail on the application of the test as explained in IBRC v Quinn” (Judgment, §§174-177).

“Necessary or Proper Party”

48. The Judge began his discussion by observing that it was sufficient for the Plaintiffs to establish that the UCCU Defendants were either necessary or proper parties and there was no requirement to establish both. Addressing first the question of whether the UCCU Defendants were “proper” parties, the Judge considered that in light of the Amended Statement of Claim together with the affidavit evidence before the Court (including the reports of the Russian law experts, particularly Dr Gladyshev) it was “beyond argument” that they were indeed proper parties.

If they were within the jurisdiction, he had no doubt that they would have been joined as co-defendants to the action against Eurotoaz in light of the overall conspiracy case being made against them all. The fact that the case being made by the Plaintiffs was in conspiracy was “particularly significant” and rendered the answer to the issue “obvious” (Judgment, §192). There were also other factors connecting the case against Eurotoaz to the case which the Plaintiffs wished to make against the UCCU Defendants, including the fact that UCCU/Mr Mazepin had acquired beneficial ownership of Eurotoaz in December 2011 and that Eurotoaz had continued its litigation after the acquisition (§194).

Even if the UCCU Defendants were to be successful in their jurisdiction challenge, the Judge was satisfied that the Plaintiffs would proceed with their case against Eurotoaz, notwithstanding its apparent financial position (its most recent financial statements appeared to disclose that it was grossly insolvent and the UCCU Defendants had argued that there was no purpose in pursuing a claim against it other than to anchor the claim against them). In that context, the Judge stated that he accepted that the Plaintiffs believed that they will obtain a benefit from continuing their case against Eurotoaz.

Noting that declaratory and injunctive relief was sought against Eurotoaz in addition to damages, the Judge noted that whether or not such relief, if granted, would be enforced in Russia or elsewhere did not necessarily mean that such relief would not be of practical benefit to the Plaintiffs: such relief could be of benefit and would represent “the considered and solemn views of an Irish court on the actions of an Irish company” (Judgment, §196). He agreed with the Plaintiffs that cases such as Albaniabeg and Yukos SARL v OAO Tomskneft VNK [2014] IEHC 115 (“Yukos”), in which leave to serve to enforce a foreign judgment in Ireland was refused on the basis that the plaintiff had not demonstrated that the enforcement proceedings would confer any practical benefit on them because the proposed defendant did not have assets in Ireland, could readily be distinguished: those cases had no connection with Ireland whereas here there was an Irish connection in the form of an Irish defendant, Eurotoaz, against whom the Plaintiffs intended to proceed (Judgment, §§197-198).

49. While noting that it was not necessary to consider whether the Plaintiffs had a “good arguable case” that the UCCU Defendants were “necessary” parties to the case, the Judge nonetheless observed that there appeared to be “much force” in the Plaintiffs’ argument that the UCCU Defendants were indeed “necessary” parties as the nonjoinder of those Defendants might have adverse consequences for the Plaintiffs having regard to the identification provisions of the Civil Liability Act 1961 (“the 1961 Act”) and had it been necessary to express a definitive conclusion on the issue he would have found in favour of the Plaintiffs on the “necessary” parties issue also (Judgment,§202).

50. Earlier in his analysis of the necessary or proper party issue, the Judge observed that in Analog Devices the Supreme Court had not had to consider the position where a plaintiff had a good case on the merits against the Irish defendant but had nonetheless sued that defendant only in order to bring in the foreign defendant and did not have to decide whether in such a situation the joinder of the Irish defendant would amount to a “mere device”. He noted that that issue had been considered by the Privy Council in Altimo Holdings, where the Appellate Committee had held that the fact that the domestic defendant had been sued solely for the purpose of bringing in the foreign defendant was a factor in the court’s discretion but did not mean that the action against the domestic defendant was not “properly brought” for the purposes of the equivalent of Order 11, Rule 1(h) provided that there was a “viable claim” against that defendant. However, the Judge continued, he did not need to decide whether Altimo Holdings was consistent with Analog Devices in circumstances where he was satisfied that there was “reality in law and in fact” in the case made against Eurotoaz, its inclusion was not a “mere device” to get the Russian UCCU Defendants before the Irish courts and it had not been joined solely for the purpose of bringing in those defendants (Judgment, §§183-185).

Good Arguable Case on the Merits (§§203-224)

51. The Judge began this part of his analysis by addressing whether the Plaintiffs had demonstrated a “good arguable case” on the merits against Eurotoaz which, he observed, was the focus of the UCCU Defendants’ arguments. Having regard to the allegations in the Amended Statement of Claim as supported by the affirmations of Mr Walfenzao and the affidavits of Mr Makhlai, Mr Korolev, Mr Zivy and Professor Sakwa, as well as the affidavits and expert reports of Dr Gladyshev and the affidavits sworn by Ms Harty, and having regard to the submissions made, the Judge was satisfied that there was a “good arguable case” against Eurotoaz. In reaching that conclusion, he explained, he had considered the affidavit evidence filed by the UCCU Defendants.

52. Thus, the Judge found that the Plaintiffs had a “good arguable case” (one “reasonably capable of being proven”) that the alleged campaign of vexatious litigation fell within the concept of “abusive behaviour” arguably prohibited by Article 10 of the Russian Civil Code as applied in the case law of the Russian Supreme Court for which the remedy under Russian law is a claim in tort (§206). There was also, in the Judge’s view, a “good arguable case” that there was a connection between the Eurotoaz litigation and the UCCU Defendants and that Eurotoaz was a party to the alleged scheme or conspiracy with the UCCU Defendants (§§208-209).

The Judge then identified a number of matters which had led him to that view, noting that many of those matters were disputed. Amongst those matters was the fact that, although it claimed to have acquired shares in ToAZ in 1999, Eurotoaz had taken no steps to assert its shareholding until 2009, one year after UCCU acquired shares in ToAZ (§211). He noted the Plaintiffs’ allegation that Eurotoaz had advanced multiple contradictory accounts of how it acquired its shareholding and had engaged in repeated attempts to relitigate matters already decided by the Russian courts and also noted that Mr Babichev had confirmed in his affidavit (of 17 February 2017) that Eurotoaz intended to continue its litigation in Russia (§§212-213).

He referred to alleged links between Mr Sedykin and Mr Babichev and Mr Mazepin, as well as pleas in the defence delivered by Eurotoaz and Mr Babichev to the effect that Eurotoaz is owned by Benstock, that Benstock and Mr Babichev are connected to the management of UCCU and that UCCU is the ultimate owner of Eurotoaz (§217). The Judge referred to affidavits sworn by Mr Korolev (a former senior employee of ToAZ who had been dismissed as a director and whose extradition to Russia had been refused by an English court in 2016, which had made a finding that Mr Mazepin was a corporate raider who had engaged in a raider attack on ToAZ) in which he averred that the Eurotoaz litigation was part of a wider campaign by Mr Mazepin to gain control of ToAZ and that their actions were interconnected and formed a “single campaign” (§219).

The Judge also referred to the statement made by Professor Sakwa, commenting on the Statement of Claim, to the effect that the alleged actions of Eurotoaz and Mr Babichev, if established as a matter of fact, “have all the hallmarks of being connected to the corporate raid against ToAZ” by UCC (§230).

53. The Judge was careful to acknowledge that the UCCU Defendants strenuously denied the allegations in the Amended Statement of Claim and noted that the truth of those allegations was ultimately a matter for the trial. However, applying the test outlined in Analog Devices and applied in IBRC v Quinn, the Judge was satisfied that the Plaintiffs had demonstrated a “good arguable case” against both Eurotoaz and the Russian UCCU Defendants. He was persuaded that there was “reality in law and in fact” in the case against Eurotoaz, that its inclusion as a Defendant was not a “mere device” to get the Russian UCCU Defendants before the Irish courts and that was a “substantial element” in the claims against both sets of Defendants (§223). He was of that view notwithstanding the fact that as of 31 December 2015 Eurotoaz had no assets and had total borrowings from Benstock of just over USD8 m. As he had indicated earlier “despite the apparent lack of assets”, he was satisfied “that the plaintiffs will derive a practical benefit from its proceedings against Eurotoaz, if successful” (ibid).

54. Having regard to his conclusions that the Plaintiffs had demonstrated to the required standard that they had (a) a “good arguable case” that their claims fell within the Order 11, Rule 1(h) gateway and (b) a “good arguable case” on the merits against Eurotoaz and against the Russian UCCU Defendants, it followed that the action had been “properly brought” against Eurotoaz for the purposes of Order 11, Rule 1(h).

Act of State/Related Doctrines

55. The judgment of the High Court next addresses the contention by the UCCU Defendants that the High Court did not have jurisdiction to consider the claims in the proceedings, or in the alternative, that such claims were not justiciable on the grounds that to do so would offend against the act of state doctrine, as the court would be asked to pronounce on matters the subject of decisions and actions of Russian judicial and other public bodies. For the reasons set out in his judgment, the Judge rejected this contention. That aspect of his judgment was not challenged on appeal and so it is not necessary to engage with it in any detail. The Judge’s essential conclusion was that, while the parameters of the “act of state” doctrine and the related doctrines of non-justiciability/judicial restraint (and in particular, whether these doctrines encompassed foreign judicial acts) had not been considered and determined by an Irish court, the Plaintiffs had demonstrated that they had a “good arguable case” that they were not precluded from maintaining their claims and it certainly could not be said that the UCCU Defendants had put forward any “knockout blow” or unanswerable response. A “definitive decision” on whether or not the doctrines apply to preclude any aspect of the Plaintiffs’ case had therefore to await trial (§250).

56. In reaching that conclusion, the Judge accepted the Plaintiffs’ submission that their claim was for damages and other reliefs against the Defendants and that they were not seeking to “overturn, reverse or quash” any decisions, proceedings and procedures of the various Russian courts and other public bodies. He also accepted that the Plaintiffs’ case “does not depend on the plaintiffs demonstrating the unlawfulness or otherwise of any of those decisions, proceedings or procedures” although it was “undoubtedly a significant part of the plaintiffs’ claim for damages, declarations and injunctive relief that the defendants, including the UCCU defendants, have exercised improper influence on the courts and other authorities in Russia to achieve the particular aim and objective alleged by the plaintiffs” (§230).

Order 11 Rules 2 & 5 RSC: Proper Forum

57. This is a very lengthy section of the High Court’s judgment and any summary of it will not do full justice to the detail of the Judge’s analysis.

58. The Judge began his analysis with a lengthy discussion of the relevant authorities, including Intermetal Group Limited v Worslade Trading Ltd [1998] 2 IR 1 (“Intermetal”), Analog Devices, Yukos, O’ Flynn v Carbon Finance Ltd and IBRC v Quinn. He regarded IBRC v Quinn as particularly significant in this context given that it also involved a conspiracy claim. The judgment of Clarke CJ made it clear that “fragmentation” of an overall dispute was a relevant – and potentially very significant

– factor which, depending on all the circumstances and the extent to which the claims against the different defendants were linked, could be “decisive” (§270). Before addressing the contending arguments and evidence, the Judge made a number of further points. First, insofar as the Plaintiffs argued that it would not be possible to obtain substantial justice in the event that they were required to run their case against the Russian UCCU Defendants in Russia, they were required to demonstrate a “good arguable case” that there was a “real risk that justice will not be obtained in the foreign court” (§271, citing Altimo Holdings). Second, delay on the part of the party contesting jurisdiction was a relevant factor in the exercise of the court’s discretion and had been regarded as a significant factor in a number of authorities, including Intermetal (§272). Third, the Judge referred to the judgment of Haughton J rejecting Mr Babichev’s application for a stay of the claim against him on grounds of forum non conveniens. While Haughton J had accepted that, from Mr Babichev’s perspective, Russia might be a more convenient forum, there were countervailing factors – particularly the unavailability of key witnesses to give evidence in Russia but also the non-availability of discovery and other difficulties on obtaining evidence – which persuaded him that Russia would not be a proper or suitable forum. In light of that conclusion, Haughton J had not considered it necessary to consider whether, in other respects, the Plaintiffs would be unable to obtain a fair trial in Russia. While he was not bound by Haughton J’s findings, they were, in the Judge’s view, “undoubtedly relevant” (§274).

59. The Judge then considered the conflicting submissions and evidence. He was required to take a “broad overall view” and to take into account the interests of both side in deciding how to exercise the discretionary jurisdiction (or as Clarke CJ had preferred to characterise it in IBRC v Quinn, the “broad adjudicative function”) and in deciding, as between the Irish courts and the Russian courts, where the claim against the Russian UCCU Defendants “can be tried more suitably in the interests of all the parties and the ends of justice” (§295, original emphasis). The “vast majority of factors” appeared on their face to point to Russia as being the more appropriate forum, including the fact that many of the legal issues were likely to be determined by reference to Russian law (§299). However, the fact that many of the factors undoubtedly pointed to a “strong connection” between the case against the Russian UCCU Defendants and Russia, that did not mean that there were not other factors which might persuade the court that Ireland was the more appropriate forum in the interests of all the parties and in the interests of justice (§300). In this context, the Judge cited Intermetal and IBRC v Quinn as instances in which, despite significant connecting factors with a foreign jurisdiction, the Irish courts had accepted jurisdiction.

60. The Judge then proceeded to consider five specific factors potentially weighing in favour of such an outcome here. The first – and “very important” – factor was the issue of fragmentation. There were close connecting factors between the case being made against Eurotoaz and Mr Babichev and the case being made by the Plaintiffs against the other Defendants, including the UCCU Defendants, especially the fact that the claim being made by the Plaintiffs was one of conspiracy. Requiring the Plaintiffs to run a conspiracy case in two jurisdictions involving many of the same witnesses would be “unjust”, involve unnecessary cost and would also create the “real possibility” of irreconcilable judgments. The absence of the Russian UCCU Defendants in the Irish proceedings would have other adverse consequences for the Plaintiffs, including the potential implications of the application of the identification provisions in the 1961 Act and could possibly preclude the Plaintiffs seeking discovery from them under Order 31, Rule 29. While the UCCU Defendants had argued that there was no reality to the Plaintiffs pursuing their claim against the balance of the Defendants who were before the Irish courts (including Eurotoaz and Mr Babichev, but also including Belport, Ms Charilaou and Mr Sedykin), the Judge did not accept that and he was satisfied that it was likely that the Plaintiffs would continue with their case against the remaining Defendants even if the UCCU Defendants were not before the court (§308). As to the argument that, if the Plaintiffs did choose to continue their claim against the remaining Defendants in Ireland, that was a matter of choice which could or should not be a decisive or significant factor, the Judge did not see that as a “real choice at all.” In all the circumstances and having regard to the range of allegations and what is alleged to have happened to persons on the Plaintiffs’ side of the dispute in Russia, it was “fanciful” to proceed on the basis that the Plaintiffs have a real choice as to whether to proceed against the remaining Defendants in Ireland or proceed against all the parties to the alleged conspiracy in Russia and the idea that the Plaintiff could simply proceed against the UCCU Defendants without any problems was “stretching credibility to breaking point” (§309).

61. Concluding on the question of fragmentation, the Judge expressed the view that it was sufficient in itself to lead to a finding that justice required that the Plaintiffs be permitted to proceed against all of the defendants, including the UCCU Defendants, in Ireland and that it would be “fundamentally unfair” were they required to proceed against the UCCU Defendants in Russia (§310). However, even if he was wrong in conclusion, there were a number of other grounds that supported the conclusion that Ireland was the more appropriate forum. First, there was the fact that several key witnesses for the Plaintiff, including Mr Makhlai, Mr Korolev and Mr Zivy would not and could not attend any trial in Russia. It was, in the Judge’s view, no sufficient answer to that concern that the Plaintiffs could bring their claim in the Russian Arbitrazh courts while they remained outside Russia, on the basis that there was no legal requirement for them to attend. That would be “fundamentally unfair” and he agreed with Haughton J’s assessment that the absence of key witnesses in any proceedings in Russia was a “very significant factor” pointing to the appropriateness of the Irish courts (§311-315).

62. Additional factors which weighed in favour of Irish jurisdiction were the absence of discovery/disclosure and cross-examination in litigation in Russia (§§316-320) and the UCCU Defendants’ delay in challenging the jurisdiction of the Irish courts (§§324- 325). As to the first of these factors, the Judge considered that the restrictions on a party obtaining documentary evidence from the opposing party, combined with the marginal role of witness testimony and the absence of any entitlement to engage in “proper crossexamination”, provided further reasons why on the particular facts – and particularly in light of the fact that the claim was in conspiracy – Ireland was the proper forum. The procedural limitations in Russia went beyond “mere minor procedural differences”

which would not be determinative (§320). As regards delay, that was a relevant factor but it was not decisive or determinative (§325).

63. The Judge also considered whether the Plaintiffs would not be able to obtain a fair trial in Russia by reason of the alleged lack of independence on the part of certain sections of the Russian judiciary and the alleged ability of the UCCU Defendants to improperly influence the administrative and judicial authorities in relation to ToAZ. He noted that an Irish court should exercise particular restraint in making any such assessment: “clear and cogent evidence” was required (§321). He also noted that the Russian law experts on both sides were of the view that the Commercial/Arbitrazh courts in Russia – the forum in which any conspiracy claim that might be brought against the Russian UCCU Defendants in Russia was likely to be heard – were “for the most or overwhelming part” independent and did provide justice to the parties. Ultimately, the Judge did not consider it necessary to express any view on this issue (§§322-323).

64. The final issue addressed by the Judge in relation to Order 11, Rule 1(h) was the comparative cost and convenience of proceedings in Ireland and in Russia. That point had not been pressed by the UCCU Defendants, correctly so in the Judge’s view. The evidence of the “clear connection and linkage” between the case that that the Plaintiffs sought to make against Eurotoaz and the other Defendants in respect of whom the Irish courts had jurisdiction and the case against the Russian UCCU Defendants, with the risk of separate actions and inconsistent judgments, provided a sufficient basis for the

conclusion that Ireland was the proper forum (§326).

Jurisdiction in Respect of the Claim Against Holding – Article 8(1) of the Recast Brussels Regulation

65. The Judge then turned to address jurisdiction in respect of the claim against Holding, noting the respective contentions of the parties (§§332-337) before stating his

conclusion that the challenge to jurisdiction in respect of the claim against Holding must fail (§338).

Sole Object/Abuse of Rights

66. The Judge accepted that, as an exception to the general rule on jurisdiction contained in what is now Article 4 of the Recast Brussels Regulation, Article 8(1) had to be construed restrictively (§343). He noted the statement of the CJEU in Case C-103/05 Reisch Montage AG v Kiesel Baumaschinen Handels GmbH ECLI:EU:C:2006:471 (“Reisch Montage”) (§32) that the special rules on jurisdiction could not be interpreted in such a way as to allow a plaintiff to make a claim against a number of defendants “for the sole purpose of removing one of them from the jurisdiction of the courts of the Member State in which that defendant is domiciled…” and noted that this statement had led to debate as to whether, in a case in which Article 8(1) was relied on, the court must be satisfied that the proceeding had not been brought against a number of defendants for the “sole purpose” or with the “sole object” of removing them from their jurisdiction of domicile. He explained that that issue had been considered by the CJEU in Case C- 98/06 Freeport plc v Olle Arnoldsson ECLI:EU:C:2007:595 (“Freeport”) and Case C- 352/13 Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV ECLI:EU:C:2015:335 (“Cartel Damages”) and by the Court of Appeal of England and Wales in PJSC Commercial Bank Privatbank v Kolomoisky [2019] EWCA Civ 1708, [2020] Ch 783 (“Kolomoisky”), noting that a majority of the Court of Appeal in Kolomoisky had concluded that there was no implied “sole object” test in Article 6(1) of the convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“the Lugano Convention”) which, if correct, would mean that there was no such implied test in Article 8(1) of the Recast Brussels Regulation (§347). However, the Judge continued, it was unnecessary for him to express a view as to the correctness of that conclusion as he was in any event satisfied that the proceedings against Eurotoaz had not been brought with the “sole object” of giving the Irish courts jurisdiction over Holding, referring in that context to his earlier conclusions that the Plaintiffs had a “good arguable case” on the merits against Eurotoaz and that, even in the absence of the UCCU Defendants, the Plaintiffs would continue to prosecute their claim against Eurotoaz (ibid).

67. Referring to the CJEU’s judgment in Cartel Damages, the Judge expressed the view that it demonstrated “the very limited circumstances in which the abuse of law principle will apply” effectively confining it to collusion between the parties to artificially fulfil or prolong the applicability of Article 8(1) (§351). The UCCU Defendants had not relied on any abuse of law principle, at least expressly and it was therefore unnecessary to consider it further but, were it necessary to do so, the Judge was clearly of the view that that there was “no question” of the Plaintiffs abusing the jurisdictional rule in Article 8(1) (§352).

Burden of Proof

68. The Judge noted that there was no dispute that the Plaintiffs bore the burden of demonstrating that they had satisfied the requirements of Article 8(1) in order to sue Holding in Ireland. That required the Plaintiffs to establish the requisite close connection and risk of irreconcilable judgments: it was clear from the judgments of the CJEU in Freeport and Cartel Damages that the Plaintiffs did not have to demonstrate that the claim against Eurotoaz was not brought with the “sole object” of ousting the jurisdiction of the Cypriot courts. Even if there was an implied “sole object” test under Article 8(1), there was no burden on a plaintiff to prove that proceedings were not brought for that purpose (§356).

Standard of Proof

69. The area of disagreement on this issue had, the Judge observed, narrowed in the course of the hearing. The UCCU Defendants relied on the decision of the Supreme Court in Ryanair Ltd v Billigfluege.de GmbH [2015] IESC 11 (“Ryanair”) as authority for the proposition that the application of an exception to the general rule on jurisdiction had to be established on the balance of probabilities. The Judge clearly had doubts whether Ryanair – which was concerned only with whether there was an agreement for jurisdiction for the purpose of what is now Article 25 of the Recast Brussels Regulations

– was authority for such a general principle: it was, in his view, “strongly arguable” that the Supreme Court was addressing the standard to be applied where jurisdiction was asserted on the basis of a contract, whether a claim for breach of contract under what is now Article 7(1) or an agreement on jurisdiction under what is now Article 25(1) (§367). He also doubted that the application of such a test in a non-jurisdiction or non-contract case would be consistent with the judgment of the CJEU in Case C-375/13 Kolassa v Barclays Bank plc ECLI:EU:C:2015:37 (“Kolassa”). The approach taken in Kolassa to the effect that the court determining a jurisdictional challenge in a claim in tort was not required to engage in a comprehensive taking of evidence as regards the facts relevant to jurisdiction and to the substance of the case, but that it must be in a position to have regard to all available information, including the allegations of the defendant, was in his view consistent with the repeated statements of the Irish and English courts that a jurisdictional challenge should not be turned into a “mini-trial” and that the appropriate place to decide disputed facts is generally at trial. Thus the balance of probabilities test applied in Ryanair might not be applicable where jurisdiction was asserted in a tort case under Article 7(2) of the Recast Brussels Regulation or where jurisdiction was claimed under Article 8(1). However, it was not necessary to decide that point because the Plaintiffs had accepted that they had to satisfy the court on the balance of probabilities that the necessary close connection existed between their case against Eurotoaz and their claim against Holding for the purposes of Article 8(1) (thought they did not accept that the balance of probabilities test applied to the court’s consideration of the merits of their claim against Eurotoaz) (§373).

Application of those Principles

70. On the assumption that the Plaintiffs were required to establish as a probability that the claims against Eurotoaz and Holding were so closely connected that it was expedient to hear and determine those claims together to avoid the risk of irreconcilable judgments, the Judge had “no doubt” that the Plaintiffs had met that threshold. Referring back to his Order 11 assessment, including his conclusions in relation to fragmentation, the Judge stressed that the Plaintiffs’ claim was that Eurotoaz and Holding were involved in “one overall conspiracy, albeit having different elements, in which they were both alleged to be co-conspirators.” To require the Plaintiffs to litigate their claim against Eurotoaz in Ireland and the claim against Holding in Cyprus would clearly give rise to a risk of irreconcilable judgments and it would not be appropriate to fragment the claims in that way. It was also relevant, in the Judge’s view, that it had already been accepted or established that the Irish courts had jurisdiction not just in relation to Eurotoaz but a number of the other defendants also (§375).

The Merits of the Plaintiffs’ Claim Against Eurotoaz; Article 8(1)

71. While rejecting the UCCU Defendants’ submission that the Plaintiff was required to establish the facts, including the facts relevant to merits of the claim against Eurotoaz, on the balance of probabilities – that would, in the Judge’s opinion, inappropriately involve the court engaging in a “mini-trial” without the procedural tools necessary for the resolution of disputed facts, such as discovery and cross-examination – Barniville J accepted that some consideration had to be given to the merits of the claim against Eurotoaz as the “anchor defendant” (§376). He went on to refer to many of the cases that he had earlier mentioned in the context of considering the standard of proof issue, including Gannon v British and Irish Steamship Co Ltd [1993] 2 IR 359 (“Gannon”), Freeport, Vedanta Resources plc v Lungowe [2019] UKSC 20, [2020] AC 1045 (“Vedanta”), Kolomoisky, as well as the decision of the Court of Appeal of England and Wales in Kaefer. He expressed his conclusions as follows:

“388 I agree with the plaintiffs that in considering the merits of the claim against the anchor defendant for the purposes of Art. 8(1) of the Recast Brussels Regulation, the test is not to consider the merits of the claim on the balance of probabilities but rather to engage in the sort of analysis the Supreme Court identified in Analog Devices (‘good arguable case’), in IBRC v. Quinn (a case which is ‘reasonably capable of being proven’) and in Gannon (a case which is plausible when considered in a prima facie fashion). It seems to me that it is in accordance with the standard described in those cases that the merits of the plaintiffs’ claim against Eurotoaz must be considered for the purposes of Art. 8(1) of the Recast Brussels Regulation. In the event that there is any real difference between the test described in those three cases (and I do not believe that there is any real difference between them), the relevant test is probably that contained in the most recent of the three judgments, namely IBRC v Quinn. However, whether the test is expressed by reference to the ‘good arguable case’ standard, the plausibility of the case when considered in a prima facie fashion or in terms of whether the claim is one which is reasonably capable of being proven, I am completely satisfied that the plaintiffs have met the required standard in terms of the merits of its case against Eurotoaz. All of the findings and conclusions set out earlier with respect to the merits of the plaintiffs’ case against Eurotoaz for the purpose of the O. 11 issue are equally applicable here. I have no doubt that on the evidence before the court and on the basis of the arguments advanced by the parties, on this jurisdiction application, the plaintiffs have not only demonstrated on the balance of probabilities that the requisite close connection exists between its claims against Eurotoaz and its claims against Holdings, but have also demonstrated that, with respect to the merits of their claim against Eurotoaz, (a) they have a good arguable case, (b) it is a plausible case when considered in a prima facie fashion and (c) it is a case which is reasonably capable of being proven at trial.”

72. The Judge then turned to the Russian UCCU Defendants’ objection to the manner in which service had been effected on them in Russia. He concluded that it was appropriate to make an order deeming the service actually effected (by post) to be good and sufficient (§482). That conclusion is not challenged in this appeal and nothing more is said about it.

73. The set aside application therefore failed in its entirety.

APPEAL

74. The UCCU Defendants duly appealed the Judgment and Order of the High Court.

75. The grounds of appeal of the Russian UCCU Defendants assert error on the part of the Judge in holding that the Order 11, Rule 1(h) gateway applied and also in determining that Ireland is the proper forum and that the case was a proper case for service out. It is also said that the Judge erred in failing to have regard to the constitutional limits of the jurisdiction of the High Court. Finally, reliance is placed on alleged material nondisclosure in the application for leave, specifically what is said to have been the Plaintiffs’ failure to disclose that they had participated in proceedings in Russia in 2013 and their failure to disclose their intention to participate in (further) proceedings in Russia. Holding takes issue with virtually all aspects of the Judge’s Article 8(1) analysis.

76. The Judge’s findings on “Act of State” and related doctrines are not challenged on appeal.

77. The Plaintiffs in their Respondents’ Notice object to what they say is an attempt by the UCCU Defendants to rely on issues and evidence that were not relied on before the High Court, including the status of the Plaintiffs as “shell companies” and the assertions of material non-disclosure. The Plaintiffs also took issue with many of the documents in the UCCU Defendants list of documents to be relied on which, they say, were not in evidence in the High Court. They dispute all of the grounds of appeal. In their Notice, the Plaintiffs do not rely on any additional grounds for affirming the High Court’s

decision or bring any form of cross-appeal. Thus – and significantly – the issue of whether the Plaintiffs could obtain a fair trial in Russia in light of the alleged lack of independence on the part of certain sections of the Russian judiciary and the alleged ability of the UCCU Defendants improperly to influence the administrative and judicial authorities in relation to ToAZ is not an issue on this appeal. The Judge did not consider it necessary to make a finding on that issue and the issue has not been re-opened before this Court on appeal.

MOTION TO ADDUCE NEW EVIDENCE

78. The UCCU Defendants then issued a motion seeking an order pursuant to Order 86A, Rule 4 RSC granting the Russian UCCU Defendants “special leave” to adduce further evidence, specifically “the evidence contained in the draft affidavit of Mr Vladimir Melnikov” exhibited in an affidavit sworn by Ms Laura Murdock, a partner in the firm acting for the UCCU Defendants.

The “New Evidence”

79. In her affidavit, Ms Murdock explains that her clients wish to rely on evidence that was not before the High Court on the “UCCU Jurisdiction Application” in respect of two issues: (i) the participation by the Plaintiffs in proceedings in Russia since the hearing of the application and (ii) evidence about the Plaintiffs’ status as fiduciary managers in respect of the shares the subject-matter of the proceedings (Affidavit, §11). She also confirms that rather than seeking to rely on the disputed documentary material listed in their Notice of Appeal, the further evidence on which the UCCU Defendants seek to rely is confined to the evidence set out in the Melnikov Affidavit. That evidence – so Ms Murdock avers – goes to two issues. The evidence relating to the participation of the Plaintiffs in proceedings in Russia is characterised by Ms Murdock as “evidence of forum shopping” and is said by her to be significant given that the picture presented by the Plaintiffs in the High Court was that they could not participate in proceedings in Russia whereas, as a matter of fact, they have since participated in proceedings in Russia, with the same aim as they pursue in these proceedings, namely protection of their shares in ToAZ. The evidence is said to be potentially significant in considering whether the case is a proper one for service out. The evidence about the nature of the Plaintiffs’ interest in the ToAZ shares – the fact that they are “mere fiduciary managers”, without any proprietary interest in the shares (notwithstanding that they presented themselves as “owners” of the shares in the High Court) – is also said to be relevant to whether the case was a proper one for service out, reference being made to the fact that the Plaintiffs are shell companies and that the persons directing the litigation – whom the UCCU Defendants say is Mr Makhlai and his associates – have declined to appear in the proceedings. Ms Murdock says that there is no factual dispute about the new evidence though she anticipated – correctly – that there could be dispute as to its relevance and significance and about when it became available to the UCCU Defendants.

80. Mr Melnikov is a Russian lawyer. He has sworn a great many affidavits on behalf of the UCCU Defendants in these proceedings. In the draft affidavit exhibited by Ms Murdock (“the New Evidence Affidavit”), Mr Melnikov purports to identify “more than twenty court proceedings in Russia considered by dozens of different judges across seven courts in different regions of Russia” which the Plaintiffs have initiated or participated in since the UCCU Jurisdiction Application was heard (§54). Many of those proceedings are referred to in the Second Amended Statement of Claim and include:

(i) An (unsuccessful) appeal brought by the Plaintiffs from the Article 159(4) Judgment of 5 July 2019 and a further (and again unsuccessful) appeal from the decision of the appellate court to the Sixth Court of Cassation (§§15- 17)

(ii) Various (unsuccessful) appeals brought from the Order of Judge Kirillov in the Komsomolsky District Court made on 30 December 2020 revoking the writs of execution previously issued to UCCU following the First Instance Article 159(4) Judgment, including further attempted appeals to the Court of Cassation and the Supreme Court of the Russian Federation (§§18-25)

(iii) Participation in Mr Makhlai’s bankruptcy proceedings, including various proceedings and hearings before the Samara Arbitrazh (Commercial) Court (§§26-33)

(iv) Participation in proceedings challenging the procedure for the auction of the Plaintiffs ToAZ shares, including by way of complaints to the Russian Federal Antimonopoly Service (FAS) and claims challenging the rejection of those complaints by FAS before the Moscow Arbitrazh (Commercial) Court (§§35-37)

(v) Participation in Russian litigation concerning Board meetings of ToAZ, including by way of proceedings before the Samara Arbitrazh (Commercial Court) and the Eleventh Arbitrazh (Commercial) Appellate Court and complaints to the General Prosecutor’s Office, the Central Bank of Russia and the Moscow Stock Centre (Registrar) (§38-43)

81. Mr Melnikov also asserts that the Plaintiffs took an active part in proceedings in Russia in 2013 relating to the ToAZ shares and that statements to the effect that the Plaintiffs had never been active in Russian proceedings were incorrect (§§44-53). He goes on to suggest that the purpose of the various Russian proceedings referred to by him and the Irish legal proceedings was, on the Plaintiffs’ own version of events, the same (i.e., the protection of their alleged interest in the ToAZ shares) (§§55-58) and that they have chosen voluntarily to participate in certain proceedings in Russia (though recognising that the Plaintiffs might argue that the proceedings engaged by them in Russia have been “wholly defensive, necessary and involuntary” (§§59-62).

82. As regards the second issue – the status of the Plaintiffs and their interest in the ToAZ shares – Mr Melnikov says that the issue of whether the Plaintiffs are mere fiduciary managers, and thus lacking any proprietary interest in the ToAZ shares, is relevant to the question of whether the case is a proper one for service out, especially when the persons directing the litigation – whom Mr Melnikov believes to be “Mr Makhlai and his associates” – have refused to appear and where there is “complete unreality” to the idea that “four Caribbean shell companies” are defending their interests in these proceedings (§69). Mr Melnikov accuses the Plaintiffs of having presented a “highly misleading” picture. He exhibits eleven management agreements which, he says, are essentially service agreements and do not entail any transfer of ownership. The Plaintiffs are, he says, under common control and were established to conceal the identity of the persons that in reality own and control the ToAZ shares. The Plaintiffs are, according to Mr Melnikov, part of a “sham asset holding structure” and have no title to the ToAZ shares from a Russian law perspective.

83. A director of Kamara Limited (the Third Plaintiff), Menno Jordaan, swore an affidavit opposing the admission of the new evidence. Briefly, Mr Jordaan says that the UCCU Defendants were well aware of the status of the Plaintiffs as trust managers long before the UCCU Defendants’ jurisdiction challenge and could have deployed evidence on that issue in the High Court. Having chosen not to do so, they ought not to be permitted to adduce that evidence in this appeal. In any event, Mr Jordaan maintains that the evidence is not of importance for the resolution of the appeal. He develops both of these points in some detail in his affidavit, referring to various statements made by UCCU both in Russia and in this jurisdiction, both before and after the hearing of the UCCU Defendants’ jurisdictional challenge which specifically referred to the fact that the Plaintiffs were trust managers, including statements made by Mr Melnikov himself. According to Mr Jordaan, neither the High Court nor the UCCU Defendants were misled as to the status of the Plaintiffs. As regards the issue of participation in proceedings before the Russian Courts, Mr Jordaan says that the Plaintiffs have participated in certain proceedings in Russia “only of necessity” and have done so “only defensively, to protect their Shares.” Those proceedings do not, he says, concern the same cause of action that arises in these proceedings (and he takes issue with Mr Melnikov’s assertion that the proceedings in Russia had/have the same purpose as the proceedings here). In addition, he says that the fact that the Plaintiffs have been “obliged” to participate in proceedings in Russia “because of the conspiracy against them by the Defendants” (he disputes that such participation is “voluntary” in any meaningful sense) does not mean that the Plaintiffs are able to get a fair trial in Russia. Mr Jordaan also expressly denies that Mr Makhlai is directing the Plaintiffs in these proceedings. He accuses the UCCU Defendants of trying to force the Plaintiffs to disclose information regarding their owners which would be of use to them “in the ongoing conspiracy” and says that the Plaintiffs do not do so because of real concerns for the personal security of “certain persons.”

84. A further affidavit was then sworn by Mr Melnikov taking issue with Mr Jordaan’s affidavit. He reiterates his belief that, as a matter of Russian law, the Plaintiffs’ have no title to the ToAZ shares. He says that there “a view in the Russian judicial practice” that the law permits fiduciary managers to bring only actions in rem unless otherwise provided by the management agreement and that the Plaintiffs’ management agreements do not provide for any right to claim damages or declaratory relief.

85. The motion to adduce new evidence was listed for hearing at the same time as the UCCU Defendants’ substantive appeal. The Court was told by Mr McCullough SC for the Plaintiffs that while his clients did not “fundamentally object” to the admission of the new evidence insofar as it related to events since the hearing before Barniville J in the High Court, they were maintaining their objection to the admission of the material relating to the Plaintiffs’ status as trust managers, as well as the material relating to their alleged participation in Russian litigation in 2013, on the basis that such material could have been brought before the High Court. Mr McCullough expressed a preference for the new evidence motion being determined as a preliminary matter but the Court took the view that the better approach was to hear the motion and the appeal together and that is how the hearing proceeded.

Assessment and Decision

86. Admission of new evidence on appeal to this Court is governed by Order 86A, Rule 4 RSC. So far as material, Rule 4 provides that:

“4. Subject to the provisions of the Constitution and of statute:

(a) the Court of Appeal has on appeal full discretionary power to receive further evidence on questions of fact, and may receive such evidence by oral examination in court, by affidavit, or by deposition taken before an examiner or commissioner,

(b) further evidence may be given without special leave on any appeal from an interlocutory judgment or order or in any case as to matters which have occurred after the date of the decision from which the appeal is brought,

(c) on any appeal from a final judgment or order, further evidence (save as to matters subsequent as mentioned in paragraph (b)) may be admitted on special grounds only, and only with the special leave of the Court of Appeal (obtained by application by motion on notice setting out the special grounds)…”

87. As the UCCU Defendants acknowledged, it follows from the Supreme Court’s decision in Minister for Agriculture, Food and Forestry v Alte Leipziger Versicherung Aktiengesellchaft [2000] IESC 13, [2000] 4 IR 323 that the judgment and order of the High Court under appeal is to be regarded as a “final judgment or order” for the purposes of Order 86A, Rule 4. That being so, the motion to adduce new evidence is governed by Rule 4(c). It would seem to follow that evidence as to matters which have occurred after 24 March 2022 does not require special leave (“the date of the decision from which the appeal is brought”) but that any further evidence that is not within that category requires such leave.27 The UCCU Defendants suggest that it is “somewhat incongruous” that no special leave is required in relation to evidence post-dating 24 March 2022 but that such leave is required for matters that arose between the end of the hearing and the date of judgment. But that is what the express terms of Rule 4(c) provide and the UCCU Defendants did not suggest otherwise.

88. In the Plaintiffs’ oral submissions, Mr Redmond SC (who dealt with this issue) submitted that evidence of matters occurring in the period between the High Court hearing and its judgment and order was not “admissible other than de bene esse”, on the ground that it fell outside the scope of Order 86A, Rule 4. We disagree. Such evidence plainly comes within the scope of Rule 4(c) as constituting “further evidence” and thus may be admitted if the court considers it appropriate to give special leave.

89. The Court was referred to a great many authorities, both from the Supreme Court and from this Court, as to the application of Order 86A, Rule 4 and its Supreme Court equivalent (now Order 58, Rule 30 RSC), including Lynagh v Mackin [1970] IR 180, Murphy v Minister for Defence [1991] 2 IR 161, People (DPP) v O’ Regan [2007] IESC 38, [2007] 3 IR 805, Ennis v Allied Irish Banks [2021] IESC 12, [2021] 3 IR 733 (all decisions of the Supreme Court) and Student Transport Scheme Ltd v Minister for Education & Skills [2015] IECA 303 and Promontoria v Mallon [2021] IECA 130 (both decisions of this Court).

However, even where “special leave” is not required under Order 86A, Rule 4 RSC, the admission of new evidence on appeal remains a matter of discretion and such evidence may not be adduced as a matter of right: Biehler et al, Delany & McGrath on Civil Procedure (5th ed; 2023) (“Delany & McGrath”), para 23-218 and the authorities cited at footnote 420.

90. The Court does not consider it necessary to review these authorities in any detail. The principles set out by the Supreme Court in Murphy v Minister for Defence are wellknown. But the Murphy “test” is inherently flexible, as was emphasised by the Supreme Court in Ennis v Allied Irish Banks. Ennis v Allied Irish Banks suggests that in “proceedings where the procedure is akin or analogous to interlocutory proceedings”:

“[40] ... courts will be somewhat more flexible in admitting new arguments on appeal, and may consider new evidence, but exercise caution because of the potential consequences.”

91. Ennis was concerned with an appeal from an order granting summary judgment and it is evident from the judgment of MacMenamin J (with whom the other members of the Court agreed) that the fact that the application for summary judgment was heard on affidavit, without any facility for cross-examination, was significant: §§24-27. On appeals from orders for summary judgments, MacMenamin J noted, the courts had adopted an approach analogous to interlocutory appeals on “new argument” or “new evidence” applications (§26). Appeals from orders dismissing proceedings as frivolous or vexatious fell into the same category: §§31-32.

92. As we have already noted, Minister for Agriculture, Food and Forestry v Alte Leipziger Versicherung Aktiengesellchaft indicates that the judgment and order under appeal here is to be regarded as a final and not an interlocutory order for the purposes of Order 86A, Rule 4. But the procedure for determining a jurisdictional challenge is clearly “akin or analogous to interlocutory proceedings” in the sense indicated in Ennis v Allied Irish Banks and it follows, in the Court’s view, that the Murphy “test” is to be applied flexibly in the circumstances here.

93. We will address separately the evidence sought to be adduced (i) relating to the Plaintiffs’ participation in proceedings in Russia and (ii) relating to the Plaintiffs’ status as trust managers.

94. As a preliminary point, we do not accept that the Judge had regard to the matters now sought to be relied on by the UCCU Defendants. It may be the case, as the Plaintiffs suggest, that the Judge was aware of the issue regarding the status of the Plaintiffs, and of their participation in the Russian proceedings, as a result of other applications in these proceedings heard by him subsequent to the UCCU Defendants’ jurisdiction application. However, there is no suggestion in the Judge’s judgment that he had regard to those matters in deciding that application. That is entirely unsurprising: the Judge quite properly made it clear that he would decide the application on the evidence put before him for the purposes of the application: Judgment, §37.

95. As to (i), with the exception of the 2013 proceedings referred to at §48 of his affidavit, all of the proceedings to which Mr Melnikov refers post-date the hearing before Barniville J and most post-date 30 July 2021, when the Judge informed the parties orally of his decision on the UCCU Defendants’ application (Judgment, §27). The evidence therefore was not available to the UCCU Defendants at the time of the hearing. Contrary to the Plaintiffs’ submission, that does not preclude its admission at this stage: on the contrary, it appears to the Court to be a factor clearly weighing in favour of its admission. Given the significance that the Judge attached to the fact (as he considered it to be) that the Plaintiffs could not realistically be expected to pursue their claims against the Russian UCCU Defendants in Russia in reaching the conclusion he did that Ireland was the appropriate forum to hear those claims, and that therefore this was a “proper case” for service out, the Court considers that evidence has the potential to have an “important influence” on the Order 11 assessment. That is, of course, a matter of significant dispute between the parties but there is no dispute as to the fact of the Plaintiffs’ participation in the various proceedings identified in Mr Melnikov’s affidavit. On the contrary – and this is in the Court’s view a factor of decisive importance – in their Second Amended Statement of Claim (amended, it will be recalled, in January 2022, a considerable time after the High Court hearing and after the High Court had orally indicated that it had decided to reject the UCCU Defendants’ application) the Plaintiffs themselves refer to these proceedings and to their participation in them. That being so, it appears to the Court to be wholly unreal to suggest that, for the purposes of determining this appeal, it should not have regard to those proceedings and to the nature and extent of the Plaintiffs’ participation in them. The Court can assess the evidence itself (and the Plaintiffs’ response to it) and no question of remittal arises. In these circumstances, it appears to the Court that it would be unjust to exclude this evidence from its consideration. The weight to be given to it is, of course, another matter which will be addressed below.

96. The Court takes a different view of the evidence relating to the 2013 proceedings (§48 of Mr Melnikov’s affidavit). That evidence clearly was available to, and could have been deployed by, the UCCU Defendants in their application to the High Court. Mr Melnikov has offered no explanation for the failure to reply on that evidence and the Court sees no basis on which it might properly exercise its discretion to admit that evidence.

97. Turning to category (ii) – the evidence relating to the status of the Plaintiffs as trust managers – there is a significant conflict between the parties as to when the UCCU Defendants first became aware of the fact that the Plaintiffs were not (as was pleaded in the Statement of the Claim) the “owners” of the ToAZ shares. Mr Melnikov avers that it was only in January 2022 that the position became clear, when the Plaintiffs submitted the 11 agreements pursuant to which they provide fiduciary management services in support of an application being made by them in Russia. That is strenuously disputed by Mr Jordaan.

98. Even if it were possible to resolve that dispute, the Court does not consider it necessary to do so. That the Plaintiffs are not the beneficial owners of the ToAZ shares is not in dispute. The Plaintiffs themselves now seek to make the case (in the form of the draft Third Amended Statement of Claim) that they hold their respective shareholdings in ToAZ not as “owners” but as “trust managers” and, as we have already explained, have sought the joinder of ten further plaintiffs, all of whom are said to have entered into a “securities trust management agreement” with one of the original Plaintiffs transferring various blocs of ToAZ shares to them to act as trust manager of the shares. The ToAZ shares held by the Plaintiffs as trust managers are said to be “owned” by the proposed new Plaintiffs.28 The High Court (McDonald J) has permitted such joinder, subject to the delivery of amended pleadings setting out the basis in Russian law for the claim sought to be advanced by the new plaintiffs. The “securities trust management Draft Amended Statement of Claim, §30. The precise nature of such ownership is not stated.

agreements” referred to in the draft Third Statement of Claim are the same agreements as are exhibited by Mr Melnikov and on which the UCCU Defendants now seek to rely. The Court considers it utterly unreal to suggest that it might shut out these developments (to use a neutral term) in the case being advanced by the Plaintiffs from its consideration in this appeal. The fact is that when the UCCU Defendants’ jurisdiction application came before the High Court, the Amended Statement of Claim pleaded that the Plaintiffs were the owners of the ToAZ shares.29 That is no longer said to be the case. The owners are now said to be ten other companies but, putting the matter at its lowest, it is unclear who ultimately owns and controls those shares and who is directing and who stands to benefit from these proceedings (the UCCU Defendants say Mr Makhlai is directing these proceedings; that is disputed by Mr Jordaan) and the entitlement of the (existing) Plaintiffs to pursue the remedies sought by them in these proceedings is equally unclear. In the Court’s view, the undisputed fact that the Plaintiffs are trust managers rather than owners and the owners are now said to be ten other companies located in various jurisdictions around the globe (none with any connection whatever to Ireland), whose relationship (if any) with Mr Makhlai is uncertain, is a relevant matter potentially capable of having a “material influence” on the Order 11 assessment here. Again, the Court can assess the evidence itself (and the Plaintiffs’ response to it) and no question of remittal to the High Court arises. In these circumstances, it appears to the Court that it would be unjust to exclude this evidence from its consideration. The weight ultimately to be given to that evidence is, of course, another matter which will be addressed below.

Statement of Claim, §1.

THE ARGUMENTS ON THE APPEAL

99. The Court will now set out the principal areas of contention in the appeal and sketch in broad terms the respective arguments of the parties, leaving over to later any more detailed engagement with those arguments and with the evidence relevant to those arguments.

Order 11 – Service out on the Russian UCCU Defendants

Submissions of the UCCU Defendants

100. At the outset, the UCCU Defendants emphasise that the issue of jurisdiction is being determined finally. The burden of proof is on the Plaintiffs to establish both that the claim comes within Order 11, Rule 1(h) (characterised by the UCCU Defendants as an “anomalous rule” in that it does not require any territorial connection between the intended foreign defendants and Ireland) and that the case is a proper one for service out under Order 11, Rules 2 and 5. The absence of any requirement for territorial connection in Rule (1)(h) was, it was said, part of the reason why in Analog Devices the Supreme Court had stressed the “care and circumspection” with which such applications should be approached. That Ireland was the appropriate forum had to be “clearly” shown (citing Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460). Citing the judgment of Lord Sumption in Brownlie (at §40), Mr Collins SC (who argued this aspect of the appeal for the UCCU Defendants) submitted that the claimant must supply “a plausible evidential basis” for the application of Order 11, Rule 1(h) and that, in making an assessment of that issue, the court should have regard to the defendants’ evidence and take some view on the evidence “if it can reliably do so”. While Mr Collins accepted that there was “some element of tension” between the statements of Fennelly J in Analog Devices and the observations of Clarke J in IBRC v Quinn, and that in some circumstances those decisions might present “an impossible circle to square”, no such difficulty arose here because of the paucity of evidence of any real connection between the claim against Eurotoaz and the claims against the Russian UCCU Defendants. Here, it is said, the Judge erred in applying too low a threshold and implicitly reversing the burden of proof by requiring that the UCCU Defendants show that the Plaintiffs’ claim was unstateable. The UCCU Defendants also say that, although nominally applying the Analog Devices standard of “good arguable case”, the High Court failed to scrutinise the asserted jurisdictional basis with sufficient care or rigour and did not engage sufficiently with the evidence and the facts.

101. The UCCU Defendants say that these proceedings have no real connection with Ireland and engage no Irish interests but, if permitted to proceed here, will take up a “vast amount of judicial resources” (a factor expressly recognised as relevant in Albaniabeg). The sole connection with the jurisdiction is the fact that Eurotoaz is an Irish company (though one which appears never to have undertaken any form of commercial activity in Ireland and whose directors are Russian) and, so the UCCU Defendants say, the Plaintiffs have sought to “dress up” Eurotoaz as central to the proceedings when the reality is that the “entire dispute” is between Mr Makhlai, a Russian living in the USA, and his associates on the one hand and Mr Mazepin, a Russian, and UCCU, a Russian company, concerning shares in another Russian company, ToAZ.

The substance of the claims made in these proceedings, so it is said, is that “the actions of a wide array of officials, prosecutors, administrative bodies, tax authorities, judges and others, in Russia, were corrupt” and the proceedings “call upon the Irish courts to engage upon an inquiry of multiple actions and decisions of public bodies in a foreign state”, a case which the UCCU Defendant say is without precedent in any jurisdiction. Mr Collins repeatedly stressed that point: considerations of international comity had, he said, been identified as a relevant factor in Analog Devices but had particular resonance here, in circumstances where in order to establish their claims the Plaintiffs would have to show the Russian judges who made the various orders referred to in the Second Amended Statement of Claim were not simply wrong but were “corrupt and in the pocket of the Plaintiffs who procured those decisions from them” and that, he stressed, in the absence of “a single whit of evidence” that any of the judges involved, whether at first instance or on appeal, were guilty of corruption.

On his count, seven different courts, and 36 judges, had been involved in making or upholding findings that ToAZ had engaged in tax fraud by selling its product to Nitrochem Limited – a Swiss company said to be controlled by Mr Makhlai and Mr Zivy – at prices “vastly below” the market price. The “appalling vista” presented here, according to Mr Collins, is not the prospect of the fragmentation of the Plaintiffs claim but the prospect of the court assuming jurisdiction where the “end game” was that the court would be asked to “give decisions which are utterly at odds with findings made in ... the courts of a sovereign nation of competent jurisdiction.” That these proceedings would involve the High Court reviewing the propriety and integrity of multiple decisions of numerous Russian courts was a point of major emphasis in the UCCU Defendants’ submissions.

According to the UCCU Defendants, the fact that the High Court was not being asked (and could not be asked)

to quash those decisions or to formally vacate the orders made in Russia – a point made by the Plaintiffs – did not take away from the reality of what the Court was being asked to do.

102. As regards the claim made against Eurotoaz, in Mr Collins’ colourful language Eurotoaz “sits alone with its claim, alone and palely loitering on the edge of this litigation, devoid of assets, devoid of relevance, devoid of presence in this jurisdiction, devoid of any benefit to the Plaintiffs at all in pursuing [it], but nonetheless carrying the entirety of the jurisdictional weight of these proceedings on its shoulders.” The

decision to sue Eurotoaz – which has no assets and no capacity to pay damages – was, he said, made for the sole reason that it was an Irish company and Order 11, Rule 1(h) was available as a “magic gateway” to bring the Russian UCCU Defendants “onto the Irish shore.” In the absence of any tangible benefit in suing Eurotoaz – and the issue of benefit is, the UCCU Defendants say, a matter for objective assessment, not subjective assertion – the action against Eurotoaz was purely a “jurisdictional hook” and on that basis service out against the UCCU Defendants should not be permitted.

103. The UCCU Defendants criticise the High Court’s findings that, notwithstanding that Eurotoaz appears to be insolvent, there would nonetheless be a benefit to the Plaintiffs if they succeeded in their claim against that company and that, even in the absence of the UCCU Defendants, the Plaintiffs would be likely to pursue their claim against Eurotoaz (that being a “test” suggested by Bazhanov v Fosman [2017] EWHC 3404 (Comm) (“Bazhanov”)). Those findings were said to be unexplained and unsupported by the evidence and the Judge’s failure to identify any “tangible benefit” was said to be “a fatal error in the judgment.” Eurotoaz would not be able to pay any damages that might be awarded against it and any declaration or injunction that might be granted would equally be of no benefit to the Plaintiffs.

In the absence of any realistic basis for asserting that a judgment against Eurotoaz would bring some tangible benefit to the Plaintiffs, the UCCU Defendants say that the claim against Eurotoaz is no more than a “mere device” to bring them before the Irish courts. Citing (inter alia) Analog Devices, Yukos and Albaniabeg, they say that is “fatal” to the application to serve out because in such circumstances the claim against the anchor defendant (Eurotoaz) is not “properly brought” and therefore the case is not a “proper case” for service out.

In this context, the UCCU Defendants say that Altimo Holdings – in which the Privy Council held that the fact the anchor defendant is sued only for the purpose of bringing in foreign defendants is simply a factor in the exercise of the court’s discretion, and not a factor going to whether the claim against the anchor defendant is “properly brought”, provided that there is a “viable claim” against the anchor defendant – is clearly inconsistent with Analog Devices (in his Reply, Mr Collins also drew attention to the fact that in Erste Group Bank AG v JSC ‘VMZ Red October’ [2015] EWCA Civ 379, [2015] 1 CLC 706 the Court of Appeal had expressed “reservations” as to the correctness of this aspect of Altimo Holdings).

The UCCU Defendants also relied on Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Co [1983] 1 Ch 258 (“Multinational”), a decision of the Court of Appeal of England and Wales cited with approval in Analog Devices, in this context. According to the UCCU Defendants, if the only reason for the anchor defendant being sued is to provide a “jurisdictional hook”, that was an “almost overwhelming and compelling” ground for refusing leave. That was so, Mr Collins made clear in dialogue with the Court, even if there was a good claim on the merits against the anchor defendant but where that claim was practically “worthless” (in his reply, Mr Collins suggested that the key question was whether the “sole motive” for suing the anchor defendant was to bring in the foreign defendant and the fact that there might be a good case against the foreign defendant was irrelevant if the anchor defendant would not otherwise have been sued).

104. As regards the alleged connection between the claim against Eurotoaz and the claims made against the Russian UCCU Defendants, and the suggestion that Eurotoaz was “central” to the Scheme, the UCCU Defendants make a number of points. They observe that Eurotoaz’s litigation did not relate to the Plaintiffs’ shares in ToAZ and that Eurotoaz has never made any claim to or asserted any rights over any of those shares. They point to the fact that the litigation began 2 years before UCCU acquired control of Eurotoaz and that Eurotoaz had raised issues relating to its alleged shareholding before the commencement of the Scheme. That Eurotoaz is now controlled by UCCU cannot, it is argued, provide a sufficient basis for bringing the claim within Rule 1(h). The UCCU Defendants also point to the fact that the Eurotoaz litigation was consistently unsuccessful. Therefore it cannot be said that such litigation involved any improper influencing of the Russian courts (in sharp contrast to one of the central elements of the claims against the Russian UCCU Defendants). Furthermore, Eurotoaz’s actions were not causative of any loss to the Plaintiffs. They emphasise that, on the Plaintiffs’ own case, it is not suggested that Eurotoaz has had any involvement in the Article 159(4) case. The UCCU Defendants also seek to attach significant weight to the fact that Professor Sakwa did not make any reference to Eurotoaz in the report that he prepared on the alleged raider attack on ToAZ for the purposes of the extradition proceedings against Mr Korolev, whereas it is now asserted that Eurotoaz was “central” to that Scheme. They express surprise that the Judge did not address that point in his Judgment.

105. On the basis of this analysis, the Russian UCCU Defendants argue that they are not “necessary or proper” parties to the Plaintiffs’ claim against Eurotoaz. They submit that the claim against Eurotoaz (which in any event they say does not meet the threshold of “good arguable case” as to its merits) is effectively a separate and distinct claim to the claim against them. The contention of the Plaintiffs’ deponents, including their Russian law experts, that the actions of Eurotoaz and of the Russian UCCU Defendants were part of a “single scheme” was, Mr Collins said, “nothing more than assertion”. He was equally dismissive of the suggestion that the provisions of the 1961 Act supported the contention that the UCCU Defendants were proper or necessary parties to the claim against Eurotoaz. The 1961 Act had no application in circumstances where Eurotoaz and the UCCU Defendants were not “concurrent wrongdoers” and where, in any event, no question of allowing a cause of action to expire under the Statute of Limitations 1957 arose. If the Russian UCCU Defendants were within the jurisdiction, there would have been no reason to join a “worthless shell company”. That the claims against Eurotoaz and the Russian UCCU Defendants are in conspiracy is said to add nothing to the analysis, given the very different wrongdoing alleged against the two. IBRC v Quinn, on which the Judge placed significant reliance, was a totally different, “Irish-centric,” case. The conspiracy issue is addressed in more detail in the context of considering whether this is a proper case for service out.

106. The UCCU Defendants next submitted that no good arguable case on the merits against Eurotoaz had been made out. All Eurotoaz had done was to assert a claim to a shareholding in ToAZ (and not to the shares held by the Plaintiffs). There was, it was said, no evidence of any ongoing activity by Eurotoaz or of any activity after 2016. The reliefs sought were of little or no relevance to Eurotoaz. As Mr Collins put it, “Eurotoaz was only ever a bit player and it has ... long since left the stage and relief against it is pointless.” The evidence against Eurotoaz, which Mr Collins brought the Court through in some detail, was characterised by him as “threadbare”.

107. As to the question of whether Ireland was a proper forum and whether the Court should, in its discretion, grant leave to serve out, Mr Collins began his analysis by emphasising that, apart from the fact that Eurotoaz was an Irish company, “all of the overwhelming connections are with Russia”. He then addressed the factors relied on by the Judge in reaching the conclusion that Ireland, rather than Russia, was the appropriate forum. As regards the issue of fragmentation, it was – so it was said – “far too simplistic” to say that the “same case” was being made against the various defendants simply because they were alleged to be part of a conspiracy, given the differences in the claims actually being made against Eurotoaz and the Russian UCCU Defendants and the very limited (if any) overlap between the factual issues arising in those two claims. Citing VTB Commodities Trading DAC v JSC Antipinsky Refinery [2021] EWHC 1758 (Comm) (“VTB”), Mr Collins says that the Judge here focused excessively on the cause of action alleged by the Plaintiffs – conspiracy – and ignored the “factual building blocks” of the claim against the Russian UCCU Defendants which were, he said, “entirely different” in nature and scale. Even if there was a risk of irreconcilable judgments – and the UCCU Defendants say that there is little risk of that given the different factual basis of the claims – that is not or ought not to be a “decisive trump card.” VTB was cited in support of that submission. In any event, Eurotoaz could be sued in Russia (though the UCCU Defendants questioned why the Plaintiffs would take such a step given that its claim against Eurotoaz was “worthless”). In the course of his reply, Mr Collins identified evidence from Mr Bevzenko, which he said was uncontradicted, to the effect that the Russian courts would have jurisdiction to hear the claim against Eurotoaz under Article

247 of the applicable code.30 The Plaintiffs could have chosen to sue Eurotoaz and the UCCU Defendants in Russia, in which case any risk of fragmentation would have been avoided. The UCCU Defendants question the basis for the Judge’s observations to the effect that it was “fanciful” to suggest that the Plaintiffs had any “real choice” as to whether to proceed in the Russian courts and that it was “stretching credibility beyond breaking point” to suggest that they could proceed, or could have proceeded, against the Russian UCCU Defendants in Russia (Judgment, §309). In the absence of any finding that the Plaintiffs could not get a fair trial in Russia – and the UCCU Defendants make the point that no such finding had been made by the Judge and that had not been challenged by the Plaintiffs on appeal – the court should proceed on the assumption that they would get a fair trial in Russia.

108. As regards the issue of witnesses, the UCCU Defendants say that it was common case between the Russian law experts on both sides – including the Plaintiffs’ expert Dr Gladyshev – that Russian courts place very little reliance on oral evidence and have an overwhelming preference for documentary evidence. The fact that certain persons could This appears to be a reference to the report of Professor Bevzenko dated 2 October 2018 at pages 23-24.

not attend proceedings in Russia was therefore a matter of little or no importance and was not a basis for accepting jurisdiction here: a similar objection had been rejected in Bazhanov and, it was said, the Judge erred in concluding otherwise. Similarly, it was said that the absence of discovery and cross-examination did not warrant the significance attached by the Judge. These were features of civil law courts generally and it was wrong to assume that the quality of justice administered in such courts was deficient.

109. Mr Collins placed considerable reliance on the evidence of the Plaintiffs’ ongoing participation in litigation in Russia which, he said, undermined any suggestion that the Plaintiffs could not maintain or could not be expected to maintain its claims in Russia or that there were any insuperable obstacles to doing so.

Submissions of the Plaintiffs

110. Mr McCullough began by emphasising that the Plaintiffs’ case does not simply revolve around decisions of the Russian courts. There were other substantive issues also. The point being made about the Article 159 proceedings and some of the other litigation was that, in a certain type of case, the Russian courts were susceptible to political pressure and were not genuinely independent of government. That was set out extensively in the expert reports. It did not follow that on every occasion that there was an adverse order made that the Plaintiffs alleged that there was an impropriety per se or that they were making allegations of corruption against large numbers of Russian judges (unsurprisingly, this characterisation of the case was disputed by Mr Collins in reply — the attack on the Article 159(4) proceedings was, he said, “absolutely critical” to the case). But it was their case, supported by the evidence of Dr Gladyshev, that the ToAZ proceedings were subject to improper influence, even in the Arbitrazh (Commercial) Court and the Plaintiffs did not accept that the Arbitrazh Court could be relied upon to deal fairly with proceedings relating to ToAZ.

111. Mr McCullough then brought the Court through the post-2019 developments by reference to the pleas in the draft Third Amended Statement of Claim (which are, with limited exceptions, also in the Second Amended Statement of Claim). In response to questions from the Court, Mr McCullough acknowledged that these pleas would require the High Court to determine, on the basis of expert evidence, whether particular orders made by one or other Russian court had been improperly made, whether by reason of being made in breach of Russian law, in breach of fair procedures, being contrary to the evidence or otherwise. The fact that decisions and orders were made in accordance with Russian law did not, he said, preclude an Irish court from concluding that such decisions and orders were reached unfairly or improperly. He did not accept that such an exercise would in substance (even if not formally) involve the High Court here exercising a form of supervisory and/or review function in respect of court proceedings and decisions in Russia. While he could not identify any precedent for an Irish court undertaking such an exercise, Mr McCullough submitted that it was not impermissible in principle, though he did accept that the nature of the exercise that the court was being invited to undertake was a relevant factor in terms of exercising the court’s discretion under Order 11, Rules (2) & (5). As he put it, all of that went into “the discretionary mix.” While there might indeed be difficulty in enforcing any order made in favour of the Plaintiffs in Russia, it could not be assumed that the only assets against which they could execute were in Russia.

112. Having taken the Court through the pleas relating to post-2019 developments, culminating in the auction of the Plaintiffs’ ToAZ shares to KAI, Mr McCullough noted that UCCU had now come to control ToAZ. Despite the fact that that was precisely the Scheme that the Plaintiffs had apprehended and sought to prevent by issuing these proceedings and then seeking an injunction, and despite the undertakings given by the UCCU Defendants, the Scheme had, for all practical purposes, been completed and their aim achieved.

113. As to the standard of proof, Mr McCullough commended the Judge’s analysis. He rejected the UCCU Defendants’ contention that the Judge had wrongly substituted a test of (un)statability for the test of “good arguable case”. In referring to a claim being shown to be “unstateable”, the Judge was simply reflecting the language used by Clarke J in IBRC v Quinn. He also took issue with the suggestion that the Judge had failed to conduct a sufficiently searching or sceptical analysis of the evidence. A “good arguable case” required more than a stateable case but did not involve an assessment of who had the “better argument” as had been suggested in Brownlie. As to the argument made by Mr Collins, by reference to Brownlie, that the court had to “take a view on the material available if it can reliably do so,” that did not mean that the court could or should seek to resolve conflicts of evidence or decide disputed issues of fact, unless, having regard to all of the evidence (including the defendant’s evidence), it was clear that the claimant did not have a “good arguable case.”

114. As regards the claim against Eurotoaz, Mr McCullough summarised Mr Collins’ submissions as making three points: first, that there was no true connection between the case against the Russian UCCU Defendants and the case against Eurotoaz; second, that in any event there was no benefit in the claim against Eurotoaz and that its joinder was a “mere device” to get the Russian UCCU Defendants before the Irish courts and, third, that there was no “good arguable case” on the merits against Eurotoaz in any event. Those points were, he observed, all interrelated and he suggested that in his submissions Mr Collins had looked only at the Judge’s analysis regarding whether the Russian UCCU Defendants were necessary or proper parties and had disregarded the Judge’s separate consideration of whether there was a good arguable case on the merits against Eurotoaz. Mr McCullough then brought the Court in some detail through the relevant sections of the Judge’s Judgment.

115. The Judge had, he said, applied the correct test, namely whether the persons out of the jurisdiction (here the Russian UCCU Defendants) would, if they were within the jurisdiction, be proper persons to be joined as defendants in the action against Eurotoaz. That was the test approved and applied in Analog Devices. Having concluded that there was a “sound basis” for contending that the Russian UCCU Defendants were proper parties, that there was “reality in law and in fact” in case against Eurotoaz and that the inclusion of Eurotoaz was not a “mere device” to get the Russian UCCU Defendants before the Irish courts, the Judge had not had to consider the correctness of the Privy Council’s decision in Altimo Holdings. In his analysis, the Judge had attached importance to the fact that this was a conspiracy claim and he had been correct to do so having regard to IBRC v Quinn. As regards the benefits of suing Eurotoaz, Mr McCullough allowed that the Judge could have set out in more detail what those benefits were but they were, he suggested, “perfectly obvious.” The fact that Eurotoaz was balance-sheet insolvent had not prevented it from fully defending the claim against it (and Mr McCullough observed more than once that it must have been funded to the extent of millions of euro for that purpose) and its balance sheet did not mean that a money judgment against it would be of no benefit. An injunction against Eurotoaz could also be of value, even if it related only to the shares over which Eurotoaz had previously maintained a claim (which, Mr McCullough accepted, were not the Plaintiffs’ shares). It could not properly be assumed that any injunction would not be complied with by Eurotoaz. The “fundamental point” was that Eurotoaz did not stand on its own: it was controlled by, and acted on the direction of, Mr Mazepin. In this context Mr McCullough attached particular significance to the fact that the Eurotoaz litigation began shortly after UCCU acquired shares in ToAZ as well as to the fact that the Russian UCCU Defendants actually controlled Eurotoaz from 2011. The purpose of acquiring Eurotoaz – to try to obtain 10% of the shares in ToAZ – was also important.

116. Mr McCullough submitted that it was “artificial” to separate the specific actions undertaken by Eurotoaz from the conspiracy as a whole or to seek to isolate the loss and damage arising from Eurotoaz’s actions from the loss and damage suffered by the Plaintiffs as a result of that conspiracy. Eurotoaz had been involved in an “important part” of the conspiracy. That position was not altered by the fact (which Mr McCullough accepted) that Eurotoaz had no involvement in the Article 159(4) proceedings. The evidence, including the expert evidence of Professor Sakwa and Dr Gladyshev, supported the contention that there was a “direct connection” between the actions undertaken by Eurotoaz and the actions of the Russian UCCU Defendants and that there were all part of an overall scheme to gain control of ToAZ. While he accepted that the facts differed from the facts in IBRC v Quinn (where there were many Irish defendants, where the alleged wrongful conduct occurred in and/or was controlled from the State and involved attempts to put assets beyond the reach of IBRC and where only one foreign defendant had been joined), that did not affect the approach in principle to claims in conspiracy.

117. Asked by the Court whether the fact that this was a “Russian dispute” with only the most tenuous connections to this jurisdiction, and which would impose a significant burden on Irish courts in terms of the likely duration of any trial, was a relevant factor in the Court’s consideration under Order 11, Mr McCullough stated that such considerations were not relevant to Order 11, Rule 1(h) but were undoubtedly a factor to which some limited weight might be given in the exercise of the Court’s discretion under Order 11, Rules (2) & (5).

118. On the issue of whether the claim against Eurotoaz was a “mere device” to bring the Russian UCCU Defendants before the Irish courts, Mr McCullough’s primary submission was that the Judge had rightly concluded that the issue did not arise as a matter of fact. But even if this Court were to take a different view, that would not take the case outside Order 11, Rule 1(h) or mean that the action against Eurotoaz had not been “properly brought” for the purposes of Rule 1(h). There was no authority for such a “radical proposition”. On the contrary, the Privy Council had correctly concluded in Altimo Holdings that the fact that the anchor defendant was sued only for the purpose of bringing in the foreign defendants was a factor in the exercise of the discretion and not an element in the question of whether the action was “properly brought” against the anchor defendant, provided that there was a “viable claim” against that anchor defendant. It was perfectly permissible to sue an Irish defendant in Ireland, even if you would not have sued that defendant had it not been necessary to establish jurisdiction over a foreign defendant. As a factor in the exercise of the discretion, Mr McCullough suggested that it would not bear significant weight, given the factors going the other way.

119. As regards whether there was a “good arguable case” on the merits against Eurotoaz, Mr McCullough brought the Court to the reasoning and conclusions of the Judge. In light of the fact that the Eurotoaz had unsuccessfully applied to have the claim against it dismissed as bound to fail, it was “a slightly remarkable proposition” to have it suggested that there was no good arguable case against it.

120. As regards the connected issue of whether there was a “good arguable case” against the Russian UCCU Defendants, Mr McCullough again adopted the Judge’s analysis. This issue was, he said, a good example of where the UCCU Defendants had invited the Court to go beyond the applicable threshold test and to resolve disputed issues of fact, which was not appropriate in a jurisdictional challenge. The Article 159(4) proceedings formed only a part of the claim against the Russian UCCU Defendants and it was not the case in any event that the Article 159(4) issues had been solved by the fact that there had been appeals. Mr McCullough did not accept that the fact that the Plaintiffs claimed that ever more proceedings and orders in Russia had been unfair meant that there was any greater evidential burden on them in terms of showing that they had a “good arguable case” against the Russian UCCU Defendants.

121. Mr McCullough then addressed the issue of the proper forum. He began by reminding the Court that the Irish courts have jurisdiction over a number of defendants, in addition to Eurotoaz. That being so, the case is going to proceed in this jurisdiction in any event. That was, he submitted, an important consideration in this context. As to whether the Plaintiffs could have chosen, or could now choose, to proceed in Russia, Mr McCullough adopted the observations at §309 of the Judge’s Judgment: it was fanciful to suggest that the Plaintiffs had any real choice about where to proceed and their case could not realistically be run in Russia. Those observations were not undermined by or inconsistent with the fact that the Judge had not made any finding that it would be impossible for the Plaintiffs to get a fair trial in Russia. The Judge’s observations at §309 were, he suggested, referable to the impossibility of witnesses attending in Russia.

122. Mr McCullough then addressed the specific issues that had been relied on by the Judge in concluding that Ireland, rather than Russia, was the more appropriate forum. Unsurprisingly, he was content to adopt the reasoning and conclusions of the Judge. As regards the issue of fragmentation, he said that Vedanta had not established any new rule. The decision of the Court of Appeal of England and Wales in ED & F Man Capital Markets Ltd v Straits (Singapore) Pte Ltd [2019] EWCA Civ 2073, [2020] 2 All ER (Comm) 951 made it clear that fragmentation remained an important point (though not always determinative) and one that was particularly important in conspiracy cases. That was consistent with the approach in IBRC v Quinn and that was, he said, the approach correctly applied by the Judge.

123. As regards the issue of the attendance of witnesses in Russia, Mr McCullough accepted that the evidence was that, for the most part, proceedings in Russia proceeded on the basis of documentary evidence only but, he said, it was possible that a Russian court could require that witnesses should attend to give oral evidence (and the Russian UCCU Defendants’ expert had confirmed that this had happened occasionally) and that would be a “fundamental problem” here given that many of the Plaintiffs’ key witnesses could not safely travel to Russia. In that event, the case could not happen (though Mr McCullough acknowledged that there was no expert evidence directly on that point i.e. on the consequences of the non-attendance of a witness directed to attend to give oral evidence). As well as referring to the evidence of Mr Zivy regarding the so-called “Red Notices”, Mr McCullough referred to the affidavits sworn by lawyers involved in the Russian proceedings as to threats and intimidation against them.

124. Finally, Mr McCullough addressed the absence of discovery and cross-examination. The absence of discovery was a particular problem given that this was an action in conspiracy, given the covert nature of the wrongdoing alleged.

Article 8(1) – Jurisdiction over Holding

Submissions of the UCCU Defendants

125. Mr McGrath SC dealt with this aspect of the appeal. He began by identifying what he said were three errors in the Judge’s Article 8(1) analysis. The first was the Judge’s treatment of the burden and standard of proof. The second related to his application of the “close connection” test in Article 8(1) and the third was in finding that, if there was a “sole object” test incorporated into Article 8(1) (as the UCCU Defendants contend), Eurotoaz has not been sued with the “sole object” of establishing a jurisdictional basis as against Holding.

126. As to the issue of the burden and standard of proof, Mr McGrath stated that there were some important points of difference between the parties. He noted that the Plaintiffs accepted that they bore the burden of establishing the close connection of the claims for the purposes of Article 8(1). However, they contended – and the Judge had accepted – that they did not bear any burden to establish that it was not the sole object of the claim against Eurotoaz to bring Holding before the Irish courts, whereas the correct position was that there was an evidential burden on Holding to put evidence before the Court indicating that that was the sole object of the claim and, once that evidential burden had been discharged, the legal burden in respect of that issue rested with the Plaintiffs.

127. As regards the standard of proof, Mr McGrath’s fundamental submission was that the appropriate standard was proof on the balance of probabilities. That was the standard laid down in Ryanair, which Mr McGrath referred to in detail, and it was consistent with the earlier decision of the Supreme Court in Ryanair Ltd v Unister GmbH [2013] IESC 14, [2013] 1 IR 177 (“Unister”) where Clarke CJ had recognised that, in determining whether it had jurisdiction under the Recast Brussels Regulation, a court might be required to “enter into some consideration of contested facts” and had, in that context, referred to the availability of procedural mechanisms such as discovery and the delivery of interrogatories which could be used for the purposes of resolving disputed issues. Insofar as it was suggested that there was any inconsistency between Ryanair and earlier authorities such as Gannon or Handbridge Ltd v British Aerospace Communications Ltd [1993] 3 IR 342, Ryanair was to be preferred as the most recent

decision of a five-judge Supreme Court.

128. The application of a balance of probabilities standard, Mr McGrath submitted, was consistent with the CJEU’s decision in Kolassa, notwithstanding the Judge’s suggestions to the contrary. Noting the statements made by the CJEU at §§60-64, including that, while the national court was not obliged to conduct “a comprehensive taking of the evidence” at the jurisdiction stage, it was required to be able to examine the jurisdiction issue “in the light of all the information available to it, including, where appropriate, the defendant’s allegations,” Mr McGrath said there was a measure of procedural discretion but that the court had to be satisfied that it was appropriate for the court to exercise jurisdiction on the facts. Where there were contested facts, those contested facts had to be decided, if necessary after cross-examination on the affidavits. That was not a “full hearing” or “mini-trial” because – at least generally – there would not be discovery or interrogatories (though Unister made clear that such remedies might be available in an appropriate case). Pressed by the Court as to whether there was not an inconsistency between what had been said by the CJEU in Kolassa and the application of a balance of probability standard, Mr McGrath maintained that Kolassa was simply authority for the proposition that you don’t have to have a full trial to determine the issue of jurisdiction and that Ryanair was not premised on there being a full trial. He accepted that such a determination (as to whether the factual basis for asserting jurisdiction had been established as a matter of probability) might have to be made on the basis of “imperfect evidence” but, he said, Ryanair was very clear that the standard is the balance of probabilities. Thus, any facts relied on by the Plaintiffs for the purposes of establishing the required “close connection” between the claim against Eurotoaz and the claim against Holding had to be established on the balance of probabilities “within the confines of an application that’s been dealt with on affidavit.”

129. Turning to the Judge’s application of the close connection test, the UCCU Defendants submitted that he had erred in having regard to the risk of irreconcilable judgments as between Eurotoaz on the one hand and Holding and the other UCCU Defendants on the other, whereas the correct approach was to consider only the risk of irreconcilable judgments between Eurotoaz, as the anchor Defendant, and Holding, the Defendant domiciled elsewhere in the EU. It was also irrelevant that certain other Defendants, such as Mr Babichev, Belport, Ms Charilaou and Mr Sedykin, had submitted to Irish jurisdiction or the High Court had found that it had jurisdiction over them. As to the supposed connection between the claim against Eurotoaz and that against Holding, Mr McGrath brought the Court through the Amended Statement of Claim for the purpose of demonstrating that there was “the most tenuous connection” between the claims and not the necessary “close connection.”

130. The UCCU Defendants’ written submissions also make the case that the Judge erred in applying a lower standard (lower than proof on the balance of probabilities) when assessing the merits of the claim against the anchor defendant, Eurotoaz. While that issue was not addressed specifically in Mr McGrath’s oral submissions, neither was it abandoned.

131. As regards the third issue – the “sole object” test – Mr McGrath explained that Article 6(1) of the Brussels Convention – the forerunner of Article 8(1) – had simply provided that a person domiciled in a Member State could, where he was one of a number of defendants, be sued in the courts for the place where any defendant was domiciled. The unqualified terms of Article 6(1) had raised concerns about abuse, leading commentators and national courts to suggest that there had to be a connection between the claims made against each of the defendants (an example being the Jenard Report on the Brussels Convention, at page 26). In Kalfelis, the CJEU had stated that the general principle that a defendant should be sued in the courts of their state of domicile could be called into question if a plaintiff was free to bring an action against several defendants “for the sole purpose of removing one of them from the courts of the state where he is domiciled” (§9). To exclude that possibility, there had to be a connection between the actions against each defendant, namely that, at the time they are commenced, it was “expedient to hear and determine them together to avoid judgments which might be irreconcilable if the actions were determined separately” (§12). That language was then incorporated into Article 6(1) of the Brussels Regulation and in Article 8(1) of the Recast Brussels Regulation.

132. The issue of controversy – so Mr McGrath said – was whether by incorporating that language, the “sole object” test was supplanted or superseded or whether it still formed part of Article 8(1). He brought the Court to the CJEU’s decisions in Reisch Montage, Freeport and Cartel Damages. In Reisch Montage, the court had reiterated that the special rules on jurisdiction must be strictly interpreted and then, speaking of Article 6(1) of the Brussels Regulation, stated that it could not be interpreted in such a way as to “allow a plaintiff to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the Member State in which that defendant is domiciled” (§32). That was, Mr McGrath said, a reaffirmation of the sole object test even after the terms of the rule had been changed to include the close connection test. In Freeport, the CJEU had held that it was enough for a plaintiff to establish that the claims were closely connected and that there was no need for a claimant relying on Article 6(1) “to establish separately that the claims were not brought with the sole object of ousting the jurisdiction of the courts of the Member State where one of the defendants is domiciled” (§54).

133. Any “perceived” inconsistency between Reisch Montage and Freeport was, it was said, reconciled in Cartel Damages. Cartel Damages was a reference from Germany where proceedings had been brought against one German defendant and five other defendants from various Member States. Shortly after the proceedings were commenced, the claimant settled with the German defendant. The other defendants alleged that this was collusive and that the claim against the German defendant had in fact been settled before the commencement of the proceedings but that the formalisation/finalisation of that settlement had been deliberately delayed so as to artificially create a basis for jurisdiction against the other defendants. In its judgment, the CJEU reiterated that “according to settled case-law” Article 6(1) cannot be interpreted as allowing a claimant to make a claim against a number of defendants for the “sole purpose” of removing one from the jurisdiction of their domicile (§27) but, citing Freeport, stated that, where claims were connected within the meaning of Article 6(1), that rule of jurisdiction was applicable without there being any further need to establish separately that the claims were not brought with the “sole object” of ousting the jurisdiction of the courts of the foreign-domiciled defendant (§28). The CJEU went on to state that:

“29 It follows that where, when proceedings are instituted, claims are connected within the meaning of Article 6(1) of Regulation No 44/2001, the court seised of the case can find that the rule of jurisdiction laid down in that provision has potentially been circumvented only where there is firm evidence to support the conclusion that the applicant artificially fulfilled, or prolonged the fulfilment of, that provision’s applicability” (our emphasis).

134. Mr McGrath submitted that in this passage the CJEU was simply addressing the particular situation before it and did not intend to write the “sole object” test out of the law or to limit the principle of abuse of rights to cases of collusion between a plaintiff and a defendant. In other words, §29 of Cartel Damages is properly to be read as a specific application, in a specific factual context, of the broader “sole object” test established by the “settled case-law” referenced in §27 and not as an exhaustive statement of the circumstances in which a court can look beyond the close connection test. Therefore the “sole object” test retains its vitality and where a foreign defendant adduces sufficient evidence that the anchor defendant has been sued for the “sole object” of ousting that foreign defendant from the jurisdiction of its domicile (there being no initial burden on a claimant to negative such an object, as per Freeport), the claimant then bears the burden of establishing objectively that that is not the case.

135. In support of his submissions on this point, Mr McGrath prayed in aid the dissenting judgment of Newey LJ in Kolomoisky. In Kolomoisky, a majority of the Court of Appeal (David Richards and Flaux LJJ) considered that a claimant with a sustainable claim against an anchor defendant which it intended to pursue to judgment was entitled to rely on Article 6(1) of the Brussels Regulation even though the claimant’s sole object in suing the anchor defendant was to sue the foreign defendant in the same proceedings. Newey LJ disagreed. He considered, on balance, that the preferable view of the Cartel Damages judgment was that it did no more than restate the “sole object” test (which he went on to observe was, in practice, a hard standard to attain). Unsurprisingly, the analysis urged on us by Mr McGrath follows closely the analysis of Newey LJ.

136. Mr McGrath accepted that the logic of his argument was that it would not be sufficient for the Court to conclude that one of the objects of joining Eurotoaz (but not the sole object) was to provide a springboard for the claim against Holding. But a finding that the joinder of Eurotoaz was a “mere device” to provide a jurisdictional springboard for suing the Russian UCCU Defendants under Order 11, Rule 1(h) would not preclude a finding that, in the context of Article 8(1), Eurotoaz had been sued with the “sole object” of providing a jurisdictional springboard against Holding. He relied on Mr Collins’ submissions as identifying the basis for that conclusion and accepted that in the event that the Court were not persuaded that the joinder of Eurotoaz was a “mere device” to establish jurisdiction as against the Russian UCCU Defendants, it would be difficult to maintain that the “sole object” test had been satisfied vis a vis Holding.

Submissions of the Plaintiffs

137. The Plaintiffs’ submissions on Article 8(1) were relatively brief. Mr McCullough began by reminding the Court that the Plaintiffs had accepted (unnecessarily, he suggested) that the burden of proof lay on them to establish on the balance of probabilities that the close connection test was satisfied. On that “central point”, that was the basis on which the Judge had decided. The suggestion that the balance of probabilities standard identified in Ryanair applied to all issues under the Recast Brussels Regulation was difficult to reconcile with Gannon or Kolassa. Kolassa could not be said to support the UCCU Defendants’ interpretation of Ryanair.

138. As regards the Judge’s application of the close connection test in Article 8(1), Mr McCullough accepted that the fact that there were other defendants over which the Irish courts had jurisdiction (in addition to Eurotoaz) was not relevant for the purposes of Article 8(1). However, he submitted that that did not undermine the conclusions of the Judge, which were based on an assessment of the connections between the claim against Eurotoaz and the claim against Holding and which were to the effect that those claims, if litigated in different jurisdictions, would clearly give rise to a risk of irreconcilable judgments. That conclusion was said to be amply supported by a consideration of the Amended Statement of Claim. In answer to a question from the Court as to how judgments given in Ireland and in Cyprus concerning the actions and liability of different defendants might be irreconcilable, Mr McCullough explained that both claims would involve examining the same material and, because the claim was one in conspiracy, the actions of both Eurotoaz and Holding (and the other defendants) would be at issue in both jurisdictions.

139. Turning to the “sole object” point, Mr McCullough said that the Cartel Damages judgment deliberately moved away from the “sole purpose”/“sole object” test and instead set up a different test of “abuse of law.” That was the view taken by the majority of the Court of Appeal in Kolomoisky. The language of §29 (of Cartel Damages) was, he said, clear and exclusive, setting out the only circumstance in which a court could find that the rule of jurisdiction set out in Article 6(1) (Article 8(1) of the Recast Regulation) had been circumvented.

140. On that basis, Mr McCullough submitted that no “sole object” test applied. In any event, as the Judge had correctly found on the basis of the evidence before him, the proceedings against Eurotoaz had not been taken for the sole object of establishing jurisdiction against Holding.

ASSESSMENT

The Standard of Review on this Appeal

141. Before the Court addresses these issues further, the standard of review needs to be considered.

142. The Judge’s findings here were made on the basis of the affidavit evidence and exhibits. There was no oral evidence or cross-examination. Thus, Hay v O’ Grady [1992] 1 IR

210 has no application. Nonetheless, the UCCU Defendants bear the burden of demonstrating that there is some error in the Judge’s findings (Ryanair Ltd v Billigfluege.de GmbH [2015] IESC 11, per Charleton J, Hardiman, McKechnie, Clarke and MacMenamin JJ agreeing, at §11) and this Court begins its analysis “from the firm assumption that the trial judge was correct in the findings or inferences he or she has drawn, and interfering with those conclusions only where it is satisfied that the judge has clearly erred in the findings made or inferences drawn in a material respect” (AK v US [2022] IECA 65, per Murray J (Haughton and Barniville JJ agreeing) at §53). Subject only to that “limited deference” to the decision of the trial judge, this Court is “free to correct errors of fact as well as of law, and mistaken inference as well as erroneous application of principle” (ibid).

143. Here, of course, the Judge did not attempt to resolve any conflicts of evidence. Insofar as there were such conflicts (and there were a great many of them) the Judge was concerned only with whether the Plaintiffs had established a “good arguable case” that the necessary elements of Order 11, Rule 1(h) RSC had been satisfied. As regards Article 8(1) of the Recast Brussels Regulation, the Judge applied a different standard – proof on the balance of probabilities – to the “close connection” issue but applied the “good arguable case” threshold to the assessment of the merits of the Plaintiffs’ claim against Holding. But the general approach identified in Ryanair and AK v US is nevertheless applicable. It is for the UCCU Defendants to establish some error in the Judge’s assessment of the evidence but, subject to that, the Court is free to differ from that assessment in the event that it takes a different view of the evidence.

144. In their written submissions, the Plaintiffs say that the jurisdiction exercised on an application for leave is discretionary and, citing the decisions of this Court in Lawless v Aer Lingus [2016] IECA 235, TAO v Minister for Justice & Equality [2021] IECA

293 and Stafford v Rice [2022] IECA 47, they say that, once discretion has been exercised in accordance with the appropriate principles, a measure of deference is shown on appeal. While acknowledging that in Stafford v Rice this Court re-iterated that this Court has full appellate jurisdiction in respect of discretionary orders made by the High Court, the Plaintiff point to this Court’s statement in the same case that the High Court is “entitled to some margin of appreciation and some material error of assessment will normally have to be demonstrated if this Court is to intervene” (§20).

145. In Analog Devices, the Supreme Court characterised an order granting leave to effect service out of the jurisdiction as a “matter of discretion” (at page 287, per Fennelly J). However, it is apparent from the analysis in Analog Devices that that characterisation refers to the “discretionary power” conferred by Order 11, Rule 5, involving an assessment as to whether “the case is a proper one for service out of the jurisdiction” (ibid). Any such assessment involves a broad evaluative judgment, requiring the court to weigh up a wide variety of factors that may point in different directions and which do not necessarily permit of a single correct answer. It is in that sense that the power is said to be “discretionary”.31 A decision that a specific jurisdictional gateway under Order 11, Rule 1 applies (or not) is not – at least generally – aptly characterised as “discretionary” in that sense. Thus, for instance, a determination as to whether an intended action relates to land situated within the jurisdiction (Rule 1(a)) or is founded on a tort committed within the jurisdiction (Rule 1(f)) does not appear to involve the exercise of a discretion: there is in principle only one correct answer even if, in the case of Rule 1(f), the assessment may be one of some complexity: Grehan v Medical Incorporated [1986] IR 528. Arguably, Rule 1(h) is different, particularly insofar as it involves an assessment of whether the claim against the anchor defendant has been “properly brought” and/or whether the foreign defendant is a “proper” party.

146. In his oral submissions, Mr McCullough characterised the Order 11 jurisdiction as “at least partly” a discretionary one, observing that it was “certainly a discretionary jurisdiction” as far as Rules 2 and 5 were concerned. That is undoubtedly so and it would appear to follow that the approach in Stafford v Rice should apply to this Court’s review of those aspects of the High Court’s Judgement, though always bearing in mind (as Mr Collins emphasised in his submissions) that the order at issue here is effectively a final order. The application of Order 11, Rule 1 is not “discretionary” in that sense In IBRC v Quinn, Clarke CJ (nem diss), in the context of discussing the doctrine of forum non conveniens, suggested that it may be more appropriate to speak of the court having a “broad adjudicative function” rather than exercising “a discretion”, involving the court taking into account “a wide range of factors in adjudicating on which location may be more appropriate” (§62). Whatever the difference in terminology, we discern no difference in substance between Clarke CJ’s “broad adjudicative function” and Fennelly J’s “discretion.”

but where, as here, the Rule 1 assessment involves a consideration of whether a foreign defendant(s) is a “proper” party for the purposes of Rule 1(h), it appears to the Court that the High Court’s assessment should nonetheless be given significant weight, though of course this Court is free to depart from that assessment.

147. The question of what approach should apply to the Article 8(1) issue was not specifically addressed by the parties. Article 8(1) requires the court to assess whether the claims “are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings”. Such an assessment clearly does not involve the exercise of a discretionary judgment equivalent to that conferred by Order 11, Rules 2 and 5. Nonetheless, it clearly involves a significant element of judgment by the High Court. As was observed in Stafford, this Court does not begin with a “tabula rasa”: the starting point must be the decision of the High Court and its Article 8(1) assessment should be given significant weight by this Court on appeal. The burden is on the UCCU Defendants to establish some error of assessment on the part of the Judge and this Court should not lightly substitute its view for the view taken by him.

148. Of course, if the UCCU Defendants succeed in establishing any error of law on the part of the Judge, this Court is bound to correct that error and no question of deference arises. And it is also the case that, having regard to the effect of the order under appeal on the UCCU Defendants, it is important that that order, and the basis for it, should be carefully reviewed by this Court.

Service out of the Jurisdiction under Order 11 RSC

149. On its face, Order 11 RSC simply provides for service of proceedings out of the jurisdiction. However, it in fact provides a regulatory framework which sets out the circumstances in which the Irish Courts will assume jurisdiction over persons, arrangements, or events which are not located within this jurisdiction: Delany & McGrath, §§1-15&1-16. The questions of service and jurisdiction are inextricably combined not merely because valid service is necessary to ground the court’s jurisdiction to hear an action but also because in making an order to permit service out under Order 11, an Irish court is deciding both whether it is entitled to and whether it should assume jurisdiction over a foreign defendant.

150. This regulatory framework is now supplemented to a very significant extent by EU law and by the requirements of various instruments by which Ireland is bound by virtue of its membership of the EU, the application of which is governed for domestic purposes by Order 11A to Order 11E RSC inclusive. This section of the judgment, which examines the application of Order 11 to this case, concerns only the Russian UCCU Defendants, who are outside the geographical scope of these EU rules. These are the First, Sixth and Tenth Defendants, all Russian nationals residing in Russia and the Second Defendant, UCCU, a Russian company which carries on business in Russia.

151. The Order 11 jurisdiction has been described as “exorbitant” in the sense that it may compel a foreign defendant with no connection to this State to appear before the Irish courts in order to defend proceedings. Traditionally at common law this resulted in a reluctance by courts to assert jurisdiction over a foreign defendant, normally doing so only when there was a close connection between the litigation – whether by reason of its subject matter or the parties to it – and this jurisdiction. However, as Hogan J observed in Albaniabeg, modern methods of transport and communication have very much reduced the burden on a foreign defendant appearing before an Irish court. To a certain extent, any entity engaged in international trade or finance assumes some risk that they will be sued in a foreign jurisdiction. (see also this Court’s decision in Ryanair v Fleming [2016] IECA 265, [2016] 2 IR 254, where again the judgment of the Court was given by Hogan J).

152. However, this is not a case arising from international transactions involving Irish and Russian trading partners. It is a case which centres on the takeover of a Russian company, ToAZ, in which the Plaintiffs claim to have held a significant shareholding (in whatever capacity) and circumstances whereby the Plaintiffs allege that the actions of the Defendants, largely involving steps taken before the Russian courts and in some cases by Russian public authorities, amount to an unlawful conspiracy. The value of the shareholding lies in the assets of the Russian business conducted by ToAZ and, although ToAZ produces products that are traded worldwide, the case does not concern any trade in Ireland nor with any Irish business. None of the Plaintiffs or the proposed additional Plaintiffs are Irish. This is not a case in which the Russian Defendants could have had any reasonable anticipation that they might end up defending their acquisition of shares in ToAZ and/or their conduct as shareholders in that company before the Irish courts.

153. In a case which now involves some 14 Plaintiffs (including the 10 additional Plaintiffs named in the draft Third Amended Statement of Claim) and 13 Defendants, the sole connection with Ireland is the fact that the Fourth Defendant, Eurotoaz, (also referred to here as “the anchor defendant”) is an Irish registered company. Although registered here, Eurotoaz has never traded here – or, it seems, anywhere else – and has neither personnel nor assets in this jurisdiction. Its directors are, or have been, Russian nationals who do not reside in this jurisdiction. Its involvement in the events giving rise to these proceedings arises out of the claim made by it to a 4% shareholding in ToAZ. That claim did not involve the Plaintiffs’ shareholding in ToAZ and, in any event, was ultimately entirely unsuccessful before the Russian courts. The fundamental issue now before the Court in relation to this aspect of the appeal is whether in all the circumstances the presence of Eurotoaz as a Defendant in the proceedings provides the necessary connection with this jurisdiction to justify bringing the Russian UCCU Defendants before the Irish courts. This issue has to be examined in a context where, because Eurotoaz is domiciled in Ireland, the Plaintiffs are entitled to sue it in Ireland under Article 4(1) of the Brussels I Recast Regulation regardless of whether the Irish courts are prepared to assume jurisdiction over the Russian UCCU Defendants.

154. To answer this question, it is necessary to look at those provisions of Order 11 RSC which set out, on an exhaustive basis, the circumstances in which the Irish courts can exercise jurisdiction over foreign defendants and then to look at the provisions of Order

11 which regulate the exercise of that discretionary jurisdiction. Needless to say, the provisions are complex and have generated a lot of often inconsistent case law which will be considered in due course.

The Provisions of Order 11 RSC

155. Order 11 is headed “Service Out of the Jurisdiction” and Rule 1 commences with a rider excluding from its application summonses to which Order 11A applies — i.e. those subject to the EU Rules mentioned briefly above. Thereafter the balance of Order 11 insofar as relevant to this case provides as follows:

“(1) … service out of the jurisdiction of an originating summons or notice of an originating summons may be allowed by the Court whenever – …

(h) any person out of the jurisdiction is a necessary or proper party to an action properly brought against some other person duly served within the jurisdiction;

or …

(2) Where leave is asked from the Court to serve a summons or notice thereof under rule 1, the Court to whom such application shall be made shall have regard to the amount or value of the claim or property affected and to the comparative cost and convenience of proceedings in Ireland, or in the place of the defendant’s residence… [the balance of this rule deals with small claims in England, Scotland or Northern Ireland].

(5) Every application for leave to serve a summons or notice of a summons on a defendant out of the jurisdiction shall be supported by affidavit, or other evidence, stating that in the belief of the deponent the plaintiff has a good cause of action, and showing in what place or country such defendant is or probably may be found, and whether such defendant is a citizen of Ireland or not, and where leave is asked to serve a summons or notice thereof under rule 1 stating the particulars necessary for enabling the Court to exercise a due discretion in the manner in rule 2 specified; and no leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.”

As already noted above, Order 11 has been amended since this application was originally brought (see SI No 362/2024) such that there are now 22 subparagraphs to Order 11(1) and changes have been made to the text of Order 11(2) and (5) as set out above. This judgment deals with the unamended text of these rules.

156. At the outset, it should be noted that Order 11(1), which at the material time contained

19 subparagraphs, lists the grounds upon which the Irish courts can assume jurisdiction over a foreign defendant on an exhaustive basis. If a case does not come within at least one of the categories defined in the 19 subparagraphs, the Irish courts simply do not have jurisdiction at all to compel the appearance of a foreign defendant to answer it. However, even where it is established that the case does fall within one of the subparagraphs of Order 11(1), the court is not obliged to assume jurisdiction in respect of it. In contrast to the position under the Brussels Recast Regulation and/or the Lugano Convention, under Order 11 no plaintiff is entitled as of right to sue a foreign defendant here: rather, the court at all times has a discretion to allow or to decline the application to serve the summons out of the jurisdiction. The exercise of that discretion is governed by other provisions of Order 11, most particularly Order 11(2) and (5) to which we shall return.

157. Order 11(1)(h) differs from most of the other 18 subparagraphs of that rule in that it does not require either the subject matter of the proceedings or the foreign defendant whom it is sought to serve to have any territorial connection to Ireland. Other subparagraphs deal either with matters more obviously within the jurisdiction of the Irish courts (for example, land or property within the jurisdiction – Rule 1(a), (b) and (m); a tort committed within the jurisdiction – Rule (1)(f); a contract made in the jurisdiction or governed by Irish law – Rule (1)(e)) or persons who are citizens of Ireland or habitually resident or domiciled here (e.g. Rule (1)(c), (d) and (i)). Categories of case coming within Order 11 in which a direct territorial connection is not immediately apparent are those concerning the enforcement of foreign judgments (Rule (1)(q)) and arbitral awards (Rule (1)(l)). Such applications usually, although not invariably, involve steps taken before the Irish courts because the party seeking service out wishes to enforce the award against assets located within this jurisdiction. Rule 1(h) is unique in that, as here, it can be invoked against a party or parties with no connection to this State, in respect of a dispute to which the State otherwise has no connection, solely because of that party’s connection to litigation brought in this jurisdiction against a different party. Unsurprisingly, the courts have recognised that particular care needs to be taken when considering the exercise of jurisdiction under Order 11(1)(h): see, for example, Analog Devices.

158. For the most part the question whether proceedings fall within one of the subparagraphs of Order 11(1) will be one of fact to be determined on the basis of the pleadings of which service out is sought. Obviously, the pleaded case may well be disputed and a party seeking service out does not have to establish that it will succeed in establishing all elements of the pleaded case. Thus, for example in order to come within Order 11(1)(e)(i) RSC a party seeking service out in a contractual dispute is not obliged to establish that the alleged breach of contract has occurred, merely that the contract of which breach is alleged was made within the jurisdiction. Again, Order 11(1)(h) is different. It includes two conditions both of which are expressed in terms which require an assessment going beyond a simple ascertainment that the pleaded case satisfies the criteria of the subparagraph. A court must be satisfied that the person it is sought to serve is a “necessary or proper party” to an existing action and that action must have been “properly brought” against someone duly served within the jurisdiction.

159. Whilst the use of “proper” in Order 11(1)(h) does not necessarily import any discretion into the court’s consideration of whether the case falls within Order 11(1)(h), it does require a qualitative assessment which is absent from the consideration a court is required to give the more straightforward criteria in the other subparagraphs. This is potentially important as, no doubt for practical reasons, some of the case law has tended to conflate the examination of whether the party to be served is a necessary and proper party to proceedings properly brought against another party in this jurisdiction with the overriding criteria by reference to which the discretion under Order 11 is exercised, namely whether the case is a proper one for service out. These are, nonetheless, distinct elements of the Order 11 analysis.

160. Order 11, (2) and (5) govern the exercise of discretion under the Order. Consideration of these Rules only arises where the party seeking leave to serve out has established that the case falls within one (or more) of the subparagraphs in Order 11(1). Under Rule

(2) the court is to have regard to the value of the claim and the comparative cost and convenience of proceedings in Ireland. The balance of Rule (2) militates in favour of refusing leave to serve out in respect of smaller claims where the defendants reside in England, Scotland or Northern Ireland. Obviously, the claim underlying these proceedings is a particularly large one and the litigation is likely to be very expensive and burdensome in any jurisdiction. Notwithstanding this, the comparative cost or convenience of litigating here as opposed to the more obvious place, namely Russia, is an important factor to be considered in due course. Although not of relevance to this case, it might be noted that the phrase “comparative cost and convenience” has been removed from the new text of Order 11(2).

161. Order 11(5) contains a number of discrete elements, some of which overlap or run parallel to the requirements of Order 11(1)(h). Many of its requirements are not in dispute in this case, such as the location of the Russian UCCU Defendants and the fact that they are not Irish citizens. It is also not seriously disputed that the Plaintiffs have a good arguable cause of action against the Russian UCCU Defendants, although of course they strenuously deny the claims made against them. Instead, what has been put in issue is whether the Plaintiffs have a good cause of action against the anchor defendant, Eurotoaz, such as to amount to an action “properly brought” against for the purposes of Order 11(1)(h). Further, there is no shortage of material placed before the Court from which the particulars relied on by the Plaintiffs as being sufficient to justify the exercise of the court’s discretion in their favour can be readily identified. The core issue in deciding how that discretion should be exercised is whether the case is a “proper one for service out of the jurisdiction”.

162. The word “proper” in Order 11(5) necessarily imports something slightly different than does the same word as used in Order 11(1)(h). As already indicated, in Order 11(1)(h) “proper” entails a qualitative assessment of the plaintiffs’ application to decide if the Russian UCCU Defendants are proper parties to the case against Eurotoaz (allowing, of course, that it may be shown in the alternative that they are a necessary party) and further whether the case against Eurotoaz is “properly brought” in this jurisdiction. Although there is a qualitative assessment to be made, the court is not, strictly speaking, exercising a discretion in deciding these issues. Under Order 11(5) when deciding if the case is a “proper one” for service out, the court is exercising a discretion and therefore must weigh and balance competing considerations before reaching a conclusion. This distinction is, in our view, an important one. It does not follow from the fact that a foreign defendant may be a proper party to proceedings properly brought in this jurisdiction that the case is necessarily a proper one for service out and one in respect of which the Irish courts should assume jurisdiction. However, these two matters are factors which may be weighed in the balance when the court is considering whether the case is a proper one for service out of the jurisdiction.

163. The jurisprudence in respect of these issues is far from clearcut. This is no doubt because each case must be decided on its particular facts and the variation between factual scenarios is such that an issue of crucial importance in one case may be of marginal relevance in another. There is a further reason why the approach to the analysis of these issues has varied as between different cases. In most instances – including this case – the matter comes before the court on foot of an application brought by the foreign defendant under Order 12 Rule 26 RSC seeking to have service of the summons set aside and the order authorising such service discharged. Frequently, that application will seek, in the alternative, that the Irish proceedings be stayed pending the conclusion of parallel proceedings concerning the same subject matter brought in another jurisdiction. However, no application for a stay has been made in this case. As we shall see when examining the case law, the two leading Irish cases (Analog Devices and IBRC v Quinn) both involved applications to set aside service effected on the foreign defendant, coupled with applications to stay the proceedings in Ireland in favour of pending proceedings in another jurisdiction.

164. An application to stay the Irish proceedings in such circumstances is made on the grounds of forum non conveniens. As frequently observed, “conveniens” in these circumstances does not translate simply as “convenient” but rather reflects the suitability and appropriateness of a jurisdiction to try the case (see for example Fennelly J in Analog Devices, page 287). Thus, a stay is applied for on the basis that Ireland is not the appropriate jurisdiction for the determination of a particular claim or that it is a less appropriate jurisdiction for the determination of that claim than an alternate jurisdiction already seized of related proceedings between the same parties. For the most part, consideration of forum non conveniens will only arise if the court is satisfied that there was a basis for service out of the jurisdiction and for the assumption of jurisdiction under Order 11(1). If not, service will be set aside in any event and the defendant will not be required to appear in this jurisdiction to defend the proceedings.

The discretionary aspects of what the court must consider under Order 11 have been characterised as placing an onus on the applicant to establish that Ireland is the forum conveniens for the trial of an action. In Albaniabeg (above), Hogan J noted that “the jurisdictional bases upon which Irish courts may assume jurisdiction may be exorbitant and are mitigated by considerations of forum conveniens”.

165. It goes without saying that forum conveniens and forum non conveniens are two sides of the same coin – one addressing the suitability and the other the lack of suitability of Ireland as the appropriate jurisdiction to hear a particular action. The principal distinction between them – and it may be an important one to bear in mind when reading the case law – is that under Order 11 the onus is on the applicant for service out to establish affirmatively that Ireland is the appropriate forum (forum conveniens) whereas, where an application to stay Irish proceedings is brought on the basis of forum non conveniens, the onus is on the party seeking the stay to establish that Ireland is not the appropriate forum (forum non conveniens) (see Fennelly J in Analog Devices). Also, in purely practical terms, since the issues of forum conveniens and forum non conveniens are mirror images of each other, a court faced with applications both to set aside service and to stay the Irish proceedings will quite often merge consideration of the discretionary aspects of Order 11 with consideration of whether the stay should be granted.

166. In that context, it is potentially significant that there is no application for a stay on the Irish proceedings in this case. This is of course because parallel proceedings have not been issued in any other jurisdiction. This means that the forum conveniens aspects of the case must be squarely considered as part of the exercise of discretion under Order

11 and the onus lies on the Plaintiffs as the applicants for service out. This is so even though, technically, the application from which the appeal has been brought is the Russian UCCU Defendants’ application under Order 12 Rule 26 under which the Russian UCCU Defendants as moving parties would normally carry the burden of proof. As Hogan J explained in Albaniabeg, following his own earlier decision in Cornec v Morrice [2012] 1 IR 804, in an application under Order 12, Rule 26, the party who obtained the ex-parte order under Order 11 (here the Plaintiffs) continues to bear the burden of demonstrating that that case comes within the scope of Order 11 and that the order in question was properly granted. That reflects fundamental principles of procedural fairness.

Irish Case Law

167. It is now proposed to consider a series of five Irish cases in which these themes have been explored. Some of those cases adopt and place particular reliance on certain decisions from England and Wales to which we will then turn. There are also a number of more recent decisions from England and Wales upon which the parties have relied which have not to date been authoritatively accepted by the Irish courts. These will also be addressed. However, in our view the most important aspect of the jurisprudence is the view taken to date by the Irish courts of the assumption of jurisdiction over foreign defendants under the Irish Rules of Court.

168. The first of these cases is Intermetal Group Limited v Worslade Trading Ltd [1998] 2 IR

1 In Intermetal an application for an injunction was made by the plaintiff group of companies which had dealt with a Russian steel mill through an intermediary. The plaintiffs alleged that the intermediary had interfered with its business relationship with the Russian steel mill and directed the mill to divert its produce to the defendant, an Irish registered company controlled by the intermediary. As a result, the plaintiffs were unable to supply their customers and stood to lose both their business and significant sums of money. The plaintiffs issued proceedings in Ireland and sought an injunction to restrain the defendant from interfering in contracts between the plaintiffs and the Russian steel mill and the plaintiffs and their customers. The defendant then sought a stay on the Irish proceedings on the grounds of forum non conveniens. At the time the stay application was heard the plaintiffs had not brought proceedings in Russia to enforce their contract with the steel mill. The defendants argued that the contracts were governed by Russian law and, under their terms, the validity of their termination had to be arbitrated in proceedings in Russia or, in some instances, in Sweden.

169. Much of the analysis in the judgment of O’Sullivan J in the High Court. concerned the issue of whether the doctrine of forum non conveniens had been abolished by the precursor to what is now the Brussels Recast Regulation (the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters). On that issue, the judge concluded that the Irish courts had a residual discretion to grant a stay on forum non conveniens grounds notwithstanding the defendant’s domicile in Ireland. That point was definitively determined by the CJEU a number of years later against the continued existence of such discretion in circumstances where jurisdiction is established on the basis of the defendant’s domicile under Article 4(1) of the Brussels Recast Regulation (see Case C-281/02 Owusu v Jackson ECLI:EU:C:2005:120). The Supreme Court upheld both the High Court decision to refuse a stay on forum non conveniens grounds (without finding it necessary to determine if a residual jurisdiction to grant a stay remained) and to grant an interlocutory injunction restraining the defendant from interfering with the various contracts to which the plaintiffs were parties. The analysis of the forum non conveniens issue in Intermetal, particularly by Murphy J in the Supreme Court, remains relevant to this case in so far as the Russian UCCU Defendants do not come within the scope of the EU instruments.

170. Murphy J cited with approval two decisions from England and Wales, that of the House of Lords in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460 (“Spiliada”) and that of the Court of Appeal in Re Harrods (Buenos Aires) Ltd (No 2) [1992] Ch 72 (“Harrods”) both of which examined the law regarding forum non conveniens in some depth. In particular, Lord Goff in Spilada rejected the second limb of an earlier test for the granting of a stay on the grounds of forum non conveniens. This had required the applicant for a stay to establish firstly that there was another jurisdiction available in which justice could be done between the parties at substantially less inconvenience and expense and, secondly, that the granting of a stay would not deprive the other party of “a legitimate personal or juridical advantage” which would be available before the English courts. Instead, Lord Goff formulated the applicable principle in the following terms:

“[is] that a stay will only be granted on the ground of forum non conveniens where the court is satisfied that there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action, i.e. in which the case may be tried more suitably for the interests of all the parties and the ends of justice” (page 476).

171. Murphy J agreed that the earlier formulation of the test, with its emphasis on whether the plaintiff would be deprived of a legitimate personal or juridical advantage, was too narrow. He approved the broader Spiliada formulation above as representing the law in Ireland. He also cited with approval the Court of Appeal’s application of Spiliada in Harrods and the following comments of Bingham LJ (as he then was):

“The words I have emphasised make clear, as does the reference to justice, that a broad overall view must be taken: the primary task is not to decide which forum is advantageous or disadvantageous to any particular party. The court should look first to see what factors there are, taking this broad overall view, which point in the direction of another forum …: at that stage it is connecting factors (including convenience, expense, availability of witnesses, governing law, place of residence and place of business) which must be considered: … If it is shown that there is some other available forum which prima facie is clearly more appropriate for the trial of the action a stay will ordinarily be granted unless on a consideration of all the circumstances justice requires that a stay should not be granted...” (Harrods, at page 124; referred to in Intermetal, at pages 33-34).

172. To apply that test, it is necessary to identify the substance of the action which it is sought to stay and not simply the legal form in which the claim for relief is framed. Proceedings issued in this jurisdiction will almost always be framed in a manner which invokes the principles of Irish law and seeks relief available under Irish law. To focus too narrowly on the relief claimed would, to paraphrase Bingham LJ, unconsciously build in a bias towards the choice of an Irish forum. Murphy J agreed with this analysis saying:

“Again it is significant that Bingham LJ accepted that in comparing the remedies available in different jurisdictions one could not expect them to be identical. In relation to this test too he concluded that the criterion must be substantial justice for the Plaintiff rather than identity of remedies. … I accept the principles enunciated by him, first, that the substantial cause of action may require to be identified before considering the forum with which it is most closely connected, and secondly, that justice for the parties requires that the remedy available for the plaintiff in the jurisdiction in which he is required to bring his proceedings must provide him with substantial justice.”

173. In the circumstances Murphy J concluded that, having considered a variety of relevant factors, the proceedings were most closely connected with the jurisdiction of the Russian courts. He then went onto consider whether justice nonetheless required the case be heard in Ireland and concluded that it did. The starting point for his analysis was that the defendant was an Irish registered company against whom proceedings were issued here as of right. As noted above, since the judgment of the CJEU in Owusu that would be the end of the matter since it is now clear that the Brussels I Recast Regulation 1215/2012 would preclude an Irish court from applying the doctrine of forum non conveniens to decline the jurisdiction conferred on it under Article 4(1) by reason of the defendant’s domicile. However, Intermetal was decided some years before Owusu and at a time when a number of English decisions (including Harrods) suggested the contrary. Although live to this issue, the Supreme Court did not find it necessary to determine it as it accepted jurisdiction applying the forum non conveniens test which led to the same result as if it had applied what is now Article 4(1) and declined to consider forum non conveniens at all.

174. In any event, the factors that led the Irish courts to conclude that Ireland was the appropriate jurisdiction included the fact that the sole defendant was an Irish registered company and could be sued here as of right. The defendant had a “permanent presence” and its role was “crucial” to the case the plaintiffs wished to make. Despite a lack of information regarding the defendant’s affairs, an apparent paucity of assets and that it was only recently registered, the defendant was conducting a very substantial business such that Murphy J considered that “[t]he beneficial owners of [the defendant] must have realised that the activities of that company would be called into question by the plaintiffs.” The other factors which weighed heavily in favour of the jurisdiction of the Irish courts were the extreme urgency of the case and the need for the interlocutory aspects to be dealt with expeditiously.

175. The next case in the sequence is Analog Devices BV v Zurich Insurance Company [2002] 1 IR 272. The parties agree that this case remains the leading authority on the interpretation and application of Order 11 RSC, and it was duly treated as such by the Judge. To a significant extent, the facts giving rise to the application in Analog Devices are the direct opposite to those in this case in that the majority of the parties were located in this jurisdiction and the events giving rise to the claim had occurred here. The proceedings arose out of an incident at the plaintiffs’ manufacturing plant in Limerick which resulted in extensive damage to its product and a multimillion dollar claim on their insurance policies. The first three plaintiffs were subsidiaries of the fourth plaintiff and were registered in Ireland. The fourth plaintiff was based in the USA. The incident was potentially covered by two insurance policies – a local one insuring the first three plaintiffs, and a master policy issued by a separate insurer in the USA to the fourth plaintiff covering it and its subsidiaries worldwide. Both policies had similar exclusion clauses and the central issue in the proceedings was whether the exclusion clauses allowed the insurers to deny liability for the claim.

176. Proceedings were issued in the USA by the second defendant, a US insurer, seeking a negative declaration to the effect that it was not liable to the plaintiffs in respect of the losses arising from the incident. Two days later proceedings were issued by the plaintiffs in Ireland. The plaintiffs were granted leave to serve out of the jurisdiction under two “gateways” in Order 11 — Order 11(1)(e)(iii) relating to a breach of contract within the jurisdiction and Order 11(1)(h). The second defendant then applied to set aside the order granting leave to serve out of the jurisdiction or, in the alternative, sought a stay on the Irish proceedings pending the determination of the US proceedings. It argued that it was neither a necessary nor a proper party to the proceedings against the first defendant since the claims made against each were based on two distinct insurance policies issued by two different insurers.

177. Giving the only judgment, Fennelly J approached the issue by looking firstly at the nature of the jurisdiction under Order 11 and the test by reference to which a court should assess whether a plaintiff had satisfied the requirements of that order. He stated:

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“When the court grants leave for the service out of the jurisdiction of proceedings, it requires a person, not otherwise within the jurisdiction of our courts, to appear here and to answer the claim of a person made in what is for him a foreign court rather than leaving the plaintiff to pursue his remedy against that person in that other jurisdiction. The international comity of the courts have long required, therefore, that our courts examine such applications with care and circumspection. The applicant must furnish an affidavit verifying the facts upon which he bases his cause of action. It is not sufficient that he assert that he has a cause of action. The court judges the strength of the cause of action on a test of a "good arguable case"”.

He then considered the meaning of “good arguable case” and rejected the notion that it was equivalent to the “fair arguable case” standard that might apply in interlocutory applications, not least because the assumption of jurisdiction is a final rather than an interlocutory decision:

“It is in this context that the plaintiffs submit that the court should apply a test of a "fair arguable case" leaving the resolution of any disputes to the trial of the action. That approach needs to be applied with special circumspection in a case where the issue in contention is whether the court can take upon itself jurisdiction over a foreign person or corporation. Tests similarly worded are adopted by the courts in deciding whether or not to grant some forms of interlocutory relief, specifically injunctions, or whether to grant leave to apply for judicial review. But, in those cases, the position of the opposing party is not irrevocably affected. He may succeed at the trial of an action, though an interlocutory injunction has been granted against him, and he may defeat the substantive application for judicial review. This case is different. If the court grants leave to effect service out of the jurisdiction, it asserts that it has jurisdiction. The foreign defendant is required to submit to that jurisdiction and fails to do so at his peril. In particular, if the court declines to set aside an order for service, that ends the dispute about jurisdiction. There is no later opportunity to re-open the matter.”

178. Fennelly J emphasised the care that must be taken by a court in examining the matter. The plaintiff’s case cannot be assumed to be true, and the defendant’s evidence must also be considered:

“When it comes to apply a test so worded or any varied wording, I think it must be borne in mind that the issue of jurisdiction is being determined irrevocably and that a foreign defendant is being summoned involuntarily before our courts. Therefore, I believe that, though disputes of facts cannot always be satisfactorily be resolved on affidavit, the court must look at the matter carefully. It is not a case where the applicant's allegations must be presumed to be true. The foreign party's affidavit evidence must also be considered.”

179. On the evidence Fennelly J held that the plaintiffs had not established a good arguable case that there was a breach of contract within this jurisdiction, so Order 11(1)(e)(iii) did not apply. He also held that it was clear that the US insurer was not a necessary party to the action against the first defendant to enforce the local policy. The question was whether it was a proper party to that action. In this case it should be noted that because the claim is one of conspiracy against all of the defendants, the plaintiffs argue that the Russian UCCU Defendants are both necessary and proper parties to its claim against Eurotoaz.

180. The test by reference to which the court had to decide if the second defendant was a proper party to the claim against the first defendant was to ask, “supposing both parties had been within the jurisdiction, would they both have been proper parties to the action?” (per Lord Esher MR in Massey v Heynes (1888) 21 Q.B.D. 330, at 338). The parties here agree that that remains the appropriate test for determining whether the Russian UCCU Defendants are proper parties to the case against Eurotoaz. However, the Russian UCCU Defendants argue that in the circumstances of this case it is necessary to go further and ask whether, if the Russian UCCU Defendants were located in this jurisdiction, the plaintiffs would have sued Eurotoaz at all.

181. It is notable that in reviewing the earlier Irish case law, Fennelly J rationalised differences between the decisions by interpreting some judicial remarks as amounting to the exercise of a discretion to refuse service out in circumstances where it would not have been appropriate, rather than a finding that there was no jurisdiction to do so. This is an important distinction particularly as some of the case law does not, even now, clearly distinguish between the initial question as to whether a case comes within one or more of the gateways in Order 11(1) (i.e. whether jurisdiction exists) and, if it does, the subsequent (and distinct) question of whether the court should exercise its discretion to allow service out (i.e. whether jurisdiction should be accepted). Fennelly J treated the two issues separately, addressing firstly whether the second defendant was a proper party to the action against the first defendant and then, having decided that it was, addressing whether Ireland was the proper forum in which the claims against both defendants should be heard.

182. Fennelly J framed the legal issue regarding the first question thus:

“Naturally, there must be a sound basis for the contention that a party to be served out of the jurisdiction is a proper party. There must be reality in law and in fact in the case against the party within the jurisdiction. His inclusion must not be a mere device to get a foreign party before the Irish courts. There must be a substantial element in the claims against the two parties. Lindley L.J. in his judgment in Massey v. Heynes, (1888) 21 QBD 330 at p. 338, thought it sufficient that the ‘liability of several persons depends on one investigation.’ In Multinational v. Multinational Services Ltd [1983] CH. 258 at p.286 Dillon L.J. said: - ‘Whether an action is properly brought against a particular defendant within the meaning of [the provision corresponding to Order 11(1)(h)] must surely depend on the substance of the matter in the light of all the circumstances, and not on the mere form of the pleading and whether there is technically a cause of action.’”

183. As is evident from the summary of the parties’ positions above, there is a dispute between them as to whether a factor such as Eurotoaz’ apparent insolvency is a matter to be addressed at this stage in deciding if there is reality in law and fact to the claim against it or whether instead that claim is a “mere device” to get the Russian UCCU Defendants before the Irish courts. The Russian UCCU Defendants contend in line with Fennelly J’s analysis that it should be considered in addressing whether the requirements of Order 11(1)(h), and in particular the requirement that the claim against the anchor defendant be “properly brought”, are met. They say that if the claim against Eurotoaz is indeed a “mere device” in the sense indicated by Fennelly J (as they say it is), the application for leave to serve out under Order 11 must fail in limine. In contrast, the Plaintiffs contend in line with UK case law that any issue as to the substance of its claim against Eurotoaz goes only to the exercise of the court’s discretion and not to whether the case against Eurotoaz is “properly brought” for the purposes of Order 11(1)(h).

184. As regards the second question, Fennelly J noted the overlap between the plaintiffs’ obligation under Order 11(5) to establish that Ireland is the forum conveniens and the second defendant’s obligation as regards the stay application to establish that Ireland was the forum non conveniens. Like Murphy J in Intermetal, he applied the test as formulated by Lord Goff in Spiliada which required the plaintiffs to show that Ireland was “the forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice”. He regarded the dictum of Lord Wilberforce in Amin Rasheed Shipping Corporation v Kuwait Insurance [1984] AC 50 as expressing a “correct balance”. Lord Wilberforce had stated:

“The intention must be to impose upon the plaintiff the burden of showing good reasons why service of a writ, calling for appearance before an English court, should, in the circumstances, be permitted upon a foreign defendant. In considering this question the court must take into account the nature of the dispute, the legal and practical issues involved, such questions as local knowledge, availability of witnesses and their evidence and expense.”

185. Fennelly J then proceeded to conduct that balancing exercise including by reference to a number of features which are not present in this case, such as the fact that the US court had assumed jurisdiction and had rejected an application for a stay; that the US proceedings sought a negative declaration (about which Fennelly J was duly cautious) and the jurisdiction clauses in the contracts of insurance (which were exercisable at the option of the insured). Ultimately, he was persuaded by the fact that the Irish courts had an undisputed jurisdiction over the first defendant under the local policy such that the costs in the Irish action were going to be incurred in any event together with the fact that the issues under both policies were almost identical. Furthermore, most of the witnesses to the incident (which had occurred in this jurisdiction), the damaged product and all relevant documentation were located here. In these circumstances, the Supreme Court held that the High Court had been correct to reject the application to set aside service and to refuse a stay.

186. Before leaving Analog Devices, it may be observed that there was no issue in that case as to the substance and reality of the claim against the anchor defendant (the Irish insurer). That claim was, effectively, precisely the same claim as the plaintiffs sought to make against the foreign defendant (the US-based insurer). Furthermore – though not a factor expressly relied on by Fennelly J – if those claims were heard in different jurisdictions, there would be an obvious and significant risk of diametrically conflicting decisions on what was, in essence, a binary issue, namely whether liability under the insurance policies was effectively excluded or not.

187. In Yukos SARL v OAO Tomskneft VNK [2014] IEHC 115 the High Court declined to assume jurisdiction in respect of the enforcement of an international arbitral award. The award was in favour of a Luxembourg company in respect of loans it had made to the respondent, a Russian company ultimately owned by two large Russian global energy companies. Earlier attempts at execution in Russia and in France had failed. The appellant argued that the Russian courts were not impartial in light of an alleged politically motivated campaign by the Russian government against the appellant’s parent company.

188. Kelly J accepted that the court had jurisdiction under Order 11(1)(l) in respect of the enforcement of an international arbitral award. The issue was whether in light of the terms of Order 11(2) and (5) the case was one which the court should exercise its discretion to assume that jurisdiction. He put it thus at §85 of his judgment:

“Order 11, rules 1 (a) - (s) enumerate the circumstances in which proceedings may be served out of the jurisdiction. That list is an exhaustive one. So it is necessary for an applicant seeking an order under the rule to place himself squarely within one of the categories there specified. But even if one falls within one such category, as is undoubtedly the case here, that does not create an entitlement as of right to succeed in an application for leave to effect service out of the jurisdiction. One must satisfy the court that the other considerations dealt with in O. 11 have been met.”

Kelly J then referred extensively to the judgment of Fennelly J in Analog Devices. He also set referred to the passages from the judgment of Murphy J in Intermetal citing the speech of Lord Goff in Spiliada. Kelly J considered the question of “convenience” under Order 11(2) by reference to the decision of Fitzgibbon LJ in M’Crea v Knight [1896] 2 IR 619, at 625, as follows:

“In other words, even where service out of the jurisdiction may be allowed, it is not necessarily to be allowed, and it ought not to be allowed, unless there is some ground of “comparative convenience” to guide the discretion of the Court to the conclusion that a foreign defendant ought to be brought to Ireland to stand his trial. I cannot limit the meaning of “convenience”. It means fitness, propriety, and suitableness - each and all three in the most general sense.”

189. The factual issue in the case concerned the extent to which the respondent had assets within this jurisdiction against which the award might be executed and if – as appeared to be the case – there were no such assets, what purpose would be served by the Irish courts assuming jurisdiction regarding its enforcement. On the basis of the decision of the Court of Appeal of England and Wales in Tasarruf v Demirel [2007] 4 All ER 1014 (“Tasarruf”), Kelly J accepted that the presence of assets within the jurisdiction was not a pre-requisite for the grant of leave to serve proceedings seeking to enforce an international arbitral award out of the jurisdiction. Nonetheless, the lack of assets within the jurisdiction was a factor to which regard could be had in the exercise of the court’s discretion. Relying again on Tasarruf, Kelly J cited passages from that judgment in which the Court of Appeal stated that ordinarily it would not be just to bring a foreign defendant before an English court unless “there is a real prospect of a legitimate benefit to the claimant from the English proceedings” even if that benefit was indirect or prospective. Thus, in addition to showing a good arguable case that judgment would be given based on the award, the applicant must “ordinarily show further that he can reasonably expect a benefit from such a judgment”.

190. On the facts of the case Kelly J could not identify any supposed benefit to be gained by the applicant from the Irish proceedings and, in circumstances where the case had no connection with Ireland, he held that it was not a proper case to allow service out. Thus, the lack of practical benefit to the proposed action informed the exercise of the court’s discretionary jurisdiction against service out.

191. Obviously, the circumstances in Yukos were very different to the instant case largely because in Yukos there was no Irish party to the action against whom the proceedings could be issued and served here as of right. In enforcement cases under Order 11 the analysis will often focus on the extent to which there are or might subsequently be assets against which a judgment or award can be enforced. That is simply not an issue where, at the outset of proceedings, a party domiciled in this jurisdiction can be served here as of right. However, the Russian UCCU Defendants have laid some emphasis on this line of case law to pose the question as to what benefit the Plaintiffs might realistically expect to obtain by suing Eurotoaz here. Answering that question in the negative – because Eurotoaz has no assets – the Russian UCCU Defendants argue that Eurotoaz was sued merely as a device to invoke the jurisdiction of the Irish courts against all the other Defendants. We will return to this issue in due course, but note at this stage that some of the authorities relied on in support of the argument arise in a materially different context.

192. We turn next to the decision of the Supreme Court in Irish Bank Resolution Corporation Limited v Quinn [2016] IESC 50, [2016] 3 IR 197. As both parties accepted in their submissions – and as the Judge also acknowledged in his Judgment – there is some difficulty in reconciling aspects of the approach to Order 11 taken by the Supreme Court in IBRC v Quinn with the approach taken by the same court in Analog Devices. Although Analog Devices is mentioned briefly in the portion of the IBRC v Quinn judgment dealing with forum non conveniens (§74) it is not referred to those sections of the judgment which deal with the arguments on the appeal and the court’s conclusions on service outside the jurisdiction and no reference is made to the good arguable case standard articulated in Analog Devices.

193. The Judge concluded (as indeed he had concluded in his earlier judgment in Microsoft Ireland Operations Ltd v Arabic Computer Systems [2020] IEHC 549) that in IBRC v Quinn the Supreme Court had not intended to disagree with Analog Devices in terms of the test to be applied on an application to serve out under Order 11(1). This was in part because the court had not expressly said that it was departing from its earlier decision. He also noted that Hogan J in Albaniabeg did not regard the test articulated in IBRC v Quinn as “greatly chang[ing] our existing understanding with regard to the application of Ord.11”. Despite what he acknowledged as “possible ambiguities in parts of the judgment” he agreed with the Plaintiffs’ argument that IBRC v Quinn sets out “in a practical way” how a court should deal with an application under Order 11, Rule (1)(h) “in terms of the evidence to be adduced, the weight to be attached to that evidence (including evidence adduced by the defendant), and the approach to be taken by the court to the assessment of the evidence and submissions with a view to determining whether a plaintiff has satisfied the two relevant limbs of the test, which for present purposes are, whether it has a good arguable case in terms of its claim against the proposed foreign defendant and whether it has a good arguable case that its claims falls within one of the paragraphs of O.11, r. 1.”

194. Consequently, the Judge concluded that he should approach the evidence and submissions in this case “by reference to the test in Analog as described and applied in IBRC v. Quinn”. Notwithstanding the Judge’s attempted synthesis, it is undoubtedly difficult to reconcile the two judgments particularly as IBRC v Quinn does not in its terms purport to refer to much less apply the test articulated in Analog Devices.

195. In order to appreciate the differences, it may be useful to outline briefly what was in issue in IBRC v Quinn. The proceedings arose out of allegations made by IBRC that members of the Quinn family were engaged in wrongful actions designed to place assets charged in favour of IBRC outside of its reach. It was argued that various corporate entities, which were also defendants to the proceedings, were involved in these plans. The particular application concerned the sixteenth defendant (“Mecon”), a company registered in Dubai which was allegedly involved in transactions concerning certain Indian companies. Proceedings had been instituted in India by persons acting on behalf of IBRC and Mecon applied to set aside the service of the proceedings on it or, alternatively, sought to stay the Irish proceedings against it pending the determination of the proceedings before the Indian courts.

196. It appears from Clarke J’s judgment that his approach to the issues responded to the way in which the parties had argued the appeal before the Supreme Court. Although the plaintiffs had relied on three different subparagraphs of Order 11(1) in seeking leave to serve out, Clarke J did not consider subparagraphs (f) and (g) in circumstances where he regarded subparagraph (h) as clearly met. He divided the arguments into three issues. These were, first, whether a sufficient basis had been established for the case against the foreign defendant who is sought to be joined and the threshold the plaintiff had to cross to establish this; second, whether India would be a more appropriate forum for the trial of the issue regarding Mecon and, third, if the Irish courts were of the view that India was the more appropriate forum whether the jurisdiction to stay the Irish proceedings still existed in light of the Brussels I Regulation (now the Recast Brussels Regulation). In the event, it was unnecessary for the court to determine the last issue. In outlining the first issue Clarke J noted that there were differences between the parties “as to the material on which a court can or should rely” in satisfying itself that the threshold had been met. This is reflected in later portions of the judgment which focus on the nature of the evidence on which the parties can rely and the extent to which a court should interrogate that evidence in advance of the full trial of the action.

197. In addressing how a court should treat evidence adduced on an application to set aside an order granting service out, it is perhaps relevant to note that Mecon had adopted a fairly extreme position in asserting that the court should only have regard to the case as pleaded in the statement of claim. It also criticised the trial judge for having inappropriately resolved factual disputes which arose on the affidavits. Clarke J preferred IBRC’s approach which was to accept that the burden on it was greater than simply asserting a claim in its pleadings that prima facie came within one of the subparagraphs in Order 11(1) and that the court was entitled to look at any evidence placed before it to assess whether the claim pleaded was “reasonably capable of being proven” so as to justify bringing a foreign defendant to this jurisdiction. He summarised the position as follows (§40):

“… so far as the claim which is said to warrant the granting of leave to serve outside the jurisdiction is concerned, it is necessary that the court be satisfied that there is a claim which comes within one of the relevant sub-rules of O. 11 and which is shown to be reasonably capable of being proven so as to justify the proceedings being maintained in this jurisdiction rather than somewhere else. In that context it is not necessary for the court to resolve any issues as to the substance of the case (whether of fact or law) save to the minimal extent necessary to determine whether the claim is reasonably capable of being proven. In the main the assessment will be based, therefore, on evidence or materials put forward by the plaintiff, for the fact that the plaintiff’s claim may be denied, however strenuously, will not normally mean that there is nonetheless a sufficient claim which requires to be determined. The fact that the claim is contested however strongly is irrelevant to the question of whether leave to serve outside the jurisdiction should be granted.”

In that context, whilst acknowledging that the court is entitled to also consider evidence adduced by a defendant – a point made strongly by Fennelly J in Analog Devices– Clarke J teased out the circumstances in which the defendant’s evidence would be relevant to the initial question of whether the plaintiff had established a case against that defendant which was reasonably capable of being proven. Save where the defendant’s evidence would deliver a “knockout blow” to the plaintiff’s case, he regarded these circumstances as limited, stating:

“42 However, the overriding consideration is that the starting point of an assessment of whether the plaintiff has established a sufficient case must be an assessment of the claim as pleaded together with such evidence as the plaintiff may put forward. Defence evidence which goes no further than establishing that the claim is disputed will not be relevant. There may, however, be limited cases where the defence evidence might, unless explained or countered by sufficient argument, amount to a knockout blow. In such a case the defence evidence may be relevant not merely to assert the immaterial fact that the claim is contested but to assert the highly material fact that the claim is unstateable.

43 … The court is not engaged in some assessment of the relative strengths of the plaintiffs’ and defendants’ case. Rather the court has to determine whether there is a sufficient basis for the proposition that the plaintiff may have a claim under one of the qualifying categories in O.11 which could justify bringing the defendant to this jurisdiction to answer the claim concerned. The bar is a low bar. It is simply designed to prevent a defendant being brought to this jurisdiction to answer an unstateable claim which has no reasonable prospect of being capable of proof. The suggestion that there was something wrong with reliance on evidence which was not subject to being tested is, in the context of the precise issue with which the court was concerned, misplaced. The court was concerned with whether there was a claim sufficient to warrant proceedings being brought. The time to test whether that claim can actually be made out is at the trial when there will be every opportunity to test the credibility of any evidence proffered. Except in quite extraordinary circumstances it is difficult to envisage on what basis it could be contended that there should be a testing of evidence purely designed to meet a very low threshold of demonstrating that the plaintiff has a claim which is reasonably capable of proof.”

198. In the subsequent summary of his conclusions on service outside the jurisdiction at section 6 of the judgment, Clarke J repeatedly described the threshold as a low one – “the undoubtedly very low threshold” (§53), “low barrier” (§54), “very low threshold” (§55). In his judgment in Microsoft Ireland Operations Ltd, Barniville J observed that it was unclear whether the court in IBRC was applying the “reasonably capable of being proven” standard to both the question of whether the plaintiff had a good cause of action on the merits of the claim and whether the claim fell within one of the subparagraphs of Order 11(1). He tended towards the view that it was focused on the overall merits or stateability of the case. Consequently, Barniville J concluded that the references to the “very low bar” and the requirement to show on affidavit that the case was “reasonably capable of being proven” were intended by the Supreme Court to refer to the overall merits of the case rather than the issue as to whether the claim fell within Order 11(1) (§114).

199. Barniville J also noted that Clarke J did not elaborate on the standard to be applied in determining whether a plaintiff had established that the claim came within one of the subparagraphs of Order 11(1). This may well have been because in the circumstances of IBRC v Quinn Clarke J concluded that it was very difficult to see that any credible argument could have been made that the requirements of Order 11(1)(h) had not been met. He then looked at the factors which led him to this conclusion – predominantly the fact the overall claim was one of a conspiracy to place assets beyond the reach of IBRC and that this particular transaction was alleged to form part of that general conspiracy. As much of the argument on whether there was a sufficient basis to justify service out “fell away in the course of debate before the court” (§46), Clarke J obviously did not consider it necessary to address the standard by reference to which the plaintiff had to establish each of the component elements of Order 11(1)(h). It is perhaps for this reason that subsequent courts have been able to proceed on the basis that, notwithstanding the potential for conflict between the “care and circumspection” said by Fennelly J to be required and the “undoubtedly very low threshold” identified by Clarke J, the judgment in IBRC does not depart from the formulation of the “good arguable case standard” set out in Analog Devices.

200. Perhaps also because Clarke J regarded the test under Order 11(1)(h) as being so clearly met, his judgment does not go on to deal distinctly with the subsequent discretionary elements of comparative costs and convenience under Order 11(2) and whether the case was a proper one for service out under Order 11(5), although Analog Devices suggests that this is the analytical framework which should be followed. Instead, it turns to an analysis of the forum non conveniens issue on which the onus rested on Mecon as the party seeking the stay. As noted above, the discretionary elements of Order 11 have been described as placing the onus on the party seeking service out to establish that Ireland is the forum conveniens for the trial of the action. Although forum conveniens and forum non conveniens can be characterised as opposite sides of the same coin, there are differences which may be material in some cases arising from which party bears the onus of proof.

201. The Supreme Court’s analysis of the forum non conveniens issue in IBRC v Quinn centred on a summary in Dicey, Morris & Collins, The Conflict of Laws (15th ed; 2012) at pages 552-553 of seven key principles established in the UK jurisprudence since Spiliada. The two principles upon which the judgment then focused were the burden on a defendant to show not just that Ireland was not the natural or appropriate forum but to establish that there is another forum which is “clearly or distinctly more appropriate” and that the factors to which the court may look in deciding whether another forum is more appropriate include whether the claim was “part of a larger overall dispute which would be damaged by being fragmented”. Clarke J distilled the approach down to two underlying principles:

“68 The first principle is that the Court must look at practical factors such as those affecting convenience, expense, applicable law and the location or place of business of the parties to determine whether the applicant has established that there is an alternative forum which is clearly or distinctly more appropriate than Ireland and, thus, the natural forum for the conduct of the proceedings.

69 Second, in the event that the applicant meets that obligation, the Court is required to consider whether the respondent has put forward any sufficient basis for suggesting that justice nonetheless requires that the proceedings be tried in Ireland.”

202. An unusual feature of IBRC v Quinn was that both the Irish and Indian proceedings had been brought by IBRC or entities associated with it. This contrasts with the situation here where the party seeking service out contends that it is unable to litigate, or litigate effectively, in the foreign jurisdiction. However, Clarke J did not regard this feature as having much weight. Although the precise circumstances of the Indian litigation were not known to the court, he considered that there were many legitimate reasons why IBRC might have issued the Indian proceedings, such as the need to seek urgent interlocutory relief, which would justify issuing proceedings in another jurisdiction without abandoning the contention that Ireland was the natural forum for the trial of the action.

203. The Supreme Court’s analysis focused on the potential fragmentation of the case where the party seeking to set aside service and to stay the proceedings against it was but one out of twenty-three defendants. The questions of costs and convenience were linked to fragmentation on the basis that allowing the case to proceed in two different jurisdictions would increase the cost of the litigation and create a risk of inconsistent decisions. In those circumstances Clarke J observed (§71):

“It might also be possible that a fragmentation of the case might give rise to the risk of injustice which would allow a court properly to retain jurisdiction even though the alternative forum might, so far as determining the case made against the defendant who sought the stay was concerned, be considered to be clearly more appropriate.”

On the facts, Clarke J saw the Indian proceedings as a “small subset of the overall issues which arise in these Irish proceedings”. In passing it might be observed that the reverse would appear to be the case here. The claim against Eurotoaz, the Irish anchor defendant, is, at its height, a small and discrete subset of the overall claim against the Russian UCCU Defendants. This is relevant because (at §81) Clarke J noted that the weight to be attached to fragmentation as a factor could vary depending on all of the circumstances in which the narrower claim might be hived off to another jurisdiction. Ultimately, he concluded (at §82) both that Ireland was the natural forum for the overall claim and that each element of the broad claim, including that against Mecon, should be maintained in a single set of proceedings.

204. The Plaintiffs place particular reliance on IBRC v Quinn, for three reasons. Firstly, they rely on Clarke J’s repeated emphasis on the fact that the threshold to be met by a party seeking service out represented a “low bar”; secondly, because the claim in both cases is one of conspiracy, they rely on Clarke J’s treatment of the interrelated nature of the claims as between all of the defendants and, thirdly, they rely on his consequent emphasis on the fragmentation of the case that would have occurred if IBRC was required to pursue one of the defendants in India whilst maintaining the overall claim in this jurisdiction. We will come back to IBRC v Quinn later in this judgment. However, we would observe immediately that the factual complexion of that case is very different to the case before us. The jurisdictional “centre of gravity” of IBRC’s action was undoubtedly in Ireland. The action arose from loans made in Ireland by an Irish financial institution to Irish borrowers. In contrast, the jurisdictional “centre of gravity” of the proceedings here is unquestionably to be found in Russia.

205. The last of the Irish cases is the decision of this Court (per Hogan J) in Albaniabeg Ambient Sh.pk v Enel S.pA. [2018] IECA 46 which has already been referred to above. It is of less direct relevance because, like Yukos, it concerned enforcement, this time of the judgment of an Albanian court against the defendant, an Italian company. The Italian courts had previously refused to enforce the judgment, in part because of the outcome of separate arbitration proceedings issued by the Italian company’s parent company in Italy which had been successful. Enforcement had also been refused by a number of other jurisdictions.

206. As in Yukos, this court accepted that there was no rule that required the presence of assets in this jurisdiction before leave to commence enforcement proceedings under Order 11(1)(q) could be granted. However, the judgment creditor in seeking leave to serve out of the jurisdiction had to show “some prospect of securing a material benefit, even if that benefit is indirect and prospective only”. In circumstances where such a benefit had not been shown, this court upheld the High Court’s refusal to give leave to serve out.

207. Albaniabeg is interesting both because of the observations made by Hogan J regarding the common law approach as reflected in Order 11 and his view that IBRC v Quinn had not greatly changed our understanding of the test set out in Analog Devices. We have already referred to Hogan J’s comment that the exorbitant nature of the jurisdiction under at least some of the subparagraphs of Order 11(1) was mitigated by considerations of forum conveniens and his view that the burden on a foreign defendant compelled to appear before the Irish courts had been reduced in recent times due to improvements in transport and communications. Nonetheless, the common law basis for jurisdiction under Order 11 remains important, with Hogan J stating (at §23 of his judgment):

“The common law orthodoxies which are reflected in Ord. 11 nonetheless remain clear: they permit the Irish courts to exercise a world wide jurisdiction in 19 specified categories of cases clearly delineated in the Order itself. In some instances, jurisdiction may be assumed by reference to relatively slender connecting factors. It is for this reason that the exercise of a potentially exorbitant jurisdiction is tempered by the requirements of rr. 2 and 5 which require the Irish courts to consider “the comparative cost and convenience of the proceedings in Ireland” and that they are satisfied the case is a “proper one” for service out of the jurisdiction. The jurisdiction under Ord. 11 remains ultimately a discretionary one.”

208. Much of Hogan J’s analysis focused on whether – in circumstances where the judgment appeared incapable of practical enforcement in Ireland – the plaintiff had shown that litigation with a view to its enforcement would serve “any useful purpose” (§35). Hogan J accepted the principles set out by the Court of Appeal of England and Wales in Tasarruf but considered that the case could be distinguished on its facts because the court in Tasarruf thought there was a real prospect that the plaintiff would obtain a real benefit by seeking to enforce the judgment in England. In his view, the appellant had not established that to be the case, even taking the bar regarding the grant of leave for service out to be a low one, per IBRC v Quinn. In coming to this conclusion, Hogan J emphasised the court’s obligations to manage its resources for the benefit of all litigants (§51 of his judgment):

“Second, the courts are under a duty to manage their own affairs such that scarce judicial resources are conserved and are best utilised for the benefit of all litigants. Those resources are generally not well utilised where judicial energies are expended on an issue with no real connection with Ireland and where the prospects of a judgment creditor recovering assets in Ireland are remote or tenuous. It is, of course, true that Irish courts frequently try cases where the plaintiff has no hope of effective recovery against the defendant who may be indigent or even insolvent. But these are cases where the litigants are domiciled or otherwise based within the State or where the litigation has significant connections within Ireland, so that there is no question of Ord. 11 leave being required. The situation with regard to Ord. 11 is quite different, because by definition the litigation will involve foreign defendants who are then obliged (should leave be granted) to engage with Irish courts in a manner not necessarily of their choosing.”

209. Here, again, it should be observed that, as an Irish company, no Order 11 leave is required in respect of litigation against Eurotoaz. However, it does not necessarily follow that the question of whether there is any realistic prospect of recovery against Eurotoaz is irrelevant to the issue of whether the Irish courts should assume jurisdiction over the Russian UCCU Defendants. Indeed, the Plaintiffs accept that that may properly be a factor “in the mix”. It may also be relevant that the ligation against Eurotoaz otherwise has no “significant connection” – indeed has no connection at all – with Ireland and the foreign defendants (and the litigation against them) have no connection whatever with this jurisdiction.

Case Law from England and Wales

210. In circumstances where the issues in this case must be dealt with by reference to the principles set out by the courts in this jurisdiction, it is unnecessary to consider the decisions from the United Kingdom that were relied on by the parties in the same level of detail. In some instances, most notably the decision of the House of Lords in Spiliada, the core principles set out in those decisions have been expressly approved and applied by the Irish courts and it is accepted that these now form part of the law in this jurisdiction. Three of the cases relied on fall into this category, at least as regard principles relevant to the issues in this case, namely (in chronological order), Multinational, Spiliada and Harrods.

211. The argument before us concerning the other cases is more contentious because these cases are relatively recent and have not been formally approved by the Irish courts, much less by the Supreme Court, in a way that would afford them definitive authoritative status here. Those most relevant to the arguments we have to decide are Altimo Holdings, Erste Group Bank AG v JSC (VMZ Red October) [2015] EWCA Civ

379 (“Red October”), Bazhanov, Vedanta and VTB., .

212. Multinational Gas and Petrochemical Co v Multinational Gas and Petrochemical Services Co [1983] 1 Ch 258 concerned a joint venture company (the plaintiff) incorporated in Liberia by a number of foreign companies who became its shareholders. A separate company, the English defendant, was established to act as its agent and was registered in England. Both companies ended up in liquidation. The liquidator of the plaintiff company alleged a breach of duty on the part of the defendant and also wanted to sue the shareholders and directors of the plaintiff company on a similar basis. In an application to set aside the order granting leave to serve the shareholders and other parties outside the jurisdiction (“the foreign defendants”), the trial judge accepted that the predominant purpose of suing the defendant was to provide a ground upon which an application could be made to serve the foreign defendants and make them subject to the jurisdiction of the English courts. Consequently, he granted an order setting aside leave.

213. That decision was upheld on appeal and is relied on by the Russian UCCU Defendants who contend that the only reason the proceedings were brought against Eurotoaz was with a view to making them amenable to the jurisdiction of the Irish courts. The judgments in Multinational looked at the concept of whether the action was “properly brought”. This was primarily considered in the traditional context of whether the case against the foreign defendants was bound to fail. However, the court also considered a submission that the case against the English defendant was not “properly brought” if the sole or dominant purpose of issuing those proceedings was to establish jurisdiction against the foreign defendants.

214. The judgments of the Court of Appeal in Multinational are complex, not least because the two judges who formed the majority (Lawton and Dillon LJJ) did not agree entirely as to the basis on which they were prepared to set aside the grant of leave to serve out of the jurisdiction. Both agreed that the equivalent of Order 11(1)(h) had not been satisfied and therefore did not proceed to consider the exercise of the court’s discretion. Lawton LJ regarded the fact that the predominant reason for suing the domestic defendant was to enable an application for service out of the jurisdiction to be made against the foreign defendants, in circumstances where the domestic defendant was in liquidation, as sufficient in itself to uphold the decision of the trial judge that the proceedings were not properly brought against that defendant (268A- E). He would also have upheld the trial judge’s decision on the basis that, in light of its separate corporate personality, the shareholders were not liable to the plaintiff company nor to those with whom the plaintiff company did business.

215. Dillon LJ (whose judgment was cited by Fennelly J in Analog Devices) regarded it as “well-established” that an action brought against a defendant within the jurisdiction solely in order to ground an application to serve out on foreign defendants who could not otherwise be made amenable to the jurisdiction was not “properly brought” (284H-285A). While the most common instance was where the plaintiff had no valid claim against the domestic defendant, as he understood the authorities (as it happens, decisions of the former Court of Appeal of Ireland), even if the plaintiff “technically has a cause of action” against a domestic defendant, the action would not be properly brought if the true inference from all of the facts was that it had been brought for the sole reason of providing a basis for the joinder of foreign defendants (285B-D). Dillon LJ was in no doubt that if the domestic defendant had been a solvent company, the action would have been properly brought against it. But that defendant was insolvent and it had been conceded that the plaintiff would not have contemplated proceeding against it but for the fact that there were other potential defendants from which substantial recovery might be made (285E). Even so, on the particular facts, Dillon LJ was satisfied that the action against the defendant had been brought properly and in good faith, inter alia because of “how closely Services was involved in all the matters of which complaint is made in the action” and because there was a genuine desire on the part of the plaintiff to establish the claim against it (287B-C). The action against the defendant was, accordingly, “properly brought” However, Dillon LJ upheld the trial judge’s decision to set aside leave to serve out of the jurisdiction on the basis that, in light of the company law issues, the foreign defendants had good defence to the action and thus they were not proper parties to it.

216. Dissenting, May LJ agreed with Dillion LJ that the cause of action against the English defendant did not cease to be properly brought because that defendant’s financial position rendered it unlikely that any judgment could be satisfied. He saw the defendant’s insolvency as being more relevant to the exercise of the court’s discretion under the equivalent of Order 11(5). In the absence of mala fides, an action against an English resident against whom a substantial, plausible or arguable cause of action was shown could not properly be described as not “properly brought”, even if any money judgement would or might not be satisfied (279E). May LJ disagreed with Dillon LJ on the issue of whether the foreign defendants had such a good defence that the plaintiff’s claim against them was bound to fail. He would also have exercised the court’s discretion in favour of allowing service out in circumstances where, because of the international nature of the commercial arrangements, none of the other places which might have had jurisdiction had a more real or closer connection with the subject matter of the litigation than did the English courts.

217. Turning next to Spiliada, it involved a claim for damages due to corrosion caused to a ship because a cargo of sulphur was allegedly loaded wet. The ship was registered in Liberia, the cargo was loaded in Canada and the contract for its carriage was governed by English law. The ship owner issued proceedings in England and obtained leave to serve out of the jurisdiction on that basis. That leave was set aside by the Court of Appeal but reinstated by the House of Lords on the ship owner’s appeal.

218. The core principles emerging from the judgment of Lord Goff have been set out above in considering the judgments of Murphy J in Intermetal and Fennelly J in Analog Devices. Essentially, these concern the basis upon which a court should examine whether, for the purposes of forum non conveniens, there exists another forum which is “clearly or distinctly” more appropriate for the trial of the action for the interests of all of the parties and the ends of justice (477E). Lord Goff’s speech sets out a number of additional legal principles applicable to the grant of a stay on forum non conveniens grounds. These include the fact that the burden of proof lies on a defendant to show the existence of such an alternative forum but, if established, the onus then shifts to the plaintiff to show that the interests of justice nonetheless require the trial to take place in England. In identifying the type of factors which might be relevant to the

decision whether another suitable forum exists, Lord Goff listed not just convenience and expense (which are the factors listed in Order 11(2)) but also the governing law and the place where the parties reside or carry on business.

219. Lord Goff usefully identifies the differences between the approach to a stay on grounds of forum non conveniens and the applicable principles under Order 11 (480G- 481E). The first is as to the burden of proof: the burden of proof resting on the plaintiff in Order 11 cases and on the defendant in forum non conveniens cases. The second “and more fundamental” point of distinction (from which the distinction regarding the burden of proof flows) is that in Order 11 cases the plaintiff is seeking to persuade the court to exercise its discretionary power to permit service out of the jurisdiction. Statutory authority had specified the particular circumstances in which that power may be exercised, but had left it to the court to decide whether to exercise its discretionary power in any given case, subject to the injunction that leave should not be granted unless it was made to appear that the case was “a proper one for service out of the jurisdiction”. Third, special regard must be had for the fact that the jurisdiction under Order 11 may be “exorbitant” (a term which Lord Goff explained means no more than the exercise of the jurisdiction is extraordinary). The effect is that, not merely must the plaintiff persuade the court that England (or, as here, Ireland) is the appropriate forum for the trial of the action, they must show “that this is clearly so.” In other words (Lord Goff continued) the burden is the obverse of the burden on the plaintiff seeking a stay of proceedings commenced as of right.

220. Lord Goff also discusses the circumstances where a stay might be refused notwithstanding the existence of a more appropriate forum for the trial of the action (or which, by parity of reasoning, may justify allowing service out, even where a foreign jurisdiction may otherwise appear to be appropriate). The range of factors to be considered is broader than those going to the connection between the litigation and either this or some other forum. As they are primarily related to the interests of justice, one of the most important is the fact that the plaintiff will not obtain justice in the foreign jurisdiction. This must be “established objectively by cogent evidence” (478D). He returned to this issue, albeit in a slightly different context, when considering the suggestion that the plaintiff could be deprived of a procedural advantage if the case was tried in another jurisdiction. He stated (482E-H):

“Now, as a general rule, I do not think that the court should be deterred from granting a stay of proceedings, or from exercising its discretion against granting leave under RSC Ord. 11, simply because the plaintiff will be deprived of such an advantage, provided that the court is satisfied that substantial justice will be done in the available appropriate forum. Take, for example, discovery.

We know that there is a spectrum of systems of discovery applicable in various jurisdictions, ranging from the limited discovery in civil law countries on the continent of Europe to the very generous pre-trial oral discovery procedure applicable in the United States of America. Our procedure lies somewhere in the middle of this spectrum. No doubt each of these systems has its virtues and vices; but, generally speaking, I cannot see that, objectively, injustice can be said to have been done if a party is, in effect, compelled to accept one of these well-recognised systems applicable in the appropriate forum overseas.”

221. We do not propose to consider Re Harrods (Buenos Aires) Ltd (No 2) [1992] Ch. 72 in the same detail. It has already been referred to in the context of considering Intermetal. Much of the discussion in the judgments concerns the particular circumstances of the proceedings and are of no relevance for present purposes. What is of greater relevance is the range of factors considered by the Court of Appeal in assessing the connection between the proceedings and the two competing jurisdictions (in the context of an application to have the petition stayed on the basis of forum non conveniens) Bingham LJ put it thus (124F – 125F):

“… a broad overall view must be taken: the primary task is not to decide which forum is advantageous or disadvantageous to any particular party. The court should look first to see what factors there are, taking this broad overall view, which point in the direction of another forum …:at that stage it is connection factors (including convenience, expense, availability of witnesses, governing law, place of residence and place of business) which must be considered: … If it is shown that there is some other available forum which prima facie is clearly more appropriate for the trial of the action a stay will ordinarily be granted unless on a consideration of all the circumstances justice requires that a stay should not be granted: … If a plaintiff can show that he will not obtain justice in the foreign jurisdiction, that is of course a powerful reason for refusing a stay, since in such a case the foreign forum can scarcely be a more suitable forum for the interests of all of the parties and for the ends of the justice.

It is common ground that the factors connecting this action with the Argentine forum are strong and obvious. All of the economic, logistical and management considerations which loom large in any substantial action point strongly towards Argentina. The company carried on business, and the acts complained of were done there not here. The witnesses are there, not here, and in the main speak Spanish, not English, a significant matter in an action where credibility is very much in issue. The documents and records are there, not here, and are in Spanish, not English. The court there would bring to the evaluation of factual evidence a familiarity with local conditions which a court here would necessarily lack. Expert evidence would be needed here which would not be needed there. The court there would be much better placed to access the significance of related proceedings which have already taken place there. While an English court called on to try this case would no doubt do so as best it could, the difficulties would in my view be such as to make the reliability of the outcome problematical.

The factor which is relied on as connecting this action with England is the incorporation of the company here. This has certain formal consequences inasmuch as it has a registered office here, annual meetings are held here, the company’s local accounts are translated into sterling and the minute book of general meetings is kept here. It has also had certain practical consequences … the relationship of the three parties involved in this action … is by virtue of the company’s English corporation an English law relationship. The company’s constitution, contained in its memorandum and articles, is framed with reference to English company law, which accordingly governs the rights and obligations of the parties among themselves. Now when it is alleged that the relationship has broken down, the English court is said to be the obvious forum to resolve the dispute as the forum most familiar with the governing law and practice.”

On considering all of the relevant factors and in all of the circumstances the court decided that the Argentinian court was the one with which the dispute had the most real and substantial connection.

222. We turn next to the decision of the Privy Council (on an appeal from the Isle of Man) in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Limited [2012] 1 WLR 1804. Unlike Spiliada and Harrods, Altimo Holdings appears never to have considered by an Irish court (other than by the High Court in the present case). As noted above, one of the issues in dispute between the parties here is whether the Russian UCCU Defendants’ assertion that Eurotoaz had been sued as a “mere device” is something which went to the question of whether the action is “properly brought” against Eurotoaz (and thus within Order 11(1)(h)) or was something which was relevant only to the exercise of discretion under Order 11(2) and (5). The Plaintiffs rely on Altimo Holdings to argue that the “mere device” issue was relevant only to the exercise of the court’s discretion and not to the question of whether the proceedings were properly brought, notwithstanding that Fennelly J in Analog Devices had treated it as a matter going to whether the proceedings were properly brought under Order 11(1)(h).

223. In Altimo Holdings the Privy Council (per Lord Collins) referred to the leading decisions, including Multinational. It considered that a number of propositions could be derived from those decisions, the first being that the mere fact that a defendant is sued only for the purpose of bringing in another defendant is not “fatal” to the application for permission to serve the second defendant out of the jurisdiction (§76). Having briefly reviewed the judgments in Multinational, Lord Collins stated as follows:

“79. The better view, therefore, is that the fact that D1 is sued only for the purpose of bringing in the foreign defendants is a factor in the exercise of the discretion and not an element in the question whether the action is “properly brought” against D1, provided that there is a viable claim against D1.”

224. Altimo Holdings is also potentially relevant to two other issues in this case. The first is the appropriate test or standard that the plaintiffs must satisfy in order to be granted leave to serve out of the jurisdiction and the second is the standard of proof that must be satisfied by a party which asserts that justice will not be done in a foreign jurisdiction.

These issues arose in the context of the enforcement of a judgment of the Kyrgyz courts in the Isle of Man when the Manx defendant sought to join the beneficial owners of the Kyrgyz plaintiff company to the enforcement proceedings alleging that the Kyrgyz judgment had been obtained by fraud.

225. The test to be applied in seeking service out does not seem to have been an issue in the case, so the comments made by Lord Collins under the heading “Legal Principles: General Considerations” describe the uncontested position under English law regarding the equivalent provisions to Order 11(1) and are not particular to the assumption of jurisdiction and Order 11(1)(h). It should be noted that his statement has not to date been approved by an Irish court and it was a matter of debate between the parties as to whether it reflected the position in Irish law. In any event, Lord Collins stated (§71, omitting reference to case law cited):

“On an application for permission to serve a foreign defendant (including an additional defendant to counterclaim) out of the jurisdiction, the claimant (or counterclaimant) has to satisfy three requirements… First, the claimant must satisfy the court that in relation to the foreign defendant there is a serious issue to be tried on the merits, i.e. a substantial question of fact or law, or both. The current practice in England is that this is the same test as for summary judgment, namely whether there is a real (as opposed to a fanciful) prospect of success... Second, the claimant must satisfy the court that there is a good arguable case that the claim falls within one or more classes of case in which permission to serve out may be given. In this context “good arguable case”

connotes that one side has a much better argument than the other… Third, the claimant must satisfy the court that in all the circumstances the Isle of Man is clearly or distinctly the appropriate forum for the trial of the dispute, and that in all the circumstances the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction.”

226. This posits a three-step exercise with the onus lying on the party seeking service out at each step but with different tests to be met at each stage. The initial question is whether there is a serious issue to be tried against the foreign defendant being one which must entail a “substantial question” of law or fact. Then there must be a good arguable case that the case comes within the equivalent of Order 11(1), but the good arguable case standard is given a somewhat different meaning to that given to it by Fennelly J. The standard imposed is a higher one, namely that one side has a “much better argument” than the other. That that does not represent the law here is not in dispute. Finally, the court considers the exercise of its discretion in a forum conveniens context to which no particular standard is ascribed save that the court must be satisfied that it should exercise its discretion to permit service out. Consistent with Lord Goff’s analysis in Spiliada (which of course has been approved by the Supreme Court here) the burden is on the party seeking permission to serve out to satisfy the court that the jurisdiction where it is sought to prosecute the proceedings against the foreign defendant (which, in Altimo Holdings, was the Isle of Man) is “clearly or distinctly” the appropriate forum for the trial of those proceedings.

227. In circumstances where Kyrgyzstan was undoubtedly the natural forum for the issues in the case, the main basis upon which the Isle of Man court was asked to exercise its discretion in favour of assuming jurisdiction was that justice would not be available to the Manx defendant in Kyrgyzstan. Lord Collins identified this aspect of the case as involving two separate issues. The first was the applicable standard of proof: did the party seeking service out have to show that justice would not be done in a foreign jurisdiction or just that there was a real risk that justice would not be done? The second concerned the entitlement of the court to rule that justice could not be obtained in a foreign legal system in general due to endemic corruption. Fortunately, the latter issue is not relevant in this case as, although the Russian UCCU Defendants contend that to succeed the plaintiffs would have to establish that a significant number of decisions of the Russian courts were unjust or made as a result of corruption, the Plaintiffs have made it clear that they are not making allegations of endemic corruption against the Russian legal system or members of the Russian judiciary. While the Plaintiffs did contend that they would not get a fair trial in the Russian courts, as already explained, the Judge did not consider it necessary to determine the issue and the Plaintiffs have not sought to agitate that issue on appeal by way of application to vary or cross appeal.

228. Ultimately Lord Collins concluded that the burden on the claimant was to show “a real risk that justice would not be obtained in the foreign court” but that if the claimant was able to show positively that justice “will not” be done, this would weigh more heavily in the exercise of the court’s discretion (§94). However, the comity of courts required that a court should be cautious and only reach this conclusion on the basis of cogent evidence (§97). Based on “substantial evidence of specific irregularities, breach of principles of natural justice, and irrational conclusions” the court was satisfied that there was “considerably more than a risk of injustice” (§143) and exercised its discretion in favour of permitting service out.

229. Altimo Holdings has been discussed and applied in a number of subsequent decisions which were also referred to in argument. The decision of the Court of Appeal of England and Wales in Red October is perhaps worthy of particular note, as it concerned an attempt to litigate in London a complex set of claims against Russian defendants, involving an alleged conspiracy that would have involved a “root and branch” attack on the propriety of insolvency and court procedures in Russia and the propriety of decisions made by the Russian courts in relation to Russian law transactions (§148(i)). D1 and D2 were sued in England and Wales on foot of contractual exclusive jurisdiction clauses and permission was sought to serve out on a number of other Russian-based defendants.

230. The applicable rules in England and Wales had been amended in 1987 and no longer referred to an action being “properly brought” against a defendant in (or subject to) the jurisdiction, instead directing the court to consider whether there was a “real issue which it is reasonable for the court to try” .Even so, the court clearly considered that Multinational and Altimo Holdings remained relevant in considering whether a claimant’s motive in suing the anchor defendant went to the issue of jurisdiction or merely to the question of discretion. While the court expressed reservations on the point, it accepted that it must apply the approach adopted in Altimo Holdings (§43). Therefore, the fact that the only driver for suing D1 and D2 was to enable a claim to be brought against the other defendants was factor to be considered only under the discretionary head (ibid). Ultimately, the court considered it to be clearly an important factor weighing against the grant of leave, even if it did not on its own indicate that leave should be refused (§150).

231. The claimants in Red October had been successful before the High Court but lost comprehensively on appeal. The Court of Appeal first held that none of the gateways relied on for service out had been established. It then went to consider the issue of discretion, again differing very significantly from the approach taken by the High Court. In the Court of Appeal’s view, the High Court had failed to give appropriate weight to the fact that “the fundamental factual and legal focus of this litigation concerned events which occurred in Russia” (§148). Most importantly, the proceedings would involve the trial court going through the “entire course of the Russian insolvency process” even if the claimant limited its claim so as not to assert that any final decision of the Russian courts was wrong as a matter of Russian (the claimant having offered an undertaking to that effect for the first time before the Court of Appeal). Furthermore, the judge had failed to pay due regard to the fact that all of the relevant documentation was in Russia and in the Russian language and that all relevant witnesses would be Russian speaking and many of them resident in Russia. In addition,, a significant part – at least – of the claim was governed by Russian law (ibid). Finally, there was the fact that the driver for suing the anchor defendants was to provide a springboard for suing the foreign defendants. In these circumstances, the Court of Appeal set aside the permission to serve out.

232. Many – if not all – of the discretionary factors in Red October have an obvious resonance in these proceedings.

233. Interestingly, and acknowledging that the court was discussing the text of the new English rule which differs from Order 11(1), at §48 of the judgment Flaux J observed:

“The question is directed not at whether it is reasonable or proper from the perspective of the particular claimant to issue or bring proceedings, but rather whether it is reasonable for the English court to “try the issue”, whether in summary judgment proceedings or otherwise.”

234. Altimo Holdings was also applied in Bazhanov, a case with similarities with this in that the plaintiff alleged their Russian business had been the subject of a “raid” and had been illegally placed into insolvency and acquired by a third party while the first plaintiff was in detention as a result of allegations of fraud. The Russian based defendant successfully applied to have service out of the jurisdiction on them of the plaintiffs’ proceedings claiming unjust enrichment and breach of contract set aside.

235. The agreed starting point for consideration of the issues was Lord Collins’ summary in Altimo Holdings. The difficulty arose in respect of the requirement that there be a good arguable case that one of the jurisdictional gateways applied (i.e. the equivalent of Order 11(1)). This was because of what was described as the “Canada Trust gloss”, namely that the good arguable case test “reflects in that context that one side has a much better argument on the material available” (per Canada Trust Co v Stolzenberg (No 2) [1998]

1 WLR 547), a requirement incorporated into Lord Collins’ summary in Altimo. In the court’s view in cases in which there was a conflict of evidence on affidavit which could not be resolved without oral evidence there was “considerable force” in an approach which treated evidence that was “sufficiently strong” as enough to allow the court take jurisdiction even if it could not be shown that one side had much the better argument

236. The High Court in Bazhanov held that the good arguable case test had to be applied in light of the then-recent comments of Lord Sumption in Brownlie on the Canada Trust gloss. As regards the good arguable case test Lord Sumption stated at §7 of his judgment:

“In my opinion it is a serviceable test, provided that it is correctly understood. The reference to “a much better argument on the material available” is not a reversion to the civil burden of proof which the House of Lords had rejected in Vitkovice. What is meant is (i) that the claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (ii) that if there is an issue of fact about it, or some other reason for doubting whether it applies, the court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at the interlocutory stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it. I do not believe that anything is gained by the word “much”, which suggests a superior standard of conviction that is both uncertain and unwarranted in this context.”

This passage has not been approved to date by an Irish court. The Russian UCCU Defendants argue that the effect of Brownlie is to “walk away” from the Canada Trust gloss. Further, they argue that Lord Sumption’s comments are a proper reflection of the good arguable case test as set out in Analog Devices. The Analog Devices test requires the court to take account of a defendant’s evidence and, given that conflicts of fact cannot be resolved on affidavit, the court must take a view as to whether there is a plausible evidential basis for the plaintiff’s case in light of any evidence that the defendants may submit. It was also argued that this was consistent with Clarke J’s formulation in IBRC v Quinn that the plaintiff must establish that its claim is reasonably capable of being proven. We will return to this issue.

237. The court in Bazhanov concluded that the plaintiffs had failed to establish a sufficient basis to bring their claim within any of the jurisdictional gateways relied on by them. It nonetheless proceeded to consider the issue of the proper forum. It characterised the dispute as one of an “overwhelmingly Russian nature” (§96). The only way in which that might be overcome was if the claimants could demonstrate that there was a substantial risk that justice would not be done because they would not get a fair trial in Russia. Noting that the authorities established that an English court should show “particular restraint” before reaching such a conclusion, having regard to the requirements of comity, and that “positive and cogent evidence” was required, the court concluded that the claimants’ evidence was insufficient to establish such a risk in the Arbitrazh courts. Here, of course, the issue of unfair trial in Russia is no longer an issue in this application.

238. A notable aspect of Bazhanov is that Mr Bazhanov faced criminal prosecution in the event that he returned to Russia. He asserted that he would not be tried fairly in the event of his return. That was relied on as a factor for asserting that the civil dispute could not be tried fairly in Russia. However, the court considered that there was an obvious solution – namely for Mr Bazhanov to bring his claim in the Arbitrazh courts while remaining in England. In that regard, the court accepted the expert evidence of the defendants to the effect that there was no legal requirement for Mr Bazhanov to appear in person and his rights would not be diminished if he chose not to attend (§103).

239. Vedanta Resources plc v Lungowe [2019] UKSC 20, [2020] AC 1045 is a case which is factually quite dissimilar to the other cases which have been reviewed here. The plaintiffs were a group of over 1,800 Zambians who owned land, farmed, lived or worked in close proximity to a copper mine owned by a UK company and its Zambian subsidiary. The claim was a complex one involving environmental damage and damage to the plaintiffs’ properties by reason of pollution and toxic discharges from the defendants’ mine. The plaintiffs sued the first defendant, an English registered company, as of right in England and the court accepted, following Owusu (above), that it could not decline jurisdiction over this defendant on forum non conveniens grounds. All other parties, including the second defendant, were Zambian. The English defendant agreed to submit to the jurisdiction of the Zambian courts so it would have been possible for the plaintiffs to sue both defendants and try the whole action in one set of proceedings in that jurisdiction.

240. The judgment of Lord Briggs is relevant to this case for two reasons. Firstly, it examined the question of fragmentation and the risk of irreconcilable judgments in circumstances where the plaintiff had the right to sue one of the defendants in England but where the whole case against all of the defendants could have been tried in the other jurisdiction. Thus, the reason why the pursuit of parallel claims in different jurisdictions gave rise to a risk of irreconcilable judgments was the plaintiffs’ choice to exercise their right to sue the English defendant in the UK. In this regard the position was more complex then when similar circumstances were considered by Lord Goff in Spiliada as at that time (pre Owusu) it was assumed that the English court could stay the proceedings against the English defendant. In circumstances where it has now been clarified that under the Brussels I Recast Regulation such jurisdiction does not exist, the possibility of parallel proceedings in two jurisdictions and the risk of irreconcilable judgments is consequently higher but nonetheless remains a risk arising from the plaintiff’s choice.

241. Earlier decisions such as that of Leggatt J in OSJC VTB Bank v Parline [2013] EWHC 3538 (Comm) had taken the view that there was no reason why a claimant should be expected to relinquish the right to sue an English defendant in England in order to avoid duplication of proceedings. Instead, the fact that the English defendant was being sued as a matter of right in England formed the starting point for and background against which the court would consider whether England was the forum conveniens. Lord Briggs concluded that this approach was incorrect. If followed, it would make the risk of irreconcilable judgments a decisive factor in every case where a plaintiff elected to sue one of a number of defendants in the courts of that defendant’s domicile regardless of the strength of the other connecting factors with the foreign jurisdiction.

Consequently, it was reasonable to expect the plaintiffs to forgo the right to sue the English defendant in England in order to avoid the risk of irreconcilable judgments of which they themselves complained (§§77-79).

242. This latter conclusion was subject to the proviso that substantial justice had to be available in the foreign jurisdiction, which is the second issue of relevance to the instant proceedings. The underlying concerns as to the availability of substantive justice in Zambia were materially different to those argued by the plaintiffs in this case. There was no suggestion of a lack of independence or competence on the part of the Zambian judiciary nor a lack of fair civil procedures for dealing with a large group claim. Instead, two factors were relied on. The first was the absence of a civil legal aid scheme in Zambia which was required because the plaintiffs were living in extreme poverty and could not afford to fund the litigation themselves. The second was the non-availability in Zambia of sufficient suitably qualified and experienced legal teams to enable litigation of this scale and complexity to be prosecuted effectively. The court accepted that these factors were persuasive as a result of which the defendants had not established that substantial justice was available to the plaintiffs in Zambia. Consequently, the court ultimately allowed service out of the jurisdiction.

243. In VTB, the High Court was asked to decide whether Vedanta was a narrow exception to a general rule or represented a significant shift in the law. Cockerill J identified the issue as follows:

“[216] There therefore arises a question as to what the Vedanta decision imports for this case, and in particular whether (per VTB) it simply carves out a narrow exception to the general rule in circumstances where the risk of overlapping judgments arises “purely” as a result of the choice of the claimant (and not where the choice of this forum is a rational one); or (per applicants) whether Vedanta evinces a step change, placing a new emphasis on the fact that the English Court will not go out of its way to assist a litigant to avoid the risk of irreconcilable judgments by joining foreign defendants to English proceedings where there is a more obviously appropriate forum and the litigant has brought the risk of irreconcilability upon itself.”

244. Cockerill J answered the questions posed when, in declining jurisdiction, she concluded:

“224. As for the legal question on Vedanta implicitly posed by the parties' differing approaches, I would venture to suggest that what Vedanta does is some way short of a step-change; and can most properly be seen as a reminder or point of emphasis. It emphasises the overall test and the fact specific nature of that test. If it makes a difference, that difference is to remind the Court when considering these issues that multiplicity of proceedings is only ever a factor, though it may be a factor of predominant importance in some cases – depending on the facts.

225. The position here is both similar to and different from Vedanta. There is no real link to England; this is in essence a Russian case. It is before this court “purely” because VTB has chosen to bring an arbitration claim here. However there are two “non-choice” factors: (i) that claim was brought in support of the claim which VTB had to bring in London-based arbitration and (ii) Petraco cannot bring a claim on the cross-undertaking in damages in Russia. Thus part of the claim will continue here regardless; there is no question of the whole case being capable of transplantation.

…

228. I would consider here likewise that the tail of the proceedings accessory to now defunct arbitrations should not wag the dog of a substantive dispute which is truly a Russian case. The risk of irreconcilable decisions is – as it must be – a factor. But it is not a trump card. And, given my conclusions earlier as to the limited nature of the overlap, while it must be a factor which is taken very seriously it does not become a factor of huge weight.”

245. Cockerill J’s earlier analysis of the connecting factors (at §189) pointed strongly to Russia as the forum conveniens. She addressed these factors under the following headings: (i) Connections to Russia/absence of connections to England, (ii) Location of parties, (iii) Relevant events, subject-matter and loss, (iv) Witnesses, (v) Documents and (vi) Applicable law. The weight given to the fact that the claim was governed by Russian law is perhaps particularly notable. “[V]very considerable and complex Russian Law evidence” which was likely to have to be given through translated documents, and orally through interpreters, would be necessary in the event that the claim proceeded in England (§239). These factors weighed in favour of Russia to such an extent that, unless the fact that there were related arbitrations claims brought as of right in London was to be seen as a “trump card” (and Cockerill J was clear that it ought not to be) then “the answer could only be that Russia is the forum conveniens” (§243).

Discussion of the Legal Principles

246. The Judge addressed the issues arising under Order 11 RSC in a very systematic and comprehensive way. Some of the issues dealt with by him under this heading have already been addressed elsewhere in this judgment (e.g. relevant provisions of Order 11; burden of proof in set aside proceedings). Others, such as the “Act of state/ related doctrines” were not the subject of argument on this appeal, at least not in the same way or to the same extent as they were before the High Court. In this context the Russian UCCU Defendants still contend that to succeed the Plaintiffs would have to establish that decisions of Russian courts and administrative bodies were improper and/or unlawful in circumstances where the Irish courts lack power to invalidate such decisions, and maintain that it would be entirely inappropriate for an Irish court to exercise its discretion to undertake such an exercise. However, they have not pursued the argument that the Irish courts per se lack jurisdiction to entertain the Plaintiffs’ proceedings for that reason. Thus, the portions of the High Court judgment addressed in this part of this judgment are those under the headings: Relevant test/standard of proof; Necessary or proper party; Good arguable case on the merits; and Proper forum.

247. In approaching these issues, we propose to deal firstly with the applicable test or standard that the plaintiffs must meet under Order 11. This will include consideration of the “good arguable case” standard. We will then examine each of the strands of Order 11 which must be considered in light of the applicable test and, to the extent that these issues remain live on this appeal, we will reach conclusions on each element. It will be apparent from the discussion of Order 11 above that the plaintiffs must establish that the case comes within Order 11(1)(h) before the court is called upon to exercise its discretion under Order 11(2) and (5). Consequently, the legal aspects will be addressed prior to the discretionary aspects.

248. We note and agree that the Judge’s observation (Judgment, §147) that the cases are not always easy to follow, as is evident from the review of the case law which we have just undertaken. This may well be, as the Judge suggests, because the parties often agree to the application of a particular test with a view to focusing their case on the real issues in controversy between them. It may also occur because there is often a tendency not to separately analyse the non-discretionary and discretionary aspects of Order 11 but to merge the latter with a general consideration of forum non conveniens, particularly where a stay is also sought on the continuation of proceedings in one or other jurisdiction. For these reasons we think it useful to parse out exactly what decisions have to be made by the court before deciding what test applies to each step and whether these steps differ from each other.

Order 11(1)(h) RSC

249. There are two separate limbs in Order 11(1)(h), each of which must be satisfied. The proceedings must have been “properly brought” against and duly served on Eurotoaz in this jurisdiction and the Russian UCCU Defendants must be “a necessary or proper party” to those proceedings. Thus, the requirements of Order 11(1)(h) focus on the case being made by the plaintiffs against the anchor defendant, but the case law, including IBRC v Quinn, suggests that there is a separate and distinct question as to whether the Plaintiffs have established that there is a sufficient basis to their claim against the Russian UCCU Defendants. Strictly speaking, this is an element of Order 11(5) under which the affidavit grounding an application for service out must state the deponent’s belief that the plaintiff “has a good cause of action”. However, its treatment as an element of Order 11(1)(h) arises no doubt because it would be singularly inappropriate to compel foreign defendants – here the Russian UCCU Defendants – to appear and defend litigation in this jurisdiction if the case made against them did not reach a minimum threshold. In that sense the Russian UCCU Defendants could not be proper parties to the claim against the anchor defendant if the claim against them lacked substance.

250. When analysed in this way there are three questions to be addressed under Order 11(1)(h):

(i) Do the Plaintiffs have a sufficient case against the Russian UCCU Defendants?

(ii) Are the Plaintiffs’ proceedings against Eurotoaz as anchor defendant “properly brought”?

(iii) In light of the claim made against them, are the Russian UCCU Defendants “necessary or proper” parties to the claim made against Eurotoaz?

Before considering questions (ii) and (iii), it will be necessary to decide whether the Russian UCCU Defendants’ arguments concerning the lack of reality to the proceedings against Eurotoaz due to its insolvency/absence of assets is a matter properly addressed in the context of Order 11(1)(h) or one which should be left to the application of the Court’s discretion, assuming that Order 11(1)(h) is otherwise satisfied. The issue of concern at present is the test or standard to be applied in addressing each or all of these questions.

“Good Arguable Case” Test

251. In our view the overarching standard to be applied by the court to the determination of these issues is that identified by Fennelly J in Analog Devices, namely that of a “good arguable case”. It is interesting to note that in positing this test, Fennelly J did so initially in respect of Order 11(1)(d)(iii) and noted the conflict of fact on the affidavits regarding whether there had been a breach of contract within the jurisdiction. The existence of such factual conflict did not reduce the standard which had to be met by the plaintiffs notwithstanding that factual disputes could ultimately only be resolved at the hearing of the action. Notably, Fennelly J concluded that there was insufficient evidence before the court to ground jurisdiction under this contractual heading.

252. The fact that the question of jurisdiction was being determined irrevocably, albeit at an interlocutory stage, led Fennelly J to the view that the standard to be met was a higher one than mere stateability or arguability. This is evident from the manner in which he explained the good arguable case standard in the context of Order 11(1)(h). There had to be a “sound basis” for the contention that the party to be served was a proper party: there had to be “reality in fact and law” to the case made against the party in the jurisdiction: the inclusion of the anchor defendant could not be a “mere device” and there had to be a “substantial element” to the claim against both the anchor and foreign defendants.

253. While on one level the emphasis placed by Clarke J in IBRC v Quinn on the threshold test under Order 11(1) representing a “low bar” might seem inconsistent with Fennelly J’s formulation of that test in Analog, the requirement that the plaintiff’s claim against both the foreign defendant and the anchor defendant be reasonably capable of being proved is perhaps closer to the requirement that the claim have a “sound basis”, a “substantial element” and “reality in fact and law” than might initially appear. It is reasonable that a simple denial of the plaintiffs’ claim without more should not disturb a court’s view that that claim is otherwise sound, substantial or realistic. Where the defendant’s evidence goes further than simple denial, it is also reasonable to expect that the court will not decide the substantive issues in the proceedings in order to determine jurisdiction. The court is required to assess the evidence adduced by both parties, but that assessment remains one for the purposes of ascertaining whether the good arguable case test is met and not for the purposes of embarking upon any greater determination of the issues between the parties.

254. It is clear that the jurisprudence in England on this issue has diverged from that in this jurisdiction. Although originally the concept of a good arguable case which was equated to a case which was “substantial, plausible or arguable” (per May LJ in Multinational) was not dissimilar to the various Irish formulations of the same test, the so-called Canada Trust gloss significantly altered this by requiring that the applicant for service out show that they had a “much better argument” on the material available than the other side. More recently there has been some retreat from this position. Counsel for the Russian UCCU Defendants correctly observed that the approach adopted by Lord Sumption in Brownlie is not dissimilar to the good arguable case threshold articulated by Fennelly J in Analog Devices. According to Lord Sumption the test requires that the claim must have a plausible evidential basis and that the court must take a view of the available evidence where there is a disputed fact but, if a reliable assessment cannot be made at the interlocutory stage, the court can accept that there is a good arguable case if there is a plausible evidential basis for the case made.

255. Irish law has never imported a requirement on an applicant for service out to show that they have a much better argument than the defendant on the material available or any such relative test. There is a key difference between considering a defendant’s evidence in deciding whether an applicant for service out has met the obligation to establish a good arguable case in the Analog Devices sense and obliging the applicant to show that they have the stronger side of the case. The first requires the court to assess the substance of the applicant’s case only, albeit in light of the defendant’s evidence; the second entails a comparative assessment as between the two sides of the case. That is not required by Order 11(1)(h). Even if Brownlie brings the English jurisprudence closer to the Irish position, the differences – magnified as the rules in each jurisdiction are now expressed in materially different terms – are such that recourse to English jurisprudence on this specific point is of limited assistance.

256. In the context of this case, arguments have not been seriously addressed to the first of the three questions identified at §250 above. It is not really disputed that the Plaintiffs have at least a good arguable case that they have a sufficient case against the Russian UCCU Defendants. The Russian UCCU Defendants deny the claims against them but do not contend that those claims are not capable of amounting to a stateable case. In addition to disputing certain factual elements of the Plaintiffs’ claims, the Russian UCCU Defendants point to the fact that most of the steps taken by them were sanctioned by orders of the Russian courts and that other steps of which the Plaintiffs complain were taken by a range of Russian public bodies. They question the extent to which lawful actions taken by them either pursuant to or upheld by Russian court orders (the validity of which, they emphasise, cannot be affected by any decision of an Irish court) can in law amount to a conspiracy. Nonetheless, it was not seriously disputed that the claims against the Russian UCCU Defendants are stateable. Even if it were disputed, the expert legal evidence adduced by the Plaintiffs as to the phenomenon of “raider attacks” against Russian companies supported by powerful Russian political figures coupled with the claim made by the Plaintiffs that Mr Mazepin threatened to carry out such an attack would certainly be sufficient to allow the court to reach a conclusion that the Plaintiffs’ claims against the Russian UCCU Defendants are stateable.

“Mere Device”?

257. It is central to the analysis of whether a claim falls within Order 11(1)(h) that the foreign defendant be a “proper party” to an action against the anchor defendant which is “properly brought”. On a narrow reading of this latter requirement this means no more than that the Irish courts must have jurisdiction over the anchor defendant and that the proceedings comply with all the procedural requirements of our domestic law relating to the institution of litigation such as time limits, service etc. A somewhat broader reading requires a closer examination of the claim against the anchor defendant to ensure that it is stateable and that, legally, it has some possibility of success. The reading urged by the Russian UCCU Defendants is broader again and requires that the court consider not just whether the action against Eurotoaz as anchor defendant is capable of succeeding but also that there is a real prospect of the action against the anchor defendant resulting in some real and tangible benefit to the Plaintiffs. , If not, so the Russian UCCU Defendants contend, the claim against the anchor defendant is a “mere device” in the sense that it is one which has been brought for the sole purpose of providing a jurisdictional hook upon which the other defendants can be brought to this jurisdiction to answer the Plaintiffs’ claims against them.

258. The factual position regarding Eurotoaz has been outlined above. It is a company registered in this jurisdiction, albeit with no assets, no staff and no premises here – nor indeed anywhere else. Eurotoaz does not carry on business here – nor anywhere else. None of that appears to be in dispute. The acts of conspiracy alleged against it are discrete and unconnected to the elements of the conspiracy alleged against both the Russian UCCU Defendants as a group and the other Defendants generally. In circumstances where the evidence indicates that Eurotoaz has no assets anywhere, such that it is unlikely any award against it could be enforced, the Russian UCCU Defendants urge the Court to consider what purpose is served by the institution of proceedings against Eurotoaz, save to make the jurisdiction of the Irish courts available for the entire case against all defendants.

259. This is one of the major fault lines between the parties in this appeal. The Russian UCCU Defendants argue that the insolvency of Eurotoaz and the fact the proceedings against it are incapable of producing any real benefit for the Plaintiffs are matters to be considered at the “gateway” stage, i.e. in deciding whether the case comes within Order 11(1)(h) RSC. In this context they contend that the claim against Eurotoaz is a mere device in the sense meant by Fennelly J in Analog Devices. The Plaintiffs take the contrary position and say that once the claim against Eurotoaz is stateable and not bound to fail, then the implications of Eurotoaz’s financial position, and the fact that an award of damages is unlikely to be capable of execution, are matters that are relevant only to the exercise of the court’s discretion and not to the issue of whether Order 11(1)(h) has been satisfied. This is also an issue on which there appears to be a divergence between the approach taken by the Irish and the English courts.

260. In formulating the good arguable case test in Analog Devices, Fennelly J explicitly included a requirement that the inclusion of the anchor defendant “must not be a mere device to get a foreign party before the Irish courts”. He addressed this issue in the section of his judgment in which he deals with the applicability of Order 11(1)(h). That makes it clear that he regarded the mere device issue as going to jurisdiction, i.e. whether the case came within Order 11(1), rather than going to the exercise of discretion under Order 11(2) or (5). The courts of English and Wales (and the Privy Council) have since taken a different view as to when this issue should be considered and in Altimo Holdings the view taken in Multinational to the effect that this is an issue going to the exercise of the court’s discretion rather than a matter affecting eligibility for service out was approved. Notwithstanding the reservations expressed by the Court of Appeal in Red October, that appears to be the law in England and Wales. The plaintiffs argue that this line of case law should be followed and that Fennelly J’s comments are clearly obiter since it was not suggested in Analog Devices that the proceedings brought in Ireland against the Irish insurer was a mere device to bring the US insurer within the jurisdiction of the Irish courts.

261. Whilst the decision of the Privy Council in Altimo Holdings must be treated with some caution as it is premised on the assumption that a good arguable case requires one side to show it has a much better argument than the other, it is nonetheless of some relevance to the issue of whether an anchor defendant is sued as a mere device (although it does not use this language) and where, in the scheme of Order 11 (or its equivalent) analysis of this issue should occur. The judgment states that the fact the anchor defendant is sued only for the purpose of bringing in the foreign defendant is not necessarily fatal. Further, Lord Collins outlines the differing positions adopted in the three judgments in Multinational and concludes that the fact the anchor defendant was sued either solely or predominately for that purpose is not a ground for saying that the proceedings were not “properly brought”, provided there is a viable claim against that defendant. Instead, it is a relevant factor in the exercise of the court’s discretion.

262. Obviously, if the question of whether the case against Eurotoaz is a “mere device” goes to whether an action properly comes within Order 11(1)(h), as Fennelly J suggests, then the fact (if fact it be) that it has been sued solely for jurisdictional reasons would be fatal since the court does not proceed to consider the exercise of discretion in cases which do not meet the requirements of at least one of the gateways in Order 11(1).

263. We are of the view that the approach taken by the Irish Supreme Court must prevail in this jurisdiction notwithstanding the contrary views of the courts in the United Kingdom. The judgment in Analog Devices has represented the law in Ireland regarding service out of the jurisdiction both generally and particularly in cases under Order 11(1)(h) involving an Irish anchor defendant for in excess of 20 years. Almost all the subsequent case law takes Analog Devices as its starting point and it has never been suggested by any court that it was wrongly decided or that any element of its analysis should be disregarded. Therefore, we propose to follow the approach outlined by Fennelly J and to consider the question of whether the claim against Eurotoaz is a “mere device” at this stage of our analysis.

264. It is evident from Fennelly J’s judgment that the question of whether the case against the anchor defendant is a mere device may also be relevant to whether the foreign defendant is a “proper party” to that case – indeed he expressly uses the phrase when expanding upon his observation that there must be a sound basis for contending that the foreign defendant is a “proper party”. However, he immediately follows this with a quotation from Dillon LJ in Multinational dealing with whether an action is “properly brought”. Therefore, in our view, the mere device issue is potentially relevant to both limbs of the jurisdictional gateway under O.11(1)(h). As the Russian UCCU Defendants’ argument was heavily based on the proposition that the action against Eurotoaz was not properly brought for this reason, the focus of our analysis will also be on the “properly brought” aspect of the mere device argument.

265. Analog Devices suggests that the phrase “properly brought” means more than merely establishing that the proceedings against the Irish defendant are procedurally and jurisdictionally compliant and that the case against it is stateable and not bound to fail. It involves a closer examination of the purpose of suing the Irish defendant, at least where – as is said to be the case here – the claim against the Irish anchor defendant has little or no prospect of conferring any real benefit on the plaintiff. The fact an Irish defendant is insolvent will assist in establishing that a claim for damages against it is not capable of conferring a real benefit on the plaintiff but it will not necessarily be determinative (per Yukos and Albaniabeg). The court must also look at the nature of any other relief sought against the Irish defendant, the possibility of such relief being granted and – crucially in this context – whether such relief confers any tangible benefit and/or there is any reality to it being capable of enforcement.

266. The phrase “mere device” has pejorative connotations even if it is intended only to convey that Eurotoaz would not have been sued if it were not for the jurisdictional advantage thereby conferred. There is considerable force in the Russian UCCU Defendants’ argument that Eurotoaz, a shell company with no assets and which, taking the Plaintiffs’ case at its height, played a peripheral – and singularly ineffective – role in the overall conspiracy, would not have been sued at all were it not for the possibility that it created of litigating the case against all other Defendants here. The Plaintiffs have not been able to advance any plausible reason why they would have sued Eurotoaz in these proceedings, were it not for this perceived jurisdictional advantage.

267. The relief sought against Eurotoaz falls into three categories. General declaratory relief is sought against all Defendants, including Eurotoaz, as to their involvement in an unlawful conspiracy to injure the Plaintiffs by wrongfully divesting them of their shareholdings in ToAZ and/or causing damage to the value of those shareholdings (paras. 231 and 232 of the Draft Third Amended Statement of Claim). Damages are sought against all Defendants for conspiracy, intentionally causing loss by unlawful means and tortious interference with contractual and business relationships (§§235, 236 and 237). There is a further claim for damages for unjust enrichment (§240) made against all Defendants but which relates specifically to the acquisition of the Plaintiffs’ shares in ToAZ and therefore appears to be of no relevance to Eurotoaz. Finally, injunctive relief is sought as against all Defendants to prevent the continuation of the alleged wrongful acts or interference with the Plaintiffs’ rights as declared by the Court (§241). Other relief is sought against the Eleventh Defendant (Mr Sedykin) regarding the current management of ToAZ and its board (§§233&234) and as regards the sale and acquisition of the Plaintiffs’ shares in ToAZ (§§238&239). It is not alleged that Eurotoaz had any involvement in these matters and therefore relief under these headings cannot be granted against it.

268. The evidence before us shows that, as Eurotoaz is effectively a shell company, there is no reality to enforcing or recovering any an award of damages that might be made against it. It simply has no assets anywhere against which such an award could be enforced. We consider further the difficulties that would likely arise in seeking to enforce any order of the Irish courts against Eurotoaz outside of this jurisdiction in the following section of this judgment.

269. The benefit to be gained from declarations that Eurotoaz has acted unlawfully in conspiring with the other Defendants appears to be nugatory in circumstances where the entirety of the acts alleged against Eurotoaz consists of its unsuccessful pursuit of a claim to a shareholding in ToAZ before the Russian courts and/or Russian public bodies. That claim was dismissed by successive Russian courts and has lain moribund

– if it is not actually extinct – for more than a decade since the last appeal was rejected. This begs the question of what wrongful acts on the part of Eurotoaz could now be injuncted if the trial court were to reach the point where it was minded to grant such relief. We note that the injunctive relief sought refers to both wrongful acts and interference with the Plaintiffs’ rights but none of the matters alleged against Eurotoaz involve an interference with the Plaintiffs’ rights. The sole complaint is that Eurotoaz contributed to the destabilization of ToAZ by making a claim to a shareholding – but not to the Plaintiffs’ shareholding – in ToAZ. It is not in dispute that its efforts to advance that claim were entirely unsuccessful at every court level and Eurotoaz never acquired and does not own any shares in ToAZ.

270. We are, of course. mindful that Eurotoaz failed to have the proceedings against it struck out on the grounds that they were frivolous and vexatious. We are also conscious that separate consideration is required under Order 11(1)(h) as whether the Russian UCCU Defendants are a “proper party” to the conspiracy claim against Eurotoaz. Careful consideration has to be given to the proposition that the joinder of Eurotoaz should be characterised as a mere device to establish jurisdiction over the Russian UCCU Defendants even if we are satisfied that it was intended to and did achieve that objective.

The strength of the connection the claim against the anchor defendant has to this jurisdiction may be relevant to this analysis.

271. In the two leading Supreme Court decisions, Analog Devices and IBRC v Quinn, the factual scenario was effectively the mirror image of the situation here. In both cases the Court was considering the position of a foreign defendant to a claim which was otherwise clearly based in and connected to this jurisdiction. In Analog Devices, the incident giving rise to the insurance claim occurred in this jurisdiction and the plaintiffs were based here. In IBRC v Quinn, the main plaintiff was an Irish company whose status was governed by special Irish legislation and the main defendants were members of a family all of whom were resident in Ireland. Here the Irish link is far more tenuous. In our view, the tenuous character of the link that the proceedings have to this jurisdiction is relevant both to whether the claim against Eurotoaz is a mere device to bring the Russian UCCU Defendants before the Irish courts and, in the event that we were to conclude that the claim is not a mere device, then it remains relevant to whether the case is a proper one for service out of the jurisdiction within the meaning of Order 11(5) RSC.

272. We are satisfied that the Plaintiffs’ claim against Eurotoaz is not realistically capable of conferring any benefit on them. This is so even if the Russian UCCU Defendants are proper parties to the conspiracy claim against Eurotoaz (as to which, see further below). The only discernible purpose that the pursuit of Eurotoaz appears to serve in these proceedings is to provide a basis to establish the jurisdiction of the Irish courts over the entire claim. Therefore, on balance we are satisfied that in the circumstances of this case the claim against Eurotoaz is a mere device in the sense meant by Fennelly J in Analog Devices. It follows necessarily, that the action against Eurotoaz is not “properly brought” for the purposes of Order 11(1)(h).

273. In reaching this conclusion we are conscious that had we followed the jurisprudence of the United Kingdom courts on the implications of the anchor defendant’s insolvency and it being sued as a “jurisdictional hook”, we might have reached a different

conclusion at this point of our analysis. Therefore, we propose to continue to address the requirements of Order 11(1)(h) as if the issues discussed above were not determinative of whether that gateway is available to the plaintiffs. In this context the arguments made by the Russian UCCU Defendants regarding the lack of reality to the plaintiffs’ claim against Eurotoaz and its lack of any real connection to the claims against them, have a continuing relevance as factors to be considered in the exercise of the court’s discretion in line with the UK jurisprudence. Notwithstanding the structure of Order 11 under which a party seeking service out must firstly establish that its claim comes within at least one of the gateways in Order 11(1) and then ask the court to exercise its discretion to permit service out, matters pertaining to the circumstances of the proceedings can be relevant to both stages of the court’s analysis.

Action against Eurotoaz “Properly Brought? – Alternative Analysis

274. The Russian UCCU Defendants’ arguments focused on the questions whether the claim was properly brought against the anchor defendant and whether they are proper defendants to that claim. The argument made under the first of these headings, whether the claim was properly brought did not concern the merits of the claim against Eurotoaz as much as the motive of the plaintiffs in bringing it. In particular, the Russian UCCU Defendants argued that because Eurotoaz is a shell company with no assets in this jurisdiction or in Russia, the Plaintiffs do not stand to gain any material benefit from the proceedings against Eurotoaz should they succeed. Consequently, they contend that Eurotoaz has been sued as a mere device to establish jurisdiction and to enable the application to be made to bring the Russian UCCU Defendants before the Irish courts. As noted above, we have determined that issue in favour of the Russian UCCU Defendants.

275. The following analysis is carried out on the alternate premise, i.e. that the reality of the claim against Eurotoaz conferring a benefit on the plaintiffs and whether it is a mere jurisdictional hook are matters not matters going to whether the case against Eurotoaz is “properly brought” under O.11(1)(h) but rather fall to be addressed in considering the exercise of the court’s discretion under Order 11(5) (per Altimo). However, aspects of the Russian UCCU Defendants’ arguments under the “properly brought” heading were not based on Eurotoaz’ apparent insolvency but looked more broadly at the nature of the proceedings and the relief sought in the particular factual and legal context. We now propose to address those arguments, although strictly speaking, our consideration of them is obiter as we have already held that the claim against Eurotoaz is a mere device and thus not properly brought. As a result, there is some repetition in the matters addressed in this and the preceding section of this judgment.

276. Looking in more detail at the precise nature of the claim against Eurotoaz, it is based on litigation taken by it in Russia commencing in 2009 to establish an entitlement to be registered as the owner of a 4% shareholding in ToAZ. The Russian UCCU Defendants make two points in relation to this claim. The shareholding to which Eurotoaz asserted ownership was never owned by the Plaintiffs and thus, Eurotoaz’ claim to that shareholding did not and was not capable of causing the Plaintiffs any loss. In any event, the claim which Eurotoaz pursued through various levels of regulatory and judicial

decision-makers in Russia was singularly unsuccessful at every level. It is a striking feature of the contention that Eurotoaz was involved in a single conspiracy with the Russian UCCU Defendants that the steps taken by the latter before the Russian courts and administrative authorities were largely successful whereas those taken by Eurotoaz were singularly and consistently unsuccessful. Further, the loss and damage claimed by the Plaintiffs is primarily directed at the loss sustained as a result of deprivation of ownership of their ToAZ shares, something with which Eurotoaz had no involvement. The criminal complaints made by, and the civil claims brought by, Eurotoaz with the object of advancing its claim to a shareholding ToAZ – all equally unsuccessful – are not said (and could not be said) to have caused any financial loss or damage to the Plaintiffs. Equally, the declaration sought as to the ownership of the Plaintiffs’ ToAZ shares and the orders that are sought regarding the return of the Plaintiffs’ shares, are all matters which have no relevance to Eurotoaz.

277. The Plaintiffs argue that this analysis misrepresents the nature of their claim against Eurotoaz. They emphasise that the claim is one of a conspiracy to which all the Defendants were party. They say that, while Eurotoaz was not directly involved in the events in Russia which resulted in the loss of the plaintiffs’ shares, its campaign of litigation, which the Plaintiffs characterise as vexatious and fraudulent, was part of a pattern of activity designed to destabilise ToAZ and make it more vulnerable to a coordinated raider attack. Further, in December 2011 UCCU acquired beneficial ownership of Eurotoaz, as a result of which the Plaintiffs contend that Eurotoaz is now under the effective control of the Mr Mazepin. The pleaded case contends that the campaign of vexatious litigation continued throughout 2014 and 2015. As the pleadings were re-amended in 2022 and no further reference was made to activity by Eurotoaz post-2015, it can be assumed that no further steps have been taken by it in pursuit of its claims in Russia since then.

278. In addition to arguing that the claim against Eurotoaz is weak and not meaningfully linked to the claims against the other Defendants, the Russian UCCU Defendants say that the litigation would not have been pursued by the Plaintiffs against Eurotoaz were it not for its role as anchor defendant in establishing the potential jurisdiction of the Irish courts over all the Defendants. This is because Eurotoaz is a shell company with no assets in this jurisdiction (or indeed in Russia) against which an award of damages could be executed and the injunctive and declaratory orders sought, which relate primarily to the plaintiffs’ shareholding in ToAZ, are of no relevance to Eurotoaz.

279. Once again, the Plaintiffs dispute this. They argue that it cannot be assumed that Eurotoaz would not comply with any court order made against it. Furthermore, execution would not be confined to assets located in Ireland or in Russia – although it is not actually suggested that Eurotoaz has assets elsewhere. Further, Eurotoaz has been well funded for the purposes of the litigation, such that similar funding might be available to it to meet any award of damages against it.

280. We find the latter argument unconvincing. While there appears to be no doubt but that Eurotoaz has been financially supported in its defence of the proceedings to date, there is no certainty that that will continue to be the case. In any event – and more importantly

– the fact that a third party or parties has been willing to fund Eurotoaz’s defence does not give rise to any implication that, in the event of that defence being unsuccessful, that party or parties would be or might be willing to discharge any award of damages that might be made against Eurotoaz. The suggestion otherwise is entirely speculative.

281. There are other practical difficulties regarding the enforcement of any order that might be made against Eurotoaz, whether an award of damages or of injunctive relief to prevent Eurotoaz continuing the allegedly wrongful acts or interfering with the Plaintiffs’ rights. The complaints against Eurotoaz all concern actions allegedly carried out in Russia and the Plaintiffs have not identified any mechanism through which effect could be given to an order of the Irish courts in Russia, much less to an order which purported to restrain or prohibit litigation which Eurotoaz might otherwise be entitled to take before the Russian courts.

282. The Plaintiffs argue that the enforcement of an award of damages against Eurotoaz would not be limited to assets either in Ireland or in Russia. This is, of course, correct as a matter of principle. For example, mechanisms exist which facilitate the enforcement of foreign judgments issued by courts within the European Union or the broader area covered by the Lugano Convention. However, it is not suggested that Eurotoaz has any assets in these areas – or indeed anywhere – and there is not a scintilla of evidence as to the existence of any such assets. The plaintiffs have not identified any mechanism for the recognition and enforcement of the judgment of an Irish court in Russia.

283. Further, the Plaintiffs point out that the relief sought includes declarations as to the wrongful and unlawful conduct of Eurotoaz and Eurotoaz’s participation in a conspiracy by unlawful means. Declarations do not typically require enforcement. This is either because they provide the legal basis for the making of further, enforceable orders (such as an award of damages or the grant of injunctive relief) or because it is expected that the parties to the litigation will respect the decision of the court and will arrange their future actions to take account of the content of any declaration made.

284. The comity of courts would normally mean that, even in the absence of a mechanism to enforce a foreign judgment, courts of one jurisdiction will attempt, so far as possible, to respect the judgments of courts of another jurisdiction. However, in our view such respect cannot be assumed in a case such as this, and not because of any alleged systemic issue with the Russian courts. The Plaintiffs’ case is predicated on the assertion that the litigation before the Russian courts was vexatious and that the orders made by the Russian courts were wrongly made (save, presumably, those rejecting Eurotoaz’s claims) and were procured as part of an unlawful conspiracy. If the jurisdictions were reversed and a foreign court – for example a Russian court – were to make an order predicated on the proposition that extant, final and valid Irish court orders were wrongfully made and procured as part of a conspiracy, it could not be safely assumed that the Irish courts would accept such orders and certainly would not do so without interrogating very carefully the jurisdiction under which those orders had purportedly been made. Whilst much might depend on the circumstances of the case and the context in which the orders were made, the effectiveness of orders of this nature which relate primarily to events, entities and assets located in another jurisdiction which are already the subject of court orders in that jurisdiction, is inherently problematic.

285. For that reason, and more generally, a significant question arises as to the utility of any such relief to the Plaintiffs. The Judge took the view that declaratory or injunctive relief of the type sought by the Plaintiffs could be a real practical benefit to the plaintiffs even if it could not be enforced in Russia or elsewhere. This was because it “would represent the considered and solemn views of an Irish court on the actions of an Irish company” (§196). With respect, we find it difficult to see how a declaration, albeit one representing the solemn views of an Irish court, might constitute the type of real practical benefit which, in our view, is required to justify the making of an order for service of proceedings outside of the jurisdiction. If it were to be accepted as such, then the existence of any litigation likely to lead to a judgment, regardless of the lack of any actual, practical benefit that might flow from the judgment, would appear to suffice since an Irish judgment will always reflect the considered and solemn views of an Irish court.

286. For this reason, it is proposed next to examine what is meant by the requirement that there be a practical benefit to the litigation in respect of which service out of the jurisdiction is sought and the circumstances in which that requirement arises. It should be borne in mind that this line of case law derives from cases in which the enforcement of a foreign judgment or award is sought. As pointed out when looking at Order 11, this is the only other group of cases falling within the subparagraphs to Order 11(1) which does not require a direct legal or territorial connection to Ireland.

287. In Yukos, Kelly J cited with approval passages from the judgment in Tasarruf to the effect that the court should exercise its discretion against the granting of leave to serve proceedings out of the jurisdiction where it could not be shown that a “solid practical benefit” would ensure or that there was “a real prospect of a legitimate benefit to the claimant”. In Albaniabeg, Hogan J posed the question whether the plaintiff would obtain a “practical benefit” from the enforcement proceedings. Again, it should be borne in mind that in each of those cases the court was addressing the enforcement of a foreign judgment/arbitral award and therefore the presence or absence of assets within the jurisdiction against which the judgment or award might be enforced was a crucial, albeit not determinative, issue.

288. In none of those cases was the absence of assets within the jurisdiction treated as an absolute bar to the making of an order granting leave to serve out. Indeed, in Tasarruf the order was granted on the basis that there was a reasonable possibility of future assets in the jurisdiction against which the judgment might be executed although none were presently available. However, the absence of assets does seem to have led each court to undertake a particularly careful scrutiny of the other advantages canvassed by the party seeking leave. In the two Irish cases in the absence of a real likelihood of assets becoming available, when the claimed advantages were carefully scrutinised, they were held not to provide a sufficient basis for demonstrating some material benefit to allowing service out to facilitate enforcement of the foreign judgment/award here.

289. The present case calls for a somewhat different analysis. The Plaintiffs are entitled as of right to sue Eurotoaz in this jurisdiction. Shortly after these proceedings were instituted, Eurotoaz sought to have the Plaintiffs’ claim against it struck out under the Court’s inherent jurisdiction on the basis that the claim was bound to fail. A related ground under Order 19 Rule 28 RSC asserting that the statement of claim did not disclose a reasonable cause of action was initially pleaded, but not pursued. Eurotoaz’s application was dismissed by Haughton J in the High Court ([2017] IEHC 721), which

decision was upheld by this Court on appeal ([2019] IECA 218).

290. Many of the arguments now made by the Russian UCCU Defendants echo arguments made by Eurotoaz in that application. These include the extent to which the Plaintiffs had a bona fide claim for damages against Eurotoaz as distinct to what was described as a reflective claim based on losses which could only be claimed by ToAZ. The court was also required to consider whether the documents exhibited in affidavits sworn on behalf of Eurotoaz provided a sufficient evidential basis of its claim to be entitled to a shareholding in ToAZ so as to displace the plaintiffs’ pleaded case that the Russian litigation concerning those shares was vexatious and based on fraudulent or forged documentation.

291. In dismissing the appeal, Costello J (nem diss) observed that Eurotoaz had engaged in “extensive arguments in relation to the substance of the disputed facts” and that the focus of the argument was too narrow to succeed. Counsel for the Russian UCCU Defendants argued that the import of these judgments is simply that Eurotoaz had not discharged the burden of showing that the claim against it was totally unstateable. This, it was contended, was a materially different burden then that which applies to the exercise of discretion under Order 11 which is the subject of this application. To a certain extent this is, of course, correct. However, it glosses over a difficulty with which this Court must grapple. The Russian UCCU Defendants argue that the case against the anchor defendant is so weak and so discrete from the main claim against the Russian UCCU Defendants that were it not for the jurisdictional hook provided by suing Eurotoaz in this jurisdiction, the Plaintiffs would not have pursued the claim against it at all. This argument has to be considered in light of the fact that Eurotoaz’s attempt to have the claim against it struck out was singularly unsuccessful.

292. There is a difference between a claim being unstateable in the sense that the pleadings fail to disclose a reasonable cause of action – the application under the then current version of Order 19 Rule 28 which was not pursued by Eurotoaz – and the assertion that a stateable claim is bound to fail (i.e. that it has no reasonable chance of succeeding). However, the Russian UCCU Defendants are not really saying either of these things. Their argument is pitched at a level which might be regarded as implicitly accepting that the claim against Eurotoaz is, as to its merits, both stateable and not bound to fail. Rather, it is asserted that the claim is so weak, and the prospects of recovery so poor in light of Eurotoaz’s financial status that, were it not for the fact that it provides a jurisdictional hook, it simply would not be pursued. In that context, the Russian UCCU Defendants contend that the claim is not “properly brought” against the fourth defendant within the meaning of Order 11(1)(h). (It might be noted that no issue was raised suggesting that Eurotoaz had not been “duly served” with the proceedings.)

293. Reverting for a moment to the applicable test, what the Plaintiffs are required to establish is a “good arguable case” that the proceedings are properly brought against Eurotoaz. Once the claim against Eurotoaz is accepted as stateable (as it must be since Eurotoaz’s attempt to have it struck out on the basis that it was not were unsuccessful) the issue becomes the extent to which the relative weakness of the claim (assuming that this were to be established) can lead to a finding that the proceedings were not “properly brought”.

294. Naturally we accept Fennelly J’s explanation of the good arguable case standard in Analog Devices, which requires the court to consider the substance of the matter in light of all of the circumstances and not merely whether there is technically a cause of action. His formulation of the good arguable case test expressly rejected the notion that it was equivalent to a “fair arguable case” which he described as the standard applicable to a grant of leave to apply for judicial review and in certain interlocutory applications. Consequently, for the proceedings against the anchor defendant to be properly brought, the good arguable case test requires something more than that they be merely stateable. However, to look at the strength of the claim rather than whether it is a good arguable case which has a reasonable prospect of being proven, is to move towards a “Canada Trust gloss” standard which entails an assessment of the relative merits of the parties’ claims. In our view, this does not represent Irish law. This is a fine line which may be difficult to draw in many cases. However, in this case it is not necessary to dwell on it because the argument made by the Russian UCCU Defendants did not really focus on the strength of the claim made against Eurotoaz but on the consequences of running and succeeding in that case.

295. At this preliminary stage, the threshold for determining whether proceedings are properly brought does not require the court to gauge the prospects of success of proceedings which have been held to be neither unstateable nor bound to fail. However, as explained in the preceding section of this judgment, if it is assumed not just that the claim is a good arguable claim against Eurotoaz but also that it will succeed, the question of whether the claim is “properly brought” entails a consideration of whether success in the claim can provide the Plaintiffs with any real or practical benefit.

296. Irish law does not preclude the bringing of litigation against a defendant against whom recovery might be difficult or even impossible. However, this does not mean that the prospect of recovery against Eurotoaz is irrelevant. In normal course, purely commercial considerations, including the cost of litigation, mean that litigants do not tend to institute or pursue proceedings which are incapable of conferring any benefit on them. The usual commercial logic might not apply in cases such as this where obtaining relief will not confer a practical benefit if the institution and maintenance of proceedings against an Irish defendant nonetheless confers a jurisdictional advantage on the moving party. Thus, the notion of a claim being properly brought is not limited to looking at whether the claim is stateable and has some prospect of success but entails considering the purpose of including the anchor defendant in the proceedings and what benefit possible success against that defendant will confer. This brings us back to the preceding section of this judgment in which we held that in the circumstances of this case, the claim against Eurotoaz is a mere device for the purposes of bringing the other defendants before the Irish courts. Consequently, we find that the proceedings have not been properly brought against Eurotoaz.

297. Even if this conclusion were incorrect, the lack of any real benefit to the plaintiffs from suing Eurotoaz would have a bearing on the exercise of the court’s discretion in the event that the Plaintiffs established that the claim comes within Order 11(1)(h). The prospect of recovery, albeit in the different context of the enforcement of a foreign judgment/arbitral award, was treated as a factor going to the exercise of the court’s discretion under Order 11 in both Yukos and Albaniabeg. This was in circumstances where the wording of the relevant subparagraphs of Order 11(1) merely required the existence of the foreign judgment/award to be established in order for the jurisdictional gateway to be met and did not include an additional requirement that it be “proper” in any sense.

298. We note that the Judge expressly did not decide whether Eurotoaz’s apparent insolvency went to the question of whether the proceedings were properly brought against it or only to the subsequent exercise of discretion by the court as, in any event, he was satisfied that the proceedings were properly brought against Eurotoaz. The fact that an anchor defendant’s insolvency is undoubtedly relevant to the overall question of whether a case is a proper one for service out of the jurisdiction, does not preclude it also being relevant to the anterior question of whether proceedings are properly brought against an anchor defendant under Order 11(1)(h).

299. To summarise our conclusions based on the analysis in this and the preceding section of this judgment:

(1) We respectfully differ from the Judge on the issue of the Plaintiffs’ reasons for suing Eurotoaz. In the absence of any plausible prospect that the Plaintiffs can hope to recover any damages award that might be made against Eurotoaz, and in the absence of any real or substantive connection between the claim made against Eurotoaz and the claim made against the other defendants, the inevitable inference is that Eurotoaz has been sued for the purpose of providing a “jurisdictional hook” for the Plaintiffs’ action against the foreign defendants, and in particular the Russian UCCU Defendants.

(2) In our view, it follows that the Plaintiffs’ claim against Eurotoaz is a “mere device” to get the foreign Defendants before the Irish courts, in the sense in which that term was used by Fennelly J in Analog Devices.

(3) Further, even if the Plaintiffs’ claim against Eurotoaz were to succeed, no mechanism has been identified to enforce any award of damages that might be made against that company nor any consequential benefit that would flow from any declaration that might be made.

(4) It follows, in our view, that the action against Eurotoaz has not been “properly brought” for the purposes of Order 11, Rule 1(h).

300. We are conscious that, in arriving at that conclusion, we are differing from the view taken by the Judge. As already noted, he was of the view that the claim against Eurotoaz would confer a practical benefit on the Plaintiffs and he was also persuaded that, even if the UCCU Defendants were successful in their application to have the service on them set aside, the Plaintiffs would continue to prosecute their claim against Eurotoaz. We are required to give weight to his conclusions and do so. However, we have drawn very different inferences from the material before the Court and accordingly are compelled to come to a different conclusion on this point.

301. We are also conscious that we are differing from England and Wales and Privy Council authority as to where issues of this kind fit into the analysis under Order 11. Even if the observations made by Fennelly J in Analog Devices were strictly obiter – and that, in our view, is not clear-cut – they are persuasive and warrant being given significant weight. Furthermore, in our view, the approach suggested in Analog Devices is correct as a matter of principle. If a claim against an Irish resident defendant is properly to be regarded as a sufficient “anchor” to found jurisdiction against foreign defendants that would not otherwise be amenable to this jurisdiction, it is hardly surprising that the law should require that such a claim is brought for bona fide purpose of obtaining relief against the Irish defendant and not for the purpose of providing a “jurisdictional hook” against the foreign defendants. We respectfully do not share the view of the Privy Council in Altimo Holdings that the “better view” is that such matters go only to the issue of proper forum/discretion.

We will, however, proceed in any event to consider the remaining elements of the Order

11 analysis on the premise that (contrary to our conclusion above) the claim against Eurotoaz is indeed “properly brought” and that issues as to the motive for bringing that claim go only to discretion. The next issue to consider, however, is whether the Russian UCCU Defendants are “necessary or proper” parties to the claim against Eurotoaz Necessary or Proper Parties

302. The final issue to address regarding the applicability of Order 11(1)(h) to the facts of the case is whether the Russian UCCU Defendants are necessary or proper parties to the claim against Eurotoaz which is, in our view, a more complex issue. We assume for the purposes of this analysis that we have not already concluded that the claim against Eurotoaz is a mere device such that it is not “properly brought”. Again, the starting point must be that the burden on the Plaintiffs is to show a good arguable case that the Russian UCCU Defendants are either necessary or proper parties. This does not require them to establish definitively that the claim against Eurotoaz cannot succeed in the absence of the Russian UCCU Defendants but that the Russian UCCU Defendants would still have been joined to the proceedings against Eurotoaz were all defendants located in this jurisdiction because their presence is necessary in order for the claim against Eurotoaz to be fully and properly addressed by the court. Again, the Russian UCCU Defendants’ argument is not really focused on this test as it is primarily based on the contention that Eurotoaz would not have been sued at all were the Russian UCCU Defendants amenable to being sued here as of right.

303. The Judge decided the issue on the basis that Eurotoaz would be sued in conjunction with its owner in order to ensure that, if successful, the Plaintiffs could obtain full relief (Judgment, §196). The logic of this approach is not entirely clear. If Eurotoaz were the main Defendant, there might be a rationale for suing its owner in the same proceedings to ensure that those behind an apparently insolvent company could be made liable for its actions. However, where the Russian UCCU Defendants are in fact the main players in the events of which the Plaintiffs complain, the need to have an insolvent company which they own before the court in the same proceedings in order to obtain full relief is less apparent.

304. It is important to bear in mind that, in addressing this issue, the Court is not looking simply at the relationship between the Russian UCCU Defendants and Eurotoaz but at the extent to which the claim against the Russian UCCU Defendants is related to that against Eurotoaz such that the claim against Eurotoaz cannot be properly heard unless the Russian UCCU Defendants are also present in the proceedings. The existence of a relationship between those parties is not disputed since UCCU acquired beneficial ownership of Eurotoaz in 2011. As a result, the Plaintiffs assert that Eurotoaz is now under the effective control of Mr Mazepin. However, as the Russian UCCU Defendants point out, Eurotoaz had made its claim to a shareholding in ToAZ and commenced litigation in Russia to secure that shareholding some years earlier. The Russian UCCU Defendants also downplay the connection between Eurotoaz and some of the individual defendants on the basis that an overlap of personnel is unsurprising given the admitted connection which has existed between Eurotoaz and the Russian UCCU Defendants since 2011.

305. The Judge addressed these issues at two separate points in his judgment. Between §§192 and 199 he states his reasons for regarding the Russian UCCU Defendants as proper parties to the case against Eurotoaz. Much of the same ground is covered under the heading “Good Arguable Case on the Merits” between §§203 and 224 in considering whether the Plaintiffs had made out a good arguable case against Eurotoaz. An overlap arises between these issues and indeed between these issues and whether the case against Eurotoaz is “properly brought” because of the way the case has been argued by the Russian UCCU Defendants. Under each heading, their argument reverted to asserting that because of the weak nature of the case against Eurotoaz it would not have been sued were it not for its function as an anchor defendant through which the jurisdiction of the Irish courts over the other defendants could be established.

306. Specifically, the Russian UCCU Defendants contend that there is no plausible evidential basis for the contention that Eurotoaz’s attempt to assert ownership of its claimed shareholding in ToAZ was part of a conspiracy by UCCU to acquire the plaintiffs’ shareholding in ToAZ. They acknowledge that, at the time Eurotoaz was acquired by the Russian UCCU Defendants, had Eurotoaz been able to establish ownership of the claimed 4% shareholding, that 4% together with the 7% already owned by Mr Mazepin would have given the Russian UCCU Defendants an interest in excess of the 10%, at which level certain rights are conferred upon a shareholder under Russian law. This may well have explained the Russian UCCU Defendants’ interest in Eurotoaz but does not establish that Eurotoaz’s assertion that it was entitled to a shareholding and the actions taken by it on foot of that assertion – many of which predate Eurotoaz’s acquisition by UCCU – are part of the alleged conspiracy to acquire the plaintiffs’ shares. In this regard the Russian UCCU Defendants place reliance on the fact that when the Plaintiffs’ expert, Professor Sakwa, provided a report for the purposes of an extradition application before the UK courts prior to the institution of these proceedings, his description of the raider attack allegedly being conducted by the Russian UCCU Defendants on ToAZ made no mention of Eurotoaz as part of the alleged scheme.

307. The Russian UCCU Defendants complain that the Judge’s rationale for concluding both that the Russian UCCU Defendants were proper parties to the claim against Eurotoaz and that the Plaintiffs had a good arguable case against Eurotoaz is based on only three factors. These are the fact that the claim is one in conspiracy; a coincidence between the timing of the formal institution of Eurotoaz’s legal proceedings claiming a shareholding in ToAZ in 2009 and the Russian UCCU Defendants’ acquisition of a shareholding in ToAZ in late 2008 and the overlap in personnel. The latter two factors are dismissed by the Russian UCCU Defendants on the basis that Eurotoaz’s claim to a shareholding in ToAZ was evident from at least 2006 when it appeared in its formal accounts. Further, the existence of overlapping personnel – unsurprising once Eurotoaz was beneficially acquired by UCCU – does not establish an overlap between the two causes of action. Most significantly, the Russian UCCU Defendants contend that the Judge did not engage in a meaningful analysis of the connections between the substance of the two conspiracy claims.

308. The Judge regarded the fact that the case against both the anchor defendant and the Russian UCCU Defendants was in conspiracy as “particularly significant” (Judgment, §192). He noted that the Supreme Court in IBRC v Quinn had regarded it as “pretty obvious” that where the particular actions alleged against the foreign defendant were said to be part of the same general conspiracy alleged against the Irish defendants, it would be difficult to see how the foreign defendant was not a proper party to the case.

The Judge acknowledged that there were differences between the circumstances of this case and IBRC v Quinn but considered that the principle was the same.

309. With respect, the acknowledged differences between the two cases are such that some greater analysis of whether the principle can be said to be the same is warranted. In IBRC v Quinn the case was essentially an Irish case involving the assets of Irish residents which, it was alleged, were being deliberately put beyond the reach of IBRC and other related EU creditors through their transfer to foreign companies based outside the jurisdiction. In contrast, this case is manifestly not an Irish case in that – or indeed any – sense. It is a case concerning the ownership of a Russian company and the actions alleged to amount to conspiracy all involve the making of complaints to Russian authorities, the taking of litigation before the Russian courts and the legal effect of the decisions and actions of Russian courts and other Russian administrative authorities. Even the case against Eurotoaz, which the Plaintiffs are entitled to bring here as of right because Eurotoaz is an Irish registered company, has nothing to do with this jurisdiction. It involves the legality of Eurotoaz’s claim to a shareholding in ToAZ, a Russian company, and whether that claim, and the actions taken to pursue that claim (actions all taken in Russia) were motivated, as the Plaintiffs allege, by a desire to destabilise the Russian company in order to facilitate the actions of and further the interests of the Russian UCCU Defendants.

310. In IBRC v Quinn, the Supreme Court did not have to consider whether the foreign defendant in that case would be a proper party to proceedings which had no real connection to this jurisdiction save for it being the place of registration of one defendant simply on the basis that the claim was one of conspiracy. Indeed, the paragraph of the judgment cited by the Judge (§45) indicates that the point “was not pushed” by counsel. No doubt this was because, as is pointed out in the same paragraph, the alleged conspiracy was one “to place assets beyond the reach of IRBC (sic) or those … to whom IBRC [had] entrusted the task of seeking to realise security.” The first plaintiff, on whose behalf the second and third plaintiffs were acting, was an Irish company, indeed by that time an Irish company whose status was governed by a special Act of the Oireachtas. Therefore, in our view it cannot be said that IBRC v Quinn is authority for the proposition that foreign defendants are necessarily proper parties to conspiracy proceedings brought in the jurisdiction in which any one of multiple defendants reside regardless of the nature of the alleged conspiracy or the location of the assets allegedly the subject of the conspiracy. The court is entitled to consider the nature of the conspiracy and where it is alleged to have occurred before deciding whether multiple foreign defendants must answer a conspiracy claim in this jurisdiction based on the domicile of one Irish defendant.

311. The connecting factors as identified by the Judge are based on the acquisition of Eurotoaz by the Russian UCCU Defendants in 2011; the timing of the commencement of Eurotoaz’s litigation in Russia and the fact that the litigation continued post its acquisition. It is not immediately apparent why these factors lead to the conclusion that the Russian UCCU Defendants would be sued “alongside Eurotoaz in the proceedings” were they based in this jurisdiction. Emphasis is placed by the Judge on the fact that the litigation to date between these parties has been hard fought with no concessions being made by either side. Whilst this might indicate a likelihood that the Plaintiffs would sue both Eurotoaz and the Russian UCCU Defendants, it does not establish that, absent the jurisdictional benefit which arises in the circumstances of the case, the Russian UCCU Defendants would be sued in the same proceedings as Eurotoaz.

312. The Judge revisited many of the same evidential strands in considering whether the Plaintiffs had established a good arguable case on the merits against the Russian UCCU Defendants. As previously noted, on the appeal the Russian UCCU Defendants did not seriously contest the proposition that there was a good arguable case on the merits against them. Therefore, when looking at paras. 203 to 224 of his Judgment, it is necessary to bear in mind that the Judge is addressing a different issue to that for which purposes the Plaintiffs relied on this material on the appeal, namely whether the Russian UCCU Defendants are proper parties to proceedings properly brought against Eurotoaz in this jurisdiction.

313. After a detailed review of the evidence, the Judge concluded that the Plaintiffs had established a good arguable case on the merits against both Eurotoaz and the Russian UCCU Defendants. In looking specifically at the connection between Eurotoaz’s campaign of allegedly vexatious litigation to secure its claimed shareholding in ToAZ and the Russian UCCU Defendants, the Judge did not accept that the grounds raised by the UCCU Defendants were sufficient to dislodge the good arguable case that Eurotoaz was party to a conspiracy to act by unlawful means with the Russian UCCU Defendants.

314. The particular factors which were relevant to this conclusion are set out between paras.

211 and 223 of the Judgment. These include the Plaintiffs’ assertion that Eurotoaz had not taken any step to assert its shareholding until after UCCU acquired shares in ToAZ; that Eurotoaz had advanced contradictory accounts of how it acquired its shareholding in ToAZ; that Eurotoaz had engaged in repeated attempts to litigate this matter in Russia even after the issue had been decided against it and that in an affidavit filed in 2017 the Fifth Defendant (Mr Babichev) indicated that he would seek to continue this litigation — although as noted, it does not appear that he has in fact done so.

315. Reliance was placed on the connection between certain individuals involved in both Eurotoaz and its litigation and the Russian UCCU Defendants. These included the Eleventh Defendant (Mr Sedykin) who was involved in Eurotoaz’s litigation and was a central figure in earlier litigation brought by UCCU. The Plaintiffs allege that he is connected to Mr Mazepin. Similarly, the Plaintiffs allege that the Fifth Defendant (Mr Babichev), who was a director of Eurotoaz, is a close business associate of Mr Mazepin and rely also on the connections between UCCU and the Sixth Defendant (Ms Bolotnikova), a lawyer who also acted for Eurotoaz. The Plaintiffs also complain that Mr Sedykin has been convicted of criminal offences in Russia. It is unclear how much, if any, weight should be attached to this last matter in circumstances where many of the individuals identified by the Russian UCCU Defendants as being behind or otherwise involved with the Plaintiff companies have also been convicted of criminal offences in Russia. To put it neutrally, it seems that the prosecution and conviction of people involved in business for alleged irregularities in their business affairs is far more common in Russia than in Ireland.

316. The Judge also accepted evidence of certain of the Plaintiffs’ witnesses (none of whom had been subjected to cross-examination on their affidavits). These included Mr Korolev, a former senior employee and director of ToAZ, who claimed that Eurotoaz’s litigation was part of a wider campaign by Mr Mazepin to gain control of ToAZ and the expert evidence of Professor Sakwa. In Professor Sakwa’s view, if the allegations in the Statement of Claim against Eurotoaz and Mr Babichev (prior to its amendment) were to be established, they “have all the hall marks of being connected to the corporate raid against ToAZ”. Other deponents whose evidence was not subjected to crossexamination were Mr Makhlai, Mr Zivy and Mr Walfenzao. The Judge regarded this evidence as important because it supported the various allegations in the Statement of Claim and, in the absence of cross-examination, was sufficient to establish the necessary good arguable case on the merits against both Eurotoaz and the Russian UCCU Defendants which was not unstateable and was reasonably capable of being proven.

317. In many ways, it is difficult to understand how the unsuccessful claim by Eurotoaz to a shareholding in ToAZ, formally made (albeit not actually pursued) as early as 2006, some two years before UCCU acquired an interest in ToAZ, and in respect of which proceedings issued in 2009, some two years before UCCU acquired beneficial ownership of Eurotoaz in 2011, might plausibly be said to form part of a conspiracy with UCCU to acquire the Plaintiffs’ shares in ToAZ. Apart altogether from the fact that Eurotoaz’s claim was consistently rejected by the Russian courts, it did not affect the Plaintiffs’ shareholding in ToAZ and did not cause the Plaintiffs any loss or damage. It is also difficult to see how an overlap between the personnel involved in Eurotoaz and in the Russian UCCU Defendants might, in itself, be regarded as indictive of a conspiracy between them, in circumstances where such an overlap would be expected once UCCU acquired beneficial ownership of Eurotoaz. That factual connection does not establish a legal connection between the cause of action against Eurotoaz and the cause of action against the Russian UCCU Defendants. Nor does it establish a connection between the Russian UCCU Defendants themselves and the cause of action pleaded against Eurotoaz. Consequently, it is hard to see how these factors go towards establishing – even to a good arguable case standard – that the Russian UCCU Defendants are necessary or proper parties to the proceedings against Eurotoaz.

318. However, the last group of connections relied on are different in that they deal directly with the proposition that the litigation pursued by Eurotoaz was part of a broader campaign (described as a corporate raid) by the Russian UCCU Defendants to secure control of ToAZ. In circumstances where the evidence of these witnesses was not challenged by way of cross-examination and the threshold requires the plaintiffs to demonstrate only a good arguable case, it was reasonable for the Judge to accept that such a case had been made out as regards the contention that Eurotoaz’s litigation in Russia was part of the broader conspiracy alleged against the Russian UCCU Defendants. To that extent – which is admittedly narrower than the basis on which the Judge decided the point – it follows that each of Eurotoaz and the Russian UCCU Defendants can be said to be proper parties to the case against the other.

319. As the Judge correctly observed, the requirement in Order 11(1)(h) that the foreign defendant be a necessary or proper party is alternative rather than cumulative. Once it is accepted that they are proper parties, it is unnecessary to consider if they are also necessary parties and thus we do not propose to consider whether the Russian UCCU Defendants are also necessary parties to the proceedings against Eurotoaz.

Discretion Under Order 11(2) & (5) – Is Ireland the Proper Forum?

320. As already explained, where a plaintiff establishes that the case comes within one of the gateways provided for in Order 11(1), the question whether to allow service out of the jurisdiction is ultimately a discretionary decision for the court. This is evident from a combination of Order 11(1) which states that service out “may be allowed by the court” whenever at least one of the jurisdictional gateways set out in the subparagraphs which follow are satisfied; Order 11(2) which requires the court to have regard to the comparative cost and convenience of proceedings in Ireland or in the defendant’s place of residence and Order 11(5) which outlines material which the applicant for service out must place before the court in order for the court to exercise a “due discretion” under which leave should not be granted unless the court is satisfied “the case is a proper one for service out of the jurisdiction”. As the authorities make clear, that involves a broad evaluative judgment in which the factors said to connect the litigation to this jurisdiction and those factors which connect the litigation to another jurisdiction or jurisdictions are assessed.

321. Because we have held that the claim against Eurotoaz is not “properly brought” as it is a mere device to bring the other Defendants within the jurisdiction of the Irish courts, strictly speaking it is unnecessary to proceed to consider how the Court should exercise its discretion. However, in reaching our earlier conclusion we acknowledged that there were two different approaches to the correct scope of the “properly brought” analysis. Some of the matters we considered in concluding that the claim against Eurotoaz was not properly brought would, if the UK jurisprudence were to be followed, have fallen to be considered as part of the exercise of the Court’s discretion rather than as part of the gateway analysis. For that reason we proceeded to consider each of the two limbs of Order 11(1)(h) (even though the claim fell at the first) and we will now address the issue of discretion. As will be apparent from our conclusions under this heading, in our view the discretionary factors weigh decisively against the Irish courts assuming jurisdiction of this case. Consequently, it makes little practical difference whether the Russian UCCU Defendants succeed on the Order 11(1)(h) issue or on the Order 11(5) issue as, either way, their appeal will be allowed and the order granting leave to serve the proceedings out of the jurisdiction on them will be set aside.

322. In approaching this aspect of the appeal, the Court is conscious that it has not upheld the conclusions of the Judge as regards to the Plaintiffs’ case coming within the jurisdictional gateway provided by Order 11(1)(h) on the properly brought ground, although we would have concluded that the Russian UCCU Defendants were proper parties to the case against Eurotoaz, albeit on a somewhat narrower basis than the Judge. That part of the decision under Order 11 focuses primarily on whether the terms of the relevant subparagraph are met, a legal question albeit one which under subparagraph

(h) which entails an element of qualitive assessment regarding the propriety of the proceedings against Eurotoaz and whether the Russian UCCU Defendants are necessary or proper parties to those proceedings. The remaining part of the decision to be made under Order 11 is entirely discretionary. Consequently, the Plaintiffs argue that once the Judge exercised his discretion in accordance with the appropriate legal principles, a measure of deference must be shown to his decision on appeal.

323. Whilst this is undoubtedly correct, the case law relied on by the Plaintiffs, most particularly the decision in Stafford v Rice [2022] IECA 47 makes it clear that the Court of Appeal has full appellate jurisdiction over discretionary orders of the High Court and may substitute its discretion for that of the trial judge. We have referred to this case law above.

324. Before we move to consider the type of factors relevant to the exercise of the court’s discretion under Order 11 and the actual matters considered by the Judge in this case, there is one significant feature of this appeal which warrants significant emphasis. Earlier in this judgment, we considered the application brought by the Russian UCCU Defendants to admit new evidence (§§78-98). For the reasons set out there the Court concluded that it was appropriate to admit of the bulk of the material in respect of which the application was brought, consisting primarily of evidence regarding the Plaintiffs’ status as fiduciary managers of the shares the subject matter of the proceedings (having described themselves as “owners” in the pleadings as originally filed) and evidence of participation by the Plaintiffs in various proceedings in Russia since the hearing of the application in the High Court. The decision to admit the latter material, which the Court accepted was not available to the Russian UCCU Defendants at the time of the hearing before the High Court, was based on its potential relevance to a matter on which the Judge placed significant weight in the exercise of his discretion. This was the Plaintiffs’ claim, which the Judge accepted as a fact, that they could not realistically be expected to pursue their claims in Russia (Judgment, §294). The former material was admitted on the basis that it would be wholly unreal to exclude the fact that the Plaintiffs are not the beneficial owners of the shares from this Court’s consideration particularly as the Plaintiffs themselves had, since the date of the High Court decision, been permitted to join ten additional Plaintiffs to the proceedings, precisely on that basis (see the decision of McDonald J in [2023] IEHC 235). These additional plaintiffs were described as the owners of the shares and the settlors of the trust management arrangements under which the Plaintiffs exercise fiduciary powers (Judgment of McDonald J, at §3).

325. The significance of this is that when this Court comes to consider the exercise of discretion under Order 11, it will be doing so on a different evidential basis to the High Court. Crucially, the new evidence is highly material to one of the factors on which the Judge placed significant, indeed almost determinative, weight. As we observed earlier, the factual complexion has altered materially since the hearing in the High Court.

326. Before looking at the manner in which the High Court exercised its discretion it may be useful to see what guidance is offered by the decided case law on this issue. Some judgments expressly address the nature of the factors to be taken into account, others simply address the matters relevant to the particular circumstances. Of course, it is inherent in the nature of a discretionary power that the range of factors potentially relevant to its exercise cannot be circumscribed. Relevance must be determined by the particular facts and circumstances of each case, as must the weight to be attached to each factor that has been determined to be relevant.

327. For the purposes of Order 11, the burden is on the applicant (here the Plaintiffs) to establish that Ireland is “clearly or distinctly” the appropriate forum for the trial of its claims against the Russian UCCU Defendants and that, in all the circumstances, the court ought to exercise its discretion to permit service out. As part of that assessment, the court should consider whether “there is some other available forum, having competent jurisdiction, which is the appropriate forum for the trial of the action – i.e. in which the case may be tried more suitably for the interests of all parties and the ends of justice” (per Lord Goff in Spiliada). It is also clear that a “broad overall view” should be taken. The issue is not whether the alternative forum is advantageous or disadvantageous to any particular party, but the suitability of that forum having regard to the interests of all of the parties and its ability to decide the issues in a manner consistent with the interests of justice.

328. In order to apply this test, it is necessary first to identify the substantial cause of action between the parties and second to establish that the remedy available in the alternate jurisdiction is one capable of providing substantive justice. On the facts of this case, it is obvious that the alternative forum under consideration is Russia. The expert evidence establishes that a remedy is available under Russian tort law in circumstances equivalent to conspiracy, which is the substantial cause of action in this case. The Plaintiffs did not seriously dispute the theoretical availability of a remedy under Russian law but contended, for reasons which were accepted by the trial judge, that that remedy would not be available to them. We will return to this in due course.

329. It is also necessary to consider whether the good arguable case test applies to the exercise of the court’s discretion under Order 11. The logic of applying this test to the jurisdictional gateways under Order 11(1) is readily apparent. To justify the exercise of the “exorbitant” jurisdiction to bring a foreign defendant before the Irish courts, it is appropriate that the party seeking leave to serve out of the jurisdiction establish that it has more than a merely stateable case. At the same time, as the case will not have been heard at the time the application for service out is made, it would be inappropriate and indeed potentially unfair to require the applicant to establish its case to the normal civil standard of proof. This is in part because of the difficulty a court faces in resolving factual disputes at an interlocutory stage (albeit one in which the question of jurisdiction is finally determined). However, it is also in part because the applicant will not have had the benefit of the various procedures available under the Rules of Court to gather evidence or achieve concessions from the defendant which, in the context of a full trial, can assist in discharging the evidential burden upon it.

330. The same considerations do not necessarily apply to the exercise of the court’s discretion. Of course, it remains the case that the onus of establishing that the court’s discretion should be exercised in favour of granting leave to serve out remains on the plaintiffs even after they have established the applicability of the relevant jurisdictional gateway. In exercising its discretion, the court is required to consider and balance a range of factors, which will vary from case to case. There is no specific proposition and certainly no factual proposition that must be proved or disproved in order for the court to exercise its discretion in favour of granting leave to serve out of the jurisdiction, save that to do so is, in general terms, consistent with the interests of justice. There is certainly no factual proposition which, if established, mandates the exercise of the court’s discretion in a particular manner.

331. It is open to both parties to seek to rely on particular matters and, in so far as they do so, the onus lies on the party seeking to advance an argument relevant to the exercise of discretion to adduce sufficient evidence to establish the factual basis for any argument they wish to make. It is important to appreciate that even if such underlying facts are established, precisely because the court is exercising a discretion it does not follow that the discretion must be exercised in favour of that party. For this reason, it is not, in our view, accurate to speak in terms of the exercise of the court’s discretion under Order 11 as being subject to the good arguable case test. In weighing up the various factors that go to the exercise of the court’s discretion, it does not follow from the fact that the plaintiffs might have adduced sufficient evidence to ground their argument, that the court is obliged to accept that argument even in the absence of evidence on the point from the other side.

332. It is interesting to note the type of factors which have been treated as relevant to the exercise of the court’s discretion in other cases, whilst acknowledging that relevance will always be specific to the facts of the particular case. In Analog Devices, on the one hand Fennelly J looked at the existence of proceedings concerning the same insurance policy instituted in the USA, the fact that the policy had been issued in the USA and that the defendant insurer claimed its witnesses were based in the USA. As against this, he considered the nature of the US proceedings which sought a negative declaration (the reverse of the normal order) and the fact that the contract of insurance gave jurisdiction to the US courts at the option of the plaintiffs, who had chosen to sue in Ireland. He did not accept that key witnesses were based in the US as the claim arose from an incident which occurred at a plant located in Ireland. The determinative factor seems to have been that the Irish courts had “undisputed jurisdiction” over the related claim against the other defendant raising “an almost identical issue”.

333. In Intermetal the starting point for the court’s analysis was the incorporation of the only defendant in Ireland and the institution of proceedings here against that defendant as of right. The determining factor was the urgency of the interlocutory proceedings such that a refusal of jurisdiction would have amounted to a denial of justice for both parties — a factor which is not relevant here. In looking at the decision of the English Court of Appeal in Harrods and the consequences which flowed from the fact that a company conducting business in Argentina was registered in the United Kingdom, Murphy J said (at p.34):

“Approached that way there could never have been any doubt that the Argentine was the jurisdiction with which the proceedings were more closely connected. The business was there. The acts complained of were done there. The witnesses were there not in England, they spoke Spanish not English. The documents and records were in the Argentine and in Spanish. Emphasis was also placed upon the fact that the evaluation of factual evidence would require a familiarity with local conditions and that expert evidence which would be needed in England would not be needed in Argentina. On the other hand the factor connecting the case with England was almost exclusively the incorporation of the Company there. Certain formal consequences followed.”

In the circumstances Murphy J noted Bingham LJ’s conclusion that the factors connecting the action with Argentina “comfortably outweighed” those connecting it with the United Kingdom as a result of which he proceeded to consider whether Argentina was the forum in which the action might be tried more suitably for the interests of all the parties and the ends of justice. Very clearly, there are many parallels with this case in terms of the connections between the issues raised and the parties against whom they are raised and Russia. The logic of Harrods as adopted by the Supreme Court in Intermetal is that the existence of these connecting factors simply establishes that there is an alternative forum with competent jurisdiction. It is still necessary to consider, separately, whether the alternative forum is one in which the case can be suitably tried for the interests of all the parties and the ends of justice.

334. In IBRC v Quinn Clarke J looked at these issues as part of his consideration of forum non conveniens rather than as factors going to the exercise of the court’s discretion under Order 11. He started by identifying practical factors which affected “convenience, expense, appliable law and the location or place of business of the parties”. These went towards the identification of whether there was an alternative forum which was a more natural place for the case to be tried. He then considered whether the interests of justice required the Irish courts to retain seisin of the proceedings. Finally, he addressed factors, also of relevance here, arising out of the fact that the applicant for a stay was one of a number of defendants and the grant of a stay would necessarily lead to the fragmentation of the plaintiffs’ case which, in turn, could lead to injustice.

335. In looking at the weight to be attached to fragmentation, Clarke J considered the extent to which the case against the parties seeking a stay was distinct from the case against all other defendants or, alternatively, inextricably wound up with the claims against the other defendants. Fragmentation was a particularly important part of the analysis in IBRC v Quinn in circumstances where the court took the view “the issues raised in the Indian proceedings are but a small subset of the overall issues which arise in these Irish proceedings”. Obviously, two sets of proceedings are not in being here, but insofar as the UCCU defendants contend that any claim the plaintiffs wish to make against them should properly be brought before the Russian courts, the situation here is the reverse of that in IBRC v Quinn. The case against Eurotoaz is, at its height, a small subset of the overall issues between the plaintiffs and the defendants.

336. In Bazhanov it was held in that in light of the very strong factors which connected the case to Russia, the only way in which the claimants could overcome the “overwhelming Russian nature of the dispute” would be to demonstrate “a real risk that substantive justice will not be done because they could not get a fair trial in Russia”. Factors in play included that the business the subject of the litigation was located in Russia, key witnesses were also based there, and their evidence would be in Russian, almost all of the key documents were in Russian, and the causes of action were governed by Russian law. It should be evident that many very similar factors connecting the proceedings to Russia are also present in this case. Ultimately, in Bazhanov the leave which had been granted to serve the Russian UCCU Defendants outside the jurisdiction was set aside.

337. The last case to which we will refer for the purposes of examining factors treated as relevant to the exercise of the court’s discretion is Vedanta. Of nine connecting factors considered, all bar one weighed in favour of Zambia as the natural forum for the trial of the action. The factors considered were that the alleged wrongful acts which were the causative link with the damage complained of occurred in Zambia; the mine was operated under a Zambian licence and under Zambian legislation; the regulator and regulatory records were based in Zambia; all of the claimants and the Zambian defendant’s witnesses of fact were based in Zambia; documents would require translations for use by an English court and the judgment of a Zambian court would be enforceable against the English defendant in the United Kingdom. The only contrary factor was that significant documentation was also located in England.

338. In circumstances where the claimants indicated they intended to pursue the UK based defendant in England even if they were not permitted to proceed against the Zambian defendant in England, the court did not accept that the risk of a multiplicity of proceedings and inconsistent judgments (i.e. fragmentation) was a decisive factor weighing in favour of the trial taking place in England. This was because the risk of fragmentation resulted from a choice made by the claimants themselves. They could not rely on the consequences of their choice to establish jurisdiction over an unwilling foreign defendant. However, the English courts ultimately accepted jurisdiction on the basis that substantial justice was not available to the claimants in Zambia. This was due to the non-availability of legal aid and a lack of specialist legal practitioners in a very complex area of the law.

339. The Plaintiffs rely on the subsequent decision in VTB which suggested that Vedanta did not mark a significant change in the pre-existing law. Instead, it confirmed that fragmentation remains a factor, and potentially a predominant factor depending on the facts. On the facts of that particular case the English courts rejected jurisdiction over what was characterised as “in essence a Russian case” with “no real link to England”.

340. Drawing these strands together, the exercise of discretion under Order 11 in accordance with the Spiliada test is a two-phase exercise. The first phase seeks to establish whether there is a forum, alternative to the Irish courts, which is the more natural forum for the trial of the action between the parties. In cases where this issue is examined in the context of forum non conveniens the courts have held that the availability of the alternative forum must be clearly and positively demonstrated by the parties seeking a stay. Here, the Plaintiffs bear the onus of proof as the party seeking service out of the jurisdiction. Consequently, once an alternative forum has been identified, in this case Russia, then the onus lies on the plaintiffs to establish that Ireland, and not Russia, is clearly the appropriate forum for the trial of the action as against the Russian UCCU Defendants. This will entail an examination and a weighing of the factors which connect the proceedings to Ireland on the one hand and to Russia on the other.

341. The second phase looks at where the interests of justice lie and particularly in cases where, at the end of the first phase, it is apparent that the natural home of the litigation lies in a foreign jurisdiction, asks whether substantive justice will be available to the parties seeking service out in that foreign jurisdiction. The issue is no longer which of the two jurisdictions is the more suitable – or even which is more likely to achieve a just result. It is only if the foreign jurisdiction is unable to deliver substantive justice to all of the parties that the Irish courts should accept jurisdiction over the case. The range of matters to be considered is both broad and open ended. It will include the potential for fragmentation of the proceedings with the risk of multiple proceedings producing conflicting judgments; the ability of the parties to access the courts in the foreign jurisdiction, which is particularly important if not all defendants could be sued there; the ability of those courts to deliver impartial substantive justice and the burden that could be imposed on the Irish courts by accepting jurisdiction over proceedings that, more naturally, should be tried in a foreign jurisdiction.

342. The connecting factors to be considered in the first phase may usefully be grouped under a number of headings. Again, the categories are open ended and case specific, so the following examples are intended to be merely illustrative rather than exhaustive. First, there are factors connected to the events that have led to the litigation. Where did the incident giving rise to the proceedings occur? Where was any contract made? Where did the alleged breach or other wrongful act occur? If the proceedings concern land or property, where is that property located? Where was the damage allegedly sustained? In this case, “Russia” is the answer to all of those questions.

343. Second, there are factors connected to the parties themselves. Where are the parties domiciled or resident? Where do they carry on their business? Do they speak a common language and is this the language of the foreign jurisdiction? Are there personal factors relating to any of the parties which would make it inappropriate for them to be required to litigate in the foreign jurisdiction? For example, it might be inappropriate to expect a recognised refugee to litigate in the courts of the country from which they have sought refuge. The answer to this question is a little less black and white in this case. Eurotoaz is obviously an Irish registered company – but the only activity in which it seems to have engaged (and the activity giving rise to the claim against it) took place entirely in Russia. No other Defendant is located in Ireland. The Russian UCCU Defendants are all based in Russia. Three of the other Defendants are based in other EU jurisdictions. None of the Plaintiffs are based in Ireland. Insofar as relevant to these proceedings, all of the parties’ business has been focused on Russia. The language of the case will clearly be Russian and significant interpretation and translation will be required for the Russian UCCU Defendants to appear before an Irish court.

344. Third, there are factors connected with the running of the proceedings which will likely impact on issues of comparative cost and convenience relevant under Order 11(2). For example, where are the witnesses of fact based? Will large numbers of witnesses be required to travel to Ireland to give evidence? Do the witnesses speak English (or less likely, Irish) or will interpretation be required in order for their evidence to be heard by an Irish court? Where are the relevant documents located? Are they amenable to compulsory production before the Irish courts? Will they require translation into English? Some of these factors may be less important than they previously were given the availability of digital platforms through which witnesses can give evidence without travelling to the location of the trial court and the possibility of scanning documents and transmitting them electronically. Nonetheless, cumulatively they have the potential to add significantly to the cost and convenience of a trial in a jurisdiction that is not the natural home of the litigation. Whilst the Plaintiffs may have to call some corporate witnesses from the Caribbean to establish the connection between the various Plaintiff companies and their interest in the shares, almost all of the witnesses regarding the alleged acts of conspiracy appear to be or have been based in Russia. Those who are not, are not based in Ireland. If the Plaintiffs are to prove that actions of the Russian authorities responsible for corporate governance and bankruptcy were procured as part of a conspiracy – or indeed if the Defendants are to disprove that proposition – it is likely that officials from the relevant authorities will have to be called. However, it is fundamentally unclear whether such officials would be amenable to giving evidence in Ireland or compellable if not prepared to give evidence voluntarily.

345. Fourth, there are legal factors to consider. Would a judgment of an Irish court be enforceable against the parties in the jurisdiction where they are based or against assets available to them? Alternatively, would a judgment of the foreign court be enforceable in Ireland against the assets of the Irish defendant? What is the governing law which an Irish court would have to apply to the proceedings? This is a point of some significance as the conduct of lengthy litigation under the law of a foreign jurisdiction is no easy task. The points made by the Court of Appeal in Red October and by Corkerill J in VTB as to the relevance of this fact appear to apply with even greater resonance here, given the nature and scope of the allegations advanced by the Plaintiffs, the temporal scope and the fact that any adjudication on those allegations would appear to necessitate a broad inquiry into Russian court proceedings and procedures (a factor to which we will return). The burden of any such exercise is particularly acute where (as here) the jurisdiction in question does not share an underlying common law basis with which Irish lawyers and judges might reasonably be expected to be familiar. If proceedings governed by foreign law are heard here, the procedures applicable to the litigation, including the rules of evidence, will be governed by Irish law but the substantive issues would have to be determined by reference to the law of the foreign jurisdiction. Expert evidence would be required to prove that law (evidence likely to be given in Russian, and therefore to require translation) and that evidence would then be treated as a matter of fact by the Irish court. This in turn can give rise to issues on appeal where different standards of appellate review can apply to the facts as found by a trial judge as opposed to any legal error made by him or her. Presumably, expert evidence as to Russian law and procedure would also have to be led for the purpose of seeking to persuade the court of trial that the many judicial decisions adverse to the Plaintiffs were not simply wrong as a matter of Russian law and/or procedure but were, so to speak, so obviously wrong as to give rise to an inference of impropriety. Given the multiplicity of Russian courts involved, and the many decisions made by them (as well as the many decisions of regulatory bodies similarly impugned by the Plaintiffs), that would be a mammoth (and unprecedented) exercise for an Irish court to undertake.

346. Differences between the legal procedures available in the two jurisdictions might also be relevant. These differences have to be approached not simply on the basis that their availability in one jurisdiction confers a benefit on one or other party and their absence in the other jurisdiction a consequent detriment. The procedures available in each jurisdiction will necessarily vary and the question is not whether the procedures in the foreign jurisdiction are particularly advantageous or disadvantageous to either party, but whether on an overall basis, the procedures are such that they enable parties appearing before the foreign court to achieve substantial justice. Clearly, the ownership of shares in a Russian company is governed by Russian law as are issues concerning the corporate governance of that company and the bankruptcy of persons resident or domiciled there. All of the legal and procedural complexities described above will inevitably arise if this litigation is to be conducted before an Irish court.

347. The Judge looked at these issues under the heading “Proper Forum” commencing at §251 of his Judgment. He acknowledged that the relevant test is that set out by Lord Goff in Spiliada as adopted and applied in multiple Irish cases in the context of Order 11(2) and (5) including Intermetal, Analog Devices and Yukos. He attached particular importance to the consideration of fragmentation by Clarke J in IBRC v Quinn. He sets out in detail the case made by each of the parties and the evidence relied on by them to support their arguments between §§275-293 of his Judgment. Broadly speaking, the Russian UCCU Defendants relied on the large number of factors connecting the case to Russia and disputed the issues relied on by the Plaintiffs to say that substantive justice would not be available to them in Russia.

348. The Plaintiffs in turn relied on the contention that it was unrealistic for them to litigate in Russia when many key individuals connected with ToAZ would be unable to travel to Russia to participate in proceedings because of steps taken by the Russian authorities against them and the risk that they would be imprisoned if they returned. The Plaintiffs pointed to the fragmentation of proceedings which would result if they could not sue the Russian UCCU Defendants here in circumstances where they asserted, and the Judge accepted, that regardless of the outcome of this application they intended to pursue the case against Eurotoaz and the other defendants who have submitted to the jurisdiction of the Irish courts. They emphasised the particular difficulties fragmentation would cause in circumstances where all of the defendants are alleged to have been involved in a single conspiracy. They say that they would not receive a fair trial in Russia due, inter alia, to the absence of certain procedural mechanisms under Russian law which are available in Ireland. The most important of these were the right to cross-examine opposing witnesses and discovery of relevant documentation from opposing parties in advance of the trial.

349. It is not proposed to repeat the arguments of the parties in any detail here nor to set out the evidence on which they were based. It is sufficient to note that the additional evidence we have allowed to be adduced is particularly relevant to the question of whether the Plaintiffs can reasonably be expected to litigate in Russia.

350. The Judge’s conclusions are based on a very careful examination of the case made by the parties and the evidence then adduced by them. He concluded that the Plaintiffs had discharged the burden on them to show that Ireland was the proper forum, and that Russia was not a more appropriate forum (Judgment, §294). He accepted the Russian UCCU Defendants’ assertion that the vast majority of factors “on the face of it” pointed to Russia as the more appropriate forum, noting that there were “substantial Russian interests involved” and that the Plaintiffs’ case was “directed towards protecting their shareholding in a Russian company”. He also acknowledged that most of the “events and conduct” on which the pleas of conspiracy are based were alleged “to have occurred and to be ongoing in Russia”. However, he said that this was not exclusively the case and noted that certain of the pleaded events had occurred outside of Russia. That may be so, but none of these took place in Ireland. Rather they allegedly occurred in Hungary, Switzerland, the United Kingdom (extradition proceedings) and Cyprus. On any view, however, the tangential connection to other jurisdictions does not alter the fact that the centre of gravity of the proceedings is clearly decisively in Russia.

351. The Judge noted that the Plaintiffs were not Russian and that six of the then Defendants were not Russian. Since then, permission has been given for the joinder of two further Russian Defendants (KAI and AKTUM). The Judge acknowledged that the proceedings would have to be decided under Russian law and that Russian legal experts would be required to give evidence and be cross-examined and that “some may require interpreters”. He did not expressly address the need for other witnesses, including witnesses of fact, to travel from Russia to give evidence nor the likelihood that they would require interpreters in order to do so. He did not consider difficulties the Defendants might face in procuring the attendance in Ireland of witnesses from Russian state authorities who might be reluctant to travel voluntarily to face examination and cross examination before a foreign court. Nor did he consider the likelihood –in fact the certainty – that all of the documents emanating from Russia will be in Russian and therefore would have to be translated before they could be used in an Irish court.

352. In concluding that despite these connections with Russia, Ireland was nonetheless the more appropriate forum, the Judge placed particular reliance on two cases – Intermetal and IBRC v Quinn. In our view while these cases do illustrate the balancing exercise a court must conduct before assuming jurisdiction where there are strong connecting factors with the foreign jurisdiction, they are not really analogous with the present situation. Although the dispute in Intermetal was clearly one with significant connection to Russia, the party seeking to stay the Irish proceedings was an Irish registered company. There were no other defendants to the proceedings. It is now clear that O’Sullivan J’s view that the Irish courts had a residual discretion to consider an application by an Irish domiciled defendant sued in Ireland for a stay on forum non conveniens grounds was misplaced. Since Owusu and similar cases, such an application could no longer be considered compatible with the Brussels I Recast Regulation (see also the decision of Dunne J in Abama v Gama [2011] IEHC 308 approved at [2015] IECA 179). In any event, holding that proceedings, albeit proceedings strongly connected to another jurisdiction, against a single Irish defendant should be heard in Ireland is, in our view, materially different to holding that multiple foreign defendants in proceedings strongly connected to another jurisdiction should be sued in Ireland solely because of the presence of a lone Irish defendant.

353. In IBRC v Quinn, the Indian proceedings were properly characterised as a subset of overall Irish litigation in which the first plaintiff and many of the defendants were either Irish based or domiciled. Although there were significant connecting factors with India, there were even more such factors connecting the case to Ireland. This case is not comparable. There are a very large number of weighty factors which connect this case to Russia and only one – the registration of Eurotoaz in this jurisdiction – which connects the case to Ireland. Further, although Eurotoaz is an Irish registered company it does not conduct business here, it has no employees based here and has no assets within the jurisdiction. The matters pleaded against it in the proceedings did not occur here. Thus, the only connection the proceedings have to this jurisdiction is the bare fact of Eurotoaz’s registration here.

354. It is undoubtedly correct to say (as the Judge does at §301 of his Judgment) that notwithstanding potentially strong connecting factors with a competing jurisdiction, Irish courts have nonetheless held that justice may require that a case be heard by the Irish courts. However, where the factors which connect the case to a foreign jurisdiction are overwhelming and those connecting it to Ireland are slim, it seems to us that the considerations which would justify a conclusion that the case should nonetheless be heard by the Irish courts must be commensurately stronger than if the connecting factors were more evenly balanced.

355. Lest there be any doubt about it, we are satisfied that almost all of the connecting factors which the parties have identified as relevant demonstrate overwhelmingly that this is a Russian case. Factors such as the Plaintiffs’ domicile outside of Russia and that certain, peripheral, actions alleged to form part of the conspiracy took place outside of Russia are, in our view, of no real assistance to the Plaintiffs, since they do not connect the case to Ireland in any way. They are also of marginal relevance (at best) given the strength of the factors which connect the case to Russia. Therefore, the onus lies on the Plaintiffs to show convincingly that there is a real risk that they would not receive substantive justice were the case to be heard in Russia.

356. In deciding that the interests of justice required the case to be heard here, the Judge looked at five separate issues – fragmentation; the absence of key witnesses; the absence of discovery/disclosure and cross-examination; fair trial in Russia and delay. The fourth and fifth of these – fair trial in Russia and delay – were not material to the conclusions he reached. In relation to delay, i.e. the Russian UCCU Defendants’ delay of 2 years bringing the set aside application, he regarded this as a relevant factor but not decisive or determinative and not sufficient in itself to lead the court to exercise its discretion in the Plaintiffs’ favour. Although the Plaintiffs continued to rely on delay as a factor, no specific arguments were directed towards it on the appeal and none to suggest that the Judge should have afforded it greater weight than he did.

357. Perhaps more significantly as regards the Plaintiffs’ claimed inability to obtain a fair trial in Russia, the Judge held that in light of his conclusions on the other factors relied on by them, it was unnecessary for him to express any concluded view on the issue. In taking this approach he was mindful of the “particular restraint” which an Irish court would have to exercise before concluding that a party “would not receive substantial justice by reason of the lack of independence or other systemic inadequacies in the other jurisdiction, having regard to the requirements of international comity of courts”. This approach is consistent with views to similar effect expressed by Lord Collins in Altimo Holdings (§97) and by the High Court of England and Wales in Bazhanov (§96) both of which emphasised the need for cogent evidence before such a conclusion could be reached. He also noted that both parties’ legal experts agreed that for the most part the Commercial/Arbitrazh courts in Russia are independent and do provide justice for those appearing before them.

358. In their Respondents’ Notice, the Plaintiffs did not cross-appeal the failure to make a finding on this issue nor did they suggest that their claimed inability to secure a fair trial in Russia constituted an additional ground on which the decision of the High Court should be affirmed. Consequently, and quite properly, Counsel for the Plaintiffs indicated that this was not an issue in the appeal. That is so and that is very significant for the resolution of the appeal. Logically this now means that for the purposes of this appeal the Plaintiffs’ contention that they cannot secure substantive justice in Russia must be considered exclusively on the basis of their complaints concerning the fragmentation of the proceedings, the absence under Russian law of procedural mechanisms which would be available to them under Irish law and their alleged inability to participate in legal proceedings in Russia because key individuals cannot travel there safely. The Court does not have to consider any allegation of a lack of independence of sections of the Russian judiciary nor whether Russian administrative and judicial authorities were or are improperly influenced by the Russian UCCU Defendants (allegations which, needless to say, were strenuously disputed by the Russian UCCU Defendants in the High Court).

359. Thus, the conclusion of the Judge that the Plaintiffs would not achieve substantive justice in Russia such that Ireland was a more appropriate forum can only have been based on his findings on the issues under the first 3 headings which we will now consider in more detail.

360. In addressing fragmentation, it is important to bear in mind, as the Judge did, that not only do the Irish courts have indisputable jurisdiction over the Plaintiffs’ claim against Eurotoaz, they also have jurisdiction over the Fifth Defendant (Mr Babichev), the Seventh Defendant (Belport Investments Ltd), the Ninth Defendant (Ms Charilaou), and the Eleventh Defendant (Mr Sedykin). Mr Babichev failed in his application to stay the proceedings against him on forum non-conveniens grounds; Ms Charilaou did not challenge jurisdiction, has filed an unconditional appearance and delivered a full defence; Belport Investments Ltd and Mr Sedykin failed to enter an appearance and judgment in default of defence was awarded against them in January 2019 with damages to be assessed at a later date – presumably in conjunction with the trial against Eurotoaz. Notwithstanding the position regarding these four defendants, it is undoubtedly the case that the legal and commercial heart of the proceedings lies in the claim against the UCCU Defendants who are also the entities who now own the Plaintiffs’ shares in ToAZ and who appear to be the only Defendants that have sufficient assets to meet the significant damages claimed by the plaintiffs.

361. At §305 of his Judgement, the Judge held it would be fundamentally unjust ‘to require’ the plaintiffs to run “the same, or at least a very closely related case alleging conspiracy in two jurisdictions”. In a similar vein, he held it would be unjust to require the Plaintiffs to unnecessarily incur the costs of proceedings in both jurisdictions. His analysis at this point does not address the decision of the UK Supreme Court in Vedanta which, given the timing of that decision, may not have been opened to him. Vedanta was, of course, referred to extensively in argument before us. We are of the view that the observations of Lord Collins in Vedanta as regards the weight to be attached to the risk of fragmentation where that risk arises because of a choice made by the plaintiff are strongly persuasive.

362. The potential for fragmentation of which the Plaintiffs complain arises because they have chosen to bring their proceedings in Ireland in circumstances where only one of the Defendants has a connection with this jurisdiction; that connection is purely formal; the legal and factual substance of the proceedings lies overwhelmingly in Russia and the Irish Defendant has, at best, a very peripheral connection to the case made against the other Defendants most of whom are based in or have very substantial connections to Russia. All the actions taken by the Irish Defendant which are the subject of the proceedings occurred in Russia. Thus, by making the choice to sue in Ireland rather than in the natural home of the litigation, i.e. Russia, the Plaintiffs created the possibility of fragmentation. Consequently, because the possibility of differing judgments being delivered in different jurisdictions arises purely as a result of the Plaintiffs’ choice, it cannot be a factor which weighs significantly in the balance to their benefit and to the detriment of the Russian UCCU Defendants.

363. In reaching this conclusion we acknowledge, as Cockerill J observed in VTB, that the balancing exercise to be conducted in each case is fact specific. The potential for the fragmentation of a claim if jurisdiction is refused and the consequent risk of overlapping and conflicting judgments is always a relevant consideration. However, it is not a consideration which, of itself, must outweigh other factors and the weight to be attached to that risk has to be assessed in the context of the particular circumstances of the case which will include consideration of the reason that the risk of fragmentation arises.

364. The Plaintiffs do not suggest that they could not, in principle, sue Eurotoaz in Russia and the evidence, particularly that which emerged in the affidavits on the motion to admit new evidence. is that they could do so. They chose to sue Eurotoaz in this jurisdiction because they are legally entitled to. However, it is their choice to do so when none of the other parties to the litigation have any connection to this jurisdiction that gives rise to the risk of fragmentation. In that sense, the Plaintiffs are not required to run their proceedings in two jurisdictions and to incur unnecessary costs in doing so. They have chosen to institute proceedings, which naturally fall within the jurisdiction of the Russian courts, before the Irish High Court because of the connection that one out of thirteen Defendants has to Ireland. In our view, the consequences of that choice cannot be a factor to which significant weight should be attached unless there are other strong reasons which justify the Irish courts accepting jurisdiction over the foreign Defendants. Further, this remains so even where the Plaintiffs’ choice to sue in this jurisdiction has resulted in some of the other defendants being brought within or accepting the jurisdiction of the Irish courts.

365. In this regard we are also mindful that there are other factors regarding the risk of inconsistent judgments in this case. The Russian UCCU Defendants have argued that many of the matters alleged to constitute elements of the conspiracy against the Plaintiffs are either proceedings in and decisions of the Russian courts, or actions of Russian authorities and officials which have been sanctioned by the Russian courts. Therefore, to succeed in these proceedings the Plaintiffs will have to establish that those decisions were wrongfully made – either in themselves or in the sense that they were wrongfully procured by the defendants. It necessarily follows that success in these proceedings would result in the Irish courts issuing decisions which are inconsistent with decisions the Russian courts have already reached. We acknowledge that the Russian courts have not been asked to determine the Plaintiffs’ current claim of conspiracy, but insofar as many of the matters now complained of and alleged to constitute elements of the conspiracy involve prior decisions of the Russian courts, the real possibility of inconsistent judgements is an inherent part of the proceedings.

366. Further, notwithstanding that the Plaintiffs expressly did not make any allegation of systemic corruption within the Russian judicial and administrative systems part of this appeal, we regard it as inherently problematic that in order for the Plaintiffs to succeed in their claim the Irish courts would necessarily have to conclude that multiple decisions of the Russian courts and regulatory authorities were corruptly and/or improperly procured by the Defendants. An Irish court could not grant relief to the Plaintiffs unless it looks behind the Russian decisions of which complaint is made to ascertain whether or not they were properly made. No Irish court appears ever to have undertaken such an exercise and, even if it is the case that courts in other jurisdictions have been prepared to inquire into the propriety of foreign proceeding and foreign judicial acts, the scale of the exercise that would be involved here – involving multiple orders made by many different Russian courts (and administrative/regulatory agencies) over a period in excess of 10 years (the Plaintiffs allege that the UCCU Scheme to obtain control of ToAZ commenced in 2011 and continued at least until 2022) – appears to be unprecedented. Certainly, we were not referred to any such precedent.

367. In this context assessing whether individual judicial decisions were properly made goes much further than establishing that the decisions are procedurally correct and legally sound. It is a feature of most legal systems, including the system in Russia, that litigants may appeal the decision of a lower court to a higher court and that higher courts will often overturn the decisions of lower courts on the grounds of legal or procedural error. Acknowledging that judges may make mistakes, making provision for appeal and the fact that a proportion of appeals succeed is usually seen as a sign of a robust legal system. In the absence of external evidence of corruption, to establish that a decision has been improperly made requires it to be shown to be so wrong that a judge could not have made it in the absence of a corrupt motive.

368. This feature of the case is unique. The scale of findings of corruption that an Irish court would have to make regarding the decisions of a foreign legal system in order for the Plaintiffs to succeed is simply unprecedented. The case involves allegations concerning the probity of different orders made by different judges in different courts and at different levels of jurisdiction over an extended period of time. The orders were made in different sets of proceedings, both civil and criminal, involving a wide range of different parties. Similarly, the proceedings impugn the probity and propriety of decisions made by different officials in different regulatory and administrative authorities in different locations and at different times. (Ironically, the only Defendant not involved in these allegations is Eurotoaz. Since its litigation was entirely unsuccessful, it can hardly be asserted that Eurotoaz corruptly procured decisions in its favour.)

369. The second of the matters relied on by the Judge, and the one which seems to have had most bearing on his decision, was the claim by the Plaintiffs that certain of their key witnesses would be unable to travel to Russia to participate in the proceedings. The witnesses in question are Mr Makhlai, Mr Zivy, Mr Korolev and Mr Ruprecht, all of whom are the subjects of prosecutions as part of the Article 159(4) criminal proceedings in Russia and of pre-trial detention orders made in that context. Travelling to Russia would apparently give rise to a real risk of imprisonment for these individuals. Notwithstanding his acceptance that oral evidence has little or no role in proceedings before the Russian courts, such that the physical presence of witnesses is not generally required, the Judge held that the existence of occasional exceptions to this general practice meant that it would not be fair to require the Plaintiffs to litigate in Russia in the absence of those witnesses.

370. The Judgement does not explain why this case, were it to be brought in Russia, would be one of that very small number of cases where oral evidence would be heard nor why these witnesses, in particular, would be likely to be subject to questioning when that is not the normal practice before the Russian courts. The mere fact that it can happen does not in our view constitute cogent evidence that it would be likely to happen in the circumstances of this case and the expert evidence does not go further than establishing that, exceptionally, it may occur. In addition, Professor Bevzenko’s acceptance – in 2020 – that that there was no real possibility of evidence being given from outside Russia by way of video technology may well have been overtaken by technological developments resulting from the COVID-19 pandemic. In an affidavit sworn in 2022 by a Russian lawyer, Mr Melnikov, on behalf of the Russian UCCU Defendants, for the purposes of the new evidence application, he stated that the pandemic “has given rise to the active use of video link facilities by Russian courts, so if someone wishes to participate in Russian court proceedings in person, this can often be arranged by video link”.

371. In our view, this objection to the Russian jurisdiction falls at this point. The evidence clearly establishes – as was accepted by the High Court of England and Wales in Bazhanov – that the attendance of parties and/or witnesses is not ordinarily required in Russia. Absent any cogent evidence to the effect that a departure from the norm is likely in the event that these proceedings were brought in Russia, little or no weight can properly be given to this objection.

372. However, our decision on this issue is not primarily based on this point, although it is relevant to the conclusion we have reached. Instead, the new evidence admitted for the purposes of this appeal demonstrates that the Plaintiffs can and do actively participate in proceedings before the Russian courts concerning their shareholding in ToAZ and the management of that company. The extent to which the Plaintiffs have participated in legal proceedings in Russia since the hearing of the application before the High Court is set out in the twelfth affidavit of Mr Melnikov sworn to ground the application to admit new evidence. It is not proposed to set out the detail of all of the cases here but we note that they range from appealing decisions made regarding their participation in the context of the Article 159(4) proceedings; participation in Mr Makhlai’s bankruptcy proceedings (in which Mr Makhlai was held be the beneficial owner of the plaintiffs’ shares in ToAZ); an application for an injunction to prevent the sale of the plaintiffs’ shares by auction; participation in a challenge to the auction proceedings; participation in proceedings concerning board meetings of ToAZ and in a challenge to decisions adopted by the board of ToAZ at an EGM. The Plaintiffs have also filed complaints with other Russian authorities.

373. Mr Melnikov suggests that the Plaintiffs’ decision to participate or not participate in Russian court proceedings is entirely tactical. He notes that Mr Makhlai and his associates did not travel to Russia for the purposes of pursuing these proceedings and were able to advance their position through their legal counsel. The Plaintiffs counter this evidence by suggesting in an affidavit sworn – not by Mr Makhlai, but by a director of the Third Plaintiff, Kamara Limited, who is based in Curacao – that they have only participated in litigation in Russia when “they were obliged to do so”. Indeed, the Plaintiffs do not dispute their participation in these proceedings as outlined by Mr Melnikov but rather seek to explain it. It is also strenuously argued that the Plaintiffs have not prosecuted proceedings or litigated the cause of action which they are pursuing in these proceedings, i.e. conspiracy, in Russia.

374. In our view, it is irrelevant that the Plaintiffs may have felt obliged to participate in certain proceedings before the Russian courts and that the proceedings they have participated in do not advance or involve the claims of conspiracy made in these proceedings. The issue is not whether the conspiracy claim is or was the subject of proceedings in Russia or is res judicata but whether it is practically impossible for the Plaintiffs to secure a fair trial before the Russian courts by reason of the inability of Mr Makhlai, amongst others, to travel to Russia. The new evidence makes it abundantly clear that an inability to travel physically to Russia by those individuals has not prevented the Plaintiffs’ active involvement in a multiplicity of legal proceedings since the time of the High Court hearing. Their participation is not entirely defensive – they have also sought to intervene in proceedings to which they were not otherwise parties in order to make claims of interest to them regarding the ownership of the shareholding they previously held in ToAZ and the ongoing management of that company.

375. It seems to us that the factual basis upon which the Judge determined this issue has altered very significantly since his Judgment. In light of the accepted participation by the Plaintiffs in Russian court proceedings, the only conclusion that can reasonably be drawn is that it is possible for them to do so. The inability of key individuals to travel to Russia has not, in fact, hindered the Plaintiffs’ active participation in litigation there nor indeed participation by those individuals themselves. Participation has not required the physical presence of any individual as Plaintiffs and Mr Makhlai have been represented by lawyers – which we understand from the expert evidence to be the normal procedure before the Russian courts. Therefore, the Judge’s conclusion that the Plaintiffs would be unable to secure a fair trial due to the risk of absence of key witnesses from any hearing of these claims in Russia cannot be sustained, albeit that we have reached this conclusion on additional and different evidence to that which was available to the High Court.

376. There is one further point to note. The Plaintiffs defended the fact that the proceedings were instituted in the name of four companies as owners of the ToAZ shares of which, it now transpires they are not, and never were, the owners. Instead, a different set of companies has been added to the proceedings on the basis that they are the owners of the shares and settled them on the Plaintiffs by way of some form of fiduciary arrangement. The Plaintiffs have defended their misdescription the of their interest in the proceedings on the basis that a fiduciary is, under Russian law, entitled to exercise the powers of an owner. Be that as it may, the use of the term “owner” in the context of affidavits prepared for the purposes of Irish litigation certainly conveyed a different impression than that the Plaintiffs were acting as fiduciaries. The Defendants complain that the use of the Plaintiff companies deliberately conceals the identity of the beneficial owner(s) of the disputed shares. In those circumstances it might be queried by whom and on whose behalf is it contended that the witnesses in question are required for the purposes of the litigation.

377. The third of the three issues concerns the non-availability before the Russian courts of certain procedural mechanisms which are available to litigants in Ireland. This issue has to be approached with considerable caution as it cannot be assumed by a judge administering the law in accordance with the procedures of one jurisdiction that materially different law and procedures in another jurisdiction are necessarily deficient because they do not equate with those with which the judge is familiar. This is most obviously the case as regards the distinction between common law and civil law jurisdictions where plenary procedures prevail in the former and written procedures prevail in the latter. The question is a broader one as to whether the legal system in the other jurisdiction is capable of delivering substantive justice.

378. The Judge regarded the absence of discovery/disclosure and of effective crossexamination of witnesses as pointing towards the Irish courts being the proper forum for the determination of the dispute between the parties rather than the Russian courts. He accepted that the mere loss of a procedural advantage in one jurisdiction would not amount to a good basis for concluding that the proceedings should be heard in the other. Because the proceedings are for a claim of conspiracy, he appears to have concluded that what he termed the “procedural limitations” in Russia meant that Ireland was the more appropriate forum the trial of the claim.

379. In our respectful view, the Judge did not apply the correct standard to his analysis of this issue. This is not a case in which the connecting factors as between two jurisdictions are relatively evenly balanced such that the court, in the exercise of its discretion, is seeking to determine which of the two is the more appropriate forum in all of the circumstances. This is a case in which all material connecting factors overwhelmingly point to Russia as the appropriate forum save for the fact that one corporate defendant is registered here. Thus, the issue is not simply which set of procedures are the more appropriate for the determination of a conspiracy claim, but whether the Russian courts are unable to provide substantive justice to litigants in such claims by reason of the lack of the procedures in question. The evidence falls significantly short of supporting such a conclusion.

380. Firstly, the absence of “effective” cross-examination is unsurprising in a jurisdiction which does not generally proceed on the basis of oral evidence . To a judge reared in the common law tradition, it is something of an anathema to suggest that any case can be properly and fairly disposed of if a litigant does not have the right to challenge the evidence against him by way of cross-examination. This is seen as a fundamental aspect of fair procedures in our legal system. However, this is generally not the case in civil law jurisdictions where plenary hearings of civil cases are very much the exception rather than the norm. Lawyers and judges in those jurisdictions learn to handle evidence, which almost invariably means written evidence, differently. Whilst we might justifiably regard our common law tradition as preferable, we do not think it is possible to say that the absence of cross-examination in a jurisdiction in which oral evidence is rarely proffered and is not prioritised by judges, means that substantial justice is not available to litigants.

381. A similar point can be made regarding discovery. Again, jurisdictions vary widely as to the extent to which they require disclosure of documentation in advance of a trial, a point made by Lord Goff specifically in relation to discovery in Spiliada. Discovery plays an important role in most common law jurisdictions and frequently provides the basis upon which an opposing witness will be cross-examined. This is not the case in most civil law jurisdictions where the requirement to disclose documents in advance of a hearing is often limited to those documents on which a litigant intends to rely on at trial. As just noted, cross-examination plays a much less important role in those jurisdictions, when it occurs at all.

382. In fact, the obligation to make discovery has also been the subject of critical analysis in this jurisdiction (see the Kelly Report on the Administration of Civil Justice, October 2020). According to that report, discovery obligations in respect of vastly increased volumes of documentation which now exist as a result of digital communication and record-keeping are perceived as potentially creating a barrier to access to justice by adding significantly to the length and cost of litigation. Thus, the report proposes changes which would significantly reduce the availability of discovery in this jurisdiction. Whilst it remains to be seen whether those proposals will be implemented and, if so, in what form, it is notable that discovery as we currently know it was not regarded by the authors of that report as an immutable feature of the Irish legal system.

383. We do not doubt that discovery may be of assistance, possibly great assistance, to a litigant in a conspiracy claim that is to be heard by way of plenary action. However, we note that Lord Goff in Spiliada expressly rejected the notion that such a procedural advantage could be decisive. It does not follow that substantive justice cannot be provided in respect of a similar claim heard in a jurisdiction which does not have similar, generous discovery rules but which also does not generally conduct plenary hearings or hear oral evidence. Therefore, whilst we accept that the availability of cross examination and discovery would confer a procedural advantage on the Plaintiffs in the context of a plenary action for conspiracy conducted in Ireland, we do not accept that the absence of these procedures in Russia precludes the fair hearing of such a claim in accordance with the procedural and legal rules of that jurisdiction.

384. There is one final matter which we believe relevant to the exercise of the court’s discretion which was not considered or expressly addressed by the trial judge. That is the impact that accepting jurisdiction over this claim would have for the Irish courts and their ability to administer justice efficiently and in a timely manner for all litigants coming before them. Hogan J in Albaniabeg noted (at §51 of his judgement) that “the courts are under a duty to manage their own affairs such that scarce judicial resources are conserved and are best utilised for the benefit of all litigants. Those resources are generally not well utilised where judicial energies are expended on an issue with no real connection to Ireland…” The length, procedural complexity or legal difficulty of a case is not a reason for refusing jurisdiction where Ireland is clearly the appropriate forum in which it should be heard. However, where the connection to this jurisdiction is minimal and the case is obviously “a Russian case”, then regard must be had to the impact assuming jurisdiction will have on the availability of judicial resources to hear other cases properly falling within the jurisdiction of the Irish courts.

385. This case had already generated 10 reserved judgements of the Superior Courts before the pleadings were finalised. Many of the hearings leading to those judgements lasted weeks rather than days. A variety of other motions and applications have been heard and determined without requiring reserved judgments. There is little doubt that if this case were to proceed in full against all defendants before the Commercial Court, then a very considerable investment of time and resources would be required from the Court’s perspective in addition to those required of the parties. Even with the benefit of active case management, the case would likely last for many months meaning that the judge hearing it would not be available to hear other matters for an extended period. The progress of the case would be significantly slower than might be expected for another commercial case of this magnitude. This is because most of the relevant documentation will be in Russian and would require translation in order to be understood by an Irish court. Many if not most witnesses will give their evidence in Russian and interpretation will be required in order for the court to understand their evidence and for them to understand the court proceedings. Experience shows that in cases where extensive translation and interpretation is required, additional time is spent as the parties argue over the correctness of the translation or interpretation and the impact different nuances might have on the litigation.

386. We have already adverted to the fact that most of the issues in this case will be governed by Russian law. This imposes a significant additional burden on an Irish court as the relevant Russian law (with which no Irish judge can be expected to be familiar) will have to be proved by expert evidence as a matter of fact. Given the progress of the case to date, it can be expected that the parties will not necessarily agree as to the meaning and effect of Russian law or even what aspects of that law are relevant to the issues in the case. We have seen the difficulties that can arise. The Plaintiffs attempted to justify their description of themselves as owners of the shares on the basis that, under Russian law, a fiduciary has the rights of an owner for the purposes of litigation notwithstanding that each of these two terms connotes something distinct and different under Irish law.

387. If we are incorrect in the conclusions we have reached above on O11(1)(h) and our finding that the proceedings are a mere device brought to establish the jurisdiction of the Irish courts over all of the defendants, then these considerations provide a further – and weighty – factor weighing against accepting jurisdiction here. No real claim of substance is made against any Irish defendant. The substance of the claim relates to acts in Russia, done by Russian Defendants, with only the most tenuous of connections to Eurotoaz and, through it, to this jurisdiction.

388. We give due weight to the conclusions of the Judge and do not readily differ from those conclusions. In our view, however, the balance is decisively against accepting jurisdiction over the Russian UCCU Defendants because Russia, not Ireland, is the proper forum to determine the Plaintiffs’ claims against those Defendants. Accordingly, this is not a proper case for service out as against them.

Jurisdiction in respect of claim against Holding

Articles 4, 5 and 8 of the Recast Brussels Regulation

389. We will begin consideration of this issue by reminding ourselves of the precise terms of Articles 4 and 8 of the Recast Brussels Regulation, their genesis and their scope of application as interpreted by the CJEU.

390. Article 4(1) of the Recast Brussels Regulation provides:

“Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”

391. Article 4 embodies the general rule on jurisdiction within the European Union in civil and commercial matters. Article 5 provides that persons domiciled in a member state may be sued in the courts of another member state only by virtue of the rules set out in ss. 2 to 7 of Chapter II of the Recast Brussels Regulation. Articles 4 and 5 are located within section 1 of Chapter II, under the heading “General provisions” and Article 8 is located within s. 2, which section is headed “Special jurisdiction”.

392. Articles 7-9 make provision for specific exceptions to Article 4(1) and it is the Plaintiffs’ contention that the proceedings against Holding fall within the scope of the exception provided for by Article 8(1), which provides:

“A person domiciled in a Member State may also be sued:

(1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”

393. It is thus apparent that that a claimant relying upon Article 8(1) must be able to establish not just that the claims against the parties who are domiciled in different EU member states are “closely connected”, but also that they are so closely connected that it is expedient that they be determined together in order to avoid the risk of irreconcilable judgments being delivered in different jurisdictions.

394. The concept of “irreconcilable judgments” also appears in Article 45 of the Recast Brussels Regulation, which addresses the circumstances in which the courts of a Member State may refuse to recognise a judgment given in another Member State. Article 45(1)(c) provides that on the application of any interested party, the recognition of a judgment shall be refused “if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed”. The interpretation of the word “irreconcilable” in both contexts has received some consideration in judgments of the CJEU, which we consider below.

395. Underpinning these various jurisdictional provisions are the objectives of predictability and certainty, i.e. a person should know in any given circumstance where he or she may be sued. This is reflected in Recitals 15 and 16 of the Recast Brussels Regulation which provide:

“(15) The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few welldefined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction.

(16) In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not possibly have foreseen. This is important, particularly in disputes concerning noncontractual obligations arising out of violations of privacy and rights relating to personality, including defamation.”

Article 8(1) – A Derogation to be Narrowly Construed

396. It is notable that while Article 8(1) refers to the claims being closely connected, Recital

16 speaks of a close connection between the court and the action. However, in circumstances where this difference in language was not the subject of any argument, we do not propose to consider it further. Suffice to say that notwithstanding the difference, effect is given to Recital 16 by Article 8(1) of the Recast Brussels Regulation. The CJEU has held repeatedly that, as a derogation from the general rule of jurisdiction prescribed by Article 4(1) of the Recast Brussels Regulation (Article 2(1) of Brussels I), Article 8(1) (and its precursor, Article 6(1) of Brussels I) should be narrowly construed. So, for example, in Reisch Montage, the Court held at §§22-23:

“22. It must be observed, at the outset, that the jurisdiction provided for in Article 2 of Regulation No 44/2001, namely that the courts of the Member State in which the defendant is domiciled are to have jurisdiction, constitutes the general principle and it is only by way of derogation from that principle that that regulation provides for special rules of jurisdiction for cases, which are exhaustively listed, in which the defendant may or must, depending on the case, be sued in the courts of another Member State (see, in relation to the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1978 L 304, p. 36; ‘the Brussels Convention’), the provisions of which are essentially identical to those in Regulation No 44/2001, Case C-51/97 Réunuion européenne and Others [1998] ECR I-6511, paragraph 16, and Case C-265/02 Frahuil [2004] ECR I-1543, paragraph 23).

23. In that regard, it is settled case-law that those special rules on jurisdiction must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by Regulation No 44/2001 (see, in relation to the Brussels Convention, Case C-168/02 Kronhofer [2004] ECR I-6009, paragraph

14 and the case-law cited).”

397. Thus it is apparent that while Reisch Montage was brought in reliance upon Brussels I, those principles were well established in cases brought in reliance upon the 1968 Brussels Convention (see Case C-26/91 Handte v Traitements Mécano-chimiques des Surfaces SA [1992] ECR I-3967, §14; Case C-89/91 Shearson Lehman Hutton v TVB [1993] ECR I-139, §§15-16; Case C-269/95 Benincasa v Dentalkit Srl [1998] ECR I- 3767, §13; and Case C-51/97 Réunion Européenne SA and Others v Spliethoff’s Bevrachtingskantoor BV [1998] ECR I-6511, §16). Subsequent to the adoption of Brussels I the same principles have been re-iterated in numerous subsequent authorities (including Reisch Montage), for example Freeport, and Case C-145/10 Painer v Standard VerlagsGmbH [2011] ECR I-12533 (“Painer”) (where the passage cited above is quoted almost verbatim).

398. Brussels I replaced the 1968 Brussels Convention, in which there was no provision equivalent to Article 6(1) of Brussels I or Article 8(1) of the Recast Brussels Regulation. Article 2 of the 1968 Brussels Convention was the equivalent of Article 4(1) of the Recast Brussels Regulation, requiring, as it did, that proceedings should be issued in the state of domicile of the defendant. Article 6(1) of the 1968 Brussels Convention made provision for an exception, whereby it provided that a person domiciled in a contracting state may be sued “where he is one of a number of defendants, in the courts for the place where any one of them is domiciled”. As we mentioned earlier, the unqualified terms of this article had led to concerns that it could be abused in such a manner as to enable plaintiffs to structure proceedings so as to select their jurisdiction of preference rather than issuing proceedings in the state of domicile of the defendant. This concern was addressed by the European Court of Justice (“ECJ”) in Case C-189/87 Kalfelis v Bankhaus Schröder [1988] ECR I-5565 (“Kalfelis”).

399. In Kafelis, the Court held that the exception provided by Article 6(1) of the 1968 Brussels Convention to the general principle provided by Article 2 must “be treated in such a manner that there is no possibility of the very existence of that principle being called in question.” The Court observed (§9) that such a possibility:

“might arise if a plaintiff were at liberty to make a claim against a number of defendants with the sole object of ousting the jurisdiction of the courts of the State where one of the defendants is domiciled. As is stated in the report prepared by the committee of experts which drafted the Convention (Official Journal C 59, 5.3.1979, p. 1) such a possibility must be excluded. For that purpose, there must be a connection between the claims made against each of the defendants.”

(The report of the committee of experts referred to in the judgment is the Jenard Report, to which we have referred earlier, at page 26 of the Report).

400. The requirement for such a connection was subsequently put on a legislative footing with the adoption of Brussels I, and an identical provision was also introduced in Article

6 of the second Lugano Convention in 2007. Several of the authorities to which the Court was referred are concerned with that Article, and it is clear and uncontroversial that those authorities are equally applicable to Article 6(1) of Brussels I and Article 8(1) of the Recast Brussels Convention.

Establishing the Close Connection on the Balance of Probabilities

401. A court called upon to consider whether or not there is a sufficiently close connection between claims for the purposes of Article 8(1) must be satisfied on the balance of probabilities that this is so, and the party seeking to rely on Article 8(1) bears the burden of satisfying the court in this regard. In this case, this much was uncontroversial. The Plaintiffs accepted that they bear the burden of establishing, on the balance of probabilities, that there is a close connection between the proceedings against Eurotoaz and the proceedings against Holding for the purposes of Article 8(1). They made this concession while at the same time expressing doubt that this is the standard applicable to such assessments, noting that the Judge stated that he was not definitively deciding that this is the appropriate standard, in the light of the concession made by the Plaintiffs. In any event, the matter proceeded in the High Court and again in this Court on the basis that the balance of probabilities is the standard applicable to the establishment of a close connection between the claims against Eurotoaz and Holding.

402. However, this concession did not extend to the assessment of the merits of the case against Eurotoaz, which the Judge found should be assessed by reference to the standards discussed in Analog Devices (good arguable case), IBRC v Quinn (a case reasonably capable of being proven) and Gannon (a prima facie case). The Judge did not consider there to be any meaningful difference between the tests described in those cases, and he expressed himself “completely satisfied” that the Plaintiffs met the required standard. While Holding appeals from the Judge’s conclusion that this is the applicable standard, as we mentioned earlier it did not press this element of its appeal in oral argument. In any case, as will become apparent, in light of other conclusions that we have reached, it is unnecessary to determine this ground of appeal and we will not be addressing it further.

403. The application of the balance of probabilities standard to a party seeking to rely on a derogation from the jurisdiction otherwise prescribed by Article 4(1) of the Recast Brussels Regulation (i.e. jurisdiction based on the domicile of the defendant) was approved by the Supreme Court in Ryanair. In Ryanair, what was at issue was whether or not its terms and conditions as appearing on its website were binding upon the defendants who had engaged in screen scraping to capture data from the websites of Ryanair and other airlines. If those terms and conditions were binding on the defendants

– or in other words if they had each entered into a contract with Ryanair in the course of their screen scraping activities – they would be bound by Ryanair’s choice of jurisdiction clause contained within those terms and conditions.

404. In the course of considering this issue the Supreme Court addressed the standard of proof applicable to the question of jurisdiction, which in that case fell for consideration under Article 5 of Brussels I. That article had provided for a derogation, in matters of contract, from the general rule of jurisdiction in Article 2 of Brussels I, providing as it did that a person may be sued in a Member State other than that of its domicile where the relevant contractual obligation was to be performed by it in that other Member State.

In considering the standard of proof applicable to the determination of jurisdiction, Charleton J (Hardiman, McKechnie, Clarke and McMenamin JJ agreeing) held as follows (§43):

“In Case C-256/00 Besix SA v Wasserreinigungsbau Alfred Kretzschmar GmbH & Co [2002] ECR I-1699 at para. 26, however, the Court of Justice of the European Union made it clear that both principles of legal certainty and ease of knowledge by a proposed defendant as to jurisdiction were at the heart of properly establishing jurisdiction under the relevant rules. It would be contrary to those principles were a mere standard of the application of an arguable case allowed to usurp the general principle that unequivocal proof of the exception to Article 2 is required. Further, since the probability standard is the ordinary standard throughout the European Union for the establishing of contentious issues, no lesser standard than that is required to prove an exception to the domicile of the defendant as the ordinary rule for jurisdiction.”

405. We pause here to consider Case C-256/00 Besix SA v Wasserreinigungsbau Alfred Kretzschmar GmbH [2002] ECR I-1699 (“Besix”) briefly, because it is instructive in relation to the cautious approach to be taken when considering a derogation from the general principle that a party should be sued in its country of domicile. The dispute in Besix arose out of a contract concluded in Brussels relating to the submission of a tender for public works on a water supply project in Cameroon. The contract contained an exclusivity clause by which the parties agreed not to commit themselves to other partners in relation to the same works. It was this negative contractual obligation that the plaintiffs in the proceedings sought to enforce. While the CJEU noted that Belgium was the place where the parties had the greatest interest in honouring their undertaking to act exclusively, since it was in that contracting state that they were to prepare the joint tender, nonetheless the nature of the obligation undertaken by the parties to each other in the case was one without any geographical limitation, and it was not one capable of being identified with a specific place or linked to a court which would be particularly suited to hear and determine the dispute relating to the obligation. In those circumstances, the court held that jurisdiction could be determined solely in accordance with Article 2 of the Brussels Convention i.e., based on the domicile of the defendant and the derogation provided for by Article 5(1) of the Brussles Convention could not apply. In arriving at its conclusion, the Court stressed the importance of legal certainty, stating (at §§25 and 26):

“25. According to its preamble, the Brussels Convention is intended to strengthen in the Community the legal protection of persons established therein, by laying down common rules on jurisdiction to guarantee certainty as to the allocation of jurisdiction among the various national courts before which proceedings in a particular case may be brought (see, to that effect, Custom Made Commercial, cited above, paragraph 15).

26. That principle of legal certainty requires, in particular, that the jurisdictional rules which derogate from the basic principle of the Brussels Convention laid down in Article 2, such as Article 5(1), should be interpreted in such a way as to enable a normally well-informed defendant reasonably to foresee before which courts, other than those of the State in which he is domiciled, he may be sued (Handte, cited above, paragraph 18, and GIE Groupe Concorde and Others, paragraph 24).

406. Returning then to Ryanair, in arriving at his conclusion, Charleton J also had regard to the judgment of the Supreme Court in Handbridge Limited v British Aerospace Communications Ltd [1993] 3 IR 342, a case in which the Irish plaintiff sought to establish jurisdiction in the State over the British defendant, on the basis that the relevant contractual obligation in that case fell to the discharged by the defendant in this jurisdiction. Finlay CJ (O’ Flaherty, Egan, Blayney and Denham JJ agreeing) held, inter alia, at p. 358 that:

“The onus is on the plaintiff who seeks to have his claim tried in the jurisdiction of a contracting state other than the contracting state in which the defendant is domiciled to establish that such claim unequivocally comes within the relevant exception.”

In proceedings concerned with an alleged breach of contract therefore, it was necessary for the plaintiff to establish that the contractual obligation which it is claimed has been broken by the defendant must be performed in the state concerned; it would not be sufficient for the plaintiff to establish that the obligation could be performed there.

407. The reference by the former Chief Justice in the passage just quoted to the “relevant exception” makes it clear that he is speaking of any exception to the general rule of jurisdiction and not just the exception relating to contracts. The requirement to establish unequivocally that the proceedings come within the exception could not be more clear, and of course it reflects the settled case law of the CJEU “that those special rules on jurisdiction must be strictly interpreted and cannot be given an interpretation going beyond the cases expressly envisaged by [the Recast Brussels Regulation].”

The Meaning of “irreconcilable judgments”

408. As mentioned previously, in assessing whether or not a litigant seeking to invoke Article 8(1) has established that there is, on the balance of probabilities a close connection between the claims between the defendants concerned, it is necessary to consider whether or not there is a risk of irreconcilable judgments if the proceedings against those defendants are heard and determined in the Members States of their respective domiciles. If no such risk is identified, then Article 8(1) has no application and jurisdiction is determined in accordance with Article 4(1) of the Recast Brussels Regulation.

409. The concept of irreconcilable judgments has received consideration in a number of judgments of the CJEU, albeit sometimes in a different context, for example in the context of recognition of judgments. Article 36 of the Recast Brussels Regulation provides that a judgment given in a member state shall be recognised in the other member states without any special procedure being required. By way of derogation from Article 36, Article 45 sets out the situations in which the recognition of a judgment shall be refused, one of which (Article 45(1)(c)) is “if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed”.

Articles 36(1) and 45(1)(c) of the Recast Brussels Regulation are identical in their terms to Articles 26(1) and 27(3) of the 1968 Brussles Convention.

410. In Case C-145/86 Hoffmann v Krieg [1988] ECR I-645, the ECJ was asked to consider certain questions arising under those provisions of the 1968 Brussels Convention in the context of the enforcement in the Netherlands of a maintenance order granted (in August 1979) by a German court to a wife in matrimonial proceedings. In May 1980, the husband obtained a decree of divorce in the Netherlands, and when the wife subsequently (in 1983) attempted to enforce the maintenance order, the husband argued that the maintenance order was irreconcilable with the decree of divorce and should not be recognised in accordance with Article 27(3) of the 1968 Brussels Convention, which stated that a judgment shall not be recognised, inter alia, if it is irreconcilable with a judgment given in a dispute between the same parties in the state in which recognition is sought. In considering the issue, the court held (at §22) that:

“In order to ascertain whether the two judgments are irreconcilable within the meaning of Article 27 (3), it should be examined whether they entail legal consequences that are mutually exclusive.”

411. At first glance it might have been thought that the same interpretation of the phrase “the risk of irreconcilable judgments” would apply wherever it appeared in the 1968 Brussels Convention. However, in Case C-406/92, Tatry v Maciej Rataj [1994] ECR I-5439 (“The Tatry”) in the different context of Article 22 of the 1968 Brussels Convention, the ECJ rejected the argument that the phrase had the same meaning when used in different contexts. The facts of The Tatry were complex. It arose out of a consignment of soya bean oil from Brazil, with quantities of the cargo destined for shipment to Rotterdam and Hamburg, while some of the purchasers of the cargo had registered offices in the UK. The cargo was the subject of numerous bills of lading, albeit that they were in identical terms. The cargo was damaged in transit, resulting in proceedings being issued by both the ship owners and the cargo owners against each other. The ship owners moved first, in the Netherlands, following which some of the cargo owners issued proceedings against the ship owners in the Admiralty Court in London. Other cargo owners issued proceedings against the ship owners in the Netherlands. The ship owners applied to the Admiralty Court to decline jurisdiction. One of those applications was grounded on Article 22 of the 1968 Brussels Convention, which provided:

“Where related actions are brought in the courts of different Contracting States, any court other than the court first seised may, while the actions are pending at first instance, stay its proceedings.”

Article 22, in its third paragraph, provided a definition of “related actions” as follows:

“For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.”

412. The Admiralty Court refused the applications to decline jurisdiction, and the ship owners appealed against that decision to the Court of Appeal which referred five questions to the ECJ. For present purposes, only question four is relevant. At §49, the Court formulated that question as follows:

“The national court’s fourth question is essentially whether, on a proper construction of Article 22 of the Convention, it is sufficient, in order to establish the necessary relationship between, on the one hand, an action brought in a Contracting State by one group of cargo owners against a shipowner seeking damages for harm caused to part of the cargo carried in bulk under separate but identical contracts, and, on the other, an action in damages brought in another Contracting State against the same shipowner by the owners of another part of the cargo shipped under the same conditions and under contracts which are separate from but identical to those between the first group and the shipowner, that separate trial and judgment would involve the risk of conflicting decisions, without necessarily involving the risk of giving rise to mutually exclusive legal consequences?”

413. The Court noted that the purpose of the third paragraph of Article 22 (which defines “related actions”) is to avoid the risk of conflicting judgments and thus to facilitate the proper administration of justice in the European Community. It considered a submission made by the cargo owners that the adjective “irreconcilable” which is used both in the third paragraph of Article 22 and in Article 27(3) of the Convention (which identifies the circumstances in which a judgment shall not be recognised) must be used in the same sense in both provisions, meaning that the decisions must have mutually exclusive legal consequences, as had been held in Hoffmann v Krieg.

414. However, the court rejected that argument, holding that the objectives of the two provisions are different. Article 27(3) enables a court, by way of derogation from the principles and objectives of the Convention, to refuse to recognise a foreign judgment in the circumstances identified therein, which include that the judgment sought to be enforced is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought. However, the court noted, the objective in the third paragraph of Article 22 of the Convention is different, it being to improve the coordination of the exercise of judicial functions within the community and to avoid conflicting and contradictory decisions, even where the separate enforcement of each of them is not precluded. So therefore, the court concluded, in the instant proceedings it would be sufficient to establish the necessary relationship referred to in the third paragraph of Article 22 of the Convention that a separate trial and judgment would involve the risk of conflicting decisions, without necessarily involving the risk of giving rise to mutually exclusive legal consequences. On the face of it therefore, the judgment of the ECJ in The Tatry provides for a more expansive interpretation of “irreconcilable” than does its judgment in Hoffmann.

415. In Case C-539/03 Roche Nederland BV and Others v Frederick Primus and Milton Goldenberg [2006] ECR I-6535 (“Roche Nederland”), in which judgment was delivered on 13 July 2006, the CJEU had occasion to consider both Hoffmann v Krieg and The Tatry. These proceedings were concerned with a claim made by the plaintiffs, Doctors Primus and Goldenberg, that the defendants, who were established in the United States and in eight countries of the European Union, had infringed the intellectual property rights of the plaintiffs conferred on them by a European patent. The plaintiffs issued proceedings against all defendants (each a company within the Roche group) in the Netherlands. Those companies in the Roche group that were not established in the Netherlands contested the jurisdiction of the Netherlands courts. The first instance court declared that it had jurisdiction, but dismissed the proceedings brought by the plaintiffs. On appeal, the Regional Court of Appeal set aside the first instance judgment and made orders prohibiting Roche and others from infringing the rights attached to the patent in all the countries designated by the patent. On further appeal to the Supreme Court, it stayed the proceedings and referred two questions to the CJEU which the court re-framed as follows:

“whether Article 6(1) of the Brussels Convention must be interpreted as meaning that it is to apply to European patent infringement proceedings involving a number of companies established in various Contracting States in respect of acts committed in one or more of those States and, in particular, where those companies which belong to the same group, have acted in an identical or similar manner in accordance with a common policy elaborated by one of them.”

416. It will be recalled that while Article 6(1) of the 1968 Convention permitted a plaintiff to sue a defendant in a Contracting State other than where he was domiciled where he was one of a number of defendants, it was not qualified by a requirement that the claims against the defendants should be closely connected.

417. In its judgment in Roche Nederland, the court noted that Article 6(1) of the 1968 Convention is a derogation from the general principle that a defendant domiciled in a Contracting State is to be sued in the courts of that State. The court referred to its

decision in Kalfelis in which the Court had held that in order for Article 6(1) of the 1968 Brussels Convention to apply, there must exist, between the various actions brought by the same plaintiff against different defendants, a connection of such a kind that it is expedient to determine the actions together in order to avoid the risk of irreconcilable judgments resulting from separate proceedings. The court stated (at §21):

“The requirement of a connection does not derive from the wording of Article 6(1) of the Brussels Convention. It has been inferred from that provision by the Court in order to prevent the exception to the principle that jurisdiction is vested in the courts of the State of the defendant’s domicile laid down in Article 6(1) from calling into question the very existence of that principle (Kalfelis, paragraph 8). That requirement was subsequently confirmed by the judgment in Case C-51/97 Réunion Européenne and Others [1998] ECR I-651, paragraph 48, and was expressly enshrined in the drafting of Article 6(1) of Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1), which succeeded the Brussels Convention.”

418. The court noted that the formulation that it had used in Kalfelis was a repeat of the wording of Article 22 of the 1968 Brussels Convention, and it then referred to its own

decision in The Tatry. The Court also observed that the scope given to the concept of “irreconcilable” judgments by the judgment in The Tatry in the context of Article 22 of the 1968 Brussels Convention is wider than the same concept in Hoffmann v Krieg (at §22), in the context of Article 27(3) of the 1968 Convention. In Roche Nederland, the plaintiffs invited the court to extend the same broad interpretation of the adjective “irreconcilable” as was given in The Tatry in the context of Article 22 of the 1968 Brussels Convention, to the context of Article 6(1) of the 1968 Convention. The defendants submitted that that would not be appropriate because of the differences between the purposes and position of the two provisions in the scheme of the 1968 Brussels Convention.

419. The court held (at §25) that it was not necessary in the case at hand to decide that issue because:

“even assuming that the concept of ‘irreconcilable’ judgments for the purposes of the application of Article 6(1) of the [1968] Brussels Convention must be understood in the broad sense of contradictory decisions, there is no risk of such decisions being given in the European patent infringement proceedings brought in different Contracting States… [because the defendants in each of the cases were different, and the infringements they were accused of in different Contracting States were not the same].”

Accordingly, the court concluded that Article 6(1) of the Brussels Convention did not apply:

“…in European patent infringement proceedings involving a number of companies established in various Contracting States in respect of acts committed in one or more of those States even where those companies, which belong to the same group, may have acted in an identical or similar manner in accordance with the common policy elaborated by one of them”.

420. In arriving at its conclusion, the court (at §26) approved of the reasoning of the Advocate General (AG Leger) in his Opinion to the effect that:

“…in order that decisions may be regarded as contradictory it is not sufficient that there be a divergence in the outcome of the dispute, but that divergence must also arise in the context of the same situation of law and fact.”

421. In Painer, the CJEU reiterated this principle (at §79). It also observed that in assessing whether there is a connection between different claims, that is to say a risk of irreconcilable judgments if those claims were determined separately, the identical legal bases of the actions brought is only one relevant factor among others. It is not an indispensable requirement for the application of Article 6(1) of Brussels I (§80). At §81, the court stated:

“Thus, a difference in legal basis between the actions brought against the various defendants, does not, in itself, preclude the application of Article 6(1)

of Regulation No 44/2001, provided however that it was foreseeable by the defendants that they might be sued in the Member State where at least one of them is domiciled (see, to that effect, Freeport, paragraph 47).”

422. The reference to the foreseeability of being sued in the Member State where at least one of the defendants is domiciled echoed what the court had stated earlier in its judgment (at §75):

“Indeed, as recital 11 in the preamble to Regulation 44/2001 states, the rules of jurisdiction must be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile and jurisdiction must always be available on this ground save in a few well-defined situations in which the subject-matter of the litigation or the autonomy of the parties warrants a different linking factor.”

423. Recital 15 of the Recast Brussels Regulation substantially mirrors Recital 11 of Brussels

I. Commenting on Painer in Briggs, Civil Jurisdiction and Judgments (6th ed., Routledge, 2015) the author suggests that the most significant element of what the author characterises as “the new approach” to Article 8(1) “may well be the question whether it was foreseeable by a proposed co-defendant that he might be sued where another defendant was domiciled” (§2.230, at page 285).

Summary of Applicable Principles

424. The following principles may be drawn from the analysis above:

(i) The jurisdiction conferred by Article 8(1) is a derogation from the general principle that “persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State” (Reisch Montage, Painer);

(ii) That derogation is to be strictly construed (Reisch Montage, Painer);

(iii) A person seeking to rely on Article 8(1) bears the burden of establishing that it applies unequivocally (Handbridge);

(iv) The standard of proof is the balance of probabilities (Ryanair);

(v) The possibility of a divergence in outcome if the claims proceed in the jurisdictions of domicile of the defendants is not sufficient by itself to establish a risk of irreconcilable judgments. For the purpose of Article 8(1), that risk must arise in the context of the same situation of law and fact (Roche Nederland, Painer).

(vi) A difference in legal basis between the actions brought against the various defendants, does not, in itself, preclude the application of Article 8(1) provided that a “normally well-informed defendant” could reasonably have foreseen that they might be sued in the Member State where another defendant was domiciled (Besix, Roche Nederland, Painer);

The High Court Judgment

425. While we examine and consider the Plaintiffs’ claim against Holding in more detail below, it is nonetheless helpful, in order to provide context to the judgment of the High Court, to give a very brief outline of the claim now. The Plaintiffs’ claim against Holding is that it caused or permitted its subsidiary, UCCU to carry out various acts which the Plaintiffs claim are unlawful and were carried out in pursuit of the Scheme. No other pleas of any substance are made, no particulars of this very general, indeed wholly generic, plea are provided, and no evidence of any kind is advanced in support of the same, notwithstanding the exchange of voluminous affidavits. Furthermore, there is no pleaded connection between Eurotoaz and Holding.

426. While we have already summarised the judgment of the High Court, nonetheless it is convenient at the commencement of our consideration of the issue to set out very briefly in outline only the arguments made to the Judge as he recorded them, as well as his

conclusion on this issue.

427. The Judge noted that Holding had been joined to the proceedings on the basis that it is the holding company of UCCU, the Second Defendant. He further observed that the Plaintiffs allege that Mr Mazepin, the First Defendant, is a director of the ultimate beneficial owner of, and the controlling mind and will, of Holding. The Judge noted that in submitting that there is a close connection between the claims they advance against Eurotoaz and Holding, the Plaintiffs rely upon all of the same factors which connect their case (for the purpose of Order 11, Rule 1(h)) against Eurotoaz with their case against the UCCU Defendants, including Holding, as the holding company of UCCU. He noted that the Plaintiffs denied that the sole object of joining Eurotoaz to the proceedings was to establish the jurisdiction of the Irish courts in respect of their claim against Holding.

428. For its part, Holding contended that there was an insufficient connection between the claims made against Eurotoaz and Holding such as to permit the Plaintiffs to rely upon Article 8(1). In the context of the Plaintiffs’ claim against it, Holding argued that Eurotoaz had been joined to the proceedings with the sole object of establishing jurisdiction over Holding, and that this is impermissible under the settled case law of the CJEU.

429. The Judge reached his conclusion on this issue in the following terms (at §375):

“The plaintiffs’ claim against Eurotoaz and its claim against Holding (as one of the UCCU defendants) are brought in conspiracy arising from the alleged scheme in which Eurotoaz and the UCCU defendants and others are alleged to be co-conspirators. I referred in detail earlier in this judgment to the claims made against Eurotoaz and those made against the UCCU defendants and [the] Russian UCCU defendants [and] to the connecting factors between Eurotoaz and the UCCU defendants, including Holdings. While I did so in the context of my assessment as to whether the plaintiffs had put forward a good arguable case on the merits of the claims against Eurotoaz and against the Russian UCCU defendants for the purposes of the O. 11 issue, it seems to me that those conclusions are also applicable to the assessment as to whether the claims against Eurotoaz and those against Holdings have the close connection required under Art. 8(1), albeit that a different standard may apply. That does not, however, affect my conclusion that the plaintiffs have satisfied the balance of probabilities standard for the purposes of the Art. 8(1) analysis. The plaintiffs claim that Eurotoaz and Holdings are involved in one overall conspiracy, albeit having different elements, in which they are both alleged to be co-conspirators. There is, in my view, a clear connection between the two sets of claims. To require the plaintiffs to litigate their claim against Eurotoaz in Ireland and their claim against Holdings in Cyprus would, in my view, clearly give rise to the risk of irreconcilable judgments and it is expedient and appropriate to hear those claims together in one jurisdiction. For reasons I have outlined earlier, because of the nature of the claims being made, it would not be appropriate to fragment the claims against Eurotoaz and the claims against Holdings and the other UCCU defendants. My conclusions in relation to the problems arising from the fragmentation of the claims set out earlier when considering the appropriateness of Ireland as a forum apply equally here. …”

430. Before proceeding further we would make three observations about these conclusions. Firstly, it is apparent that the Judge reached the conclusions that he did in this passage on the balance of probabilities, which the parties agree is the applicable standard so far as concerns establishing the necessary close connection between the claims. Secondly, the factors relied upon by the Judge as connecting the claims against Eurotoaz and Holdings are the same factors relied upon earlier in his judgment (in the context of the Order 11 issue) in relation to the claims against Eurotoaz and the Russian UCCU Defendants. In other words, for the purposes of his consideration of the Article 8(1) issue, the Judge was satisfied on the balance of probabilities that if the allegations made against the Russian UCCU Defendants are proven, Holding also bears some responsibility for the acts of the Russian UCCU Defendants that connect the claims against Eurotoaz and the Russian UCCU defendants (in the Order 11 context), and that those same acts connect the claims against Eurotoaz and Holding for the purposes of Article 8. When the Judge came to approach the Article 8(1) issue, he had held that claims against Eurotoaz and the Russian UCCU defendants should be heard together in this jurisdiction. We have, however, reached a different view on that issue. That is a relevant factor in this context. Furthermore, as will become apparent from the analysis that follows there is no evidence of any kind regarding any conduct of the part of Holding. While the Judge does not say so expressly, the only possible basis for his

conclusion is that UCCU is the subsidiary of Holding, and that Holding is alleged to have “caused or permitted” UCCU to carry out the acts the Plaintiffs allege were carried out by UCCU. This, it would appear, was the role the Judge considers that Holding played in the conspiracy. Thirdly, insofar as the Judge explained his conclusion that there would be a risk of irreconcilable judgments if the cases against Eurotoaz and Holding proceeded separately in Ireland and Cyprus, this appears to be the bare fact that the claims against each are advanced on the basis of participation in the same alleged conspiracy. No other reason is offered for this important conclusion.

Grounds of Appeal

431. As we mentioned earlier, Holding contends that the Judge erred in three respects under this heading. Firstly, it claims that the Judge erred in his treatment of the burden and standard of proof in assessing whether or not there is a close connection between the claim against Eurotoaz and the claim against Holding. Secondly, it claims that the Judge erred in his application of the close connection test. Thirdly Holding argues that the Judge erred in finding that if there is a sole object test incorporated in Article 8(1) (an issue which the Judge said that he did not need to decide) the Plaintiffs had satisfied that test, i.e. the Judge erred in failing to find that the Plaintiffs had issued proceedings against Eurotoaz for the sole purpose of establishing jurisdiction over Holding. Holding of course submits that Article 8(1) incorporates such a sole object test.

The Burden and Standard of Proof

432. In circumstances where there was agreement between the parties that the standard of proof applicable to the facts relied upon for the purpose of establishing a close connection between the claims against Eurotoaz and Holding within the meaning of Article 8(1) is that of the balance of probabilities, the only dispute between the parties under this heading concerns the standard of proof applicable to the merits of the case made by the Plaintiffs against Eurotoaz. As we mentioned earlier, in light of the conclusions below on the other grounds of appeal, we have not found it necessary to address and determine this issue.

The Application of the Close Connection Test

433. We turn now to address the Holding’ claim that the Judge erred in his application of the close connection test. While Holding acknowledges that the Judge correctly applied the balance of probabilities standard to the question of whether or not there is a close connection between the claims against Eurotoaz and Holding, it claims the Judge erred in concluding that the claims are closely connected within the meaning of Article 8(1). Specifically, Holding claims that the Judge erred in relying on his analysis as to fragmentation of the claims, and that he further erred in concluding that there would be a risk of irreconcilable judgments if the cases against Eurotoaz and Holding proceeded separately in Ireland and in Cyprus in circumstances where no substantive case is pleaded against Holding, and that it was joined to the proceedings merely because it is a holding company.

434. Before embarking on a consideration of this issue, we should mention that it was also submitted on behalf of Holding that the Judge erred in his consideration of the close connection issue insofar as he considered it to be of some relevance that unless the court assumes jurisdiction (in respect of the claim against Holding) there would be a risk of irreconcilable judgments as between Eurotoaz on the one hand and Holding and the “other UCCU defendants” on the other. In referring to the “other UCCU” defendants, we understand the Judge to have been referring to the UCCU Defendants other than Holding, i.e. to the Russian UCCU Defendants. Counsel for Holding submitted that, contrary to the view expressed by the Judge, the Plaintiffs’ claim against the “other UCCU defendants” is not relevant to the consideration of the Article 8(1) issue, which involves consideration of the connection between the claims against Eurotoaz and Holding only. The Plaintiffs, correctly in our view, conceded this point, as they did a related point that was made by Holding that the fact that other Defendants had submitted to the jurisdiction of the Irish courts or that the High Court had found that it had jurisdiction over other Defendants was also irrelevant to consideration of the issue. So, therefore, in considering whether or not there is a close connection between the claim against Eurotoaz and the claim against Holding, we will be looking exclusively at the claims made against those two Defendants.

The Claim against Holding

435. Counsel for Holding submitted that no substantive case is pleaded against it at all, and that it appears to have been joined to the proceedings merely because it is the holding company of UCCU, as indeed the Judge observed (Judgment, §328). In reply, counsel for the Plaintiffs did not address this issue directly. Instead, it was submitted that the Judge was correct in his conclusion that the claims against Eurotoaz and Holding, would, if litigated in different jurisdictions, give rise to a risk of irreconcilable judgments having regard to the connections between the two claims identified by the Judge. Those were the same connections, identified by the Judge in his treatment of the Order 11 issue, between the cases made by the Plaintiffs as against Eurotoaz on the one hand and the Russian UCCU Defendants on the other. We considered these connections at §§311-318 in our treatment of the “proper parties” issue. Those connections are based entirely on acts allegedly undertaken by the Russian UCCU Defendants. While the Plaintiffs have provided detailed particulars of actions allegedly taken by the Russian UCCU defendants (and by Eurotoaz) in the alleged conspiracy, they have provided no particulars whatsoever of any acts (or omissions) alleged to have been undertaken by Holding. It is apparent that for the purpose of the case against Holding, the Plaintiffs seek to attribute responsibility to Holding (or perhaps more accurately joint responsibility) for the actions of UCCU on the sole ground that UCCU is its subsidiary and that, as such, the acts and omissions of UCCU were “caused or permitted” by Holding. .

436. Counsel for Holding is correct in his submission that no specific acts on the part of Holding are pleaded. It is clear that the only material allegations against Holding are those set forth at §36 and §55 of the draft Third Amended Statement of Claim. At §36 it is pleaded, inter alia: “Holding has caused or permitted UCCU to carry out the unlawful and improper acts in furtherance of the Scheme, which are pleaded below.” At §55 it is pleaded that:

“Each of the Fourth to Thirteenth Named Defendants is linked through a common relationship with Mr Mazepin, UCCU or Holding (the First, Second and Third Defendants), and in particular Mr Mazepin, who is the controlling mind and will of Holding and UCCU and the instigator and orchestrator of the Scheme. Each of the Defendants herein has acted on the basis of a shared combination or understanding with Mr Mazepin, as described below, and has been an active participant in the Scheme in pursuit of the common understanding reached with him.”

437. While counsel for the Plaintiffs placed some reliance on other pleas in the draft Third Amended Statement of Claim in which Holding is mentioned (specifically at §§ 74, 93 and 224) there are no pleas at all of any specific actions allegedly taken by Holding in pursuit of the claim. The high point of the claim pleaded against Holding is to be found in the passages already quoted above from §36 and §55 of the draft Third Amended Statement of Claim. In summary therefore, the case pleaded against Holding is that it caused or permitted its subsidiary, UCCU to carry out various acts which the Plaintiffs claim are unlawful and were carried out in pursuit of the Scheme. That is as far as the pleaded case goes against Holding, notwithstanding two very comprehensive revisions of the Statement of Claim as originally served.

438. As to the evidence, as we mentioned earlier, not one single act alleged to have been carried out by Holding appears to be identified in the many affidavits sworn on behalf of the Plaintiffs, in striking contrast with the considerable detail provided as to the alleged involvement of the other Defendants in the conspiracy. Obviously for present purposes we are only concerned with the claims against Holding and Eurotoaz, and so in mentioning the evidence against the other Defendants, we emphasise that we do so only to illustrate the contrast between the paucity of evidence offered in the case against Holding on the one hand, and the considerable body of evidence relied upon in the claims made not just against Eurotoaz, but also against the other Defendants. The draft Third Amended Statement of Claim identifies with relative particularity both the acts alleged to have been carried out by Eurotoaz and the role that those acts are alleged to played in the Scheme and the Plaintiffs’ evidence is (inter alia) directed to those issues to a significant extent. None of that is true of the case made against Holding. It is apparent that the Plaintiffs’ entire case against Holding rests solely upon its ownership of UCCU, and the formulaic plea that it “caused or permitted” UCCU to act as it did. The plea that Holding “caused or permitted” UCCU to act as it did is ambiguous and uncertain and necessarily invites the court to speculate and/or make assumptions as to conduct of Holding and as to its precise alleged factual role in the alleged Scheme.

439. A further feature of the claim against Holding is that there is a complete lack of clarity as to the legal framework in which that claim falls to be assessed. Indeed, there is also a lack of clarity as to the law that will apply to the claims against the other Defendants, but that lack of clarity is particularly acute in the case of Holding, in circumstances where no specific acts on its part have been identified by the Plaintiffs. This is an issue of considerable complexity and uncertainty. In the absence of any specific, identified acts on the part of Holding, it is reasonable to infer that the claim against it is based upon its knowledge of/acquiescence in the acts of its subsidiary, UCCU. This begs several questions. For example, whether a claim based on Holding’ knowledge of allegedly tortious actions being carried out by its subsidiary is governed by the law governing those actions (even though Holding was not an actor) (presumably, in the circumstances here, Russian law) or by the law governing the corporate relationship between Holding and UCCU (from which some form of liability on the part of Holding is to be derived)? What law governs the relationship between a company registered in one jurisdiction which owns a company registered in another? Does that of itself depend on the terms of Cypriot and/or Russian company law? All that can be said with reasonable confidence is that Cypriot law does not govern the claims against the other Defendants, and it is very difficult, if not impossible, to see how Irish law could govern the claim against Holding in respect to the alleged actions of its subsidiary carried out in Russia and directed to the affairs of a Russian company.

Close Connection?

440. As we observed above, for the Plaintiffs to succeed with their case against Holding on the basis of the available evidence it would be necessary for the court hearing the proceedings to speculate or make assumptions regarding the conduct of Holding. Claims can hardly be said to be “closely connected” for the purposes of Article 8(1) on the basis of a mere assertion (in this case that Holding “caused or permitted” UCCU to carry out the acts that it is alleged to have carried out), which it scarcely needs to be said does not amount to proof of any kind, never mind “unequivocal” proof. Such an approach would be inconsistent with the CJEU’s repeated insistence upon a strict interpretation of the derogation from the general rule of jurisdiction. It would in our view also be inconsistent with the approach taken by the Supreme Court as long ago as 1993 in Handbridge, when Finlay CJ held that:

“The onus is on the plaintiff who seeks to have his claim tried in the jurisdiction of a contracting state other than the contracting state in which the defendant is domiciled to establish that such claim unequivocally comes within the relevant exception.”

That statement was made in the context of the 1968 Brussels Convention, but it applies with equal force to Article 8(1), and was reaffirmed by Charleton J in Ryanair (in the context of Article 6(1) of Brussels I).

441. The absence of any pleaded facts or evidence in support of the plea that Holding caused or permitted its subsidiary, UCCU, to carry out the acts that it is alleged to have carried out in pursuance of the Scheme, taken together with the fundamental uncertainty as to the legal framework within which that claim falls to be assessed is, in our view, fatal to the Plaintiff’s claim to be entitled to rely upon Article 8(1) of the Recast Brussels Regulation. While the claim against Eurotoaz has been pleaded with particularity (see §§19-26 & §§32-38 above) the dearth of pleading and evidence in the claim against Holding is such that it is impossible to conclude, on the balance of probabilities, that the claims against Eurotoaz and Holding arise in the context of the same situation of law and fact. The “situation of law and fact” in which the claim against Holding arises is fundamentally uncertain but, on any view, it is not the same – and certainly the Plaintiffs have failed to establish that it is the same – as the “situation of law and fact” in which the claim against Eurotoaz arises. It follows therefore that the Plaintiffs – on whom the burden lies – have failed to establish any risk of irreconcilable judgments, as that term has been interpreted by the CJEU, if the claims against Eurotoaz and Holding are determined separately in Ireland and Cyprus respectively.

442. Moreover, even taking the Plaintiffs wafer thin claim against Holding at its absolute height, and proceeding on an assumption that it did, as alleged, “cause or permit” UCCU to carry out the acts that the Plaintiffs allege, there is no basis on which it could be plausibly suggested that Holding could have reasonably foreseen that it, as a Cypriot company, would find itself defending in Ireland a claim brought by the Plaintiffs, companies largely based in the Caribbean, in respect of the actions of its subsidiary in Russia. This is especially so in circumstances where the connection with the Irish jurisdiction relied upon is with an Irish company, Eurotoaz, with which Holding has no corporate connection and where no interactions between Holding and Eurotoaz are pleaded. As we have already noted, the jurisdictional “centre of gravity” of the proceedings here is unquestionably to be found in Russia, rather than Ireland In the circumstances, to require Holding to answer the claim of the Plaintiffs in Ireland would be the very antithesis of legal certainty and predictability referred to in Recitals 15 and

16 of the Recast Brussels regulation, the importance of which has repeatedly emphasised in the case law of the CJEU.

The “Sole Object” Ground

443. In light of our conclusion on the issue of the risk of close connection/ irreconcilable judgments, it is not, strictly speaking, necessary to consider whether or not Article 8(1) incorporates a “sole object” test, and, if it does, whether or not the Plaintiffs have brought their claim against Eurotoaz for the sole object of bringing Holding into the jurisdiction. However, given that these issues were argued before us, we consider it appropriate to express our view on them. We would answer both questions affirmatively.

444. As we noted in our summary of the judgement of the High Court, the Judge considered it unnecessary to express a view one way or another regarding the decision of the majority of the Court of Appeal in Kolomoisky ([2019] EWCA Civ 1708), in which the majority concluded that there is no implied “sole object” test in Article 6(1) of the Lugano Convention, which, if correct, would mean that there is no such implied test in the equivalent Article 8(1) of the Recast Brussels Regulation. This was because the Judge was in any event satisfied that the proceedings against Eurotoaz had not been brought with the “sole object” of giving the Irish Courts jurisdiction over Holding.

445. However, this Court finds itself in a different position to the Judge, in light of our earlier

conclusion on the Order 11(1)(h) issue, that the claim against Eurotoaz is a “mere device” to bring the other defendants within the jurisdiction. Central to our conclusion on that issue was the finding above that “[t]he only discernible purpose that the pursuit of Eurotoaz appears to serve in these proceedings is to provide a basis to establish the jurisdiction of the Irish courts over the entire claim” (§272). It follows from this

conclusion that, in the context of the Article 8(1) issue, the plaintiffs’ sole object in joining Eurotoaz to the proceedings was to bring Holding within the jurisdiction of the Irish Courts, for the very same reasons discussed earlier in this judgment in reaching our conclusion on the mere device issue. No separate and distinct justification unique to Holding has been relied upon by the plaintiffs such as to require a separate consideration of the issue in this context. That being the case, it is necessary for this Court to form a view as to whether or not the sole object test subsists in light of the

decision of the CJEU in Case C-352/13 Claims (CDC) Hydrogen Peroxide SA v Evonik Degussa GmbH and Others [2015] ECR I-335.

446. Earlier in this judgment (§133) we summarised the background to the Cartel Damage case, but to recap very briefly, the anchor defendant in the proceedings was domiciled in Germany, and the other five defendants were domiciled in other EU Member States. The plaintiff settled with the anchor defendant after the proceedings had been served on all other defendants, and it was contended that the timing of the settlement had been orchestrated so as to confer, artificially, jurisdiction on the German courts. The questions referred to the CJEU required the court to consider whether or not a sole object test applied even where a close connection between proceedings against an anchor defendant and non-EU domiciled defendants is established. The CJEU addressed the issue at §§26-29 of its judgment as follows:

“26. That said, it remains to be considered to what extent the applicant’s withdrawal of its action against the sole co-defendant domiciled in the same Member State as the court seised is capable of rendering the rule of jurisdiction provided for in Article 6(1) of Regulation No 44/2001 inapplicable.

27. According to settled case-law, that rule cannot be interpreted as allowing an applicant to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the Member State in which that defendant is domiciled (judgments in Reisch Montage, C-103/05, EU:C:2006:471, paragraph 32, and in Painer, C-145/10, EU:C:2011:798, paragraph 78).

28. The Court has nevertheless stated that, where claims brought against various defendants are connected within the meaning of Article 6(1) of Regulation No 44/2001 when the proceedings are instituted, the rule of jurisdiction laid down in that provision is applicable without there being any further need to establish separately that the claims were not brought with the sole object of ousting the jurisdiction of the courts of the Member State where one of the defendants is domiciled (see judgment in Freeport, C-98/06, EU:C:2007:595, paragraph 54).

29. It follows that where, when proceedings are instituted, claims are connected within the meaning of Article 6(1) of Regulation No 44/2001, the court seised of the case can find that the rule of jurisdiction laid down in that provision has potentially been circumvented only where there is firm evidence to support the

conclusion that the applicant artificially fulfilled, or prolonged the fulfilment of, that provision’s applicability.”

447. It is apparent that there is some tension in these paragraphs, and in particular as between §27 and §28. In considering them, we have found the analysis of Cartel Damage by the Court of Appeal in Kolomoisky very helpful. This was a majority decision of the Court of Appeal, with David Richards and Flaux LJJ delivering a joint decision and a dissenting judgment being delivered by Newey LJ. In reaching their conclusion on the issue, the majority framed the question in the following term (at §102):

“However, if the question is asked, is a claimant with a sustainable claim against an anchor defendant, which it intends to pursue to judgment in proceedings to which a foreign defendant is joined as a co-defendant, entitled to rely on article 6(1) even though the claimant’s sole object in issuing the proceedings against the anchor defendant is to sue the foreign defendant in the same proceedings, we consider that the question should be answered affirmatively.”

448. The majority provided seven reasons for their conclusion. These reasons may be summarised as follows:

(i) There is a clear contrast between Articles 6(1) and 6(2) (of the Lugano Convention) with only the latter containing a sole object conclusion.32 In Freeport, at §51, it is noted that in that case the Commission had submitted that Member States refused to include the sole object condition in Article 6(1) on the grounds that the close connection condition was more objective.

(ii) Article 6(1) was enacted in response to the CJEU’s decision in Kalfelis in which the CJEU considered that the issue (of a defendant being removed from the courts of the state of his domicile) could be dealt with by a close connection condition.

(iii) In Kalfelis, the Advocate General had opined that an additional requirement, i.e a sole object test, based on the intention of the claimant would introduce an undesirable degree of uncertainty into the allocation of jurisdiction. The Recast Brussels Regulations contains Recital 16 which emphasises the need for certainty, but contains no reference to a sole object test.

(iv) The majority of the court took the view that the decision of the CJEU in Freeport is a statement of principle that Article 6(1) is not subject to an unexpressed sole object test. In forming this conclusion, the court rejected an argument that the only difference between Article 6(1) and 6(2) is that, under Article 6(1) the object of Article 8(2) of the Recast Brussels Regulation provides that a person domiciled in a member state may also be sued: “as a third party in an action on a warranty or guarantee or in any other third party proceedings, in the court seised of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case.” Article 6(2) of the Lugano Convention is in identical terms.

the claimant in suing the anchor defendant does not necessarily have to be investigated.

(v) The decision of the CJEU in Cartel Damage subjects reliance on Article 6(1) to an abuse of law principle in cases of artificial fulfilment of the close connection condition.

(vi) The majority noted that their decision on the issue is consistent with the analysis of Lord Briggs in Vedanta v Lungowe [2019] UKSC 20, in which Lord Briggs, speaking obiter, had stated that “in the context of cartel cases nothing short of collusion between the claimant and the anchor defendant would be sufficient to engage the abuse of law principle” and;

(vii) While the statements in Reisch Montage, Painer and also Case C-616/10 Solvay SA v Honeywell Fluorine Products Europe BV & Other [2012] ECR I-193, may be read as unqualified statements of the applicability of a general sole object test, the majority considered that having regard to the references in those cases also to Kalfelis and Réunion, they are no more than restatements of what those cases decided, i.e. that “the vice in using article 6(1) to remove a foreign defendant from the courts of the state of his domicile was met by a close connection condition.” (§110).

449. Having set out the reasons for their conclusions, the majority held that the plaintiff in Kolomoisky was entitled to rely on Article 6(1) even if its sole object in commencing the proceedings against the English defendants in that case was to be able to sue the non-UK domiciled defendants in the same proceedings.

450. In his dissenting judgment (on this issue) Newey LJ noted that Cartel Damage confirms that the provisions to Article 6(1) of the Lugano Convention and Article 8(1) of the Recast Brussels Regulation do not state the limitations on those Articles comprehensively. He observed that it is clear from Cartel Damage that there are circumstances where a claimant cannot rely on Article 6(1) or Article 8(1) (as the case may be), despite the “closely connected” requirement being met. What was at issue in that case – as it is here – was not whether the articles are subject to an implied exception at all, but the extent of that exception.

451. Newey LJ then proceeded to consider §§27-29 of Cartel Damage. He agreed with a submission made by counsel for the defendants in that case that a claimant may be said to have “artificially fulfilled” the requirements of Article 6(1) or Article 8(1) where his sole object in suing the anchor defendant was to allow him to claim to have met those requirements. He noted that, at §27 of its judgment in Cartel Damage, the CJEU, citing Reisch Montage, stated that “settled case law” was to the effect that what is now Article 8(1) of the Recast Brussels Regulation “cannot be interpreted as allowing an applicant to make a claim against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the courts of the Member State in which that defendant is domiciled”, and that in so stating the CJEU did not voice any criticism of the “sole purpose” test established by its settled case law, or, more specifically, of Reisch Montage.

452. As far as §28 of the judgment in Cartel Damage is concerned, Newey LJ considered that that paragraph should be interpreted as meaning that a claimant did not have “to establish separately” that he did not have “the sole object of ousting the jurisdiction of the courts of the member state where one of the defendants is domiciled” but that did not mean that were such a sole object to be evident, it would not matter.

453. Newey LJ concluded that §29 of the judgment in Cartel Damage should be interpreted as referring to the need for “firm evidence”, rather that marking a rejection of a sole object test. He stated:

“The court was not, to my mind introducing a new, and narrower, ‘artificially fulfilled, or prolonged the fulfilment of’ requirement, but rather saying that a court before which proceedings had been brought in pursuance of article 6(1)/8(1) need not concern itself with the claimant’s object in the absence of strong evidence on the matter. Reisch Montage and Freeport were to be reconciled in that way, not by departing from the ‘settled case law’ indicating (as the CJEU saw things) that article 6(1)/8(1) would not apply if it was apparent that the claimant had ‘the sole purpose of removing [a defendant] from the jurisdiction of the courts of the member state in which that defendant is domiciled.’ The significance of Freeport, as interpreted in Cartel Damage, is thus that the court in which a claim has been brought under article 6(1)/8(1) need not investigate the claimant’s object routinely.”

454. As regards the observations of Lord Briggs in Vedanta, Newey LJ observed that Lord Briggs had expressly left aside “those cases where the claimant has no genuine intention to seek a remedy against the anchor defendant”.

455. While we find the analysis of both the majority and Newey LJ to be persuasive, in our judgment, the conclusion of Newey LJ on the issue is to be preferred to that of the majority in Kolomoisky. We have formed that view because we find it difficult to interpret §27 of Cartel Damage as being anything other than a clear statement – consistent with to the settled case law of the CJEU – that Article 8(1) cannot be interpreted as permitting the bringing of claims against a number of defendants for the sole purpose of removing one of them from the jurisdiction of the member state in which that defendant is domiciled. If the CJEU was the view that there was no place for a sole object test once a close connection is established, that would be a very strange way of expressing that view. Not only does §27 affirm the sole object test in plain and unambiguous language, it does so by reference to two earlier authorities (Reisch Montage and Painer) in which the principle is affirmed in the same terms. Furthermore, it had also previously affirmed the test in Solvay, a decision of 12 July 2012. This is indeed “settled case law” and it would be very surprising indeed to repeatedly declare the existence of a principle it considered to have been abolished.

456. On the other hand, it is equally clear that in §28 the CJEU also affirmed its decision in Freeport. However, neither §28 of Cartel Damage nor Freeport itself purport to exclude the sole object test. In the case of Cartel Damage, as already stated, the court expressly affirms the principle. Each of Cartel Damage, Painer and Solvay post-date Freeport. However, Reisch Montage pre-dates it, and although referred to in Freeport in the context of a different question, curiously it was not referred to at all by the Court in the question that raised the issue of the sole object test. In any case, in answering the question posed in Freeport,33 the court in our view did not hold that Article 6(1) of Brussels I is not subject to a sole object test, but rather it appears to address the question in terms of where the onus of proof lies.

457. Accordingly, a claimant relying upon Article 8(1) only has to satisfy a court that there is a close connection between the claims (as that term is used in Article 8(1)) against the various defendants, and does not, in the first instance, bear any additional burden of satisfying the court of the negative proposition that its sole purpose in suing the anchor defendant was not to oust the jurisdiction of the courts of the Member State where one of the defendants is domiciled. Such a burden would only arise in the event that one of the defendants adduces evidence sufficient to support that proposition, in which case the onus shifts to the claimant to satisfy the court that is not its sole object.

458. §29 of Cartel Damage then identifies the circumstances in which a court may find that the rule of jurisdiction laid down in Article 8(1) has “potentially been circumvented” and that is only (our emphasis) where there is “firm evidence to support the conclusion that the applicant artificially fulfilled, or prolonged the fulfilment of, that provision’s applicability.” Having regard to the particular background to the proceedings in Cartel The second question addressed by the court in Freeport was “whether application of Article 6(1) of Regulation No 44/2001 presupposes that the action was not brought against a number of defendants with the sole object of ousting the jurisdiction of the courts of the member state where one of the defendants is domiciled”.

Damage, it seems very likely that this particular formulation of words owes its origin to the circumstances of that case. That said, it is also, in our opinion, a statement of general principle, that being that if a court is satisfied, on firm evidence that a close connection between the causes of action has been brought about artificially, then Article 8(1) cannot be relied upon to confer jurisdiction. That conclusion is, in our view, consistent with the structure of the Recast Brussels Regulation and the general principle of EU law against abuse of rights.

459. We have already held earlier, in the context of the application under Order 11, Rule 1(h) that the joinder of Eurotoaz to these proceedings was a “mere device”, and that

conclusion has led us to conclude, in the Article 8 context, that the claim against Eurotoaz is for the sole object of bringing Holding into the jurisdiction. As we have observed earlier, the term “mere device” has pejorative connotations. Does the deployment of a “mere device” to achieve a litigation objective equate to or correspond with achieving the same objective “artificially”? When the question is framed in that way, it answers itself. Even if, therefore, the Plaintiffs had persuaded us that there is a close connection between the claims against Eurotoaz and Holding, as that term is used in Article 8(1), we are of the view that they would not be entitled to rely on Article 8(1) of the Recast Brussel Regulation to bring proceedings against Holding in this jurisdiction.

460. For the foregoing reasons, we are of the opinion that Cartel Damage affirms that Article 8(1) may not be relied upon by a claimant against a defendant who satisfies the court that the proceedings against the anchor defendant have been brought, for the sole purpose of ousting the jurisdiction of the courts of the Member State in which that other defendant is domiciled. We are further satisfied that that is the case here, so far as concerns the claim against Holding. We would therefore allow the grounds of appeal related to this issue.

461. In the circumstances we will allow Holding’s appeal and make an order setting aside service of the proceedings on it.

CONCLUSION AND ORDERS

462. In light of this analysis, the Plaintiffs have failed to establish that the Irish Courts have jurisdiction to hear and determine their claims against the UCCU Defendants. It follows that the Order of 7 November 2016 giving leave to serve out on the Russian UCCU Defendants must be set aside. As regards Holding, the Court will make an order setting aside service of the proceedings on it.

463. The appeal having been successful, it would appear to follow that the Plaintiffs should pay the UCCU Defendants’ costs of the appeal, and of the proceedings to date. However, the Court will give the Plaintiffs and opportunity to consider this judgement before proceeding to make any order for costs and in the event that the Plaintiffs wish to contend for a different order, they should communicate that position to the Court of Appeal Office (within 28 days of this judgment) and the Court will arrange for a further hearing on the costs issue.