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	England and Wales High Court (Chancery Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Bourlakova & Ors v Bourlakov & Ors [2025] EWHC 909 (Ch) (07 April 2025) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2025/909.html Cite as: [2025] EWHC 909 (Ch)

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IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)

		Royal Courts of Justice, Rolls Building Fetter Lane, London, EC4A 1NL
		7 April 2025

MR JUSTICE RICHARD SMITH Monday, 7 April 2025

(10.00 am)

INTRODUCTION

1. On 12 October 2023, I made an order appointing Mr Nicholas Jacob as representative of the estate of the First Defendant in these proceedings, Mr Bourlakov (Estate). I did so pursuant to CPR, Part 19.12. That order was made upon the application of the Claimants, who also entered into a deed of indemnity with Mr Jacob to fund his costs of the conduct of the litigation. On 26 October 2023, I made limited directions consequential upon Mr Jacob's appointment.
2. On 28 February 2024, Mr Jacob applied for further directions, the hearing of that application taking place on 16 July 2024. At that stage, it was apparent that there were, perhaps understating matters, tensions between the Claimants and Mr Jacob with respect to funding, the Claimants' essential complaint then being that Mr Jacob was not living within his means as representative. Those tensions were perhaps exacerbated by my finding, as recorded in my judgment dated 29 July 2024, that Mr Jacob had the power to advance counterclaims and additional claims on behalf of the Estate. Indeed, the Estate subsequently filed its defence on 31 October 2024, including not only a counterclaim against the Claimants but additional claims against the Seventh Defendant, Mr Kazakov, and certain Panamanian foundations, including as to Mr Kazakov's status or role as their purported beneficiary.
3. On 12 November 2024, the Claimants now no longer willing to fund Mr Jacob, I heard rival applications from them both, the Claimants seeking Mr Jacob's discharge as representative and the appointment of another identified person in his place, subject to agreement with her as to a suitable funding arrangement, with the proceedings continuing in the meantime without the Estate being represented. Mr Jacob sought a stay of the proceedings with a view to resolving the funding issue as between him and the parties to the proceedings. I dismissed the Claimants' application and stayed the proceedings to permit further discussions to take place about funding, with liberty for any interested party to apply to lift the stay no earlier than 20 December 2024. It seemed to me, and it remains my view, that, if an appropriate funding mechanism could be found, it was in the interests of all the parties, some of whom claim to be interested in the Estate, for Mr Jacob to remain in his role. However, I recognised that that may yet prove not to be possible.
4. Further discussions did follow, albeit perhaps more protracted than had been envisaged. The Twelfth Defendant, Edelweiss Investments Inc. (Edelweiss), took a leading role, producing a proposal for the potential funding of the Estate in these proceedings. It is fair say that there was, as I seem to say every time in this matter, a large amount of related sound and fury on all sides. That was, perhaps in part, generated by the Claimants' contention in these proceedings that they in fact own the shares in Edelweiss, that they therefore enjoy the benefit of its assets which might be disbursed to fund Mr Jacob's costs if the Edelweiss proposal is taken forward, and that Edelweiss is presently controlled by directors said to have been illegitimately appointed by Mr Kazakov, who 'pulls their strings'.
5. Indeed, for the three days preceding the hearing of the current applications relating to Mr Jacob's role, that debate played out before me more extensively in the form of contested summary judgment and injunction applications, engaging at their core, issues as to the ownership of shares in Edelweiss and the enjoyment of its assets. I say nothing more about those applications since I have not yet decided them although, as noted, that debate did spill over into the current applications before me. It is also fair to say that Mr Jacob came in for some criticism from the Claimants as to the manner in which he had conducted his discussions with Edelweiss' representatives about funding which, the Claimants said, implicated his impartiality as between all those potentially entitled to participate in the Estate.
6. That is the background to the matter. It is not necessary for me here to explain the substantive claims in any detail. I only touch upon matters of substance where required for the issues arising on the current applications. Those applications comprise an application by the Claimants dated 3 February 2025 to lift the stay of the claims by and against the Estate and to approve any agreed funding arrangement, alternatively, in the absence of any agreed funding, to discharge Mr Jacob with the claims continuing against the Estate without a representative. Mr Jacob's application, dated 11 February 2025 also sought the lifting of the stay, albeit with him continuing in his role and his costs of conducting the proceedings on behalf of the Estate being funded in the manner shown in the form of draft order submitted with his application. That draft order reflected the near latest iteration of a funding proposal advanced by Edelweiss and with which Mr Jacob, the Kazakovs and Edelweiss are in agreement. The Claimants do not agree to that specific proposal, for reasons to which I will turn shortly. I should add that Edelweiss has also subsequently confirmed that they would still be willing to agree that funding arrangement even if they succeed on their summary judgment and strikeout applications.
7. In terms of the current status of the proceedings, there is a three-day case management conference coming up in a two-day window from 19 May 2025, the Claimants, in particular, indicating their concern that the position with Mr Jacob's continued representation of the Estate needs to be settled in short order and sufficiently before that CMC if Mr Jacob is to remain in position so that he can participate meaningfully and without the CMC and the proceedings more generally being disrupted because funding arrangements have been agreed too late in the day. I share that concern which is why I agreed to hear the applications when I did. At that hearing, I also asked Mr Jacob's counsel to let me have what I might describe as his 'drop-dead' date by which funding had to be in place for his meaningful participation at the CMC. I am grateful for his solicitors' response. That date is estimated to be the week commencing 28 April 2025. However, as he also explains, additional case management issues may still arise beyond the CMC on account of the outstanding pleadings and service-out issues with respect to the Estate's additional claims, at least to the extent that those aspects cannot be agreed.
8. That is the background to the applications. I merely add some general observations about the Claimants' position since that, in a sense, shaped much of the argument at the hearing. First, the Claimants say that Mr Jacob's position with respect to funding could be, and could have been, much more straightforward if the main protagonists, namely the Claimants and the Kazakovs, had simply funded Mr Jacob between them by way of indemnity. I did not understand Mr Jacob to demur. However, Mr Kazakov has not indicated a willingness himself to contribute.
9. Second, despite their claim to the ownership of Edelweiss and general objection to the use of its assets outside the normal course of its business, the Claimants have indicated that they are willing to agree to Edelweiss' funds being used to fund Mr Jacob's costs on the basis that the Estate's defence and all its claims are funded, again, by way of indemnity. In that regard, Edelweiss has said that it is not willing to fund the Estate's additional claims, directed as they are against its registered shareholders. That position is reflected in the draft order put before the court by Mr Jacob, albeit since then the active parties have indicated their agreement, in principle, to a slightly modified arrangement by which the additional claims would effectively be funded from the unpaid balance due under the 2023 indemnity from the Claimants to Mr Jacob.
10. Despite that agreement in principle, the Claimants say that important aspects of the current proposal in the draft order (albeit still in need of updating with the further modification canvassed on account of the additional claims) are neither practically workable nor fair, in the case of the latter, both because of their claims as to the ownership of Edelweiss and as beneficiaries of the Estate. They also say that the court does not have the power to ratify other aspects, either because of the limits of a CPR, Part 19.12 representative's powers or because the Claimants do not agree those aspects. The other active parties argue otherwise and urge me to approve the draft order.

THE CURRENT FUNDING PROPOSAL

11. Turning to the current funding proposal, it is perhaps most convenient first to set this out briefly on a paragraph-by-paragraph basis.
12. Paragraph 1 provides for the stay of claims by and against the Estate to be lifted.
13. Paragraph 2(a) provides that Edelweiss will pay Mr Jacob's reasonable and proportionate costs to the date of the order to the extent that they exceed the indemnity provided for in the deed of indemnity between the Claimants and Mr Jacob. Paragraph 2(b) envisages Edelweiss making a payment on account by a certain date. Paragraph 2(c) contemplates Mr Jacob's costs being costs managed by the court. Paragraph 2(d) envisages Mr Jacob being paid in arrears on an ongoing basis against his solicitor's certificate as to the relevant costs being (i) reasonably and proportionately incurred and (ii) in accordance with, and fully provided by, the relevant stage of the approved budget. Paragraph 2(e) provides for Mr Jacob's solicitors to provide certain monthly summaries. Paragraph 2(f) provides for the Claimants' agreement for these monies to be paid out of a particular bank account in the Bahamas currently frozen by order of the Bahamian court. Paragraph 13 also provides for the parties to ensure that the funds to be paid by Edelweiss to Mr Jacob can be paid from those monies. That aspect is controversial.
14. Paragraph 3 contains more detailed provisions about costs management by the court, including for (i) the costs budget to be agreed between Edelweiss and Mr Jacob (ii) liberty to apply to the court in the absence of agreement (iii) provision for Edelweiss and Mr Jacob to agree the position following representations to the court (iv) notification of the court in the continued absence of agreement (v) the provision for party agreed or court ordered variations to the approved budget (vi) any court ordered variation to be in accordance with general costs budgeting principles, namely upon a significant development. These provisions too are controversial, at least in part.
15. Paragraph 4 provides that none of the sums provided by Edelweiss are to be used to pay for the costs of the additional claims or to meet costs orders made against the Estate. However, as I have said, the latest proposal envisages a variation to this so that Mr Jacob can use the unpaid balance of the Claimants' indemnity to fund the additional claims.
16. Paragraphs 5 to 9, in particular, are controversial. These provide that the Estate shall repay to Edelweiss the funding provided to Mr Jacob as an order for costs (para.5); Edelweiss is entitled to interest on the sums provided at 8 per cent to be added to the costs order in its favour (para.6); Mr Jacob is to account to Edelweiss for any sums received from any other party by way of costs funded by Edelweiss, such sums to be paid to the court funds office (para.7); more generally, any payments received from any party by way of damages, settlement or the like are to be paid into the court funds office with Edelweiss, in turn, entitled to receive those funds to the extent of the funding it provides (para.8). For this purpose, the recitals to the order also declare Mr Jacob's entitlement to bring proceedings on behalf of the Estate to enforce any judgment, order or settlement, with any enforcement proceeds to be paid to the court funds office, with paragraph 9 allowing Edelweiss to apply for directions if Mr Jacob elects not to exercise his enforcement powers.
17. Other important ancillary provisions include a prohibition against any party applying for an adverse costs order against Edelweiss in respect of that party's costs incurred in bringing claims against the Estate, as well as against any party applying for security for costs against the Estate (para 10).
18. Paragraph 11 provides for the exclusion of the provision of funding to Mr Jacob from the scope of the interim undertakings provided by Edelweiss and the Fourteenth Defendant, Hemaren Stiftung, at the prior hearings of the Claimants' injunction application.
19. I should also add that, given the Claimants' stance with respect to the asserted ownership of Edelweiss, Mr Jacob also now seeks an exoneration provision for liability from the receipt and disbursement of monies received from Edelweiss.
20. I focus in this ruling on the proposed funding structure since this seems to me to be where points of principle arise most acutely. Mr Jacob describes this structure as an interim funding order (IFO), modelled on a prospective costs order, and it envisages a number of things:-

(i) Edelweiss advancing funds to Mr Jacob under a costs order;

(ii) Edelweiss being entitled to a costs order in the same amount from the Estate;

(iii) The court retaining its general jurisdiction to make costs orders between the parties to the proceedings; and

(iv) Mr Jacob's costs being managed by the court.

LEGAL PRINCIPLES

21. Mr Jacob says that the jurisdiction to make the IFO arises from the non-party costs jurisdiction founded in s.51 of the Senior Courts Act 1981 which vests in the court full power to determine by whom, and to what extent, costs are to be paid, CPR, Part 46.2 in turn making clear that the court's powers under s.51 extend to making a costs order in favour of a person who is not a party to the proceedings (here, Mr Jacob whom I have previously found to be a non-party) as well as against a non-party. Although not presently provided for in the draft order, Mr Jacob accepts that he would have to be joined to these proceedings for that purpose pursuant to CPR, Part 46.2(a). The costs order against the Estate will be an ordinary costs order in Edelweiss' favour.
22. The authorities on non-party costs orders, let alone those in favour of a non-party, let alone those made on an interim basis are scant. Mr Jacob says that he has not uncovered any authority which might preclude such an order and, if anything, such authorities as there are tend to point in the opposite direction. As to non-party costs orders, the authorities are clear that these are exceptional, albeit Mr Jacob points to Dymocks Franchise Systems (NSW) Pty Ltd v Todd [2014] 1 WLR 2807 (at [25]), to say that "exceptional in this context means no more than outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense."
23. The majority of cases involving non-party costs orders concern those adverse to a non-party rather than in their favour. However, Mr Jacob relies on High Commissioner for Pakistan in the United Kingdom v National Westminster Bank Plc & Ors [2015] EWHC 55 (Ch) for the proposition that a non-party can be joined for the purpose of an application for costs against a party seeking discontinuance. In that case, Henderson J, as he then was, considered non-party joinder "clearly appropriate" for that purpose, although it is not clear whether, ultimately, such a costs order was, in fact, made.
24. In Individual Homes Ltd v Macbream Investments Ltd (Unrep., 23 October 2002), Mr Alan Steinfeld QC held that a non-party bank which had assisted a party to obtain documents was entitled to its costs even though the party had used the wrong procedure which would not ordinarily result in a costs order in the bank's favour. In that case, a costs order in the bank's favour was found to be the only order according with reason and justice.
25. In terms of paying costs out of a fund, in The Prince of Wales Association Company v Palmer [1858] 53 ER 768, the court ordered the costs of the defendant representative of an estate in proceedings concerning the validity or otherwise of a life insurance policy to be paid out of the premium. But for the defendant being appointed and incurring those costs in the proceedings, the insurer would not have been able to succeed in its claim.
26. In terms of funding another party's costs, in Bradbury & Ors v Paterson & Ors [2014] EWHC 3992 (QB), the court ordered other parties to fund certain limited costs to be incurred by the Official Solicitor as the litigation friend of a protected party defendant. The case concerned the continuation (or otherwise) of the Official Solicitor in that role and therefore of the claims against the protected party when the Official Solicitor's costs were no longer being met upon the withdrawal of funding. That order was stated to be made pursuant to the court's general case management powers and/ or its inherent jurisdiction, with the other parties' contributions being recoverable or payable by another party as part of the costs of the litigation in due course.
27. In terms of interim costs orders, Mr Jacob relied, by way of example, on Davis v Eli Lilly & Co [1987] 1WLR 1136, a case from the pre-group litigation order era. None of the claimants individually could afford to meet a costs order that might be made but, collectively, they could. The court ordered that the costs borne by the Claimants to the lead action would be borne by all Claimants equally, subject to further order of the court.
28. Moreover, in a further instalment of High Commissioner for Pakistan in the United Kingdom v National Westminster Bank Plc [2015] EWHC 3052 (Ch), the initial funding of the solicitor appointed as administrator of the estate of one of the parties under limited grant to investigate the estate's potential claims to a disputed fund was ordered to be paid from the fund "without prejudice to the question of the incidence of how that sum should ultimately be borne", the court describing that arrangement as a "cash flow order".
29. Mr Jacob also referred me to Macdonald v Horn [1995] 1 All ER 961 concerning the court's ability to make prospective costs orders in the context of a claim by beneficiaries against the trustees of a pension scheme. As to the issue raised in that case concerning the confidence of the court that the order will reflect the final costs order to be made, Mr Jacob says that the court here can be confident since, during the litigation, it would be normal for a litigant – Mr Bourlakov, if still alive - to bear his own costs and, with his death, that position now reflected in a costs order against the Estate in favour of Edelweiss, with no attempt to oust the jurisdiction of the court to determine costs at the end of the case.
30. Put together, Mr Jacob says that these authorities indicate a broad discretion to make costs orders in the interests of justice, a discretion that should be invoked here given that the court has already found it desirable for there to be a representative. The other parties will be relieved of any funding burden – or, in the case of the Claimants, further burden – and the proposed IFO would do no more than Mr Bourlakov would have done had he still been alive, these arrangements subject to further costs orders, as appropriate, in due course.
31. As to those authorities, the Claimants rely on the fact that a non-party costs order will only be made in exceptional circumstances. They accept that "exceptional" in this context really means whether, in all the circumstances, it is just to make the order, a fact-specific inquiry. However, looking at the authorities, there is only one which truly concerns a costs order in favour of a non-party, namely Individual Homes, a markedly different situation from this case concerning, as it did, a de minimis amount of non-party costs incurred by the bank in the production of documents.
32. The first High Commissioner case for Pakistan case was concerned with non-party joinder, including for the purpose of obtaining a costs order, not whether such a costs order should be made. As for the other cases relied on, they do not illuminate the present situation either, this case not being a situation involving a payment from a fund (as in the second High Commissioner of Pakistan case and the Prince of Wales cases). Nor, as was the case in Eli Lilly and Macdonald, are the interests of all the parties aligned here. This case involves adversarial litigation. The one outlier in this context is Bradbury but that case not only concerned an order for the other parties to fund a de minimis amount of costs, the court there made clear that it would hear submissions on whether any further such order was appropriate if the relevant expert assessment to be funded by the other parties indicated that the protected party was indeed incapacious so as to warrant the continued involvement, and therefore funding, of the Official Solicitor.
33. The Claimants say that the funding proposal in this case is effectively for a loan from the Estate dressed up as a costs order in circumstances in which, as Mr Jacob acknowledges, he cannot enter into a loan on the Estate's behalf, as was Edelweiss' original proposal, such a transaction falling well outside the conduct of these proceedings and entering the realms of the administration of the Estate. On any view they say, such an order should not be entertained.

DISCUSSION

34. As well as emphasising the very limited assistance offered by the authorities to Mr Jacob in this context, the Claimants made much before me of their claim to the ownership of Edelweiss and how they said that theirs was by far the better claim. In my view, that argument did not advance matters far on these applications. Indeed, over the course of the prior few days, I had heard a reverse summary judgment and strike-out application advanced by Edelweiss itself as to how the Claimants had no such claim at all, whether viewed as a matter of English law or Panamanian law. It is fair to say that the Claimants were dismissive of that application and I have not decided it yet. However, even if they do manage to defeat that application, the Claimants' position in these proceedings will remain one of multiple rival claimants to the ownership of Edelweiss alongside the Kazakovs and the Estate itself. Although I do, of course, take the Claimants' related arguments into account as to the unfairness of the current proposal, including how it is said that the persons who would benefit the most from this would be the Kazakovs, as I have said, such matters only take them so far for present purposes.
35. More compelling in this context was what was said about the interests of the Estate and how, as is, common ground, although the representative is not expected to be a neutral in his pursuit of the claims and defences on its behalf, he is expected to be impartial as between the different beneficiary and creditor interests which it might comprise.
36. Moreover, it is common ground that it would be far preferable to have someone in place to represent the Estate in the conduct of the proceedings on its behalf and, at least at the present hearing by contrast with those which preceded it, there seemed to be a consensus that, if anyone at all, that person should be Mr Jacob.
37. Finally, it is significant in my view that there is agreement between the active parties – at the level of principle, at least – that Edelweiss fund Mr Jacob, including an apparent consensus, subject to the structuring of that funding, that this should cover all the Estate's defences, counterclaims and additional claims. Indeed, although not expressed in the draft order before the court, it appears to be accepted that this can be accommodated by earmarking the costs of pursuing the Estate's additional claims to the as yet unpaid balance of the money due under the Claimants' indemnity in favour of Mr Jacob.
38. In my view, these matters are more insightful for the purpose of what I have to decide.
39. In terms of the specific proposal here, I accept that, in principle, the court has the power to make: (i) a costs order in favour of Mr Jacob against Edelweiss, subject to Mr Jacob's joinder for that purpose (ii) a costs order in favour of Edelweiss against the Estate to the extent of the funding provided to Mr Jacob and (iii) such further costs orders between the parties in due course as might indeed be appropriate. However, I also accept that such an order requires circumspection, not least given its pre-emptive and non-party elements. The question is whether I should exercise my discretion to make such an order and on the terms proposed by Mr Jacob, as supported by Edelweiss and the Kazakovs. In this regard, beyond the somewhat obvious point that such an order would be unusual, I agree that the authorities cited to me provide little guidance, save to identify the key question as being where the justice of the case might lie.
40. As to whether those proposed orders might meet the justice of the case here, they involve the court making an upfront costs order against the Estate in favour of Edelweiss, the Estate thereby incurring a not insignificant liability in circumstances in which some of the known potential beneficiaries strongly oppose this, and the position of other potential beneficiaries beyond the active parties is unknown. Moreover, in addition to the court being called upon to create upfront that liability in Edelweiss' favour, the proposal envisages Edelweiss enjoying priority over such of the Estate's assets as might be realised in the course of, or as a result of, these proceedings.
41. In this regard, there was some debate as to whether Mr Jacob would have the power to take steps to crystallise on its behalf any proceeds of litigation that might arise in the Estate's favour, the Claimants saying that this too fell well outside the scope of a representative's powers and duties. They also say that, although this court may have found that the representative does have the power to bring counterclaims and additional claims, it has rejected a duty to recover assets, and it would be quite another thing altogether for fresh claims to be brought for the enforcement of court orders or judgments.
42. In my view, the Claimants' position, expressed by reference to the different role of a grantee of letters of administration, again rather lost sight of the role and powers of a representative. I agree with Mr Jacob that his position as representative overlaps to a not insignificant degree with the powers that might be exercisable by such a grantee, albeit subsisting in the much narrower context of these proceedings. Indeed, in my view, it would be odd if, as he does, the representative had the power to bring an application, including applying for the Estate's costs, and yet could take no steps to demand and compel their payment following their summary assessment or an order for a payment on account. Likewise, one only need look, for example, to the powers to call for documents, made explicit in my prior orders, in respect of which one could envisage the commencement of further proceedings, possibly in another jurisdiction, to secure the possession of documents for the Estate's claim here.
43. In my view, the position is therefore not as black and white as the Claimants say, albeit it is not necessary for me to decide now whether the broader enforcement powers envisaged by the draft order do, in fact, go too far. That is because I do agree more generally that the creation now of what would undoubtedly turn out to be a not insignificant liability against the Estate in favour of Edelweiss at a not insignificant rate of interest and with priority repayment would be going too far in encumbering the Estate in circumstances in which it has no crystallised assets of its own in this jurisdiction, there is no administrator here, the potential beneficiaries of the Estate participating in these proceedings have differing views of the proposal, the position of potential beneficiaries further afield is unknown and the Claimants have themselves already funded a very significant portion of Mr Jacob's costs. I am therefore unable to conclude that the proposal, in its present form, meets the justice of what is required in this case. I reach that view notwithstanding the ability of the court to make further directions and costs orders in due course, which might mitigate some of these concerns.
44. Having come to the view, therefore, that I should not bless the proposal presently before the court, it now falls to me to decide what to do next. A number of countervailing considerations inform that decision. First, the parties have, of course, been discussing matters for a number of months without reaching an outcome which the court can endorse. Second, however, in that time, the parties have come a significant distance to reach a point that there was, at last, a proposal agreeable in principle at least to all the active parties, including those claiming an interest in Edelweiss and in the Estate. Third, the court and, I believe, the parties remain of the view that it would be desirable to have Mr Jacob as representative of the Estate going forward. Fourth, as I have also indicated, I am concerned that the issue should not divert these proceedings from their path or impinge on the necessary preparations for, and conduct of, the CMC in May.
45. What I am therefore going to do is this. I shall give the parties one last, short opportunity in light of what I have said and will go on to say, to see if they can put in place a more straightforward funding arrangement which does not give rise to the issues I have indicated. It may well be that Mr Jacob has had quite enough of the ongoing uncertainty and further sporadic costs being incurred and wishes to draw a line under matters now. If so, he is free to say so. I have to say that I am not optimistic, not least given the apparent lack of discussion between the parties since the last hearing. It may also be that Edelweiss simply cannot swallow making an alternative proposal in circumstances in which the court's expectations will be far less commercial in its favour. It may also be that the Kazakovs maintain their stance that they will not make a contribution.
46. Recognising these realities, I will nevertheless adjourn the present applications and give the active parties one final opportunity until 4.30 p.m. on 25 April 2025 to report back to me as to whether agreement has been reached and, subject to any approval of the court as might be required then, whether there is a funding regime in place. It may well be that there is now simply insufficient time for that to happen. Either way, I will then decide the next steps. Having heard from the parties orally on this matter twice, I will do so without a further hearing as opposed to brief written submissions which the parties shall be at liberty to make. I will then dispose of the present application on the papers, endeavouring to render promptly my decision so that the position is clear before the CMC. I will also make directions then for how consequential matters, including those arising from November's applications, should be dealt with, in all likelihood again on the papers. I make clear that I may adopt, adopt with amendment or reject any alternative proposal that might be advanced and for which my approval might be required, I may discharge Mr Jacob, I may continue the stay of Estate-related claims, or I may make a different – in all likelihood, much simpler – funding order. Any written submissions should anticipate those potential outcomes. They should not repeat what has been said before, they should not exceed 10 pages and I would encourage them to be less.
47. In terms of any proposal that might yet be put forward for my approval, including one in which Edelweiss does remain in the game, as to some of the more granular aspects not yet touched upon, but which also contributed to my decision not to approve the current proposal:-

(i) any proposal should encompass all claims by and against the Estate, which, as I say, appears to be agreed in principle at least;

(ii) I agree that there should be costs budgeting into which the active parties should, if so advised, have input, not limited to Mr Jacob and the funding party. If possible, that budget should be agreed by the parties but, in any event, there would need to be a clear mechanism for court approval;

(iii) I do not consider it appropriate for me to make an order recording the agreement of the Claimants to use the funds held in the Bahamas. The fact that the court has mechanisms giving effect to certain agreements does not answer the question why the court should compel such an agreement in the first place. Those funds are subject to a regime carefully worked out by the Bahamian court. To impose an agreement with a view to engaging that regime seems to me to represent an inappropriate interference not only with party autonomy, but also with the orders of another court of competent jurisdiction;

(iv) If an acceptable proposal is put forward involving Edelweiss, I agree that this should be excepted from the scope of the existing undertakings;

(v) Moreover, if Edelweiss is still willing to fund, I am satisfied that Mr Jacob should receive comfort as to the risk of future claims on account of the ongoing ownership struggle over that company;

(vi) I also agree the comfort should also be provided about the risks of adverse costs orders or orders for security for costs where such orders might be sought on the basis of Mr Jacob's funding arrangements and;

(vii) Finally, this is no indication of where the court might eventually land since it has not decided the summary judgment and strike-out applications, but any proposal which might continue to involve Edelweiss as a funder should have regard to its position if it succeeds on those applications. I say that for the simple expedient of avoiding having yet again to visit the funding question in that event.

48. I will therefore hear from the parties in writing, if they are so advised, by 25 April 2025 or in advance if a more definitive position is indicated prior to then.
49. That concludes my ruling. If there is anything I need to hear from the parties about today, I will do so but I have made clear my position in relation to the disposal of consequential matters.