In an important win for Ukrainian businessmen Mr Gilfanov and Mr Tokarev, Matthew Hardwick QC (instructed by Arabella di Iorio and David Welford of Maples and Calder) successfully appealed the decision of the first instance judge (Bannister J.) to discharge a worldwide freezing injunction.
On 3 February 2017 the Eastern Caribbean Court Appeal (“the ECCA”) allowed the appeal of Mr Gilfanov and Mr Tokarev and reinstated a US$10m freezing injunction – principally on the bases that the judge had been wrong to find (1) that there was no general risk of dissipation; and (2) no loss.
The judgment of the ECCA provides an up to date analysis of (1) the relevance of a finding of a good arguable case of fraud to the inference of a risk of dissipation; (2) the assessment of damages in cases where property has been acquired in reliance on a fraudulent misrepresentation; and (3) the circumstances where the BVI court can order a freezing injunction against a non-cause of action defendant.
The case, reported as (1) Rustam Yusufovich Gilfanov and (2) Sergey Aleksandrovich Tokarev v (1) Maxim Valeriovich Polyakov (2) Valeriy Oleksandrovich Polyakov and (3) Phoenix Holdings Limited BVIHCMAP 2016/0009 (3 February 2017), can be found here.