PJSC National Bank Trust & Anor v Boris Mints & Ors
[2023] EWHC 118 (Comm)
Boris Mints & Ors v PJSC National Bank Trust & Anor
6 October 2023
[2023] EWCA Civ 1132
Court of Appeal
Imagine a court case where one side is under sanctions. The UK court decided that sanctions don't stop them from finishing the case and awarding money, even if it goes to someone sanctioned. They also said that the government agency handling sanctions can allow the sanctioned person to pay their legal bills and any court-ordered costs.
Key Facts
- •Appeal concerning the effect of UK sanctions on ongoing Commercial Court litigation.
- •Claimant banks seek US$850 million from appellants for allegedly conspiring in uncommercial transactions.
- •Second claimant bank designated under UK sanctions regime for supporting the Russian government.
- •Appellants argue first claimant bank (NBT), a subsidiary of the Central Bank of Russia, is also subject to asset freeze due to "ownership or control" by designated persons.
- •Three key issues: Can judgment be entered for a designated person? Can OFSI license various payments related to litigation costs and security? Does control extend to influence via political office?
Legal Principles
Statutory interpretation principles: primary focus on legislative text, assumption of rationality and coherence, interpretation rules as aids.
Bennion on Statutory Interpretation, 8th edition (2020)
Principle of legality: fundamental common law rights (e.g., access to courts) not curtailed unless clearly authorised by primary legislation.
R (Belhaj) v DPP [2019] AC 593; R (Youssef) v Secretary of State [2021] EWHC 3188 (Admin)
Presumption against doubtful penalisation: Courts should avoid constructions that penalise without clear legislative intent.
Ricketts v Ad Valorem Factors Ltd [2004] BCC 164
Article 7 of the ECHR: No punishment without law.
Article 7 of the European Convention on Human Rights
Article 6 of the ECHR: Right to a fair trial, including access to court; not absolute.
Article 6 of the European Convention on Human Rights
Minimum interference principle: Any intrusion on the right of access to courts must be the minimum necessary.
UNISON [2017] UKSC 51
Outcomes
Appeal dismissed.
The court found that SAMLA and the Regulations do not clearly prohibit the entry of judgment in favour of a designated person. The principle of legality was applied, finding no unambiguous authorization to curtail the right of access to courts. The licensing issue was resolved by interpreting the licensing provisions broadly, allowing for licences to cover various litigation costs.
Entry of judgment for a designated person is lawful.
The court interpreted the relevant regulations, finding that neither 'making funds available' nor 'dealing with' funds or economic resources encompassed the court's act of entering judgment. The principle of legality further supported this interpretation, preventing a reading that would unduly restrict access to courts.
OFSI can license payment of adverse costs orders, security for costs, and damages on cross-undertakings.
Schedule 5, paragraph 3, interpreted broadly, allows for licensing of reasonable legal fees, encompassing both the designated person's and opposing party's costs. Damages on cross-undertakings were deemed licensable under paragraph 5 as extraordinary expenses.
NBT is not controlled by Putin or Nabiullina.
The court rejected the appellants' broad interpretation of Regulation 7, finding that 'control' does not extend to influence solely through political office. The court emphasized the focus on personal control through ownership or other means of influence.
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