Key Facts
- •Galina Besharova, the former wife of Boris Berezovsky, applied to strike out a preference claim against her under s.340 of the Insolvency Act 1986.
- •The claim concerns a £2.5 million payment made by Berezovsky to Besharova 8 months before his death.
- •Besharova argued that the Trustees' refusal to disclose privileged documents prevented a fair trial.
- •The Trustees argued that their reliance on privilege did not render the process unfair.
- •The Preference Claim alleges the payment was a preference under s.340(3) of the IA 1986, and seeks repayment.
- •Key issues in the Preference Claim are whether Besharova can rebut the presumption that Berezovsky acted with the relevant intention (the Desire Issue) and whether Berezovsky was insolvent at the time of the payment (the Insolvency Issue).
- •Besharova requested disclosure of documents relating to Berezovsky's substantial claims against Abramovich and others, including privileged documents.
- •The Trustees disclosed six privileged documents but refused to disclose further privileged documents.
- •Besharova's application is based on the Trustees' refusal to disclose additional privileged documents, arguing it prevents a fair trial.
- •Besharova also asserts privilege herself, withholding documents.
Legal Principles
Principles governing applications to strike out a claim under the inherent jurisdiction as an abuse of process.
Hunter v Chief Constable of the West Midlands Police [1982] AC 529 HL
Assessment of 'unfairness' in the context of privilege and disclosure.
High Commissioner for Pakistan in the UK v Prince Muffakham Jah and Others [2020] Ch 421
The impact of parliamentary privilege on a fair trial.
Hamilton v Al Fayed [2001] 1 AC 395 (HL)
Requirements of a 'fair trial', including the right to be heard and the balancing of competing considerations.
Article 6 of the European Convention on Human Rights
Nature and effect of legal professional privilege; its absolute nature.
R v Derby Magistrates’ Court, Ex p B [1996] AC 487
Waiver of privilege, including implied or collateral waiver, and the possibility of drawing adverse inferences.
R v Secretary of State for Transport ex parte Factortame and Others [1997] 9 Admin. L.R. 591; Magnesium Elektron Ltd v Neo Chemicals & Oxides (Europe) Ltd (No.2) [2018] F.S.R. 11
Outcomes
Besharova's application to strike out the Preference Claim was dismissed.
The alleged unfairness stemmed solely from the Trustees' assertion of their right to legal professional privilege, which is a fundamental right. The court found no additional circumstances to justify striking out the claim. Besharova had alternative means to address any perceived unfairness, such as applying for further disclosure or arguing for adverse inferences at trial.