Neutral Citation Number: [2017] EWCA Civ 4 0 
  Case No: A3/2016/1136 & 114 1 
IN THE COURT OF APPEAL (CIVIL DIVISION)  
ON APPEAL FROM THE HIGH COURT OF JUSTICE (QBD)  
THE HONOURABLE MR JUSTICE TEAR E 
[2016] EWHC 230 (Comm)   
  Royal Courts of Justice  
Strand, London, WC2A 2L L 
  02/02/201 7 
B e f o r e :  
LADY JUSTICE GLOSTER DBE  
LORD JUSTICE BEATSON  
and 
LORD JUSTICE SALE S 
____________________  
Between:  
 
 Ilyas Khrapunov  Appellant  
 - and -  
 JSC BTA Bank  Respondent  
  
And Between:  
 
 JSC BTA Bank  Cross -
Appellant  
 - and -  
 Ilyas Khrapunov  Cross -
Respondent  
 Mukhtar Ablyazov  Interested 
Party  
____________________  
Charles Samek QC & Marc Delehanty (instructed by Hughmans Solicitors) for 
Ilyas Khrapunov  
Stephen Smith QC & Tim Akkouh (instructed by Hogan Lovells International 
LLP) for JSC BTA BANK  
 
Hearing dates: 19 & 20 December 2016   
____________________  
HTML VERSION OF JUDGMENT APPROVED
 
____________________  
Crown Copyright ©  
Lord Justice Sales:   
1. This i s an appeal and cross -appeal from a decision by Teare J on issues of 
jurisdiction in relation to a new front in the long -running saga of litigation 
between JSC BTA Bank ("the Bank") and its former Chairman, Mr Mukhtar 
Ablyazov, and associates of his. The p resent proceedings relate to a claim by 
the Bank against Mr Ablyazov's son -in-law, Mr Ilyas Khrapunov, for the tort 
of conspiracy to injure the Bank by unlawful means. It is alleged that Mr 
Khrapunov conspired with Mr Ablyazov to hide Mr Ablyazov's assets from 
the Bank or dissipate them, in breach of a worldwide freezing order against Mr 
Ablyazov and a receivership order made against him. The unlawful means 
relied on are breaches of that freezing order and that receivership order.  
2. Mr Ablyazov lived in England between February 2009 and 16 February 2012, 
when he fled the jurisdiction to avoid being committed to prison for contempt 
of court. He is currently in France. Mr Khrapunov lives in Switzerland. The 
Bank wishes to sue him in Eng land.  
3. The Bank issued the claim form in the present proceedings against Mr 
Ablyazov and Mr Khrapunov on 17 July 2015. The judge had to decide 
whether at that date there was a proper basis for this under the terms of the 
Convention on Jurisdiction and the Recognition and Enforcement of 
Judgments in Civil and Commercial Matters (Official Journal L 339/3 of 
21.12.2007), known as the Lugano Convention ("the Convention").  
4. The judge held that the Bank has a good arguable case in conspiracy against 
Mr Khrapunov to the requisite standard on the basis of his and Mr Ablyazov's 
alleged breaches of the freezing order and the receivership order, which the 
judge held qualify as relevant unlawful means for the purposes of the tort. The 
judge rejected the Bank's submissio n that as at 17 July 2015 Mr Ablyazov was 
domiciled in the United Kingdom, so as to provide a foundation for 
jurisdiction against Mr Khrapunov under Article 6 of the Convention. The 
judge also rejected the Bank's submission, based on Article 5(3) of the 
Convention, as interpreted by the ECJ in Case 21/76 Handelskwekerij G. J. 
Bier B.V. v Mines de Potasse d'Alsace S.A.  [1978] QB 708  ("Bier"), at paras. 
[19] and [26], that the English courts could assume jurisdiction for the dispute 
on the basis that "the place where the damage occurred" (which I will refer to 
as "limb (a) of Article 5(3)") was England. However, the judge held that the 
English court has jurisdiction on the basis of Article 5(3) of the Convention on 
its other limb as interpreted in Bier, namely that "the place of the event giving 
rise to" the damage in question ("limb (b) of Article 5(3)") was England. But 
the judge held th at this was only for the period to 16 February 2012, when Mr 
Ablyazov fled from the United Kingdom.  
5. Mr Khrapunov and the Bank each appeal, to contest different parts of the 
judge's ruling. Mr Khrapunov contends that (i) the judge erred in holding that 
there was a good arguable case against him as a matter of law, in that breaches 
of a court order cannot qualify as relevant unlawful means for the purposes of 
the law of conspiracy, and (ii) the judge was wrong to hold that there was a 
basis for any assertion  of jurisdiction under limb (b) of Article 5(3). In other 
respects, Mr Khrapunov seeks to support the judge's ruling to the extent it was 
in his favour.  
6. Mr Khrapunov has not filed any evidence to deny that he has indeed assisted 
Mr Ablyazov in seeking to avoid the effect of the worldwide freezing order 
against him and the receivership order in the ways alleged by the Bank. The 
judge therefore proceeded on the basis that the Bank has a good arguable case 
that he has done the acts or assisted Mr Ablyazov in the ways alleged, and 
there is no challenge to this on appeal. Mr Khrapunov's argument under point 
(i) above is an argument of law, regarding what types of unlawful actions are 
capable of qualifying as unlawful means for the purposes of the tort of 
conspir acy to injure by unlawful means.  
7. The Bank contends that (i) the judge erred in rejecting its case for jurisdiction 
based on limb (a) of Article 5(3), because the damage which it suffered 
directly from the tort relied upon was a diminution in the value of its cause of 
action, worldwide freezing order and judgments obtained in England against 
Mr Ablyazov; (ii) the judge erred in limiting the jurisdiction of the English 
court under limb (b) of Article 5(3) to acts in furtherance of the conspiracy in 
the perio d to 16 February 2012: the acts pursuant to the conspiracy for which 
the Bank could sue in England should not have been time -limited in this way; 
and (iii) the judge was wrong to reject its claim to establish jurisdiction under 
Article 6 of the Convention.  The Bank also contends, under a respondent's 
notice, that the judge should have held that a cause of action in damages arises 
where a court order is breached and was wrong to reject the Bank's argument 
to this effect; and that accordingly there is this fu rther basis on which the 
judge should have found that the alleged breaches of the freezing order and the 
receivership order constitute unlawful means for the purposes of the tort of 
conspiracy to injure by unlawful means.  
8. In addition, the Bank sought on t he appeal to raise a new argument, to the 
effect that even if it could not establish a good arguable case against Mr 
Khrapunov for conspiracy to injure by unlawful means of the requisite kind, it 
could establish a good arguable case against him for the tor t of conspiracy to 
injure the Bank by lawful (or, perhaps more accurately, non -unlawful) means 
as established by the decision of the House of Lords in Quinn v Leathem 
[1901] AC 495 .  
9. In my view, this last point should be disposed of at the outset of this judgment 
to clear the ground for what is really in issue on this appeal. Mr Smith QC for 
the Bank expressly disavowed reliance on the Quin n v Leathem form of 
conspiracy in argument at first instance. He needs permission from this court 
to raise it as a new point on appeal. In my judgment permission to take this 
new point on appeal should be refused.  
10. For the Quinn v Leathem  form of the tort of conspiracy, it has to be established 
that the predominant intention of the conspirators was to inflict injury upon the 
claimant, rather than to promote their own interests: see Crofter Hand Woven 
Harris Tweed Co. Ltd v Veitch  [1942] AC 435 ; Lonrho Ltd v Shell Petroleum 
Co. Ltd (No. 2)  [1982] AC 173; Revenue and Customs Commissioners v Total 
Network SL [2008] UKHL 19 ; [2008] [2008] 1 AC 1174  ("Total Network "), 
[56] (Lord Scott), [ 66] and [72] -[76] (Lord Walker). But it has not been 
pleaded by the Bank that Mr Ablyazov and Mr Khrapunov acted with such a 
predominant intention; nor has any application been made to amend the Bank's 
particulars of claim to allege that they did so; nor i s it asserted in the evidence 
filed by the Bank for the purposes of resolving the issues on jurisdiction that it 
can be inferred that they did in fact act with such a predominant purpose. In 
the course of his submissions at first instance, Mr Smith explain ed to the judge 
that the Bank was not relying on the Quinn v Leathem  form of conspiracy 
precisely because it accepted that Mr Ablyazov and Mr Khrapunov acted with 
the predominant purpose of serving their own interests (particularly Mr 
Ablyazov's) by removi ng Mr Ablyazov's assets from control by the Bank 
pursuant to the freezing order so as to prevent the Bank from having recourse 
to them to enforce any judgment obtained against Mr Ablyazov. Indeed, it 
seems obvious from the evidence and pleadings filed so f ar that this was 
indeed the predominant purpose of Mr Ablyazov and Mr Khrapunov in acting 
as they are alleged to have done.  
11. Accordingly, it can be seen at once that the Bank has no pleaded and no good 
arguable case in reliance on the Quinn v Leathem lawfu l means form of 
conspiracy, and it would be inappropriate to give it permission to introduce 
this new point on appeal. The passage in the speech of Lord Neuberger in 
Total Network  on which Mr Smith sought to rely, at [228] -[230], is an 
insufficient foundat ion to support a contrary view. It was not the basis of Lord 
Neuberger's judgment in that case and was expressly obiter; no other member 
of the appellate committee agreed with it; it referred to a submission which 
had been abandoned by the Revenue (see [22 8]) and hence was not the subject 
of full argument; it is specifically referable to the different context of that 
case; it elides in that particular context predominant purpose to injure with 
predominant purpose to serve one's own interests, whereas in gen eral terms as 
a matter of logic they are different and the leading cases affirm that they are; 
and it does not explain in detail how the idea floated by him might be 
reconciled with other high authority in this area. In the event, Mr Smith made 
no attempt to support Lord Neuberger's discussion at [228] -[230] by detailed 
submissions and argued only faintly for permission to rely on this new point 
on appeal.  
Factual background  
12. In May 2005 Mr Ablyazov became Chairman of the Bank, which was 
registered in Kazak hstan. In February 2009 he was removed from office on the 
basis of charges of misconduct of the Bank's affairs and diversion of its assets 
and he promptly fled from Kazakhstan and moved to live in London. He cut 
off all ties with Kazakhstan.  
13. In August 2009, the Bank instituted proceedings against Mr Ablyazov in 
England and obtained a worldwide freezing order against him and others. The 
freezing order is in standard personal form, i.e. what used to be known as a 
Mareva  injunction, without any p roprietary element based on assertions by the 
Bank that it is the true owner in equity of the assets covered by the order. The 
order included an obligation on Mr Ablyazov to give disclosure of his assets. 
As originally made, the freezing order was limited in amount to assets up to a 
value of £175 million, but we were told by Mr Smith that by December 2009 
the Bank was able to show that it had a good arguable case against Mr 
Ablyazov for very large sums indeed and at the end of that month the limit on 
the va lue of Mr Ablyazov's assets frozen by the order was removed.  
14. The order contained a proviso, derived from the case of Babanaft 
International Co. S.A. v Bassatne [1990] Ch 13, that persons outside England 
and Wales would not be affected by it unless certain  conditions were fulfilled. 
Those conditions were not fulfilled in the case of Mr Khrapunov.  
15. The Bank has claims in an amount in excess of US$4.6 billion against Mr 
Ablyazov in relation to the alleged misconduct of the Bank's affairs by him. 
Judgments hav e now been entered against Mr Ablyazov in England in respect 
of those claims. A summary of the proceedings against Mr Ablyazov and 
persons associated with him is contained in the judgment of Popplewell J of 8 
August 2014: [2014] EWHC 2788 (Comm) .  
16. The disclosure given by Mr Ablyazov pursuant to the freezing order of assets 
owned or controlled by him was inadequate. On 6 August 2010 Teare J made 
an order appoi nting receivers to control such assets as had been disclosed by 
Mr Ablyazov: see [2010] EWHC 1779 (Comm) . It contained a similar 
Babanaft proviso in relatio n to persons outside England and Wales.  
17. The Bank has adduced evidence which suggests that since 2008 Mr 
Khrapunov has been a trusted associate of Mr Ablyazov, charged with helping 
him administer his assets around the world and in keeping them away from th e 
Bank's attempts to enforce against them. It is not necessary to go through this 
material in detail, because Mr Khrapunov has not sought to put in evidence to 
explain or to deny these charges against him. The judge proceeded on the 
footing that there was a good arguable case on the facts against him of 
involvement in these alleged activities and there is no appeal in relation to this 
part of the case.  
18. The assets alleged to have been the subject of concealment or removal by Mr 
Ablyazov in breach of the fre ezing order and the receivership order, as part of 
the conspiracy with Mr Khrapunov, comprise certain assets located in 
Switzerland, a company called Green Life International SA incorporated in 
Belize and various companies and other assets located in Russi a.  
19. In July 2011 Mr Ablyazov obtained asylum in the United Kingdom.  
20. In May 2011 there was an application by the Bank to Teare J to commit Mr 
Ablyazov to prison for breaches of the freezing order, including for failing to 
give proper disclosure as required  under that order. The judge's draft 
judgment, indicating that he proposed to sentence Mr Ablyazov to a 
significant term in prison for contempt of court, was seen by Mr Ablyazov and 
on about 16 February 2012 he fled from the United Kingdom.  
21. The judge acce pted that from 2009 to 16 February 2012 Mr Ablyazov was 
resident and domiciled in England. Thereafter, Mr Ablyazov's whereabouts 
were unknown for some time. He was "on the run to avoid his sentence" but 
continued to instruct his lawyers "from some safe, bu t unknown, haven": see 
JSC BTA Bank v Ablyazov (No 8) [2012] EWCA Civ 1411 ; [2013] 1 WLR 
1331 , [107]; and para. [33] of the judgment below. His appeal against 
committal was dismissed by this court in November 2012. His application to 
the Supreme Court for permission to appeal was dismis sed in the spring of 
2013.  
22. Meanwhile, in July 2013 Mr Ablyazov was found in the south of France and 
on 31 July 2013 he was remanded in custody pending resolution of an 
application by Russia for his extradition to face criminal charges. At the 
hearing befo re us we were told that the extradition request has recently been 
refused by the Conseil d'État and Mr Ablyazov has been released from 
custody. He has not returned to England and shows no sign of wishing to do 
so, as he would be imprisoned if he did return .  
23. The Bank's case is that Mr Khrapunov has at all times been aware of the 
freezing order and the receivership order and the obligations imposed on Mr 
Ablyazov thereunder. The Bank pleads that in about 2009 Mr Ablyazov and 
Mr Khrapunov entered into a combi nation or understanding with each other 
with an intention to injure or cause financial loss to the Bank by the use of 
unlawful means comprising actions to deal with, dissipate, reduce in value and 
conceal assets of Mr Ablyazov in breach of the freezing ord er against him and 
in breach of the receivership order. The Bank says that Mr Khrapunov has 
acted on instructions from Mr Ablyazov and also on his own initiative to do 
these things, with his role increasing and becoming more important once Mr 
Ablyazov went  on the run in February 2012 and it became more difficult for 
him to conduct his own affairs.  
The elements of the cause of action: conspiracy to injure by unlawful means  
24. The judge rejected the opposing extreme positions adopted by each party. He 
rejected the Bank's submission that damages are available for breach of a court 
order such as the freezing order and receivership order in this case. He also 
rejected Mr Khrapunov's submission that there is a positive ru le of law which 
says that damages can never be awarded for breach of a court order, including 
where breaches of an order are deliberately employed as the means to inflict 
harm on a claimant pursuant to a conspiracy to injure him. Instead, the judge 
held th at breaches of a court order do qualify as unlawful means for the 
purposes of the tort of conspiracy to injure by unlawful means. In that regard, 
the position is the same in relation to them as it is in relation to simple crimes 
(i.e. criminal conduct whic h does not constitute a separately actionable tort in 
private law) and private law wrongs (in particular, torts and breaches of 
contract), which so qualify: see Total Network .  
25. In my judgment, the judge was correct on all these points, essentially for the 
reasons he gave. It is sufficient to focus on the principal authorities cited to us 
in oral argument, since the proper analysis is evident from them.  
26. I start with the extreme submission presented by Mr Smith for th e Bank, that 
damages are recoverable for breach of a court order. The short answer to this 
is that damages are not recoverable, because simple breach of a court order 
does not in itself constitute a cause of action in private law. In my view, this is 
made abundantly clear by the House of Lords in Customs and Excise 
Commissioners v Barclays Bank plc  [2006] UKHL 28 ; [2007] 1 AC 181  
("Barclays Bank ").  
27. It is true that in that case the House of Lords was addressing the distinct 
question of whether a duty of care arose on the part of a third party bank w ith 
notice of a freezing order not to do anything in violation of the order which 
would cause loss to the claimant, and in particular should not release funds 
which had been frozen by the order. But the reasoning of the House in 
answering that question in the negative was based on fundamental points of 
general application, all of which are contrary to Mr Smith's argument:  
i) the Mareva jurisdiction to impose freezing orders has developed as one 
exercised by court order "enforceable only by the court's powe r to punish 
those who break its orders" ([17], per Lord Bingham). It is implicit in this 
formulation that simple breach of a freezing order does not constitute a cause 
of action in damages in itself;  
ii) it cannot be suggested that the defendant who is th e third party bank's 
customer owes a duty to the claimant who obtains the freezing order, since 
they are opposing parties in litigation and no duty is owed by a litigating party 
to its opponent ([18], per Lord Bingham). It is explicit in this formulation t hat 
the defendant does not owe the claimant a simple duty in private law to abide 
by the terms of the order, and hence it is plain that simple breach of the order 
does not constitute a cause of action in damages in itself;  
iii) Lord Bingham accepted at [19 ] that in principle a duty of care to the 
claimant in tort could co -exist with a duty of compliance with the order owed 
to the court, but he knew of no instance in which a non -consensual court order, 
without more, had been held to give rise to a duty of ca re owed to the claimant 
who obtained the order and he regarded the Commissioners' case as involving 
a radical innovation which should not be adopted. Two points should be made 
about this. First, the premise for this part of Lord Bingham's reasoning is that , 
as he had said in [18], the order itself does not create a duty owed by the 
defendant to the claimant in private law (and hence simple breach of the order 
does not constitute a cause of action). That is why Lord Bingham discusses the 
matter in terms of w hether a duty of care (i.e. a duty owed to the claimant in 
private law) can be found to co -exist with the duty to comply with the order 
itself, which is a duty owed to the court. Secondly, Lord Bingham's view was 
that no co -existing private law duty of car e should be found to exist;  
iv) Lord Bingham referred at [20] to the discussion by a single commentator 
who had suggested that a third party with knowledge of a Mareva  order might 
owe a duty of care to the party in whose favour the order is made, but 
dismi ssed it on the basis that even that commentator "recognises" that (i) 
"there is no right to sue a contemnor for the contempt alone" and (ii) "there is 
no civil right to damages and no power for the court to award compensation to 
the other party for the con temnor's actions, citing In re Hudson [1966] Ch 209 
and Chapman v Honig [1963] 2 QB 502." I will refer to these authorities 
below, because Mr Smith contends that the commentator, and through him 
Lord Bingham, misunderstands their effect. If they were inten ding to say that 
those authorities express a rule that damages can never be awarded where 
breach of a court order constitutes part of the cause of action, that might be so; 
but I do not think that is what they were saying. The point being made is 
merely th at a simple breach of a court order does not in itself constitute a 
cause of action in private law, and certainly those cases do not say that it does. 
In fact they have a strong tendency to indicate that it does not. Lord Bingham's 
discussion in this parag raph of his speech again emphasises, echoing paras. 
[17] and [18], that it is his view that simple breach of a court order does not 
constitute a cause of action, and the commentator was right to "recognise" this 
(i.e. as something which is true);  
v) At par as. [21] -[22], Lord Bingham distinguished other authorities where a 
duty of care congruent with an obligation in a court order had been found to 
exist on the footing that there had in those cases been an added element of a 
voluntary assumption of responsib ility by the person with notice of the order. 
Again, it is implicit in his reasoning that but for that additional element there 
would have been no cause of action: simple participation in breach of the court 
order was insufficient to create one;  
vi) The ot her members of the appellate committee gave their separate reasons 
for rejecting the Commissioners' claim rather than adopting Lord Bingham's 
reasons, but in each case their reasoning was consistent with his and the 
underlying premise for all of them was t hat a simple breach of a court order 
does not constitute a cause of action in private law. Clearly, in view of Lord 
Bingham's speech, if they had thought it did they would have said so. In fact, 
they all emphasised the need to find the added element of a v oluntary 
assumption of responsibility: [35] -[40] (Lord Hoffmann); [52] and [65] (Lord 
Rodger); [73] -[77] (Lord Walker); and [82] -[83], [93] -[94] and [109] (Lord 
Mance).  
vii) Lord Hoffmann also gave positive reasons at [39] why the Commissioners' 
claim shou ld fail:  
"… the payment [of monies by the third party bank out of the bank account of 
the person subject to the order] is alleged to be the breach of the duty and not 
the conduct which generated the duty. The duty was generated ab extra, by 
service of the  order. The question of whether the order can have generated a 
duty of care is comparable with the question of whether a statutory duty can 
generate a common law duty of care. The answer is that it cannot: see 
Gorringe v Calderdale Metropolitan Borough Cou ncil [2004] 1 WLR 1057 . 
The statute either creates a statutory duty or it does not. (That is not to say, as I 
have already mentioned, th at conduct undertaken pursuant to a statutory duty 
cannot generate a duty of care in the same way as the conduct undertaken 
voluntarily.) But you cannot derive a common law duty of care directly from a 
statutory duty. Likewise, as it seems to me, you canno t derive one from an 
order of court. The order carries its own remedies and its reach does not 
extend any further."  
In this passage, as I read it, Lord Hoffmann was explicitly saying that a court 
order does not create private law duties; consequently, a s imple breach of a 
court order does not in itself constitute a cause of action in private law;  
viii) Similarly, Lord Rodger said at para. [62] that:  
"Punishment for contempt of court is the remedy which the law provides for 
the addressee's failure to comply  with an injunction such as a freezing order. 
Liability is strict and so he may be guilty of contempt even where he did not 
deliberately flout the order, the degree of his fault being relevant in 
determining the appropriate punishment …"  
That is to say, p unishment for contempt of court is the only remedy for a 
simple breach of a court order; it does not constitute a cause of action in itself 
(see also para. [65]). Since liability on the part of an addressee of an order for 
breach of the order is strict, as  Lord Rodger observes, it would indeed be 
extraordinary if simple breach of an order constituted a cause of action in 
damages where no feature of the pre -existing relationship between claimant 
and defendant gave rise to any private law duty or cause of act ion and the 
order imposes a relationship ab extra , to use Lord Hoffmann's expression.  
28. In In re Hudson  [1966] Ch 209 a court order was made in divorce proceedings 
in 1935 including an obligation for the husband to pay the wife maintenance at 
a specified ra te. Later, the husband said he was unable to pay at that rate and 
asked for the order to be varied to an obligation to pay one third of his income, 
which was done in 1939. The judge found that although the court order was 
varied by consent, this did not re flect an underlying contract between the 
parties (p. 215B -E). The husband died and the wife brought a claim against his 
estate for payment of arrears of maintenance. Buckley J, as he then was, 
rejected the claim on the basis that breach of the order did no t constitute a 
cause of action on which the wife could sue. Whilst I would wish to reserve 
my opinion on whether in fact a court order to pay a certain sum could be sued 
upon as giving rise to a cause of action in debt, this case is authority in line 
with Lord Bingham's analysis in the Barclays Bank case.  
29. In Chapman v Honig [1963] 2 QB 502 the tenant of a flat in a tenement house 
gave evidence under subpoena for a former tenant in his action against the 
landlord for trespass and conversion of goods. The da y after judgment was 
given against the landlord, and as a punishment, he gave notice of about a 
month for the tenant to quit. The tenant claimed against the landlord for 
damages in tort for loss of his tenancy. In this court Lord Denning MR, in the 
minorit y, would have held that damages should be paid, saying "I find some 
help from the cases which hold that a witness who wilfully disobeys a 
subpoena may be liable to an action: for they show that a contempt of court 
may on occasion give rise to a civil actio n" (p. 514).  
30. However, this court held by a majority (Pearson and Davies LJJ) that even if 
the landlord's action constituted a contempt of court, he had an express 
contractual right to give the tenant notice to quit which was exercisable 
whatever the landl ord's motive might be for giving notice; and since the 
landlord had validly exercised his contractual right there could be no liability 
against him in tort: pp. 520 -522 (Pearson LJ) and pp. 524 -527 (Davies LJ). 
Pearson LJ stated at p. 522 that "[t]he main reason is that the same act as 
between the same parties cannot reasonably be supposed to be both lawful and 
unlawful – in the sphere of contract, valid and effective to achieve its object, 
and in the sphere of tort, wrongful and imposing a tortious liabili ty". Davies 
LJ agreed with the relevant part of Pearson LJ's judgment, pointed out that not 
all crimes give rise to a cause of action (p. 523) and emphasised that 
proceedings for contempt of court are concerned with preservation of the 
inviolability of the  administration and course of justice and its proper conduct, 
rather than to create a cause of action in damages "in all cases" for the 
individual damaged by the contempt (p. 524). Both Pearson LJ (pp. 521 -522) 
and Davies LJ (pp. 523 -524) drew a similar an alogy with claims for damages 
for breach of statutory duty to that drawn by Lord Hoffmann in Barclays Bank  
at [39], quoted above. Pearson LJ said, "It is not necessary … for the 
determination of the present case to decide as a general proposition that ther e 
can never be a right of action for damages for contempt of court" (p. 522) and 
Davies LJ also reserved his opinion on that question (p. 527).  
31. In view of the latter comments by Pearson LJ and Davies LJ, Mr Smith is right 
to say that Chapman v Honig  is not authority for the proposition that damages 
can never be awarded for contempt of court, including in respect of breach of 
a court order. Rather, the essence of the reasoning of the majority in Chapman 
v Honig  is that the landlord had an express contr actual right to give notice as 
he did, and this contractual right excluded any possibility of liability in tort 
which would negative that right: contract trumped tort. Nonetheless, I think 
the reasoning of the majority is supportive of the general view, ma de explicit 
by Lord Bingham and other law lords in the Barclays Bank case, that no cause 
of action arises simply by virtue of a civil contempt of court being committed 
by a defendant.  
32. Davies LJ at pp. 525 -527, like Lord Denning MR, made reference to 
autho rities which indicate that a party to an action who has obtained and 
served a subpoena to compel a witness to attend trial to give evidence may 
bring an action for damages against that witness if he fails to attend upon the 
subpoena. Davies LJ cited Robert s v J. & F. Stone Lighting and Radio Ltd  
(1945) 172 LT 240; an old authority to similar effect, particularly relied upon 
by Mr Smith, is Couling v Coxe (1848) 6 CB 703. However, Davies LJ seems 
to have regarded these cases as falling within a special categ ory and the 
damages recoverable as being limited, requiring proof of special damage and 
probably only extending to costs thrown away by the non -attendance. See too 
the discussion of these authorities in Arlidge, Eady & Smith on Contempt , 4th 
ed., Sir David  Eady and Professor A.T.H. Smith, paras. 14 -161 to 14 -166, 
which also indicates that these cases are anomalous and in a special category. I 
think it is also significant that Lord Denning MR considered that damages 
would only be recoverable if a witness wil fully disobeys the subpoena. That 
qualification again indicates that these cases do not support the general 
proposition that a simple breach of a court order constitutes a cause of action.  
33. In the present case, the judge said that it is unnecessary to deci de whether 
Couling v Coxe is in a special category or should be regarded as being 
inconsistent with the decision of the House of Lords in the Barclays Bank  
case; but if it were necessary to decide that issue he would conclude that it was 
inconsistent with principle, the Civil Procedure Rules and Barclays Bank . I 
agree with the judge on both points, save that I do not think that reference to 
CPR Part 81 (which lays down an exclusive procedural code for applications 
to commit for contempt of court, i.e. for a  party to invoke the court's penal  
jurisdiction) assists one way or the other on the question whether and in what 
circumstances it might be possible to rely on breach of a court order in support 
of a claim in private law for compensatory damages. I conside r that Couling v 
Coxe  is far too flimsy as a basis for the extreme argument presented by Mr 
Smith.  
34. I also agree with the judge that none of the other authorities particularly relied 
upon by Mr Smith below and in this court show that damages are recoverabl e 
for a simple breach of a court order such as the freezing order or receivership 
order in this case: Fairclough v The Manchester Ship Canal  (1897) 41 Sol 
Journal 225; In re Mileage Conference Group of the Tyre Manufacturers' 
Conference Ltd's Agreement  [1966] 1 WLR 1137; The Messiniaki Tolmi 
[1983] 1 Lloyd's Rep. 666; and Parker v Rasalingham  [2000] All ER (D) 912 
(Lawrence Collins QC, as he then was, sitting as a judge of the Chancery 
Division). Either the comments in these cases relied upon by Mr Smith we re 
obiter or, as in The Messiniaki Tolmi , they were only directed to the question 
whether there might be an arguable case to that effect. All these cases precede 
the House of Lords decision in Barclays Bank . In the light of that authority it 
cannot be said  that the Bank has shown that it has a good arguable case that 
simple breach of the freezing order or the receivership order constitutes in 
itself a cause of action in damages.  
35. I turn then to the extreme opposing submission by Mr Samek QC for Mr 
Khrapunov , to the effect that there is a positive rule of law that damages can 
never be awarded where a necessary element of the cause of action is a breach 
of a court order, as it is in this case. This is linked to Mr Samek's further 
submission that a breach of a court order, as alleged in this case, cannot 
qualify as unlawful means for the purposes of the tort of conspiracy to injure 
by unlawful means. I reject both these submissions.  
36. In my judgment, there is no positive rule of law as alleged by Mr Samek. If, 
on application of the general principles governing the tort of conspiracy to 
injure by unlawful means, deliberate breaches of a court order qualify as 
unlawful means, there is no supervening rule of law which prevents that from 
being permissible. The real qu estion is whether, by application of those 
general principles, the breaches of the freezing order and the receivership 
order alleged in this case do qualify as relevant unlawful means - or, at any 
rate, may so qualify, to the standard of there being a good  arguable case for 
the Bank to that effect for the purposes of establishing jurisdiction for the 
English courts.  
37. Before dealing with that issue, however, I will first explain why I do not 
accept Mr Samek's positive rule of law argument. There is no author ity in 
favour of it; there is authority which contradicts it; and it is unsupported by, 
and indeed is contrary to, principle.  
38. The authorities on which Mr Samek particularly relied for this part of his 
argument were In re Hudson and the Barclays Bank  case.  But neither of these 
authorities supports the proposition that there is a positive rule of law that 
breach of a court order can never be relied upon as an element in a cause of 
action in tort. They only support the proposition that simple breach of a cour t 
order does not in itself constitute a cause of action in damages. In neither case 
did the court address the wider question whether, for example, contempt of 
court (whether by breach of a court order or arising in other ways, such as in 
Chapman v Honig ) can constitute unlawful means for the tort of conspiracy to 
injure by unlawful means or the tort of intentional infliction of harm by 
unlawful means (i.e. before the law was changed in OBG Ltd v Allan [2008] 1 
AC 1  to say that for the latter tort the unlawful means must be independently 
actionable in private law, albeit not necessarily at the instance of the claimant 
relying on the unlawful  means tort). As Lord Walker points out in Total 
Network , at [93], in the authorities prior to OBG Ltd v Allan  the statements of 
general principle assumed that relevant unlawful means were the same for 
both these torts, and included both crimes and torts.  
39. There is authority which is contrary to Mr Samek's argument. In Acrow 
(Automation) Ltd v Rex Chainbelt Inc. [1971] 1 WLR 1676, CA, this court 
held that acting to aid or abet a breach of a court order, in circumstances 
giving rise to liability for contempt  of court on the part of the person aiding or 
abetting the breach under the principle in Seaward v Paterson [1897] 1 Ch 
545, CA, constituted unlawful means for the purposes of a species of the tort 
of intentional infliction of harm by unlawful means: see in particular pp. 
1682G -1683B per Lord Denning MR, with whom Phillimore LJ agreed. In my 
view this shows that the positive rule for which Mr Samek contends does not 
exist. Indeed, I think it goes further, and is au thority which tends to show that 
Mr Samek's wider argument about what does or does not qualify as unlawful 
means is also wrong. It is true to say that the reasoning and result in Acrow 
(Automation)  might not survive the reformulation in OBG Ltd v Allan of the 
law in relation to the tort of intentional infliction of harm by unlawful means, 
since the unlawful means in question were not independently actionable. But 
as an expression of what counts as unlawful means given at a time when the 
unlawful means for t hat tort and for the tort of conspiracy to injure by 
unlawful means were taken to be the same, and in circumstances where the old 
position continues to apply so far as the tort of conspiracy is concerned, as has 
been confirmed in Total Network , I think tha t Acrow (Automation)  indicates 
that contempt of court based on violation of a court order does qualify as 
unlawful means for the purposes of the tort of conspiracy to injure by unlawful 
means.  
40. Further, so far as concerns authority contrary to Mr Samek's a lleged rule of 
positive law, in Parker v Rasalingham  Mr Collins QC held that in an 
appropriate case the court has jurisdiction to award damages for breach of an 
injunction and made such an award, on the basis that the order in the case was 
a negotiated con sent order and it was just to do so. Having reviewed a range of 
authorities, at para. [26] he said:  
"In this case the order was a negotiated consent order, and it would be wholly 
contrary to common sense and the justice of the case if the claimants would be 
entitled to damages if the agreement had been embodied in undertakings or in 
a Tomlin order but not if it had been embodied in an order of the court. I 
consider therefore that I have jurisdiction to order an enquiry into damages."  
41. This shows that there is no rule of law which prevents a claimant from relying 
on breach of a court order, provided he can show that he has some recognised 
cause of action and relies on such breach as part of that cause of action. In that 
case, the order embodied a contractual agreement and it was legitimate to rely 
on breach of the order as a breach of the agreement. In fact, In re Hudson is to 
the same effect, since Buckley J would have allowed the claim if he had been 
persuaded that the court order in that case had embodied a  contractual 
agreement between the parties: see [1966] Ch 209 at pp. 214E -F and 215B -C.  
42. There is also no principled basis for the alleged rule of law proposed by Mr 
Samek. There is no reason of public policy why such a rule should be 
identified. The position may be contrasted with that in relation to witness 
immunity from action in relation to evidence given in court, where there is a 
strong public interest in favour of such a rule to promote the  giving of truthful 
evidence without fear of litigation: see Marrinan v Vibart  [1963] 1 QB 528, 
CA, and Roy v Prior [1971] AC 470. There is no similar public policy reason 
to justify a rule to the effect that breach of a court order may never be relied 
upon as an element in a recognised cause of action in tort. In fact, Roy v Prior 
makes it clear that even the strong public policy underlying the witness 
immunity rule does not prevent reliance on the giving of evidence by the 
defendant as one element of a wi der cause of action for malicious arrest: see 
pp. 477E -478A in the speech of Lord Morris of Borth -y-Gest. In the present 
context there is nothing to set against the policy reflected in the principles 
underlying the tort of conspiracy to injure by unlawful means, which indicate 
that breach of a court order should  qualify as relevant unlawful means, as 
explained below.  
43. Mr Samek took us to a well -known passage in the speech of Lord Scarman in 
Harman v Secretary of State for the Home Department  [1983] 1 AC 280 . The 
case concerned a breach of an undertaking by Ms Harman to treat documents 
disclosed in litigation as confidential, by showing them to a journalist. At p. 
310C -E Lord Scarman said:  
"In the traditional classification of the law her contempt would be d escribed as 
a 'civil' contempt, being a non -compliance with an order of the court (or its 
substitute, an undertaking given to the court), by a party to legal proceedings 
or his solicitor: Supreme Court Practice  (1982) notes 52/1/4 -6. The distinction 
betwee n 'civil' and 'criminal' contempt is no longer of much importance, but it 
does draw attention to the differences between on the one hand contempts 
such as 'scandalising the court', physically interfering with the course of 
justice, or publishing matter lik ely to prejudice fair trial, and on the other those 
contempts which arise from non -compliance with an order made, or 
undertaking required, in legal proceedings. The former are usually the 
business of the Attorney -General to prosecute by committal proceedin gs (or 
otherwise): the latter, constituting as they do an injury to the private rights of a 
litigant, are usually left to him to bring to the notice of the court. And he may 
decide not to act: he may waive, or consent to, the non -compliance."  
44. However, I do  not think this assists Mr Samek in his argument. If anything, 
Lord Scarman's account of how civil contempt by breach of a court order 
constitutes an injury to the private rights of a litigant tends to show that there 
is no good policy reason why such a li tigant may not rely upon such a breach, 
if it is relevant as part of some recognised cause of action in damages. So, in 
the present case, there is no valid argument in favour of the alleged positive 
rule of law asserted by Mr Samek which would forbid the B ank from relying 
on breaches of the court orders obtained by it to protect its private rights as 
relevant unlawful means for the purposes of the tort of conspiracy to injure by 
unlawful means.  
45. I come, then, to the real point at issue, which is whether con tempt of court in 
the form of breaches of court orders as alleged in this case qualifies as 
unlawful means for the purposes of that tort. In my judgment, it does and the 
judge was right so to hold. At the very least, the Bank has a good arguable 
case that it does for the purposes of the argument on jurisdiction.  
46. The scope of what counts as unlawful means for the purposes of the tort of 
conspiracy was considered by the House of Lords in Total Network . The 
House declined to apply across to the tort of conspi racy to injure by unlawful 
means the recent reformulation of the law in respect of unlawful means in 
relation to the tort of infliction of harm by unlawful means in its decision in 
OBG Ltd v Allan . Instead, in Total Network  it confirmed that the previous l aw 
regarding the wider ambit of unlawful means in the context of the tort of 
conspiracy to injure by unlawful means would continue to apply. Under that 
law, relevant unlawful means include simple crimes (i.e. crimes which are not 
independently actionable b y anyone in private law), as well as torts and 
breaches of contract. On the facts in Total Network , liability for conspiracy to 
injure by unlawful means was established on the basis that the defendants 
conspired to cheat the Revenue, which was a simple cri minal offence not 
independently actionable in private law: see in particular paras. [44] -[45] 
(Lord Hope), [56] (Lord Scott), [89] -[95] (Lord Walker), [116] -[122] (Lord 
Mance), and [221] (Lord Neuberger).  
47. The concept of unlawful means, as used in the tort  of conspiracy to injure by 
unlawful means, marks the boundaries within which hostile action taken by 
combinations of persons who intend to inflict harm on a claimant will be 
regarded as legitimate and lawful, despite their hostile intention. As Lord 
Walke r says of a crime, the man in the street would recognise that as a 
paradigm case of unlawful means and a lawyer's reaction would not be 
different: [90] -[91]. In other words, the criminal law provides a particularly 
strong and easily recognised marker for t he boundaries of legitimate hostile 
action by persons in combination. Torts and breaches of contract are included 
as well, as lesser, but still relevant, objective and sufficiently clear markers of 
the appropriate boundaries, and these also qualify as unla wful means on the 
narrower test for the tort of infliction of harm by unlawful means set out in 
OBG Ltd v Allan .  
48. In my judgment, within this scheme civil contempt of court by breaching court 
orders qualifies as unlawful means for the purposes of the tort of conspiracy. I 
agree with the judge that Total Network provides strong support for this view. 
As the judge said at para. [25]:  
"… in my judgment, contempts of court, certainly those as serious as the 
contempts alleged in this case which amount to a very  serious interference 
with the administration of justice, and in particular with the [worldwide 
freezing order] which was issued to protect the Bank, and are punishable by 
committal to prison, sequestration of assets or fines, are sufficiently 
reprehensibl e to justify treating them as unlawful means. The man in the street 
would agree."  
49. I consider that this reasoning is correct. The judge described the recognition of 
contempts of court of this character as a principled incremental step justified 
by the reaso ning of the House of Lords in Total Network , and in a certain 
sense that is true, since there has not been a decision since OBG Ltd v Allan 
and Total Network to confirm that this is the position. But in another sense, I 
would say it is not even an incremen tal extension of the principle in Total 
Network¸ because I think that a lawyer and the man in the street alike would 
regard the deliberate flouting of court orders in order to harm the interests of 
the Bank as is alleged in this case as being clearly wrong ful and illegitimate 
means, ranking in the scale of reprehensibility below some crimes but rather 
above others, and above simple torts and breaches of contract. That civil 
contempts of court do qualify as unlawful means for these purposes had 
already been recognised prior to Total Network : see the discussion of Acrow 
(Automation) above and the observations of Beldam LJ in Law Debenture 
Trust Corporation v Ural Caspian Oil Corporation Ltd [1995] Ch 152 at 170, 
making it clear that he would have followed Acro w (Automation) on the 
question of breach of a court order constituting unlawful means, if one had 
been in place in that case.  
50. This conclusion is also strongly supported by the decision of this court in 
Surzur Overseas Ltd v Koros  [1999] 2 Lloyd's Rep 611 . That case concerned a 
claim of conspiracy to injure by unlawful means, being the procuring and 
deploying in court of false evidenc e to deceive the court into varying a 
Mareva  to release assets, with the result that the claimant suffered loss. This 
court held that there was a serious issue to be tried: the matters complained of 
went wider than the giving of evidence in court, constitu ted a conspiracy to 
abuse the process of the court and the claim was not to be struck out on the 
basis of the witness immunity rule. Waller LJ, with whom the other members 
of the court agreed, held that it was arguable that the unlawful means alleged 
for the purposes of the complaint in conspiracy do not have to be actionable at 
the suit of the claimant (p. 617; a point confirmed in Total Network ), and that 
"a conspiracy which had as its aim and objective defeating an order of the 
Court and obtaining the re lease from a Mareva of assets by persons who were 
not … parties to the original action, must be a conspiracy to abuse the process 
very akin to the malicious arrest which was the subject of Roy v Prior " (p. 
620). The persons alleged to have conspired with t he person subject to the 
order (Mr Koros) were located outside the United Kingdom, but the court 
found it unnecessary to decide whether the Babanaft proviso included in the 
Mareva  injunction precluded them from being found to be in contempt of 
court even i f they assisted Mr Koros to defeat the order (i.e. on the basis that 
the proviso exempted them from liability to the penal contempt jurisdiction 
under the accessory liability principle articulated in Seaward v Paterson ). 
Waller LJ considered that it might well be that no contempt would have been 
committed by them, "but if [they] are shown to have deliberately assisted Mr 
Koros in defeating the injunction by the production of false documents that 
would seem to me to be unlawful means without any reliance on a contempt 
having been committed" (p. 620), that is to say, by them  (Mr Koros would 
have committed a contempt, since he was directly bound by the order and did 
not have the benefit of the Babanaft  proviso).  
51. In other words, if Mr Koros and the other conspi rators agreed that actions 
should be taken involving deliberate provision of assistance to him to breach a 
court order which imposed obligations on him, but not them, they would all be 
taken to have agreed to participate in a conspiracy to injure by unlawf ul means 
sufficient to impose civil liability on each conspirator. In my view this makes 
sense. Although it might not be right to subject a person located abroad who 
benefits from the Babanaft proviso to personal penal sanctions equivalent to 
those involve d in enforcement of the criminal law, they should not be 
permitted to participate in deliberate unlawful action to undermine the court's 
order and defeat the rights of a claimant without being exposed to civil 
liability to pay compensation. It should be no ted that in our case the same 
point, with which I agree, covers the position of Mr Khrapunov as alleged co -
conspirator with Mr Ablyazov, who is the person who is subject to the 
worldwide freezing order and the receivership order.  
52. Surzur Overseas Ltd v Kor os was noted by Lord Walker in Total Network  at 
[88] and [94]. Lord Walker reached a conclusion in line with Waller LJ's 
observation at p. 617 and did not suggest that other parts of the reasoning in 
the case could not stand.  
53. In answer to all this, Mr Samek sought to rely on the judgment of Morgan J in 
Digicel (St Lucia) Ltd v Cable & Wireless Plc [2010] EWHC 774 (Ch) , a case 
involv ing allegations of conspiracy to injure by unlawful means consisting of 
non-actionable and non -criminal breaches of regulatory obligations under 
applicable competition statutes in various jurisdictions. Morgan J reviewed the 
guidance in Total Network  and o ther authorities. In the light of these he 
inclined to the view that all crimes are unlawful acts for the purposes of the 
tort of conspiracy to injure by unlawful means, though in the event he did not 
have to decide the issue (para. [54] of Annex I to his judgment), and he 
concluded that non -actionable breaches of a non -criminal statute are not 
"unlawful acts" for the purposes of the tort of conspiracy to injure by unlawful 
means: see, in particular, paras. [55] -[62] of Annex I.  
54. In my view, Digicel  does no t assist Mr Khrapunov. It simply decides that not 
all unlawful acts will qualify as unlawful means for the tort of conspiracy to 
injure by unlawful means and identifies non -actionable non -criminal breaches 
of regulatory statutes as being in the category wh ich will not. The first point 
had been adumbrated in Total Network  as had at least the possibility of the 
second: see in particular the speech of Lord Walker at [96]. But Digicel  leaves 
untouched the question at issue in our case, which is whether civil contempt of 
court in the form of breach of a court order qualifies as relevant unlawful 
means for the purposes of the tort. If anything, it seems to me that Morgan J's 
view that all crimes constitute unlawful means has a tendency against Mr 
Samek's s ubmission, since the reprehensibility of deliberate action to 
perpetrate, procure or assist in a violation of a court order is at a level 
equivalent to participation in many crimes and may be more serious than in 
relation to some crimes.  
55. Finally, Mr Samek  submitted that recognition of civil contempt of court as 
unlawful means for the purposes of the tort of conspiracy to injure by unlawful 
means would open the floodgates to liability and should be discounted on that 
ground. I do not agree. Looking first at  the person who is subject to a court 
order, no floodgates issue arises, since typically either the court order will 
directly reflect some underlying private law right of the claimant in relation to 
that person (e.g. where a final injunction is issued to p rotect such a right) or in 
the case of a freezing order will only protect the claimant to the extent that he 
can establish his underlying claim in damages against that person which the 
freezing order was issued to protect. If civil contempt is recognised a s 
unlawful means for the purposes of the tort of conspiracy, it has only a 
duplicative rather than a floodgates effect.  
56. Turning to the position of a co -conspirator who is not himself subject to the 
court's order, again I do not think that there is any flo odgates objection to 
imposition of liability. The co -conspirator will only become liable if, with 
knowledge of the obligations imposed by the order on the addressee of the 
order, he deliberately counsels, procures or assists in the violation of those 
oblig ations by the addressee. This means that, unlike in the situation addressed 
by the House of Lords in the Barclays Bank  case, civil liability is imposed on 
a narrow basis and only in circumstances broadly equivalent to those in which 
the co -conspirator woul d himself be liable for contumacious breach of the 
court order under the principle of accessory liability in Seaward v Paterson 
(subject to the Babanaft  proviso, if it applies): see, in that regard, the contrast 
emphasised in Barclays Bank  between the negl igence claim in that case and 
the circumstances in which a third party bank would be liable in contempt for 
breach of the freezing order at paras. [29] -[30] (Lord Hoffmann) and [63] -[64] 
(Lord Rodger). As I have observed, if the Babanaft proviso applies, t hat may 
well be a good reason why the co -conspirator should be exempt from personal 
penal sanction for contempt of court, but it does not follow that he should be 
immune from civil action for compensation for his participation in what has 
been done, which is so obviously unlawful vis -à-vis the claimant. In the case 
of a freezing order, if a co -conspirator has indeed deliberately helped the 
addressee of the order to hide his assets covered by that order or in some way 
render them immune from execution, there by inflicting loss on the claimant, I 
consider that it is strongly arguable that justice is in favour of the imposition 
of civil liability on the co -conspirator to be liable to pay compensation to the 
claimant.  
Article 6 of the Lugano Convention  
57. The Unite d Kingdom and Switzerland are both bound by the Convention. The 
general rule under the Convention is that a person should be sued in their state 
of domicile: Article 2. However, provision is made for special jurisdiction on 
different grounds in Articles 5 and 6, among others. In order to rely on those 
grounds, the Bank must establish that it has much the better of the argument 
on those grounds as explained in Canada Trust v Stolzenberg (No. 2) [1998] 1 
WLR 547  at pp. 555 -557 and Lady Brownlie v Four Seasons [2015] EWCA 
Civ 665 ; [2016] 1 WLR 1814  at paras. [17] -[24].  
58. Article 6 provides in relevant part as follows:  
"A person domiciled in a State bound by this Convent ion may also be sued:  
where he is one of a number of defendants, in the courts for the place where 
any one of them is domiciled, provided the claims are so closely connected 
that it is expedient to hear and determine them together to avoid the risk of 
irreconcilable judgments resulting from separate proceedings. …"  
59. Article 59(1) provides:  
"In order to determine whether a party is domiciled in the State bound by this 
Convention whose courts are seised of a matter, the court shall apply its 
internal law."  
60. The relevant provision of English law is section 41A of the Civil Jurisdiction 
and Judgments Act 1982, which determines for the purposes of the 
Convention whether an individual is domiciled in the United Kingdom. 
Subsection (2) provides:  
"An individual is d omiciled in the United Kingdom if and only if - 
(a) he is resident in the United Kingdom; and  
(b) the nature and circumstances of his residence indicate that he has a 
substantial connection with the United Kingdom."  
A similar formula is used in the Act to govern determination of domicile in 
other situations as well: see section 41A(7) (domicile of an individual in a 
state not bound by the Convention), section 41(2) (domicile of an individual 
for the purposes of the 19 68 Brussels Convention on Jurisdiction and the 
Enforcement of Judgments in Civil and Commercial Matters), section 41(7) 
(domicile of an individual in a non -Contracting State).  
61. The Bank sought to rely on Article 6 against Mr Khrapunov by maintaining 
that at  the relevant date in July 2015 Mr Ablyazov was domiciled in England. 
The judge found that once Mr Ablyazov fled the United Kingdom, and 
certainly after the Supreme Court rejected his application for permission to 
appeal against his committal to prison for  contempt of court in Spring 2013, he 
had no intention of returning to the United Kingdom and was not resident 
there. There is no appeal against this part of the judgment.  
62. The judge also rejected an argument by the Bank, in reliance on R v Barnet 
London B orough Council, ex p. Shah [1983] 2 AC 309 , that despite having left 
the country Mr Ablyazov should be taken still to be domiciled in En gland 
because he had violated an obligation under the worldwide freezing order in 
leaving the jurisdiction. In ex p. Shah at pp. 343G -344A Lord Scarman, in 
interpreting the meaning of "ordinarily resident" in the Education Acts, held 
that it meant abode in  a particular place or country which the individual has 
adopted voluntarily and for settled purposes as part of the regular order of his 
life for the time being, but subject to an exception that if a man's presence in a 
particular place or country is unlaw ful, he cannot rely on his unlawful 
residence; "… I would conclude that it was wrong in principle that a man 
could rely on his own unlawful act to secure an advantage which could have 
been obtained if he had acted unlawfully." The judge declined to apply t his 
statement in relation to Mr Khrapunov's right to rely on the terms of section 
41A(2), since there had been no relevant wrongful conduct by him: para. [37]. 
The Bank submits that the judge erred on this point.  
63. In my judgment, the judge was correct to a pply section 41A(2) as he did and 
to reject this argument by the Bank. The question whether what appears to be 
a clear statutory provision is in fact subject to implied disapplication by 
reference to the principle that a man should not be allowed to benefi t from his 
own wrong is a matter of statutory interpretation, and such implication may be 
rejected as being inconsistent with the scheme and object of the statute in 
issue: see R (Best) v Chief Land Registrar [2015] EWCA Civ 17 ; [2016] QB 
23. In my opinion, there are two reasons why the Ban k's argument cannot be 
accepted.  
64. First, I consider that the scheme and object of the relevant part of the 1982 Act 
is against any qualification being read into section 41A(2) by implication. The 
Act is concerned to set out clear criteria for determination  of domicile of 
individuals in various situations, so that litigants (both those suing and those 
being sued, including those sued by reference to the domicile of another 
person under Article 6 of the Convention) may understand with reasonable 
certainty at the outset of litigation what is the proper place for it, so that they 
can know where to sue and when to contest jurisdiction. In my view, this 
object militates strongly against any such unclear and contestable implied 
qualification as that contended for b y the Bank. The criterion of residence is 
reasonably clear and easy to check, but it may often be very difficult for a 
litigant to tell whether someone is absent in breach of another legal obligation 
to which they may be subject. I do not think that Parlia ment intended section 
41A(2) (and the other similar provisions in the 1982 Act) to be read as subject 
to such a qualification, which would so undermine the intended clarity of 
effect of that provision. The context and object of this statute is very differe nt 
from the Education Acts in issue in ex p. Shah .  
65. Secondly, even if I am wrong about interpreting section 41A(2) as free of any 
implied qualification, I would agree with the judge that the relevant 
qualification is to prevent the person seeking to rely o n the provision (here, Mr 
Khrapunov) from taking advantage of an unlawful act of their own. This 
limited effect of the qualification both reflects the need for reasonable 
certainty in operation of the provision (a third party such as Mr Khrapunov 
may be un able to tell whether someone else has breached a legal obligation 
not to leave a jurisdiction, but would be better placed to assess the effect of 
legal obligations to which he himself is subject) and justice as between 
claimant and that third party - if th e third party has done nothing wrong, there 
is no reason in justice why he should not be permitted to rely on section 
41A(2) according to its express terms, and the principle stated by Lord 
Scarman does not indicate otherwise. In fact, these points tend to  reinforce the 
first reason given above, since the coherence of the scheme under the Act and 
the Convention requires that jurisdiction by reference to the domicile of one 
person, which may also govern jurisdiction in relation to others, should be 
stable in  such situations and not variable as between defendants.  
Article 5 of the Lugano Convention  
66. Article 5 provides in relevant part:  
"A person domiciled in a State bound by this Convention may, in another 
State bound by this Convention, be sued:  
… 
(3) in mat ters relating to tort, delict or quasi -delict, in the courts for the place 
where the harmful event occurred or may occur"  
67. As noted at para. [4] above, as interpreted in Bier this provision permits 
exercise of jurisdiction by the English courts if England i s "the place where 
the damage occurred", under limb (a) of Article 5(3), or if England is "the 
place of the event giving rise to" the damage in question, under limb (b) of 
Article 5(3). I address limb (a) and limb (b) in turn.  
Limb (a) of Article 5(3): th e place where the damage occurred  
68. The judge accurately summarised the law to be applied at [40], taking his 
guidance primarily from the decision of this court in AMT Futures Ltd v 
Marzillier  [2015] QB 699  which itself reviewed and summarised the effect of 
relevant European authority, as follows:  
"The meaning of the "place where the damage occurred" has been considered 
by the European  Court of Justice in several cases since Bier. Fortunately for 
me they have recently been reviewed by the Court of Appeal in AMT Futures 
Ltd. v Marzillier  [2015] QB 699  at paragraphs 17 -34. Christopher Clarke LJ 
summarised the effect of the authorities at paragraph 54 by asking the 
following "questions (i) what is "the place where the event giving rise to the 
damage … directly  produce d its harmful effects upon" AMTF (the Dumez 
France case [1990] ECR I -49)"; (ii) where was the " actual  damage" which 
"elsewhere can be felt" or the "initial damage" suffered (the Marinari case 
[1996] QB 217 ); and (iii) what was "the place where the damage which can be 
attributed to the harmful event ... by "a direct and causal link" (the Réunion 
Européenne case [2000] QB 690 ) was sustained". I consider that I should ask 
those questions in order to determine the place where the damage occurred. In 
answering those questions I am mindful of the approach of Popplewell J. at 
first instance in AMT Futures  which was approved by the Court of Appeal at 
paragraph 32:  
"The search will be for the element of damage which is closest in causal 
proximity to the harmful event. This is because it is this causal connection 
which justifies attribution of jurisd iction to the courts of the place where 
damage occurs: see the Bier case [1978] QB 708 , paras 16 -17 and the Dumez 
France case [1990] ECR I -49, para 20."  
69. The judge rejected the Bank's argument that it suffered direct damage in 
England because that is where its cho se in action, its worldwide freezing order 
and its judgments against Mr Ablyazov are to be found, and they have all been 
reduced in value by the alleged actions of Mr Khrapunov in putting (or 
assisting to put) Mr Ablyazov's assets in other jurisdictions (S witzerland, 
Belize and Russia) beyond the ability of the Bank to execute against them in 
order to satisfy the judgments it has obtained against Mr Ablyazov, or in 
seeking to impede such execution. Rather, the judge's assessment was that the 
element of dama ge which is closest in proximity to the harmful event is the 
Bank's inability or reduced ability to execute against those assets in the places 
where they are located, not in England: [41]. It was in those other places that 
the "initial damage" was suffered , for the purposes of the analysis under limb 
(a) of Article 5(3), and the loss felt by the Bank in England as a diminution in 
the value of its chose in action, worldwide freezing order and judgments 
merely reflected that damage: [42]. The place where the damage which can be 
attributed to the conspiracy by "a direct and causal link" was sustained in the 
relevant foreign jurisdiction where the Bank's opportunity to execute its 
judgments was lost or hindered: [43].  
70. In my view, the judge's application of limb (a) of Article 5(3) cannot be 
faulted. I agree with it. In my judgment it is particularly strongly supported by 
the judgment of the ECJ in the Marinari case [1996] QB 217 , at paras. [12] -
[15]. At para. [14] the ECJ was concerned to limit the element of jurisdictional 
choice imported into Article 5(3) under limb (a), and did so by focusing its 
application on the place where damage  was suffered first or most immediately 
(limb (b) "cannot ... be construed so extensively as to encompass any place 
where the adverse consequences of an event that that has already caused 
actual damage elsewhere  can be felt" – my emphasis); and hence at pa ra. [15] 
the ECJ again emphasised a distinction between the state where the "initial 
damage" arises (which will on that ground, if it is a contracting state, have 
jurisdiction under limb (a)) and the contracting state where "financial damage 
consequential"  on that initial damage arises (which will not have jurisdiction 
under limb (a)). In the present case, the steps allegedly taken to hide assets in 
other jurisdictions disabled the Bank from getting its hands on those assets in 
those jurisdictions and using  them to satisfy its judgments against Mr 
Ablyazov, and accordingly it is in those jurisdictions that actual damage was 
suffered first or most immediately by the Bank, even though it was reflected 
consequentially as damage in the form of a diminution in th e financial value of 
the judgments and orders in its favour.  
71. I think that this is a situation in which the judge's assessment regarding the 
application of limb (a) of Article 5(3) is the only proper assessment which 
could be made in the circumstances. How ever, I would also emphasise that 
analysis under limb (a) of Article 5(3) may sometimes call for a choice to be 
made by a judge where there is a rational basis for more than one view as to 
what is the relevant damage for the purposes of limb (a) of Article  5(3), so that 
the judge has to make an evaluative judgment which option to choose. On an 
appeal which proceeds in the usual way as a review, as this one has, this court 
will respect the choice made by the first instance judge who has correctly 
directed hi mself as to the test to be applied and has made a rationally 
defensible evaluative judgment in applying that test. Even if it could be said 
here that more than one choice could rationally have been made by the judge, 
he has directed himself correctly as to  the relevant test and the evaluative 
judgment he has made in applying limb (a) of Article 5(3) cannot be said to 
have been wrong.  
Limb (b) of Article 5(3): the place of the event giving rise to the damage  
72. The Bank submitted to the judge that the place of  the event giving rise to the 
damage was the place where the conspiracy was allegedly hatched in about 
2009, which (it was to be inferred) was in England. That inference was 
justified by the fact that Mr Ablyazov will have been the driving force in the 
conspiracy with Mr Khrapunov being a willing participant; that Mr Ablyazov 
lived in England at that time and through to February 2012; and that Mr 
Ablyazov's suggestion of a conspiracy will have been made from here and Mr 
Khrapunov will have either visited En gland and entered into the combination 
here or would have communicated his assent by phone or email, with such 
assent being received by Mr Ablyazov here. Mr Khrapunov has not filed 
evidence to answer the Bank's case against him and having regard to the 
evidence of the Bank the judge held that it has a good arguable case that the 
alleged conspiracy was hatched in England: [45]. This is plainly an assessment 
which was open to the judge to make on the evidence. The Bank has much the 
better of the argument on t his point.  
73. However, the judge held that the event which gave rise to the damage was not 
the hatching of the conspiracy in England, but rather the implementation of 
that conspiracy by dealings abroad with foreign assets: [46] -[53]. He rejected 
an analogy p ressed on him by the Bank with cases involving negligent 
misstatement (in particular Domicrest v Swiss Bank Corp. [1999] QB 548 ) in 
which the event giving rise to the damage has been held to be the making of 
the negligent misstatement, on the basis that a negligent misstatement causes 
damage when it is made whereas a conspiracy only causes damage when it is 
implemented: [47] -[49]. He also rejected an analogy with defamation ( Shevill 
v Presse Alliance  [1995] 2 AC 18 ) in which the event giving rise to the 
damage has  been held to be the making of the original defamatory statement, 
as the tort is different and has different elements: [50]. The judge focused on 
identifying the place of the event which gave rise to the damage, 
distinguishing that sharply from the place o f the tort: [51]. In the judge's view, 
the implementation of the conspiracy occurred by way of instructions given by 
Mr Ablyazov (on which Mr Khrapunov would then act), but it was only in the 
period until Mr Ablyazov fled from the United Kingdom on 16 Febr uary 2012 
that limb (b) of Article 5(3) was satisfied so as to establish jurisdiction for the 
English court.  
74. Mr Samek for Mr Khrapunov contends that the judge erred in his application 
of limb (b) of Article 5(3) because he should have focused on the essen ce of 
the complaint, which Mr Samek says is the dealing with the assets of Mr 
Ablyazov in jurisdictions other than England in order to remove them from the 
Bank's ability to have recourse against them in execution of the judgments it 
obtained against him. Mr Smith for the Bank, on the other hand, submits that 
the judge erred by focusing on the giving of instructions by Mr Ablyazov 
pursuant to the alleged conspiracy rather than the original alleged agreement 
between him and Mr Khrapunov which is said to be t he foundation of Mr 
Khrapunov's liability to the Bank, which was made in England.  
75. I reject Mr Samek's criticism, for the reasons which follow. I do not consider 
that it is supported by the authorities on which he sought to rely, in particular 
Dolphin Mari time & Aviation Services Ltd v Sveriges Angartygs Assurans 
Forening  [2009] EWHC 716 (Comm) , [2009] 1 All ER (Comm) 473; AMT 
Futures Ltd v Marzillier ; and Actial Farmaceutica LDA v De Simone  [2016] 
EWCA Civ 1311  (to which Mr Samek drew our attention in written 
submissions after the oral hearing had finished). The passages in the 
judgments relied on by Mr Samek were focused on limb (a) of Article 5(3) and 
do not provide guidance on the application of limb (b) in the present case. 
However, with respect to Teare J, I think that he has fallen into error in 
rejecting th e submission made on behalf of the Bank.  
76. In my view, so far as concerns Mr Khrapunov, the relevant event giving rise to 
the damage in question is that which is the legal foundation for the Bank's 
claim against him, namely the alleged agreement between him  and Mr 
Ablyazov made in about 2009, in all probability (on the available evidence) in 
England, either at one or more personal meetings here or by Mr Khrapunov 
communicating to Mr Ablyazov in England (by telephone or email) his assent 
to a proposal by Mr A blyazov that he should help him to remove assets 
located abroad covered by the worldwide freezing order from the reach of the 
Bank in seeking to execute its judgments against Mr Ablyazov. It was the 
making of the alleged agreement which is the foundation f or the Bank being 
able to claim that Mr Khrapunov now shares responsibility for the unlawful 
means used to effect the object of the conspiracy, namely the breaches by Mr 
Ablyazov of the worldwide freezing order and the receivership order made 
against him. By reason of the alleged agreement Mr Khrapunov is made 
jointly liable for Mr Ablyazov's unlawful acts, since the Bank has a good 
arguable case (so as to have by far the better of the argument on this issue) that 
Mr Khrapunov thereby encouraged and procure d their commission by 
agreeing to help Mr Ablyazov to carry the scheme into effect and it was by 
reason of the agreement that Mr Ablyazov looked to Mr Khrapunov for 
assistance in that regard and gave him instructions how to dispose of assets 
located abroad . As a result of his alleged agreement to the conspiracy Mr 
Khrapunov would be liable for Mr Ablyazov's acts in pursuit of its object even 
if he (Mr Khrapunov) had not received any instructions and simply remained 
on standby to help, while Mr Ablyazov used  other means to hide his assets. 
Moreover, it was by reason of the alleged agreement that Mr Khrapunov took 
such actions on his own initiative in pursuance of the conspiracy as may be 
found to have occurred without his receiving further detailed instructio ns from 
Mr Ablyazov. It may have been sufficient for Mr Ablyazov and Mr 
Khrapunov to agree at the outset on the general objective, with Mr Ablyazov 
sometimes giving instructions or making suggestions what to do to hide assets 
and Mr Khrapunov at other time s deciding himself what actions to take 
without needing to wait for further instructions. Mr Ablyazov would be liable 
for acts taken by Mr Khrapunov in furtherance of their conspiracy even if 
done without instructions being given by him.  
77. The ECJ in its ju dgment in Marinari at paras. [9] -[19] emphasised that Article 
5(3) is to be given an autonomous interpretation, independent of applicable 
national law governing civil liability. However, limb (b) of Article 5(3) ("the 
place of the event giving rise to [the  damage]") must refer to the relevant legal 
event giving rise to liability under applicable national law, since it is only 
where such an event occurs that there is any connection to the damage which 
could constitute "a particularly close connecting factor between the dispute 
and the courts other than those of the state of the defendant's domicile" as 
required to justify attribution of special jurisdiction under the Convention to 
those courts: see Marinari , para. [10]; also Bier, para. [21].  
78. In order for a cause of action to arise under national law there may, of course, 
be a requirement for a number of elements to be in place, and these may occur 
in different jurisdictions. Thus, in English law, for a cause of action to arise 
for negligent misstatement, the  claimant would typically have to prove that the 
defendant made a misstatement in circumstances where he owed a duty of 
care, that he did so negligently, that the claimant relied on the misstatement 
and that he thereby suffered loss. In such a case, what c ounts as the relevant 
legal event giving rise to liability for the purposes of limb (b) of Article 5(3)?  
79. In the negligent misstatement case of Domicrest Ltd v Swiss Bank Corporation  
[1999] QB 548  Rix J, as he then was, after reviewing the European case -law, 
gave the answer at p. 568B -C that:  
"it is the representor's negligent speech rather then the hearer's receipt of it 
which best identifies the harmful event which sets the tort in motion. To prefer 
receipt and reliance as epitomising the harmful event giving rise to the damage 
in the case of negligent misstatement is, I think, to ignore the fact that the 
plaintiff also has the opti on of suing in the courts of the place where the 
damage occurs – which is quite likely to be at the place of receipt and 
reliance"  
80. Rix J's approach was approved by this court in ABCI v Banque Franco -
Tunisienne [2003] EWCA Civ 205 ; [2003] 2 Llo yd's Rep 146  at para. [41]. It 
has been followed in authorities at first instance: Alfred Dunhill Ltd v 
Diffission Internationale Maroquinerie de Prestige SARL  [2002] 1 All ER 
(Comm) 950 , 957 (Kenneth Rokison QC, sitting as a judge of the High Court); 
Newsat Holdings Ltd v Zani  [2006] EWHC 342 (Comm) ; [2006] 1 All ER 
(Comm) 607 , [41] -[44] (David Steel J); London Helicopters Ltd v 
Heliportugal LDA -INAC [2006] EWHC 108 (QB) ; [2006] 1 All ER (Comm) 
595, [28] -[35] (Simon J). In my view, in common with the views expressed in 
all these cases, Rix J's approach in Domicrest correctly sta tes the position.  
81. A further indication that Rix J is correct is that one can imagine a situation in 
which one negligent misstatement is contained in an email sent to a number of 
recipients in different jurisdictions (or is made orally in a conference call  
involving a number of people in different jurisdictions) and relied on by them 
in those jurisdictions. In such a case, it accords with the object of the 
Convention in conferring special jurisdiction on the courts of the place of the 
event giving rise to t he damage "for reasons relating to the sound 
administration of justice and the efficacious conduct of proceedings" 
(Marinari , para. [10]) that all the recipients of the email or participants in the 
call should be able to sue the defendant in one place for the same negligent 
misstatement, thereby minimising legal costs and delays and avoiding the risk 
of irreconcilable judgments being produced by different courts in different 
places. See also Dumez France  at para. [18], emphasising the objective of the 
Conve ntion of avoiding "the multiplication of courts of competent jurisdiction 
which would heighten the risk of irreconcilable decisions …".  
82. Rix J's approach seems to me to be fully in line with the guidance given in the 
European authorities. The ECJ in Bier explained at para. [21] that interpreting 
Article 5(3) to include limb (b), rather than just limb (a), would avoid 
"excluding a helpful connecting factor with the jurisdiction of a court 
particularly near to the cause of the damage". In Dumez France at para . [10] 
the ECJ stated that limb (b) of Article 5(3) means that "the defendant may be 
sued … in the courts for the place of the event which gives rise to and is at the 
origin of that damage." This is reflected in the focus by Rix J on "the harmful 
event whi ch sets the tort in motion". Treating the relevant originating event as 
the wrongful conduct of the defendant which is the principal foundation for his 
liability under rules of national law also provides reasonable certainty in the 
application of the Conve ntion, enabling claimants to identify clearly a 
jurisdiction in which they are permitted to sue him: see Marinari , para. [19], 
explaining that interpretation of Article 5(3) of the Convention should accord 
with its objective "to provide for a clear and cer tain attribution of jurisdiction", 
avoiding reference to "uncertain factors such as the place where the victim's 
assets suffered subsequent damage and the applicable rules on civil liability."  
83. In the defamation case of Shevill  the ECJ held at para. [24] t hat the place of 
the event giving rise to the damage for the purposes of limb (b) of Article 5(3) 
"can only be the place where the publisher of the newspaper in question is 
established, since that is the place where the harmful event originated and 
from wh ich the libel was issued and put into circulation". This emphasises the 
relevance of the place where the principal acts of the defendant which give 
rise to liability under the applicable rules of national law occurred and again 
indicates that Rix J's focus  on "the harmful event which sets the tort in 
motion" is in line with the guidance given by the ECJ.  
84. Applying the approach to limb (b) of Article 5(3) set out in the European and 
domestic authorities to the present case, in my judgment it is clear (to the  
standard that the Bank has by far the better of the argument on this issue) that 
the place of the relevant event giving rise to the damage for which it is sought 
to hold both Mr Khrapunov and Mr Ablyazov liable is the making of their 
agreement in England in about 2009 that they would do what they could to 
defeat the worldwide freezing order against Mr Ablyazov by disabling the 
Bank from or impeding it in executing its judgments against Mr Ablyazov's 
assets located abroad. As I have explained at paragraph [ 76] above, this is the 
critical or principal event involving action by each of them which is the legal 
foundation for their liability which is sought to be established in these 
proceedings. It is also the harmful event which set the tort in motion.  
85. Contra ry to the view of the judge, the giving of instructions by Mr Ablyazov 
at later times is not the principal foundation of the liability of Mr Khrapunov; 
the making of the original agreement is. Hence it is the making of the original 
agreement, not the givin g of later instructions by Mr Ablyazov, which is the 
place of the event giving rise to the damage for the purposes of limb (b) of 
Article 5(3).  
86. In my view, with respect, the judge's reasoning at para. [49] for distinguishing 
the tort of conspiracy from a negligent misstatement case, on the footing that 
"a misstatement causes damage when it is made", whereas "a conspiracy only 
causes damage when it is implemented", is not persuasive. A misstatement 
only causes damage when it is relied on, which as explained  above may occur 
in a jurisdiction different from that in which the misstatement was made. In 
terms of English law, damage is the gist of the cause of action, which only 
arises once loss has been suffered. The position is in fact similar to that in 
relatio n to the tort of conspiracy to injure by unlawful means, which likewise 
is an action on the case where damage is the gist of the cause of action, so that 
the cause of action in damages only arises where the conspiracy has been 
implemented and loss has been  suffered. These technicalities of English law 
are not relevant to application of the autonomous concepts in Article 5(3), but 
the basic point is that the wrongful action of the defendant in the negligent 
misstatement case which sets the tort in motion can  readily be identified as the 
making of the misstatement in much the same way that the wrongful action of 
the defendant in the conspiracy case which sets the tort in motion can readily 
be identified as the making of the agreement to use unlawful means to i njure 
the claimant.  
87. I consider that a further difficulty with the judge's analysis is that by focusing 
on later instructions given by Mr Ablyazov pursuant to the original conspiracy 
he divides up the elements of the conspiracy in a way which does not refl ect 
the reality of the complaint made by the Bank (which is to allege liability 
flowing from the making of the original agreement), nor its totality (since, as 
explained above, liability of each of Mr Khrapunov and Mr Ablyazov for 
actions pursuant to the c onspiracy may not depend at all on the giving of 
further instructions by Mr Ablyazov to Mr Khrapunov). Moreover, the judge's 
analysis undermines the objectives of the Convention highlighted above, since 
if the Bank wishes to rely on Article 5(3) it would h ave to sue Mr Khrapunov 
in different jurisdictions, depending on the dates when further instructions 
were given by Mr Ablyazov, but in relation to the same original conspiracy 
agreement, thereby incurring increased costs, the risk of increased delay and 
giving rise to the risk of irreconcilable judgments being reached in different 
jurisdictions. In my view, these matters point strongly in favour of the 
correctness of the Bank's submission on its appeal.  
Conclusion  
88. For the reasons given above, (1) I would d ismiss Mr Khrapunov's appeal on 
the question whether the Bank has established that it has a good arguable 
cause of action against him for the tort of conspiracy to injure by unlawful 
means; (2) I would dismiss the Bank's appeal based on Article 6 of the 
Convention; (3) I would dismiss the Bank's appeal in respect of limb (a) of 
Article 5(3) (place where the damage occurred); however, (4) I would allow 
the Bank's appeal in respect of limb (b) of Article 5(3) (place of the event 
giving rise to the damage).  
Lord Justice Beatson:  
89. I agree.  
Lady Justice Gloster DBE:  
90. I also agre e