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JSC BTA Bank v Mukhtar Ablyazov & 16 Ors

The claimant Kazakh bank had obtained a freezing injunction against the first defendant (Mr Ablyazov) and others. The order prevented Mr Ablyazov from removing assets from England or disposing of, dealing with or diminishing the value of his assets. The question for the court was whether the rights of Mr Ablyazov to draw down under certain loan agreements were "assets" of his for the purposes of a freezing injunction.  Funds derived from the loans were used to pay D's legal expenses and living expenses. The Claimant argued that a right to borrow money from a lender under a loan facility was a chose in action and by directing the lender to pay money to a third party the borrower either disposed of or dealt with that chose in action; the definition of assets for the purposes of the order included "any asset which D had power, directly or indirectly, to dispose of, or deal with as if it were his own", and when the lender complied with D's instructions to pay his lawyers or anyone else it "held or controlled assets in accordance with his instructions" within the definition. Mr Ablyazov argued that the rights to draw down were not assets of any value to the Claimants and would not be available in enforcement proceedings.  Accordingly, they were not "assets" within the meaning of the freezing injunction.  In any event, the position was at least ambiguous and in those circumstances the construction most favourable to the freezing injunction respondent should be adopted.  

Christopher Clarke J held that the freezing order was to be construed in the way in which it ought reasonably to be understood by a businessman to whom it was addressed in the light of the purpose which it was designed to serve. That purpose was to prevent Mr Ablyazov, against whom the Claimant might in the future secure a judgment, from disposing of his assets, otherwise than in the ordinary course of business, so as to frustrate any attempt by the Claimant to secure payment of its judgment by whatever process of execution might be open to it. In that context, the "assets" to which the freezing order referred were assets which would or could be of some value to the Claimant and against which it would be capable of securing execution. Mr Ablyazov's right to borrow was not to be regarded as an asset, and its exercise was not a disposal of or dealing with an asset, Cantor Index Ltd v Lister [2002] C.P. Rep. 25 and Anglo Eastern Trust Ltd v Kermanshahchi (Costs) (No.1) [2002] EWHC 1702 (Ch) applied.  Further and in any event, there were two possible constructions of the freezing order and the construction most favourable to the respondent should be adopted.  

Duncan Matthews QC and Charlotte Tan acted for the First Defendant, Mr Ablyazov (instructed by Addleshaw Goddard).

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