Mountain Ash Portfolio Ltd v Vasilyev [2021] EWHC 1853 (Comm)

Tom Poole QC instructed by Edmans & Co for the Claimant.

INTRODUCTION

1. By application notice dated 5 February 2021 (“Set Aside Application”) the Defendant seeks to set aside a default judgment entered against him on 23 September 2020 in the sum of £101,404,140 (“Default Judgment”). The Set Aside Application is made pursuant to CPR 13.3.
2. These proceedings were issued by the Claimant (“MAP”) against the Defendant (“Mr Vasilyev”) on 29 April 2020. All court documents on the file indicate that the case was issued in the Commercial Court and assigned to the Financial List. The Set Aside Application was listed and heard by me sitting in the London Circuit Commercial Court. Both parties were content for me to proceed to determine the application in this capacity notwithstanding the absence of any order or direction transferring this action from the Commercial Court or Financial List. The title to this judgment seeks to reflect that position.
3. The underlying claim concerns a debt said to be due pursuant to a shareholders’ guarantee dated 1 November 2007 whereby Mr Vasilyev – together with his then co-shareholder, Georgy Trefilov (“Mr Trefilov”) – jointly and severally guaranteed the obligations and liabilities of MARTA Unternehmensberatungs GmbH (“MUG”) under a loan entered into by that company on 31 October 2007 (“Guarantee”). The original lender and suretyship-beneficiary was a Dutch corporate vehicle known as CF Structured Products BV (“CFSP”). MUG defaulted on the loan during 2008. It was placed into insolvency process in early 2009 and subsequently liquidated in 2017.
4. Mr Vasilyev disputes the authenticity of his purported signature on the Guarantee, in effect disowning or disavowing the instrument altogether, and thereby denying liability in this action. In essence he contends that this litigation is fraudulent in nature. (References to the “Guarantee” or its signature/execution or any steps taken pursuant to its terms are descriptive and take account of Mr Vasilyev’s position.) Mr Vasilyev separately disputes whether the Guarantee was executed as a deed on 1 November 2007 in accordance with statutory requirements under English law, and on this basis says that the claim against him is time-barred. More broadly, he contends that these fraudulent proceedings form part of a campaign being waged against him by Mr Trefilov. Mr Vasilyev seeks to set aside the Default Judgment on these and other stated grounds, addressed below.
5. A volume of witness evidence has been filed in relation to the Set Aside Application, together with substantial documentary evidence forming the exhibits to such witness statements. The majority of it is from MAP, including a statement from Mr Trefilov himself, in opposition to the Set Aside Application. Much of the factual evidence is directed towards the intrinsic merits of Mr Vasilyev’s substantive position. It also covers the circumstances in which these proceedings were served or otherwise brought to his attention (prior to and since the Default Judgment) and his subsequent response.
6. In addition to the factual witness evidence, both sides sought permission under CPR Part 35 to rely upon independent opinion evidence as to the authenticity of Mr Vasilyev’s alleged signature on the Guarantee. See paragraphs 33 to 35 below.
7. Despite some discussion about validity of service of the claim form on/before 29 August 2020, i.e. within its initial four month period of validity following issuance of proceedings on 29 April 2020, the Set Aside Application was not based upon the mandatory ground in CPR 13.2. Mr Vasilyev seeks to set aside the Default Judgment on discretionary grounds under CPR 13.3.

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