Alimov v Mirakhmedov & Ors [2024] EWHC 3322 (Comm)
On 20 December 2024, Simon Birt KC (sitting as a Deputy Judge of the High Court) allowed a jurisdictional challenge in proceedings concerning a Kazakh Bitcoin mining project and its Cypriot holding company, Genesis Digital Assets Ltd (GDA), one of the world’s largest Bitcoin mining companies.
The Claimant claimed that he was owed a share in the project, the Bitcoin it produced, and GDA, by three individual Defendants pursuant to a Kazakh-law oral agreement. He also joined GDA to the proceedings although he advanced no claim against it. The Claimant obtained a without notice order in October 2023 for permission to serve out of the jurisdiction and by alternative means. Each of the Defendants challenged jurisdiction.
There were various disputes of fact raised in the jurisdiction challenges, but the key issues were:
1. The Claimant’s claim that Kazakhstan – the forum with which the claim was most closely connected – was not an available or appropriate forum because of evidential rules there that restricted the evidence by which it was permissible to prove oral agreements.
2. The Claimant’s claim that Kazakhstan was not an available or appropriate forum because witnesses had been threatened.
3. GDA’s claim that there was no serious issue to be tried as against it.
4. The individual Defendants’ claim that permission to serve in Dubai by alternative means had been wrongly granted at the without notice stage in light of a bilateral service treaty between the UK and the UAE.
5. The Defendants’ claim that the Claimant had committed serious breaches of the duty of full and frank disclosure/fair presentation at the without notice stage.
The Defendants prevailed on each of those arguments:
1. As well as rejecting the Claimants’ case on the scope of the prohibitionary evidential rule in Kazakhstan, the judgment contains a valuable analysis of the principles that apply to evidential and procedural differences in the context of forum non conveniens challenges: see paragraphs 156-168, 177 and 181-195. In general, such differences will not be sufficient to displace what would otherwise be the appropriate forum for a claim: absent a finding that substantial justice cannot be done in an alternative forum, litigants will have to take it as they find it.
2. On the issue of threats, as well as finding that the evidential picture was unclear, the Deputy Judge held that even if there had been threats, that on its own did not have a bearing on the appropriate forum, because the threats (if they were made) appeared to be directed at the pursuit of litigation generally, rather than to litigation in a particular forum, and because there was no evidence, let alone the “cogent evidence” that would be required, that substantial justice would not be available in Kazakhstan because the Kazakh courts would fail to deal with any allegations of witness intimidation: see paragraphs 196-211.
3. On the position of GDA, the Deputy Judge held that there was no serious issue to be tried as against it – and indeed no issue to be tried as against it at all. Significantly, it was held that the possibility of a future claim against a party, or future enforcement proceedings, based on one or more contingencies did not mean that there was a serious issue to be tried as against that party: see paragraphs 218-224.
4. On alternative service, it was held that, in a case where a bilateral service treaty was in place, mere delay was not a sufficient reason to bypass the methods of service specified in the treaty, and even lengthy potential delays of over a year would not provide such a reason where a claimant itself had acted without urgency: see paragraphs 232-248.
5. Finally, the Deputy Judge held that the Claimant had committed serious breaches of the duty of full and frank disclosure/fair presentation at the without notice stage, which of themselves would have justified service out being set aside: see paragraphs 250-277.
Neil Kitchener KC and David Caplan acted for the Second Defendant, instructed by Mishcon de Reya LLP.
Sonia Tolaney KC and Adam Rushworth acted for GDA, instructed by Latham & Watkins (London) LLP.
A copy of the judgment is available in the link below.