The High Court refused Eurotoaz Limited and Andrey Gennadyevich Babichev permission to cross-examine Bairiki Incorporated director Leonard Ke-Chung Waller-Diemont before a hearing on proposed amendments to a commercial case. Mr Justice David Barniville delivered judgment on 1 February 2021.
The proposed amendments concern alleged migrations of Trafalgar Developments Limited from Anguilla to St Lucia and Bairiki from Nevis to the British Virgin Islands. The plaintiffs say the companies together own about 32% of Russian company OJSC Togliattiazot. Their wider case alleges that the defendants mounted a raider attack to acquire the plaintiffs’ shares at a gross undervalue and gain control of ToAZ. The represented defendants deny those allegations.
Bairiki’s migration is disputed. Eurotoaz’s legal expert, Jean Dyer, said the certificate filed in Nevis omitted a Russian judgment against, among others, the plaintiffs, and that a certificate confirming continuation in the BVI was filed outside a statutory 30-day period. She considered the migration invalid. The plaintiffs’ expert, Jonel Powell, disagreed on the legal consequences and said the migration stood unless successfully challenged in Nevis. Those were expert opinions, not findings in this judgment.
In an affidavit, Mr Waller-Diemont said he had overlooked the Russian judgment when signing Bairiki’s Certificate of Departure. He attributed the omission to an error and to reliance on Bairiki’s latest accounts, which predated the judgment. Eurotoaz argued that this explanation was not credible and that cross-examination was needed, among other reasons, to challenge it. The plaintiffs opposed the request, saying the amendment hearing was not the place to resolve the migration’s validity or the director’s credibility.
The judge held that the amendment application was interlocutory and would not determine the parties’ substantive rights or the validity of either migration. He said the court should not resolve the underlying facts or conduct a mini-trial at that stage. Even if amendments were allowed, Eurotoaz could dispute the migrations at trial, where the plaintiffs would have to prove their case and witnesses could be cross-examined.
The court also rejected cross-examination on the other grounds advanced, including the alleged raider attack and abuse of process, the interpretation of an earlier Eastern Caribbean judgment, and the briefing of the plaintiffs’ legal experts. It did not decide whether the migrations were valid, whether Mr Waller-Diemont’s explanation was true, or whether the proposed amendments should be granted. The amendment application was listed for 2 and 3 February 2021; this judgment decided only the cross-examination request.