n Gorbachev v Guriev [2022] EWCA Civ 1270, the court upheld an earlier ruling by Mr Justice Jacobs. The case stemmed from a £1bn dispute between two Russian former friends over their interests in a Russia-based fertiliser company, PJSC PhosAgro. That dispute is listed for a six-week trial in 2023, with one of the issues concerning how Alexander Gorbachev was financially supported for eight years through two Cyprus trusts created for his benefit and alleged to have been operated by a close associate of Andrey Guriev.
The claimant, Gorbachev, sought third-party disclosure of documents held electronically by law firm Forsters. Forsters countered that they held the documents on behalf of the appellants, the trustees TU Reflections and First Link Management Services, both Cypriot companies, out of the jurisdiction, and that any order for disclosure should be made against them.
Counsel for the trustees argued the principle of territoriality meant the court had no jurisdiction to order disclosure against a third party outside England and Wales under the Senior Courts Act 1981, s 34.
Giving the lead judgment, Lord Justice Males dismissed the appeal, holding the court ‘has and should exercise jurisdiction in this case’. He said the ‘critical fact’ was that the documents sought were located in England, since they ‘were sent to Forsters in England, albeit by electronic means, so that Forsters could give advice… It is, as Mr Justice Jacobs put it, not the result of chance that they are held within the jurisdiction’.
Males LJ declined to clarify the law on whether a judge might have discretion, in exceptional cases, to order disclosure where both third party and documents were outside the jurisdiction.
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