- Abuse of process—Can a party apply to set aside an interlocutory order on the grounds of material change of circumstances where the party instigated the change itself? (JSC VTB Bank v Skurikhin)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Dispute Resolution analysis: The Court of Appeal dismissed the appeal of The Berenger Foundation (Berenger) against the decision of the judge at first instance (Patricia Robertson QC) that it was an abuse of process to apply to set aside an order for the appointment of receivers over membership interests in an English limited liability partnership (LLP) on the grounds that there had been a ‘material change of circumstances’ where those circumstances were brought about by Berenger itself. The circumstances in this case were that Berenger passed a resolution excluding a beneficiary, Mr Skurikhin, from the class of beneficiaries of Berenger but only at a time when enforcement actions were well advanced by the claimant, JSC VTB Bank (VTB) against Mr Skurikhin and in a clear effort to put assets out of the reach of enforcement. The Court of Appeal applied the test set out in Johnson v Gore Wood & Co of a ‘broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focussing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before’. Written by Michael Rhode, senior associate, at Trowers & Hamlins LLP.
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