By John Helmer, Moscow
The full text of Justice Dame Elizabeth Gloster’s judgement in the UK High Court case of Boris Berezovsky v Roman Abramovich runs to 356 pages, 1253 sections, one appendix, and 555 footnotes. She is kindly toward the case lawyers, the computer system operators, the courtroom administrators, and the simultaneous translators. She is unapologetic about the length of the judgement, citing Blaise Pascal to the effect that she lacked “the leisure to make it shorter” (footnote 555 gives the original French in case of appeal against the judge’s translation).
The judgement demolishes Berezovsky’s claims, credibility and character, bit by bit . That’s old news, released in the executive summary on August 31 .
The only other person to cop the judge’s conviction that he was a liar is the English lawyer Stephen Curtis, killed in a helicopter crash in 2004 after claiming, in relation to his Russian clientele: “if anything happens to me…it won’t be an accident”. About him Justice Gloster declares: “It is not necessary for me to decide whether Mr. Patarkatsishvili alone was dishonest in possibly suggesting to Mr. Curtis, that Mr. Patarkatsishvili, Mr. Fomichev and Mr. Tenenbaum had indeed had the discussions in Russian, which the notes purport to record (Mr. Curtis not being able to speak or understand Russian); or whether Mr. Curtis, either alone, or together with, Mr. Patarkatsishvili, was dishonest in purporting to record that such discussions had taken place in English in Mr. Tenenbaum’s presence, as the notes appear to suggest; although I consider that the hypothesis that both men were dishonest is the more likely. If it were necessary to do so, I would not have difficulty in holding that Mr. Curtis was indeed dishonest in this respect, despite the fact that he was, to use Mr. Rabinowitz’s words, ‘an English solicitor’. His conduct in relation to the Spectrum and Devonia transactions demonstrated, as Mr. Abramovich’s closing submissions somewhat euphemistically put it: ‘… a track record of recording meetings so as to create a desirable, rather than necessarily truthful, version of events .’ Or, in more blunt language, that Mr. Curtis was quite prepared to manufacture sham documents where it suited his clients’ purposes and created a significant fee opportunity for himself” (Section 1145).
Earning significant fees for themselves was exactly what several of the lawyers acting before the judge from all sides were doing. Shamming documents was also what several of the principal witnesses, whom Justice Gloster says she believed to be credible and honest, admitted to doing. It isn’t clear why the judge came down so hard on the dead Englishman.
It is also apparent from the small print that Justice Gloster has her favourites; for them she also has had a lapse of evidential judgement. She refers, for example, to “Mr. [Alexander] Bulygin, the draftsman of the [Rusal sale] agreement, who, because he was ill, could not attend the trial” (1121). The judge had accepted as fact a claim which she should have verified, or avoided accepting if she couldn’t.
In fact, according to those who know him well, the only malady Bulygin was suffering from was fear – fear of making admissions under cross-examination which might have contradicted the credibility of Abramovich, or of Oleg Deripaska, Bulygin’s former boss when Bulygin was chief executive of United Company Rusal and its predecessor, Sibal. Not that Bulygin’s evidence was likely to have assisted Berezovsky. But if he had appeared in the witness box to testify, he might also have been obliged to testify in the far more telling case of Michael Cherney v Oleg Deripaska, under way in parallel in the High Court. Bulygin is quite ill trying to escape that one.
What Justice Gloster didn’t know about that non-appearance, she appeared to object to in the non-appearance before her of Michael Cherney (Chernoy). “I have already described the circumstances in which Mr. Michael Cherney declined to give evidence, even by way of video link,” the judge claims. “In the absence of cross-examination, I am not prepared to attach any weight to this untested statement which not only has a reference to the wrong date but also was wholly dependent upon what his brother had told him” (1072).
As they prepare for the resumption of the Cherney proceeding on September 27, lawyers for Deripaska will find nothing of benefit in remarks like that. Gloster has proved to be a novice in Russian business affairs; by contrast, Justice Andrew Smith, who is presiding in the Cherney case, has had far more experience of Russian business litigation and he hasn’t played favourites. Gloster relies on the evidence of Deripaska regarding his transactions with Abramovich, but she makes no judgement relevant to the facts in the Cherney proceeding.
Gloster also missed her Curtis opportunity to reflect on exactly who it was behind the campaign of administrative pressures and gangland threats which forced the sale of the Krasnoyarsk Aluminium Plant (KrAZ) to the partnership between Abramovich and Deripaska between 1999 and 2000. Gloster said she believed testimony from Vasily Anisimov, one of the KrAZ sellers, that “by the end of 1999 the aluminium plant at Krasnoyarsk was in a desperate situation, and coupled with concerns about his personal safety, and that of his employees, Mr. Anisimov was effectively forced out of business and decided to sell his share of the aluminium assets as quickly as possible” (1002).
She also ruled that she believed Abramovich wanted to end his entire business relationship with Deripaska, but she omitted to explain Deripaska’s contribution to this outcome. “In summary, I find the relevant facts to have been as follows: In February 2003, Mr. Abramovich visited Mr. Patarkatsishvili and told him in general terms that he was thinking of terminating all his joint ventures with Mr. Deripaska and selling out to him. These included not merely RusAl but also joint ventures in a car manufacturing business and an energy business. Although Mr. Abramovich had not made up his mind at this time as to whether he would actually sell out to Mr. Deripaska, their respective management teams were clearly finding it difficult to work together. Mr. Abramovich’s reasons for this decision had nothing to do with either Mr. Berezovsky or Mr. Patarkatsishvili. Apart from the fact that his team was finding it difficult to work with Mr. Deripaska’s team, Mr. Abramovich took the view that his investment in the aluminium business had paid off sufficiently and he was committed to a new project in the oil industry, upon which he wanted to focus. Mr. Abramovich told Mr. Patarkatsishvili that Mr. Deripaska and he had different understandings about the future development of the business, that he had formed the impression that Mr. Deripaska was ‘trying to squeeze us out’ and that Mr. Deripaska preferred to work ‘solo’ in the sense of wanting to make all the decisions on his own” (1184).
A telling point about Deripaska’s squeeze-out tactics in drafting sale and purchase agreements with shareholders like Abramovich must still be decided by Justice Smith in Cherney’s case. Gloster’s ruling is intended to deliver a direct blow against Berezovsky’s claims, but falls short of testing the veracity of other claims. “Although the point clearly raised serious questions about whether Mr. Abramovich and Mr. Deripaska were indeed telling the truth about their [Rusal sale] agreement, I am satisfied, having heard both men in the witness box, and notwithstanding the slight inconsistencies in their evidence, and the absence of any written record, that they did indeed reach the commercial deal to which both men referred… it was Mr. Abramovich who wanted to exit his partnership with Mr. Deripaska, not Mr. Deripaska who wanted to purchase the shares from Mr. Abramovich. A right of pre-emption given to Mr. Deripaska in the event that Mr. Abramovich found an alternative purchaser (rather than a right to Mr. Deripaska to control the timing of the sale) was consistent with that. Moreover Mr. Deripaska was protected by the fact that he had 75% control of RusAl, with no minority blocking rights in the various holding companies. Mr. Abramovich had been compensated by the substantial control premium paid for the first 25% tranche” (1186).