Witnesses Giving Evidence From Overseas: The Case Of The Kazakh Banker
On 26 May 2016, Mr Justice Philips of the Commercial Court, a division of the High Court of England and Wales, refused an application for Ilyaz Khrapunov, the infamous son-in-law of the infamous Kazakh banker Mukhtar Ablyazov, to give evidence by video-link from Switzerland. Why, you may ask – if the question is simply one of how the evidence was provided rather than the evidence itself?
This claim is fairly exotic and complicated, as are many of the large number of cases involving businessmen from the former USSR that are brought in the English courts these days. Depending on your political standpoint, Mr Ablyazov is either a wanted fraudster or a legitimate businessman being persecuted for political reasons. After the fall of the Soviet Union, he rose to wealth in Kazakhstan from humble beginnings, by first creating his own conglomerate and then acquiring a major Kazakh bank. He was then appointed head of the state-owned electricity company and Minister for Energy, Industry and Trade. He enjoyed a degree of success in the former role and a degree of popularity in the latter.
Having initially been a protégé of the head of state, Mr Ablyazov became disenchanted with the leadership of his country and created a new political party designed to challenge the power of the incumbent president. Uncharacteristically, Mr Ablyazov’s plans were not successful. Within twelve months of creating his party, he found himself facing criminal prosecution on grounds of abuse of office and was sentenced to six years in prison following a short and dubious trial. However, he was released after only ten months on condition that he not engage in politics – a promise he did not intend to keep.
Upon his release, Mr Ablyazov spent vast amounts of money funding political opponents of the regime, a bill that must have been second only to the costs of his private security. He became the target of several assassination attempts and fled Kazakhstan for Russia, where he faced the same threats as at home. In January 2011, he bolted again, this time to Britain, where he was granted asylum on the grounds that he was the target of a politically motivated prosecution. However, despite this, Mr Ablyazov received notice from the police informing him that they could not guarantee his protection on a daily basis and were aware of credible threats against his life.
In 2012, Mr Ablyazov left Britain, shortly after an English judge ordered him to be jailed for lying in court during proceedings brought against him by JSC BTA Bank, a company allegedly controlled by the regime in Kazakhstan. His lawyers claimed that he had left the jurisdiction as a result of a credible assassination threat, but his detractors claimed it was to avoid punishment and having to satisfy substantial judgments against him.
It appears Mr Ablyazov next sought refuge in Italy with his family, for his wife and daughter were arrested by Italian police and deported to Kazakhstan rapidly and illegally (in the words of the then-Italian president after he had investigated the incident), despite having the right to stay in Britain and the European Union.
In spite of this, Mr Ablayzov remained determined to defend himself in the litigation brought against him in the English courts as did his son-in-law, Mr Khrapunov, who was also named as a defendant in the proceedings, it being alleged that he held assets on behalf of Mr Ablyazov.
Mr Justice Philips received the request that Mr Khrapunov give evidence via video-link from Switzerland on the day he was due to give that evidence in London. Mr Khrapunov had said that if he attended court, he could be arrested and deported either to Russia or Kazakhstan to face trumped up criminal charges. In refusing this request, Mr Justice Philips made it clear that, despite the history of both defendants, he could see no evidence of criminal proceedings against Mr Khrapunov either in Russia or Kazakhstan, nor was there an extradition treaty between either of those countries and Britain. He also said that the risk of an ad hoc agreement for the witness’ deportation being reached between Britain and any other state was “non-existent”. He concluded that Mr Khrapunov was no more at risk of deportation from London than he was from Switzerland (which similarly lacks the necessary extradition treaties). Doubtless he did not think very highly of the timing of the application either.
Mr Justice Philips also made two further, technical points which are of general relevance to all cases which involve witnesses giving evidence from overseas countries, even if they are not quite as colourful as these proceedings. He said that he would not allow cross-examination of a witness in Switzerland because:
1. The Swiss authorities had not given their permission for this to happen; and
2. In order for the cross-examination of Mr Khrapunov to be compliant with Swiss law, he could not be compelled to attend court and he could decline to answer questions as he wished – neither of which were compliant with English legal practice.
It may surprise some to learn that the English courts are so diplomatic in their consideration of the feelings of other jurisdictions. However, the judiciary are one of the three arms of the British state (the others being the executive and Parliament) and are therefore obliged to think diplomatically.
Incidents such as Mr Khrapunov’s are likely to become an increasing feature of litigation in the United Kingdom. In today’s global economy, the English courts frequently have to consider applications for witnesses – whose careers often feature busy, international working schedules booked up a year in advance – to give evidence from overseas. Sometimes a party can find itself in the stomach-churning situation of identifying a key witness only to learn that they now live abroad or that the witness’s plans have changed, either for business of personal reasons, and they will be in South-East Asia, Australia or the USA for the duration of the trial.
Rosenblatt have experience in dealing with overseas (and reluctant) witnesses, as well as those who are at first cooperative but attempt to withdraw support close to trial.
In one particular incident, a client was told by a key witness shortly before trial that he would only be able to give his evidence by video-link from an overseas location. Ordinarily this would be known months in advance and there would be sufficient time to:
a. obtain the English court’s permission, as required by the court rules;
b. obtain clearance from the Foreign & Commonwealth Office (“FCO”) that no diplomatic issues would arise from the witness giving evidence from that overseas jurisdiction;
c. make the necessary arrangements with the local court officers of the overseas jurisdiction to enable the evidence to be given; and
d. set up the facilities for giving evidence by video-link.
In this instance, rather than having months, all of the above steps had to be carried out within the first three days of trial. Thanks to some senior members of the judiciary being persuaded to give their permission far more rapidly than they would normally do, and extensive discussions with the FCO, the local British consulate, and the local Ministry of Justice, the Rosenblatt team was able to set up video-link facilities in rapid time and obtain the FCO clearance required to avoid causing a diplomatic crisis, and even made our “man on the ground” in the relevant jurisdiction feel like the legal equivalent of James Bond.
Needless to say, due to the fundamental importance of witness evidence in litigation, you should always prepare as much as you can in advance to ensure that your witnesses will be able to provide that evidence. However, litigation can be an unpredictable business, especially when conducted on an international scale, as can be seen from the experiences of Messrs Ablyazov and Khrapunov.
This article should not be taken as definitive legal advice on any of the subjects covered. If you do require legal advice in relation to any of the above, please contact Simon Walton on 020 7955 1455 or any member of the Rosenblatt Dispute Resolution Department.