THE HONOURABLE MRS JUSTICE CARR TUGUSHEV v ORLOV Approved Judgment

ldquo27 Whether a defendantrsquos use of a property characterises it as his or her ldquoresidencerdquo that is to say the defendant can fairly be described as residing there is a question of fact and degreehellip In the present case the Edgware house is owned by the defendant and his wife and is the place where his wife children mother father and sister permanently live It is the place which the defendant has affirmed in court proceedings is not only his ldquoresidencerdquo but his ldquohomerdquo While such affirmation is not conclusive it is plainly highly material The defendant visits that home every year to see his family staying for not inconsiderable periods of time as and when his work in Kenya permits him to do so It is in an obvious and very real sense his ldquofamily homerdquo Taking those facts together it seems to me quite impossible to contend that the defendant does not reside at the Edgware house at allhelliphellip

28 The deputy judge was also entitled and indeed correct to conclude that the Edgware house was the defendantrsquos ldquousualrdquo residence for the purposes of CPR r 69 As I have said Mr Jacob conceded that it is possible to have more than one ldquousualrdquo residence That is also borne out by the distinction between ldquousual residencerdquo and ldquoprincipalrdquo place of business and ldquoprincipalrdquo office in CPR r 69 which contrary to Mr Jacobrsquos submission I consider the deputy judge was right to take into account

29 I do not accept Mr Jacobrsquos submission that in determining whether a residence is a ldquousualrdquo residence within CPR r 69 the test to be applied is essentially one of merely comparing the duration of periods of occupation taking little account of the nature or ldquoqualityrdquo of use of the premises and ignoring altogether that the premises are occupied permanently by the defendantrsquos family and that the premises can fairly be described as the family home Mr Jacobrsquos suggested approach is too narrow and artificial I agree with Mr Peter Shaw counsel for Relfo that the critical test is the defendantrsquos pattern of life In Levene v Inland Revenue Comrs [1928] AC 217 the House of Lords considered whether the taxpayer was ldquoordinarily residentrdquo for the purposes of income tax helliprdquo

120 A useful summary of the relevant principles is set out in Bestolov at [44]

ldquo44helliphellip(1) It is possible for a defendant to reside in more than one jurisdiction at the same time

(2) It is possible for England to be a jurisdiction in which a defendant resides even if it is not his principal place of residence (ie even if he spends most of the year in another jurisdiction)

THE HONOURABLE MRS JUSTICE CARR TUGUSHEV v ORLOV Approved Judgment

267 This is a case where self-evidently there are valid considerations either way Standing back from the morass on the facts of this case however the simple and striking feature is that Mr Tugushev has committed to (and has a right to) sue Mr Petrik in England whatever the outcome of the jurisdiction challenge Fragmentation of disputes leads to increased time and cost increased demands on parties and witnesses the risk of different fora proceeding on the basis of different evidence and the key danger of inconsistent outcomes This is a weighty factor in the present case Mr Petrik may not be the major but neither is he a minor player in the AA conspiracy

268 Whilst it is important not to pre-judge the outcome of any potential jurisdictional challenge by Mr Roth it is also at least plausible that he could be sued in England on the basis of Article 5(3) of the Lugano Convention (with no forum conveniens considerations arising) or on the basis that Mr Roth would be a necessary and proper party to the AA conspiracy claim against Mr Petrik under Article 6 of the Lugano Convention

269 Neither Mr Petrik nor Mr Roth is being sued (at least not obviously) as an anchor defendant or as a ldquominor playerrdquo There are only three alleged conspirators Mr Orlov Mr Roth and Mr Petrik Beyond Mr Petrik Mr Roth is a key participant in both alleged conspiracies and was a third owner of AA and of the Norebo Group more generally He was bought out by Mr Orlov for some US$201 million in April 2016 Although Mr Petrik is sued only in relation to the AA conspiracy it would be clearly undesirable for the AA conspiracy and Norebo Group conspiracy claims to be determined separately given the overlapping facts and credibility issues

270 In the context of the desirability of avoiding a multiplicity of proceedings I bear in mind that Mr Orlov is currently subject to civil and criminal proceedings instigated by Mr Tugushev in six jurisdictions (Russia Norway England Hong Kong Isle of Man and Guernsey) As to the ongoing criminal proceedings in Russia I have not been taken to any significant detail It appears that the investigation was opened in July 2018 pursuant to a complaint made by Mr Tugushev in January 2016 Although Mr Tugushev has victim status in these proceedings they are only at the investigative stage have not yet resulted in any charge and as matters stand relate only to AA Further I have not been taken to any evidence about what Mr Tugushevrsquos potential rights to compensation in any Russian criminal proceedings would be As to the other ongoing proceedings these are procedural only The Norwegian proceedings are for disclosure (of the 1998 Agreement and documents held in a file marked ldquoAlexrdquo) The proceedings in Hong Kong the Isle of Man and Guernsey are all for enforcement of the WFO and were commenced with the permission of the English court

271 If jurisdiction is afforded here Mr Tugushev has given an undertaking to the court through Ms Davies that he would not pursue his contractual claims in Russia There would therefore be no unwelcome division of proceedings in this regard

272 Further for reasons set out below I do not accept that Russia is necessarily an alternative jurisdiction where all claims could be heard Professor Maggs has given evidence that the Russian court would accept jurisdiction over the claims against Mr Petrik and Mr Roth which has not been disputed by Mr Tugushev It is unclear however why Mr Petrik would submit to the jurisdiction of the Russian courts As for Mr Roth there is evidence that in March 2017 he said to Mr Tugushevrsquos

THE HONOURABLE MRS JUSTICE CARR TUGUSHEV v ORLOV Approved Judgment

267 This is a case where self-evidently there are valid considerations either way Standing back from the morass on the facts of this case however the simple and striking feature is that Mr Tugushev has committed to (and has a right to) sue Mr Petrik in England whatever the outcome of the jurisdiction challenge Fragmentation of disputes leads to increased time and cost increased demands on parties and witnesses the risk of different fora proceeding on the basis of different evidence and the key danger of inconsistent outcomes This is a weighty factor in the present case Mr Petrik may not be the major but neither is he a minor player in the AA conspiracy

268 Whilst it is important not to pre-judge the outcome of any potential jurisdictional challenge by Mr Roth it is also at least plausible that he could be sued in England on the basis of Article 5(3) of the Lugano Convention (with no forum conveniens considerations arising) or on the basis that Mr Roth would be a necessary and proper party to the AA conspiracy claim against Mr Petrik under Article 6 of the Lugano Convention

269 Neither Mr Petrik nor Mr Roth is being sued (at least not obviously) as an anchor defendant or as a ldquominor playerrdquo There are only three alleged conspirators Mr Orlov Mr Roth and Mr Petrik Beyond Mr Petrik Mr Roth is a key participant in both alleged conspiracies and was a third owner of AA and of the Norebo Group more generally He was bought out by Mr Orlov for some US$201 million in April 2016 Although Mr Petrik is sued only in relation to the AA conspiracy it would be clearly undesirable for the AA conspiracy and Norebo Group conspiracy claims to be determined separately given the overlapping facts and credibility issues

270 In the context of the desirability of avoiding a multiplicity of proceedings I bear in mind that Mr Orlov is currently subject to civil and criminal proceedings instigated by Mr Tugushev in six jurisdictions (Russia Norway England Hong Kong Isle of Man and Guernsey) As to the ongoing criminal proceedings in Russia I have not been taken to any significant detail It appears that the investigation was opened in July 2018 pursuant to a complaint made by Mr Tugushev in January 2016 Although Mr Tugushev has victim status in these proceedings they are only at the investigative stage have not yet resulted in any charge and as matters stand relate only to AA Further I have not been taken to any evidence about what Mr Tugushevrsquos potential rights to compensation in any Russian criminal proceedings would be As to the other ongoing proceedings these are procedural only The Norwegian proceedings are for disclosure (of the 1998 Agreement and documents held in a file marked ldquoAlexrdquo) The proceedings in Hong Kong the Isle of Man and Guernsey are all for enforcement of the WFO and were commenced with the permission of the English court

271 If jurisdiction is afforded here Mr Tugushev has given an undertaking to the court through Ms Davies that he would not pursue his contractual claims in Russia There would therefore be no unwelcome division of proceedings in this regard

272 Further for reasons set out below I do not accept that Russia is necessarily an alternative jurisdiction where all claims could be heard Professor Maggs has given evidence that the Russian court would accept jurisdiction over the claims against Mr Petrik and Mr Roth which has not been disputed by Mr Tugushev It is unclear however why Mr Petrik would submit to the jurisdiction of the Russian courts As for Mr Roth there is evidence that in March 2017 he said to Mr Tugushevrsquos