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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Cadogan Petroleum Plc & Ors v Tolley & Ors [2009] EWHC 2527 (Ch) (16 October 2009) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2009/2527.html Cite as: [2009] EWHC 2527 (Ch) |
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CHANCERY DIVISION
Strand, London, WC2A 2LL |
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B e f o r e :
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(1) Cadogan Petroleum Plc (2) Cadogan Petroleum Holdings Ltd (3) LLC Astroinvest-Ukraine (4) US Enco Ukraine |
Claimants |
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- and - |
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(1) Mark Tolley (2) Marksman International Ltd (3) Natural Resource Ltd (4) Vasyl Vivcharyk (5) VPV Oil Investments LLC (6) Smith Eurasia Ltd (7) Vladimir Shlimak (8) SonicGauge Inc (9) Global Process Systems LLC (10) Global Process Systems Inc (11) Clint Elgar (12) Anthony Wright (13) Wayne Goranson (14) AOE Energy Inc (15) Philip March |
Defendants |
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Andrew Thomas (instructed by Needleman Treon) for the First, Second and Third Defendants
Hearing dates: 9th October 2009
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Crown Copyright ©
Peter Smith J :
INTRODUCTION
EVIDENCE IN SUPPORT
JUSTIFICATION
"Mr Allen's most forceful submission was that it was wrong in principle to order cross examination on a Mareva discovery affidavit in respect of matters which had relevance to the substantive issue in the action.
He pointed out that the Defendant has an option whether or not to give evidence and submit to cross examination at the trial. Before the Defendant takes that decision the plaintiff has to undertake the burden of adducing evidence to make out his case. It was, submitted Mr Allen, manifestly unjust that a plaintiff should be able to compel a Defendant to submit to cross examination which might provide the plaintiff with the material in which to advance his case on merits. It was doubly unjust that this should occur before the close of pleadings and discovery. Here, with more justification, Mr Allen relied against that upon Scott J's reference to the Star Chamber inquisition.
In my judgment it is undesirable that a plaintiff should be able in Mareva proceedings to extract, by cross examination under order of the Court, material upon which to build his case for the substantive hearing. I envisage circumstances where if this were the price that had to be paid for an effective Mareva injunction it would nonetheless be a price worth paying in the interests of justice. But the Court must be astute to guard against abuse of the Mareva process by plaintiffs who are using it in an attempt to discover facts that will assist them in the action. The fact that cross examination on Mareva discovery affidavit will relate to matters which are relevant to the substantive issues is a matter to which the Judge should have regard when considering whether to permit this process."
"In my judgment, in this case there has not been any error of principle demonstrated in the orders made. I do not believe that the cross examination that will take place is likely to bear critically on the substantive issues, and Mr Allen has not suggested, nor could he properly have done, that Yukon's application to cross examine was motivated by a desire to advance their substantive case rather than to render the Mareva relief effective. Having regard to the history which I have summarised at some length at the outset of this judgment it cannot be suggested that there was not material upon which Clarke J could properly form the view in his discretion that it was just and convenient to order cross examination. "
FACTORS IN THE PRESENT CASE