Day 10

Bank St Petersburg v Vitaly Arkhangelsky [Master]

Day 10

Bank St Petersburg v Vitaly Day 10
Arkhangelsky [Master]

1 :1 Monday, 15 February 2016
2 (2.00 pm)
3 Housekeeping
4 MR JUSTICE HILDYARD: Yes, good afternoon.

5 MR BIRT: Good afternoon, my Lord.

6 MR JUSTICE HILDYARD: Good afternoon.

7 MR BIRT: My Lord, there are a small number of items to run

8 through which we thought it would be grateful to

9 finalise if possible before the parties and

10 your Lordship move off to Paris during the course of

11 tomorrow.

12 There are a number of matters which are now agreed

13 between us, or at least largely agreed, and a number of

14 matters which require a little bit of explanation to

15 your Lordship.

16 I was proposing, subject to your Lordship’s views,

17 to take as an agenda the list of outstanding matters

18 that we circulated last Friday. I don’t know if

19 your Lordship has a copy of that to hand?

20 MR JUSTICE HILDYARD: Hold on. I have been slightly swamped

21 by paper.

22 MR BIRT: I can certainly give you a Magnum reference, if we

23 have another copy.

24 MR JUSTICE HILDYARD: Yes, thank you. I am sorry.

25 I probably have got it somewhere.

2 :1 MR STROILOV: It is {I22/29/57}.
2 MR JUSTICE HILDYARD: Thank you.

3 MR BIRT: My Lord, have you found a hard copy? We have

4 a spare one if you need one?

5 MR JUSTICE HILDYARD: Yes, please. Yes. (Handed).

6 Thank you. Does Mr Stroilov have that?

7 MR BIRT: I think he does, my Lord, yes. (Handed).

8 MR STROILOV: Thank you very much.

9 MR BIRT: I am in your Lordship’s hands. If you want me to

10 give you a brief summary first, or just run through

11 them —

12 MR JUSTICE HILDYARD: Whichever you think is most helpful.

13 MR BIRT: It is probably best to start from the top,

14 my Lord.

15 Timetable is something which it would be good to

16 make progress on today, and it is the first item.

17 MR JUSTICE HILDYARD: Yes.

18 MR BIRT: My Lord will recall there was a discussion in

19 court on Friday. Further to that, those instructing me

20 gave further consideration to the position in light of

21 what had been said on Friday, and we anticipated

22 receiving something from the defendants over the

23 weekend. Having not received anything, we have proposed

24 our own revised version, which I hope my Lord has

25 received.

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

3 :1 If you don’t have a copy to hand, I can certainly
2 hand you up a copy of that.

3 MR JUSTICE HILDYARD: I think the difference is that,

4 especially in week 10, we have Mr Smirnov after the

5 court vacation.

6 MR BIRT: Yes. My Lord, we took on board the points my Lord

7 had made about what was week 6, I think, or week 7,

8 looking quite heavy.

9 MR JUSTICE HILDYARD: Yes.

10 MR BIRT: There was a week which contained both Mr Savelyev

11 and Ms Mironova on the previous draft.

12 MR JUSTICE HILDYARD: Yes.

13 MR BIRT: And we took on board the fact that it appeared

14 from what Mr Stroilov had said that there were, in

15 effect, a sort of big four of the claimants’ witnesses

16 in his eyes comprising Messrs Savelyev, Smirnov,

17 Sklyarevsky, now it seems, Ms Mironova.

18 So we have sought to re-order the witnesses, so each

19 of those four come in separate weeks. The other shorter

20 witnesses then work around them.

21 So, for example, in what was the heavy-looking week,

22 week 7, we have taken out Ms Mironova from that week and

23 we have put in Ms Yashkina, who is a shorter and lighter

24 witness. I think Mr Stroilov’s previous estimate, at

25 least until his e-mail of today, was that she would be

4 :1 one day, and it seemed to us that would be
2 an appropriately short witness to put in the same week

3 as Mr Savelyev.

4 MR JUSTICE HILDYARD: Mm hmm.

5 MR BIRT: The result of that is that one of the larger

6 witnesses gets pushed past the Easter vacation, and on

7 this draft the one that works in terms of his own

8 availability and everybody else’s availability is

9 Mr Smirnov. He would now come in the first week after

10 the Easter vacation.

11 Crossing with our draft was the e-mail from

12 your Lordship’s clerk this morning, which coincidentally

13 made that sort of suggestion, that one of the witnesses

14 go past, and your Lordship said if it would make things

15 easier you could sit on the first day of that week,

16 being the last day of the vacation. We are in

17 your Lordship’s hands as to that, and if you would like

18 to do that, we have made inquiries of Mr Smirnov, who,

19 I should add, is still in hospital recovering from his

20 operation, but he would be prepared to come a day

21 earlier so we could start his evidence on the 4th, if

22 that would provide additional flexibility during the

23 course of that week and less disruption to later parts

24 of the timetable.

25 I should also add, turning back to week 5 and week

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

5 :1 6, Mr Stroilov has expressed some concern about
2 Mr Sklyarevsky, and, as the timetable notes, he is

3 unavailable on 9 March, as I think is Mr Stroilov, based

4 on his e-mail.

5 MR JUSTICE HILDYARD: Yes.

6 MR BIRT: We have also made inquiries of him, and again,

7 although he doesn’t work for the Bank, he would be

8 prepared to come the previous week, so his evidence

9 could be started on Friday, 4 March, which would seem to

10 deal with a number of points: one is, it would allow

11 flexibility for the end of his evidence, in other words,

12 whether it is two or three days, it could then be

13 accommodated. It would also allow for the possibility

14 of his evidence being completed on the Monday, or at

15 least substantially on the Monday, so that, in effect,

16 there may be two days off in that week, being the

17 Tuesday and the Wednesday.

18 MR JUSTICE HILDYARD: Yes.

19 MR BIRT: Of course, it may be inconvenient for him to have

20 to stay in purdah and in London over the weekend but he

21 is prepared to do that to accommodate the exigencies of

22 this case.

23 The other element of this timetable on which there

24 has been some focus is the evidence of Mr and

25 Mrs Arkhangelsky in Paris.

6 :1 MR JUSTICE HILDYARD: Mm.
2 MR BIRT: Just taking it in stages, what we had done in our

3 timetable, circulated yesterday, bearing in mind the

4 submissions made last week that it would be preferable

5 for Mrs Arkhangelsky to be starting and finishing on the

6 same day, was effectively to allow for a bit of

7 flexibility, but on the basis that we would hope that

8 she could be, and that things, we anticipated, would

9 become clearer after two or three days of

10 Mr Arkhangelsky’s evidence; matters such as the pace of

11 how things are going, the ground that can be covered,

12 the matters that Mr Arkhangelsky can cover that then

13 don’t need to be covered by Mrs Arkhangelskaya and so

14 on.

15 Mr Stroilov suggests in his e-mail today that there

16 needs to be a clear day between Mr and Mrs Arkhangelsky

17 because of practical arrangements that need to be made.

18 MR JUSTICE HILDYARD: Yes.

19 MR BIRT: Now, I think that is a first for us, in terms of

20 hearing that news. There has always been a day in

21 the middle which has been marked just as much spillover

22 as anything else, and of course, we can’t see behind

23 that, we don’t know what arrangements have been made, or

24 are possible, or could be made, or what time the trains

25 can go and so on check.

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

7 :1 What we propose, my Lord, for now, is to see how we
2 go, and we will do our best to accommodate that but we

3 cannot make any promises, and we will just have to see

4 how it goes with Mr Arkhangelsky and what sort of pace

5 is achieved. We would hope that there wouldn’t be

6 a problem. We are certainly not going to detain anybody

7 longer than they need to be detained to give their

8 evidence but at the end of the day, both Mr and

9 Mrs Arkhangelsky are claimants seeking more than

10 $700 million in judgment, and litigants would normally

11 be expected to make themselves available for reasonable

12 periods of time.

13 My Lord, we don’t ask you to make a direction in

14 relation to that, but simply, really along the lines we

15 are proceeding so far, is that we will do our best and

16 see how we go and if it has to be revisited at the end

17 of week 3, at the end of this week, then we can give

18 an update on how we are going and how we see things

19 progressing. I hope that is a practical way to move

20 forward, rather than our trying to lay down rules now

21 that we expect —

22 MR JUSTICE HILDYARD: This is in case you need a sixth day

23 with Mr Arkhangelsky?

24 MR BIRT: My Lord, it is, yes.

25 MR JUSTICE HILDYARD: And your flexibility would mean what,

8 :1 in terms of Mrs Arkhangelsky making travel arrangements
2 and plans for her children?

3 MR BIRT: Well, in a sense it is quite hard for us to

4 suggest what those should be. We don’t know what the

5 possibilities are, what they might be, or how they could

6 be changed. We are, of course, sympathetic to the need

7 for these things to be put in place. We do remember

8 that there was a time in December when your Lordship was

9 trying to list the second PTR, when both Mr and

10 Mrs Arkhangelsky said they couldn’t attend because they

11 were both attending meetings in Paris with their

12 lawyers.

13 So, again, there’s a curtain behind which we cannot

14 really peer, but we have noticed in the past they have

15 both been able to travel away from Nice at certain

16 periods. We just don’t know whether that is

17 a possibility now or whether it is not a possibility,

18 but what we would suggest is that we will do our best

19 and that we will revisit it once we have seen the pace

20 of progress with Mr Arkhangelsky. It may be that it can

21 be accommodated by longer days, but we don’t know how

22 that would work in terms of stamina for everybody,

23 including, of course, the witness, my Lord.

24 MR JUSTICE HILDYARD: I don’t think we should have a day on

25 which it is proposed that both of them may be examined.

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

9 :1 I mean, I remember that one of the points the Court of
2 Appeal made, now a long time ago, when the freezing

3 injunction examinations were ordered, that

4 Lord Justice Longmore made express provision that there

5 was not to be overlap because of their childcare

6 commitments, so I don’t think we should have that, and

7 I think that something has to give, therefore. What

8 looks to me is going to have to give is that on the

9 24th, that must be a Mr Arkhangelsky, hopefully,

10 spillover day.

11 MR BIRT: Finishing off.

12 MR JUSTICE HILDYARD: Yes, and that we then start with

13 Mrs Arkhangelsky on the 25th, and if it be the case that

14 it goes into the 26th, then I am sorry, as many would

15 be, but so be it. I think that that is, subject to

16 anything Mr Stroilov says to the contrary, or in

17 support, my feeling is that we should make sure that

18 there is clear water between Mr and Mrs Arkhangelsky, so

19 that they should have the reassurance now that they will

20 be able to do what they need to do with their children

21 on the assumptions that I am working on.

22 MR BIRT: Very well, my Lord, we will certainly take that on

23 board. As I say, it may be that Mr Arkhangelsky can be

24 finished by the 23rd or if he is required for the 25th

25 we are talking about a couple of hours in the morning to

10 :1 finish putting the points and travel can then be
2 undertaken in the afternoon, but we take that on board

3 and we —

4 MR JUSTICE HILDYARD: And like you, it would be nice to

5 think one could finish off days, if necessary, by

6 sitting later, but it is very tiring being

7 cross-examined, and it is very tiring cross-examining,

8 and I think it usually is a short road to a rather

9 longer way in the end, actually.

10 MR BIRT: Quite so, my Lord, which is, I suppose, why we are

11 slightly anxious about not committing to a hard deadline

12 to finish Mr Arkhangelsky at this stage.

13 MR JUSTICE HILDYARD: All right.

14 MR BIRT: Fine, we will take those points on board, my Lord.

15 That is all understood.

16 I think the only other point I ought to refer to on

17 the timetable relates to Mr Stroilov’s letter of this

18 morning.

19 MR JUSTICE HILDYARD: Yes.

20 MR BIRT: As well as dealing with some of the points that

21 I have already covered, he makes various points about

22 the availability of the defendants’ experts.

23 Just looking at our draft timetable, we have the

24 experts starting on 8 April and running through to

25 19 April.

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

11 :1 MR JUSTICE HILDYARD: Yes.
2 MR BIRT: The points that I think Mr Stroilov takes are as

3 to availability of some of the individual experts.

4 MR JUSTICE HILDYARD: Yes.

5 MR BIRT: It is said, for example, that Professor Guriev is

6 only available on one day during April.

7 MR JUSTICE HILDYARD: Mm.

8 MR BIRT: Which, we note in passing, is something that might

9 have been mentioned earlier. I think Professor Guriev

10 has been in the timetable in April for some weeks now,

11 but that is a comment, rather than anything else.

12 MR JUSTICE HILDYARD: Yes.

13 MR BIRT: Similarly, Dr Gladyshev is apparently not

14 available from 8 to 18 April.

15 Well, those points can be dealt with, my Lord,

16 I don’t think that requires a vast rewriting of

17 the timetable. Some shuffling of the experts so that

18 Mr Guriev and Mr Turetsky are not the first ones on

19 8 April, but in fact they can come on the 12th, and we

20 could put some of the valuation experts in before them.

21 At the moment handwriting evidence, if required, is down

22 for the 19th. That slot could easily be moved to

23 the 15th and the Russian law experts shuffled along by

24 a day so that Mr Gladyshev is not coming until the 19th.

25 Subject to the checking of the availability of our

12 :1 own experts, that is the sort of arrangements we would
2 propose. It doesn’t require any more radical

3 re-writing, it is simply shuffling around to accommodate

4 the particular availabilities that have now been aired.

5 I think the other point that Mr Stroilov made was in

6 relation to the valuation experts, in particular, that

7 he suggested that there might be further trial

8 management directions as to the expert evidence in

9 relation to those disciplines. We are not quite sure

10 what he has in mind. We are proceeding on the basis

11 that Mr Lord outlined at the end of last week, that

12 those experts will come in the slot that we have

13 currently in the timetable, subject to any shuffling

14 around that has to be done to accommodate the new

15 information on availability, but I don’t think I need to

16 address your Lordship further on that now, subject to

17 anything that Mr Stroilov might say.

18 My Lord, I think that is how we see the timetable

19 going. If there is anything else I can assist you with

20 now, I will do so, otherwise I will wait for

21 Mr Stroilov.

22 MR JUSTICE HILDYARD: Yes. Thank you.

23 Mr Stroilov, thank you for coming up.

24 MR STROILOV: Yes, my Lord. I begin by apologising for

25 writing about this only so late. It is difficult,

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

13 :1 really, to keep up to speed with everything.
2 Just taking the nearest points, difficulties in

3 time, first. I think the problem with week 4 is really

4 that it can be — I think the break we need, it can be

5 reduced to half a day, but the problem is that our bad

6 luck is that it is also school holiday, the Wednesday,

7 in week 4, which is 24 February, it is a school holiday

8 in France, so someone must be at home all the time.

9 So if Mr Arkhangelsky can be finished by lunchtime

10 on the 24th and Mrs Arkhangelskaya starts on the 25th,

11 that’s all right with us. Or otherwise if she has to

12 start on the 24th, then Mr Arkhangelsky has to be

13 finished on the 23rd and she starts not before

14 lunchtime. That’s unfortunately the logistical

15 limitation we have.

16 MR JUSTICE HILDYARD: Maybe I have misunderstood that. If

17 Mr Arkhangelsky finishes, say, at lunchtime on the 24th,

18 that would enable him to travel back to Nice that day.

19 MR STROILOV: Yes.

20 MR JUSTICE HILDYARD: And then for Mrs Arkhangelsky —

21 because I imagine communications between Paris and Nice

22 are very good. I know the TGV will run, as well as

23 flights, I should imagine.

24 MR STROILOV: Well, I have never tried, but I believe if it

25 is as your Lordship says, Mr Arkhangelsky finished by

14 :1 lunchtime, then Mrs Arkhangelsky can start the next day,
2 the next morning.

3 MR JUSTICE HILDYARD: Fine. Okay.

4 MR STROILOV: So that’s possible. But this break, at least

5 half a day break, is necessary.

6 MR JUSTICE HILDYARD: Yes.

7 MR STROILOV: My Lord, otherwise, in terms of claimants’

8 witnesses, I think the real issue is everyone’s

9 scepticism of my time estimates, including my own

10 scepticism of them. I simply say on that that there is

11 a risk if too short estimates are given, in my

12 submission, a guillotine would clearly be unfair.

13 I definitely need a two-day break between witnesses, and

14 I submit it is not unreasonable given especially the

15 importance of these witnesses, and the risk is the

16 timetable will be jeopardised again.

17 I am in your hands what is the lesser evil.

18 MR JUSTICE HILDYARD: Have you had a look at this revised

19 timetable?

20 MR STROILOV: Yes, I have.

21 MR JUSTICE HILDYARD: Your problems don’t begin until

22 week 6, really.

23 MR STROILOV: Yes.

24 MR JUSTICE HILDYARD: In week 5 you have asked for

25 Mr Sklyarevsky to start on the 4th because he is

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

15 :1 unavailable, as are you, on the 9th, and I think that is
2 agreed, and as you won’t have had to cross-examine in

3 that week, although we will then have a four-day week,

4 that should be acceptable. So we will have

5 Mr Sklyarevsky beginning on the 4th, and it is your

6 estimate that you will need until the 8th to complete

7 him?

8 MR STROILOV: I do think so, my Lord.

9 MR JUSTICE HILDYARD: That’s your estimate. I think, having

10 read the witness statements again, that you may beat

11 your own target, but we will give you the benefit of

12 the additional time.

13 There will then be a day where it will be a reading

14 day. You indicate Ms Kosova should be two to three

15 days. I must say, I thought three days — do you really

16 think that?

17 MR STROILOV: Well, I do, my Lord. If you have seen the

18 size of her statement.

19 MR JUSTICE HILDYARD: It is long, it is 90 pages.

20 MR STROILOV: She deals with all — every single —

21 MR JUSTICE HILDYARD: I think she was the adviser, wasn’t

22 she, to Mrs Malysheva, was she? No, which was the

23 adviser to …

24 MR BIRT: Ms Kosova was one of the in-house lawyers for much

25 of it.

16 :1 MR JUSTICE HILDYARD: Yes, I remember.
2 MR BIRT: And her statement is really a pulling-together of

3 many of the documents relating to the proceedings,

4 whether or not she had a first-hand involvement in them,

5 my Lord.

6 MR JUSTICE HILDYARD: Yes, I would have thought you ought to

7 be able to get —

8 MR STROILOV: I suppose the second bit is that I understand

9 she was primarily responsible for conducting the

10 litigation on behalf of the Bank over the past — well,

11 the more recent part of it, as opposed to Mr Balandin

12 who was there before. So I would want to ask some

13 questions on disclosure and this kind of thing.

14 So I think with a fair wind I might finish in two

15 days, but it may overspill into the third day.

16 MR JUSTICE HILDYARD: Just look at week 6, when you have

17 Mr Sklyarevsky and Ms Kosova. It does provide for four

18 days. I know you have indicated three days is your

19 maximum, but you will have had some considerable time to

20 prepare, and I do have to keep this, consistently with

21 fairness, running a bit. Are you objecting to week 6 as

22 projected?

23 MR STROILOV: Well, I am afraid I am. If I am lucky and

24 finish with Mr Sklyarevsky on the 7th, then yes, then

25 I don’t mind starting with Ms Kosova on the 10th. But

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

17 :1 if I don’t, it would really be — well, it is going to
2 be impossible. I’m sorry to complain, but it is really

3 very hard to do it alone. I will have to ask for

4 a break until the 11th, and that is, obviously, the

5 beginning of the whole thing slipping. That’s my worry.

6 Obviously it is a question of — there are two risks, in

7 a way. If you accept my timetable and then we end up

8 having two-day weeks, that’s in a way, wasteful, but on

9 the other hand, if I am right about it, but because

10 no one is sure I am right, we make it too tight, it will

11 be jeopardised again.

12 Then, again, of course, before Mr Savelyev,

13 I definitely want a two-day — two-working-day break.

14 By that I mean I will be working during the previous

15 weekend and these two weeks.

16 I really feel that these cross-examinations actually

17 need a much more thorough preparation than all the

18 witnesses I have cross-examined over the past two weeks.

19 These are really the key witnesses. Most of them are

20 alleged to be conspirators, and they give evidence on

21 really crucial events.

22 MR JUSTICE HILDYARD: Well, I suppose we could, subject, of

23 course, to anything Mr Birt says, we could — and I have

24 pre-clearance from my wife in this regard — that we

25 could steal 4 April for Ms Yashkina, then have

18 :1 Mr Smirnov, Mr Smirnov. I know you think three to four
2 days. I think four days really is pushing it, as far as

3 I can see, but you do have an overspill day on the

4 reading day, which would take you maybe over three days,

5 but not too bad, and that would give you a little bit of

6 breathing space to shove back Ms Kosova, maybe to 2.00

7 on the 10th, maybe, I don’t know, if she can be made

8 available, and take her into week 7 if you need it.

9 MR STROILOV: I wonder if we are looking at the same

10 timetable, my Lord. We are looking at …

11 MR JUSTICE HILDYARD: I have Ms Kosova on the 10th and 11th

12 and Ms Yashkina on the 14th.

13 MR STROILOV: Yes.

14 MR JUSTICE HILDYARD: My proposal would be to take

15 Ms Yashkina out of the 14th and dump her on 4 April,

16 gaining a day, if you like, by stealing from the court

17 vacation. Then you would have the 14th and 15th

18 available, as you like. I know you want a day — you

19 would like two days before Mr Savelyev, I know, but if

20 you start Ms Kosova on the 10th, 11th, spill over

21 a little bit if you really need to on the 14th, have the

22 rest of the 14th, have the whole of the 15th, you could,

23 if you want, start late on the 16th and continue on into

24 the 18th with Mr Savelyev, if you wanted.

25 I mean, it is a bit of a cat’s cradle, isn’t it: you

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

19 :1 pull on one string and another, unbeknownst to you,
2 twitches. The most I think I can see doing with the

3 factual witnesses is, as I say, stealing a bit from the

4 vacation and moving Ms Yashkina, if available; how do

5 you feel about that?

6 MR STROILOV: Well, my Lord, in a way, it is an optimistic

7 timetable, on my view. If it goes well, and I really

8 finish with Mr Sklyarevsky on the 7th and I finish with

9 Ms Kosova on the 11th and then I start with Mr Savelyev

10 on the 16th, it’s all right.

11 Now, if my breaks are really reduced from two days

12 to one day, there will very soon come a point when

13 I can’t do it and we will have to experiment with

14 alternating between me and Mr Arkhangelsky.

15 MR JUSTICE HILDYARD: I can give you — and I hope I am

16 demonstrating I am giving you considerable latitude in a

17 sincere appreciation of the difficulties you face, but

18 there comes a time when the trial simply looks

19 disorderly and takes too long.

20 Now, what are you actually suggesting?

21 MR STROILOV: Well, I would suggest that I am prepared to

22 agree to this as a provisional timetable but on the

23 understanding that if it takes longer than we all hope,

24 then I would still expect to have two-day breaks between

25 the witnesses, and that means that it will have to be

20 :1 rearranged further.
2 I am really sorry I can’t do more than I am doing,

3 but I assure you I am really doing the maximum I can.

4 Of course, it would be, in my submission, quite

5 unfair if when we come to the most important witnesses

6 everyone is impatient and the latitude given to me in

7 the beginning is not given to me any more. I would,

8 then, prefer to be treated in a harsher way during these

9 two weeks when we had witnesses who are less important

10 than those ones. These ones are really the key. It is

11 a question of — I think these cross-examinations may

12 well be crucial.

13 MR JUSTICE HILDYARD: Well, back to the question I asked:

14 what are we looking at? Let us just plan these days out

15 one by one.

16 Mr Sklyarevsky will begin on the 4th, continue on

17 the 7th and finish on the 8th. That is in accordance

18 with your worst possible prognosis. My own feeling is

19 that you will finish Mr Sklyarevsky some time earlier on

20 the 8th, but I may be wrong in that, Mr Stroilov.

21 You then have the 9th, for us a reading day — you

22 couldn’t do it anyway. You want two days, I know, but

23 I am minded to think that — I am going to suggest to

24 you we start Ms Kosova at 2.00 on the 10th, because that

25 would, in effect, give you two days on my estimate, even

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

21 :1 if you don’t have it on your worst estimate, to hoik
2 Ms Yashkina out and put her later, subject to

3 availability. You should then have the 14th and 15th

4 before Mr Savelyev with some room to go to the third day

5 on the 18th, if you need it.

6 You then have two days, it will be at weekends,

7 I know, with Ms Mironova, and if it was absolutely

8 essential, but only if that, I suppose, subject to

9 others being inconvenienced, I could take at least the

10 morning of the 24th, which is Maundy Thursday, in order

11 to give a little bit more breathing space if you really

12 needed it, which would be another three-day week. Then

13 you would have Mr Smirnov, you reckon, for four days.

14 I mean, that really does sound quite a lot.

15 MR STROILOV: Three to four, my Lord. It often depends.

16 MR JUSTICE HILDYARD: I know the importance you attach to

17 Mr Smirnov, because of his ownership of Renord-Invest

18 and all that kind of thing, but I wonder if four days,

19 that really is looking to me toppy, I must say. I would

20 have thought three days would be sufficient.

21 MR STROILOV: I would hope it would be but I just think it

22 is better to give a warning to everyone that it might

23 overspill.

24 MR JUSTICE HILDYARD: The question for you is if I put

25 Ms Yashkina in on the 4th, you would then have

22 :1 a four-day week that week, but you would have had the
2 preceding week for more than usual prep.

3 MR STROILOV: Yes, I think that’s fair, subject to then

4 I wouldn’t be able to start with the experts right away

5 after Ms Yashkina and Mr —

6 MR JUSTICE HILDYARD: Mr Guriev can’t do the 8th, anyway,

7 can he.

8 MR STROILOV: Yes. But then valuation next week — it will

9 probably need to be reshuffled anyway, and …

10 MR JUSTICE HILDYARD: Yes. The timetable then goes a bit

11 awry because of the difficulties of accommodating

12 Professor Guriev and — who was the other one?

13 Mr Gladyshev.

14 MR STROILOV: My Lord, I must say that, really, the

15 timetable for March still looks very tight to me. I’m

16 sorry to repeat that, but I am really —

17 MR JUSTICE HILDYARD: Well, I think that you deserve a great

18 deal of consideration, but not completely boundless. At

19 the moment I am not really seeing what is truly the

20 difficulty. Week 5 will be an easy week for you.

21 MR STROILOV: Week 5 is fine.

22 MR JUSTICE HILDYARD: Week 6 should be a relatively easy

23 week.

24 MR STROILOV: It’s —

25 MR JUSTICE HILDYARD: Compared to what it was, it’s

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23 :1 terrific, isn’t it?
2 If you press me hard, and subject to what Mr Birt

3 says, I will let you off the 10th. Ms Kosova will then

4 be on the 11th and the 14th. You will then have

5 Mr Savelyev, if you wish to start on the 16th, at 2.00,

6 or even the 17th, and then go on into the reading day,

7 because if you prefer it that way around that’s fine,

8 and Ms Mironova can be adjusted forward if you are

9 absolutely exhausted and we have to take the morning,

10 but I won’t take more than the morning of the 24th.

11 That is leaning in your direction a very considerable

12 extent, isn’t it, Mr Stroilov?

13 MR STROILOV: My Lord, from my point of view, I may

14 obviously be completely wrong about it, but I don’t

15 think it’s — I would suggest moving Ms Mironova or any

16 other of the major witnesses to after Easter. I don’t

17 feel I can …

18 MR JUSTICE HILDYARD: But on that footing we may be doing

19 one or two-day weeks.

20 MR STROILOV: Well, I don’t think so, my Lord. I think it

21 is going to take longer than that. As I said, I’m

22 prepared to be flexible in that regard. If I finish

23 earlier, I’m prepared to start with the next one

24 earlier, or the other way around. But, really, well,

25 from my point of view, two days’ break is a must.

24 :1 I simply won’t cope if I don’t have it.
2 MR JUSTICE HILDYARD: I’m talking across you, Mr Birt.

3 I don’t even know if these people are available on the

4 later days.

5 MR BIRT: Can I just take two seconds, my Lord?

6 MR JUSTICE HILDYARD: Yes. (Pause).

7 MR BIRT: My Lord, we think that your Lordship’s plan for

8 Ms Yashkina would work. As far as we know she could

9 come on the 4th and that, with all respect, seems to be

10 a suggestion that would help the timetable work rather

11 well.

12 We don’t know whether Ms Mironova could stay until

13 the morning of the 24th, but we are making inquiries as

14 I speak, and I would hope that that particular licence

15 that your Lordship is prepared to grant Mr Stroilov

16 could be accommodated on this side.

17 But we do say, standing back, if you like, that

18 your Lordship is already giving a huge amount of

19 flexibility, and what might be described as indulgence,

20 in relation to the cross-examinations of these

21 witnesses.

22 If one looks at a period starting on 4 March, and

23 running to 24 March, which is the period that we have

24 now been contemplating, that is a period of three full

25 weeks in which all that my Lord is asking Mr Stroilov to

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25 :1 do is to cross-examine four witnesses, and whether one
2 has an extra reading day in the middle or a half day

3 there really doesn’t much matter, but what we say should

4 happen is along the lines your Lordship has outlined:

5 those four witnesses should be cross-examined during

6 that period, and there are 14 and a half potential court

7 days there which, given that Mr Stroilov will not be

8 cross-examining anybody for the best part of the next

9 three weeks, we would have thought should really be

10 adequate for those witnesses to come and go within that

11 period, and if your Lordship wants to give Mr Stroilov

12 an extra half day before Ms Kosova and an extra half day

13 or a day before Mr Savelyev; well, I don’t think we mind

14 too much about that, but we would only be anxious if the

15 cumulative effect of all those half days and days led to

16 another witness being dropped out of the timetable this

17 side of Easter.

18 MR JUSTICE HILDYARD: I have very great sympathy for you,

19 Mr Birt, but what I have to try and remember is a sense

20 of proportion.

21 MR BIRT: My Lord, yes.

22 MR JUSTICE HILDYARD: My parameters are not good because

23 with counsel and solicitors I have certain more control

24 and more steel about me, but with someone who says that

25 after three days they simply cannot and that the

26 :1 alternative is that we swap horses for
2 cross-examination, that is a very bad parameter.

3 MR BIRT: My Lord, we understand the position you are in and

4 we will, of course, try and be as flexible as

5 your Lordship wants us to be.

6 MR JUSTICE HILDYARD: And you are being, and I have great

7 sympathies, as I have tediously expressed often, and

8 great admiration for Mr Stroilov. I think he is rather

9 pushing it this time, but I do not wish to upset the

10 apple cart for a day or so.

11 Look to week 12, the 18 and 19 April.

12 MR BIRT: Yes.

13 MR JUSTICE HILDYARD: Now that week, is there any magic in

14 that week being kept free after the 19th?

15 MR BIRT: As far as the experts go, I don’t know. I haven’t

16 been told of any particular restrictions that any of our

17 experts have. I don’t know if those acting on the legal

18 team have investigated their diaries beyond that week,

19 my Lord. If the trial is going to run on further we

20 have to do that.

21 MR JUSTICE HILDYARD: We could take a day from there, or

22 a day or two from there, and give Mr Stroilov, thereby,

23 pretty much all he wants, the price of which,

24 Mr Stroilov, would be that then my sense of proportion

25 would be exhausted.

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27 :1 MR BIRT: My Lord, one could, for example — and this may be
2 what your Lordship has in mind — have effectively what

3 is currently on 14 and 15 April, those two days, moved

4 to the following week, and then arranged in whatever

5 order people want them to be arranged.

6 MR JUSTICE HILDYARD: So week 10 would be then free of

7 expert evidence, and you could give Mr Stroilov the

8 additional time for prep with Mr Smirnov, or at least

9 an additional time, which would be super added to

10 the court vacation time.

11 MR BIRT: My Lord, we will do what we can.

12 MR JUSTICE HILDYARD: Does that meet your …?

13 MR STROILOV: I’m not sure, my Lord. I’m really more

14 concerned about the March element.

15 MR JUSTICE HILDYARD: Let’s go through it again, and we are

16 going to go snap on some of these. The 4th is

17 Mr Sklyarevsky.

18 MR STROILOV: That’s fine with everyone.

19 MR JUSTICE HILDYARD: The 7th and 8th, although I doubt you

20 will need the 8th, is Mr Sklyarevsky too. You will then

21 have two days off and we will start with Ms Kosova. You

22 say you need two to three days with Ms Kosova. I think

23 that that is giving yourself more room than you may

24 need, but you may have the 14th for Ms Kosova, and if

25 you go on from the 14th into the reading day, well, to

28 :1 some extent, that is tough.
2 MR STROILOV: Yes, I think that’s — so long as

3 Mr Savelyev —

4 MR JUSTICE HILDYARD: Mr Savelyev, you will then have the

5 15th, so far as unused, the 16th off, and we will have

6 Mr Savelyev on the 17th and the 18th. We will steal

7 that reading day.

8 Then Ms Mironova will start on the 22nd and then go

9 onto the 23rd, and if all your worst predictions turn

10 up, I will give you an early starting day on the 24th

11 until the short adjournment; all right?

12 You will then have, as everyone will need, a decent

13 break. We will then pinch from the vacation — with

14 apologies to all others concerned — the 4th, and we

15 will have Ms Yashkina on that day.

16 MR BIRT: I ought to say, since I last said what my

17 instructions were on that point, we are trying to take

18 instructions on the hoof from people in Russia about

19 their availability. It appears that I was wrong to say

20 she was available on the 4th, but I have asked whether

21 inquiries can be made whether she is available later in

22 the week. One could start with Mr Smirnov on the 4th,

23 for example, because we have already asked about that.

24 MR JUSTICE HILDYARD: I think Mr Smirnov may take three

25 days, but Ms Yashkina, I really think one day.

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Arkhangelsky [Master]

29 :1 MR STROILOV: I do hope to finish her in one day. I do
2 hope.

3 MR JUSTICE HILDYARD: Yes, and therefore, week 10 will be

4 for Ms Yashkina and Mr Smirnov, but the experts will be

5 moved not to commence in week 10.

6 MR STROILOV: Yes, my Lord, yes, that sounds fine.

7 MR JUSTICE HILDYARD: That is as far as we can get to, I am

8 afraid, for the moment, and you will have to discuss the

9 rest amongst yourselves, bearing in mind the very, very

10 restricted availability, apparently, of your experts.

11 MR STROILOV: Yes, I am afraid so. The trouble is we

12 originally asked them to keep themselves available

13 in March, and this meant a lot of things have been moved

14 to April.

15 MR JUSTICE HILDYARD: Yes. Then I will use up the only

16 credit that I have with listing to take up more of

17 week 12.

18 MR STROILOV: Yes, my Lord, I’m grateful.

19 MR JUSTICE HILDYARD: And I hope that this doesn’t cause

20 Mr Lord and others a problem, because I know he has

21 other engagements, which is a natural concern, but one

22 outweighed, I am afraid, by the need to do as much as

23 possible.

24 If, during weeks 6, 7 and 8 it appears to me that

25 things are moving rather quicker, then I will discuss

30 :1 with you, Mr Stroilov, whether we might accelerate the
2 time after the vacation, subject to the availability of

3 witnesses.

4 I think that’s the best I can do to square a circle.

5 MR STROILOV: I’m grateful.

6 MR JUSTICE HILDYARD: And if these are impossible, you must

7 let me know, but I think that’s as far as we can get.

8 MR STROILOV: I am grateful, my Lord.

9 Should I give way for Mr Birt to address you on

10 other issues, or should I …

11 MR JUSTICE HILDYARD: I don’t know what’s next. It’s

12 protocol. I haven’t read it, have you agreed it?

13 MR STROILOV: Yes.

14 MR BIRT: My Lord, just to finish on timetable, we will

15 check that. As I say, we do have to check Ms Yashkina’s

16 availability, and we will do our best to accommodate the

17 new framework that your Lordship has outlined. We will

18 make inquiries with our own experts and we will draw up

19 a revised schedule for those as well. We will circulate

20 that as soon as we can, given those practical issues.

21 MR JUSTICE HILDYARD: Thank you very much, and if it is

22 difficult, you must say so. I think my own feeling,

23 Mr Stroilov, is whilst you are deserving, I do think

24 that the other side have been flexible, at least so far

25 as the most recent adjustments of the timetable are

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Bank St Petersburg v Vitaly Day 10
Arkhangelsky [Master]

31 :1 concerned. It is fantastically difficult when you have
2 a large pack of witnesses, all of whom are wanting to
3 get on with their lives, as you do, and who have been
4 promised dates and reckon that they would be clear. It
5 is not easy for the professionals involved to explain
6 why it is that they have been put back and then back and
7 then back.
8 MR STROILOV: We do appreciate that, my Lord.
9 MR JUSTICE HILDYARD: Yes.
10 MR BIRT: My Lord, the next item on the agenda is the
11 protocol. I understand from Mr Stroilov, shortly before
12 your Lordship came in, that this is agreed from their
13 point of view. I think this is something your Lordship
14 wanted to look at and approve as well. It can certainly
15 come up on Magnum with reference {I22/29/60}.
16 MR JUSTICE HILDYARD: Yes. 2, obviously it is well
17 understood that nothing in 1 in any way diminishes their
18 obligations, for example, for disclosure.
19 MR BIRT: My Lord, yes, I would hope that didn’t need
20 stating.
21 MR JUSTICE HILDYARD: That is understood. The fact that you
22 are the channel through which disclosure goes in no way
23 erodes or qualifies their disclosure obligations.
24 MR STROILOV: Yes, I didn’t think it is implied in any way
25 in this sense.
32 :1 MR JUSTICE HILDYARD: Okay. Shall we look at the next
page?
2 MR BIRT: It’s just the signature page.

3 MR JUSTICE HILDYARD: If you are content with that …

4 MR BIRT: Would my Lord think it appropriate to encapsulate

5 what your Lordship has said in the drafting —

6 MR JUSTICE HILDYARD: No, I think it is all right. It is

7 recorded on the transcript, Mr Stroilov, being duly

8 authorised in Mrs Arkhangelskaya’s presence, accepts

9 that there was no such implication or intention.

10 I think it ought formally to be signed by everybody, and

11 that can take its place.

12 I understand, through the grapevine, that the Court

13 of Appeal is considering the whole issue of

14 representation at some point by McKenzie friends, and

15 who knows if what we have done will get a tick or

16 a cross, I don’t know.

17 MR BIRT: We will await their ruling, my Lord.

18 MR JUSTICE HILDYARD: Yes.

19 MR BIRT: Thank you very much. We will wait for signed

20 copies of that to come from the defendants.

21 MR JUSTICE HILDYARD: Yes, please.

22 MR BIRT: And we would suggest that is done before

23 Mr Arkhangelsky goes into the witness box on Wednesday,

24 to avoid any difficulties with contacting him while he

25 is giving his evidence.

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33 :1 MR JUSTICE HILDYARD: Yes. Mrs Arkhangelskaya, have you
2 followed and do you understand what I have been making

3 clear, and are you and your husband content to sign the

4 agreement and abide by the additional point that I made,

5 and which Mr Stroilov accepted, as far as I am

6 concerned, on your behalf?

7 MRS ARKHANGELSKAYA: Yes.

8 MR JUSTICE HILDYARD: Very good. All right, we can leave

9 that, then, and thank you.

10 MR BIRT: My Lord, I was passed a note earlier, which I left

11 for a while, but there was a request I had from the

12 interpreters, I don’t know if it is still a live

13 request, asking whether Mrs Arkhangelskaya could

14 possibly be asked to switch her microphone off when she

15 is not talking. Apparently there is quite a lot of

16 background noise that is coming into the interpreters’

17 headsets.

18 MRS ARKHANGELSKAYA: May I just simply close the window,

19 because then I might not be able to hear you.

20 MR BIRT: We can try closing the windows. I am in

21 the interpreters’ hands on this.

22 MRS ARKHANGELSKAYA: I have closed the window; is that any

23 better?

24 MR BIRT: My Lord, the next item on the agenda is the

25 defendants’ application to re-re-amend their pleading,

34 :1 and we, having set out some thoughts on the previous
2 draft on 8 February, received last night a further draft

3 from Mr Stroilov dealing with the points we had made.

4 For the record, we don’t accept that the new pleaded

5 points disclose a good case or that they are as clearly

6 pleaded as the court would normally require, in

7 particular, in relation to a case of fraud, and where

8 amendments are made at this very late stage.

9 We have also drawn attention to the incorrect

10 characterisation, as we see it, of the correspondence

11 relating to the three vessels that were sold, which is

12 pleaded in the defendants’ appendix 2. However, bearing

13 in mind the practical and pragmatic stance we have

14 sought to adopt throughout in relation to these

15 amendments, we don’t object to the amendments the

16 defendants seek to make in that latest iteration of

17 their draft.

18 Hopefully my Lord has received, before we came into

19 court, a draft order that we suggest the court makes to

20 deal with the matter. If my Lord doesn’t have a copy,

21 I think we can hand one up.

22 MR JUSTICE HILDYARD: I have not read the latest iteration

23 of the pleadings. (Handed).

24 MR BIRT: My Lord, we are content for my Lord to take time

25 to do so, and we can revisit this, if that would be more

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35 :1 appropriate. If my Lord wanted to hang onto the draft
2 and get back to us, of course we are entirely in

3 your Lordship’s hands.

4 MR JUSTICE HILDYARD: I will read them. I have delivered

5 out my copies for the moment, but I will read them.

6 Mr Stroilov, the thing is, pleadings are meant to be

7 complete and particularised, and the more important it

8 is when the pleas are so serious. The Court of Appeal

9 has, time and again, emphasised the duty of the trial

10 judge to ensure that the pleadings are sufficiently

11 clear to be readily understandable by the other side and

12 by the court so as to provide a definition of

13 the admissible issues and to confine the case within

14 reasonable limits.

15 I have urged a pragmatic course, but once

16 examination has been completed, it is not impossible

17 that I shall require adumbration of the points you have

18 extracted, especially as regards allegations of

19 dishonesty or the Russian statute equivalent of

20 conspiracy, using that as a shorthand, so that we know

21 exactly where they fit in and closing submissions can be

22 directed to them. I will discuss that with you and with

23 Mr Lord and Mr Birt in due course. It is really saying

24 that this is as good as I am going to get for the

25 moment, as a pragmatic stance. I don’t mean that

36 :1 critically, I just mean that they are not as honed, as
2 I think you would accept, as they might be.

3 At some point we must, even if it takes a bit more

4 time, define where these matters go, and if, during the

5 course of cross-examination, lines which had been

6 thought to exist are crossed, then they should be raised

7 with me, if you see what I mean.

8 MR STROILOV: Quite, my Lord.

9 MR JUSTICE HILDYARD: Mr Birt, does that coincide with your

10 approach?

11 MR BIRT: My Lord, it does, I agree.

12 MR STROILOV: I was thinking about several points really

13 made by Mr Lord over the course of the past two weeks —

14 MR JUSTICE HILDYARD: Yes.

15 MR STROILOV: — really objecting to certain lines being

16 pursued. I am prepared to address you on them briefly,

17 if that assists, because we were obviously in a rush on

18 every occasion to finish with the witness.

19 I think the points were taken, and perhaps Mr Birt

20 might elaborate if there are other concerns, I think one

21 point that was made was about the moratorium and that it

22 is not pleaded that there would be another round of

23 restructuring of the loans.

24 Our answer to that is quite simple. It is pleaded

25 that there was an oral agreement, and the oral agreement

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Arkhangelsky [Master]

37 :1 between Mr Arkhangelsky and Mr Savelyev is the only
2 thing we rely on. We don’t rely on the contracts

3 between individual borrowers and the Bank, not least

4 because these corporate borrowers are not parties.

5 So all we are doing by advancing this case is we are

6 trying to provide an explanation consistent with our

7 case, to documents which are said to be inconsistent;

8 that is to say, if we are shown certain addenda which

9 roll up interest only to certain dates in March

10 or April 2009, we say this does not prove that there was

11 no moratorium until June, because it could have been

12 further extended. That’s all. And I don’t see this in

13 any way going beyond —

14 MR JUSTICE HILDYARD: This is in accordance with what

15 Mr Arkhangelsky described as the permission, which he

16 had agreed with Mr Savelyev?

17 MR STROILOV: Quite, my Lord. It is pleaded as an oral

18 agreement which is a general —

19 MR JUSTICE HILDYARD: The correspondence which you rely on,

20 the letter which you rely on, refers to it as

21 «permission» in the English translation, I think.

22 MR STROILOV: Obviously this is not what we say were the

23 terms of the agreement.

24 MR JUSTICE HILDYARD: Right.

25 MR STROILOV: Again, in a way, it is a circumstantial bit;

38 :1 that he was asking for it and it was reduced from one
2 year to half a year and so on, but we say that the

3 actual agreement was oral. So in that sense, other

4 agreements are only secondary matters.

5 I think the second point taken several times was

6 that I was challenged to confirm that — well,

7 an apparent inconsistency which Mr Lord was stressing

8 was that in evidence, and I think in pleadings as well,

9 Mr Arkhangelsky uses the expression «short term

10 difficulties», whereas in questioning witnesses, I asked

11 some questions which were meant to elicit the answers

12 that they were not as short term as, perhaps, the

13 claimants say they were presented.

14 Now, to that we say that obviously short term and

15 long term are relative terms, which depend on the

16 context. The real issue is what was the nature of

17 the difficulties, and I don’t think it is pleaded

18 anywhere, or is part of our evidence, that failure to

19 deliver — that the delayed payment for a delivery of

20 timber was the sole cause of those difficulties —

21 MR JUSTICE HILDYARD: No.

22 MR STROILOV: — as I think sometimes the claimants tend to

23 say that was presented to them. So that’s the real

24 dispute, and I don’t think — again, I don’t see how it

25 goes beyond —

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Arkhangelsky [Master]

39 :1 MR JUSTICE HILDYARD: I may well have misunderstood the
2 objection, but my understanding of the objection that

3 was made by Mr Lord, or the comment that was made by

4 Mr Lord, was whether you accepted that by a certain date

5 the OMG group was past saving. That’s really the point

6 that was being made, because it is also your case that

7 it could have been revived and, therefore, I think

8 Mr Lord was pressing you on that inferentially.

9 Mr Birt, I may have misunderstood that, but that’s

10 as I understood it.

11 MR BIRT: My Lord, I certainly think that that was one of

12 the points that Mr Lord made during the course of the

13 cross-examination — Mr Stroilov is right, there were

14 a number, but that was certainly one of them —

15 MR JUSTICE HILDYARD: On this point, my understanding was

16 not so much a subjective judgment of what is long,

17 medium or short term; it was very much: look, it’s your

18 case that although needing intensive care, the patient

19 was capable of being restored to a full and gainful

20 life; whereas some of your questioning seemed to suggest

21 that your case was: it was dead and buried for all

22 practical effect. That’s what I understood, and maybe

23 I am wrong about that, but just so you should be

24 thinking about that.

25 MR STROILOV: I don’t think any of my questions were

40 :1 premised on that. I think I was careful in that sense.
2 MR JUSTICE HILDYARD: Yes.

3 MR STROILOV: I mean our case is that there were

4 difficulties, that these were serious difficulties, that

5 a moratorium was absolutely necessary to avoid

6 default —

7 MR JUSTICE HILDYARD: Well, I think I know the resolution,

8 but I wanted to share with you my understanding of that

9 particular objection so you should think about it and we

10 shouldn’t have sort of glossed it in a way which I don’t

11 think was the way I understood it to be.

12 MR STROILOV: I do apologise if I asked any wrong questions,

13 you can obviously exclude them. I don’t feel that

14 I did.

15 MR JUSTICE HILDYARD: Yes.

16 MR STROILOV: So, my Lord, that’s as far as the pleading

17 points go, otherwise we have agreed the amendments.

18 MR JUSTICE HILDYARD: I mean, Mr Smirnov is not a party,

19 and — I mean, is he or isn’t he accused of

20 collaboration?

21 MR STROILOV: I think he has been accused of being one of

22 the conspirators for quite a long time.

23 MR JUSTICE HILDYARD: And the pleadings name him as such, do

24 they?

25 MR STROILOV: I’m not sure it was in the very first version

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Arkhangelsky [Master]

41 :1 of the defence and counterclaim, possibly not. I think
2 there was an amendment after the actual auction sale of

3 Western Terminal took place during the course of this

4 litigation, already that was in 2012.

5 Soon after that, we’ve done some investigation about

6 the ownership of Kontor, and I think that’s when

7 Mr Smirnov appears.

8 Come to think of it, it may be that even earlier we

9 named him as someone who is —

10 MR JUSTICE HILDYARD: No, well, I don’t have a good grasp at

11 the present stage, but my understanding of the reason

12 why you want longer with Mr Smirnov is you say that he

13 was the means whereby the collaboration, which you

14 assert, between Mr Savelyev and Mrs Malysheva to, as it

15 were, grab the assets but hold them in the different

16 pocket of Renord-Invest, was achieved. So he is a very

17 important link, so far as you are concerned. The

18 question is whether that is pleaded. Is it pleaded,

19 Mr Birt?

20 MR BIRT: My Lord, I think Mr Smirnov has been listed as one

21 of the conspirators.

22 MR JUSTICE HILDYARD: He has, has he?

23 MR BIRT: And I don’t know when this amendment came in, and

24 it is a point I will return to in a minute, it is not

25 always easy to tell from the pleadings which are

42 :1 amendments and which are fresh pleas.
2 One can see on Magnum, I think, {I21/28/138}, which

3 just happens to be the iteration I have open, that was

4 recently in correspondence, but this paragraph dates

5 from an earlier generation, I don’t know which earlier

6 generation. And this is part of — to give the

7 context — paragraph 177, which is the defendants’

8 pleading of at least the following entities were party

9 to the conspiracy, (a) having been the Bank, and then

10 running down a number of others, and then once one gets

11 to (h), you get:

12 «Vehicles for the ultimate beneficial ownership of

13 other co-conspirators by the Bank and/or Mr Savelyev

14 and/or other co-conspirators, and for the concealment of

15 such ownership and control…»

16 And then a number of entities and people are listed

17 in parenthesis, and on the third or fourth line down,

18 Mikhail Smirnov appears, along with Mr Zelyenov and

19 Mr Sklyarevsky, and I think that is how he appeared in

20 the list of conspirators until very recently. The

21 recent addition has been the new paragraph that

22 your Lordship has looked at on one or two previous

23 occasions, which I think is 179(a). This is in the new

24 version, which was circulated last night, so I don’t

25 know if it is yet on Magnum.

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43 :1 In the previous edition on Magnum it will be
2 {I21/28/142}. This was a plea that Mr Stroilov

3 introduced and we had some discussion of this paragraph

4 in front of your Lordship on the housekeeping hearing

5 immediately before the trial started on 28 and

6 29 January, and your Lordship may recall, although the

7 detail is no doubt — it seems a long time ago now, that

8 this was a quite unclear paragraph and it was difficult

9 to know whether this was an alternative case or

10 a further case.

11 MR JUSTICE HILDYARD: Mm.

12 MR BIRT: Mr Stroilov gave an explanation at the hearing

13 which, with the assistance of your Lordship, he was able

14 to articulate, and he made a few more changes and, in

15 the light of RPC’s letter of 8 February, there have now

16 been some further amendments to this. I will make

17 inquiries as to whether we have a copy of the current

18 amendment in court, but that is the paragraph in which

19 Mr Smirnov now appears in this further alternative case

20 as a conspirator.

21 MR JUSTICE HILDYARD: There was a timing point as to when

22 the agreements were said to have been made?

23 MR BIRT: My Lord, yes. There are a number of points on

24 this.

25 MR JUSTICE HILDYARD: This is the no later than

44 :1 4 March 2009.
2 MR BIRT: It has now been clarified. In general terms it is

3 some time after a date in March. It is an agreement

4 based on an inference from matters pleaded elsewhere in

5 the pleading which largely relate to the transactions

6 and the sales which the defendants complain about. It’s

7 a sort of: look at where we ended up.

8 MR JUSTICE HILDYARD: So it’s a «must have»: They must have

9 agreed because otherwise they wouldn’t have got where

10 they got.

11 MR BIRT: That, as I understand it, is the nature of

12 the plea, and Mr Smirnov is named as one of

13 the conspirators, or, rather, Renord-Invest is named as

14 a conspirator acting through Mr Smirnov, along with

15 Mr Savelyev, Mrs Malysheva, and to the extent that he

16 was involved in those transactions with which he was

17 involved, Mr Sklyarevsky through SKIF.

18 MR JUSTICE HILDYARD: Yes.

19 MR STROILOV: I think, my Lord, just to — I am not sure, it

20 may be that you are already clear on that, obviously the

21 involvement of Renord and the (inaudible) of Renord and

22 the role of Mr Smirnov in Renord had been pleaded for

23 quite a long time, I think since the beginning of March,

24 and it is around — since March 2014, if my memory

25 serves me right. It is since then that Renord and

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45 :1 Mr Smirnov were alleged to be conspirators, so it has
2 been there for quite a long time and obviously original

3 purchasers are now admitted to be part of Renord Group

4 and subsequent purchasers, they have all been alleged to

5 be members of the conspiracy from the start so that is

6 not really any substantive addition at all.

7 MR JUSTICE HILDYARD: Right.

8 MR BIRT: My Lord, just to finish up on the pleading,

9 your Lordship has the draft order that I handed up.

10 MR JUSTICE HILDYARD: Yes.

11 MR BIRT: What we have suggested in the draft is that

12 a number of administrative tasks take place.

13 Mr Stroilov has been producing his revisions as a Word

14 document with only the very latest revisions marked, so

15 in other words, not all of the changes for which

16 permission is being given by this order are marked in

17 the traditional way of strikeout and underline. The

18 result is that some things in the document are not

19 underlined which are new, and so we suggest — and

20 I don’t think objection is taken to this as a matter of

21 principle — that that is tidied up so that one can

22 easily look at the pleading and see in what generation

23 the different bits and pieces were added. That may

24 obviously become important at this or a later stage.

25 One of the reasons it may become important is to do

46 :1 with the saving in the third subparagraph of
2 paragraph 1, which is a limitation point. My Lord may

3 remember that we discussed this point on 28 or

4 29 January as well, and we have tried to adopt the same

5 formulation, mutatis mutandis as your Lordship had in

6 an order dated 24 July last year where there was another

7 plea that we said was a new plea. It is something that

8 Mr Stroilov says is not a new claim, but the question

9 whether it is new or not is also intended to be held

10 over to be determined along with this.

11 So that’s one reason why it may be important to have

12 the changes shown, as well as for the normal purposes,

13 or to see, for example, that the case bringing

14 Mrs Malysheva closer to the centre of the story is, in

15 the history of this case, a very recent move.

16 MR JUSTICE HILDYARD: Yes. I think two things. One is,

17 I think that at some point there must be a document

18 which records the changes and their chronological

19 sequence. I know it is tedious to do, but I think it

20 could be necessary, for the reasons which Mr Birt has

21 alighted on.

22 The second is, and I think I mentioned this on the

23 previous occasion, I have — notwithstanding a recent

24 case, actually — great reservations as to whether,

25 consistently with section 35 of the Limitation Act, the

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47 :1 court has the ability, absent consent, to, as it were,
2 save the effect — save a limitation point which

3 otherwise would be vanished away by what we call the

4 doctrine of relation back, that all amendments to

5 the pleadings take effect from the date of the claim.

6 Therefore, I am content with three of one, but on the

7 footing that that is consented to. Mr Stroilov, I may

8 be wrong about this. The jury is out, I think. There

9 have been different decisions, but in the Court of

10 Appeal, as I read the two cases, the Act is thought to

11 be mandatory, that if an amendment is permitted, it

12 relates back to the date of the claim and that is

13 capable of vanishing away a limitation point.

14 That would be of great practical inconvenience here,

15 when most of the claims are proceeding anyway, and

16 therefore, I take it that you and your clients formally

17 consent to this process; that if there is a limitation

18 point, it is preserved until subsequent argument.

19 MR STROILOV: But it is a big if, we say. We say it is not

20 in new claim at all; it is just a particularisation of

21 the claim —

22 MR JUSTICE HILDYARD: I understand that, but what I am

23 saying is you agree you live and die on that point, and

24 not by any magical effect of introducing the claim now.

25 MR STROILOV: Yes, my Lord, we agree to that order, on the

48 :1 basis, as your Lordship has formulated it when it was
2 first advanced, basically because there is an arguable

3 limitation point, we accept it should be argued.

4 MR JUSTICE HILDYARD: Yes. All right. I am just going to

5 say, for the purposes of the transcript, that I take it

6 that as regards subparagraph 3 of paragraph 1, and

7 notwithstanding that the order is not generally headed

8 «by consent», that the defendants agree and the

9 claimants with them, that the effect of giving the

10 permission is not to confer on the defendants any

11 additional limitation argument than otherwise they would

12 have. You are not relying on — you will not rely on

13 the doctrine of relation back by reason of giving

14 permission under 3; yes? If you wish to consider this,

15 that’s …

16 MR STROILOV: I am afraid I am not sure that this is the

17 correct formula.

18 MR JUSTICE HILDYARD: Right. I am sorry.

19 MR STROILOV: That seems to me that it is agreed that this

20 is a new claim, but it isn’t.

21 MR JUSTICE HILDYARD: No.

22 MR STROILOV: We say it is just part of our claim, and it

23 should be related back, because it is not —

24 MR JUSTICE HILDYARD: I’m sorry, I understand fully that you

25 say it is not a new claim, but the giving of — maybe

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49 :1 the other way of putting it is, the deferment of
2 deciding whether the claim is or is not time barred

3 is — and in the meantime, allowing in the amendment is

4 not to confer on you any additional argument.

5 MR STROILOV: Yes, I think that is a fair way of putting it.

6 MR JUSTICE HILDYARD: As long as it is absolutely clear.

7 I am sorry to make a fuss of it, but section 35 looks to

8 me to be quite mandatory in its terms.

9 MR BIRT: I am sure my Lord it right to do that. If it

10 would make it clearer, we can head it «Consent order»,

11 or indeed, we can put an extra recital in saying «Upon

12 the defendants specifically consenting to paragraph

13 1.3».

14 MR JUSTICE HILDYARD: I think as to that point, that would

15 be quite useful.

16 MR BIRT: An extra recital, my Lord?

17 MR JUSTICE HILDYARD: An extra recital. It may be

18 unnecessarily dotting Is and crossing Ts, but I have a

19 feeling that this is going to become a point in another

20 case and therefore I would like clarity.

21 MR BIRT: Let’s put that in for your Lordship and we will

22 re-send you a further draft.

23 My Lord, just following through the order, in

24 subparagraph 2 we have suggested that the pleading be

25 verified by a statement of truth, as indeed it would

50 :1 have to be. We have said in here filed and served by
2 4.00 pm tomorrow. Our reason for the deadline is simply

3 that Mr Arkhangelsky starts his evidence at 10.30,

4 French time, on Wednesday morning.

5 Mr Stroilov made the point to me just before

6 your Lordship came in that filing the document adds

7 a logistical burden because Mr Stroilov has to come down

8 to London. For our part, that’s not the critical point

9 on the date. In a sense, we would like it signed by

10 Mr Arkhangelsky and served before he goes into the

11 witness box. Whether it is filed later or in some other

12 manner, we don’t much mind, subject to your Lordship’s

13 views.

14 MR JUSTICE HILDYARD: That’s fine. That’s sensible.

15 MR BIRT: Again, we will think of some way to re-draft that

16 in an appropriate manner. We have simply added to a

17 provision that we serve any consequential amendments.

18 We did wonder whether, given the stage we had reached in

19 the trial, whether that was necessary, but on reflection

20 we thought because there was a limitation point that we

21 wanted to take, it would be better to have that

22 crystallised on the pleading at this stage, unless

23 your Lordship has a different view.

24 MR JUSTICE HILDYARD: No, I think that’s right.

25 MR BIRT: My Lord, that’s it. We will circulate to you, and

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51 :1 Mr Stroilov, of course, a revised draft in relatively
2 short order.

3 MR JUSTICE HILDYARD: Okay.

4 MR BIRT: Running back to my agenda, item 4 was the,

5 I think, outstanding disclosure issues.

6 MR JUSTICE HILDYARD: Yes.

7 MR BIRT: I doubt there is much additional to be said today.

8 There is certainly nothing extra from our side. We

9 haven’t yet had anything from Mr Nazarov and although

10 your Lordship urged the defendants to share their

11 communications with Mr Nazarov or the gist of them, they

12 haven’t done that, so we still wait and, of course, the

13 time when he is coming to give evidence is rapidly

14 shortening.

15 (b) was the redactions on the FTI material, and we

16 still wait for a justification for those, and

17 your Lordship said on the last occasion that

18 Mr Stroilov’s description in court was a little vague

19 and it had to be properly crystallised and put into

20 writing, so we wait for that, or, indeed, for the

21 redactions to be lifted.

22 Metadata on certain documents —

23 MR JUSTICE HILDYARD: Promised today.

24 MR BIRT: Promised by close — this is tomorrow, I think,

25 my Lord, from Withers.

52 :1 MR JUSTICE HILDYARD: I recall my gratitude for them.
2 I know that they are not being paid for this and I am

3 grateful to them.

4 MR BIRT: My Lord, yes, and we are obviously glad that they

5 are going to respond. It will come very shortly before

6 Mr Arkhangelsky goes into the box but we will obviously

7 have to take it on board. The defendants themselves

8 have chosen not to respond to any of these points. Of

9 course, it goes without saying that the fact that

10 Withers have volunteered to write a letter does not

11 absolve them from their disclosure responsibilities but,

12 in the circumstances, we will do what we can in the time

13 available.

14 My Lord, unless there is anything that Mr Stroilov

15 is able to add on those points, that’s it from me on

16 those.

17 MR STROILOV: I think just on the disclosure points, I am

18 just not sure it is quite accurate to say that we have

19 chosen not to respond to any of the points. On

20 Mr Nazarov, well, obviously we will just keep trying to

21 do our best and I appreciate that we are horribly late.

22 I will consider what we can do to mitigate.

23 In terms of justification for the redactions, I am

24 not quite sure the burden works like that. I have

25 explained that we have complied with the other four

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53 :1 disclosure, that is to say we have disclosed the
2 documents.

3 We have objected to inspection of certain elements

4 of documents on the grounds of proportionality. As

5 I explained, FTI have asked certain names to be redacted

6 because they are concerned about people being exposed to

7 risk, who are involved in the investigation, and then

8 there are other certain elements of documents which

9 simply didn’t fall into the scope of your Lordship’s

10 order.

11 I think, now, the burden — is really they are

12 unhappy — if the claimants are unhappy with that

13 inspection, the burden is on them to show that our

14 objections on proportionality grounds are unjustified.

15 So I don’t believe we have to do anything further, and

16 obviously we are trying to minimise all the ancillary

17 tasks, because we have to make progress with the trial.

18 In terms of metadata, I don’t think it is accurate

19 to say that we haven’t responded: we have responded. We

20 had to ask Withers to help in the first place because it

21 is obviously a question to metadata which they had, and

22 then the claimant said: well, you see, Withers are

23 helping, let’s write another letter. But it is not

24 fair, really, to criticise us for not doing what we

25 could.

54 :1 My Lord, I think there were points on — a proposal
2 on the employment contract of —

3 MR JUSTICE HILDYARD: We are coming to that in a second.

4 MR BIRT: I’m sorry, can I just come back on — I think

5 really on disclosure I would like to say something about

6 the redactions to the FTI material. We have written

7 about these a number of times. We have received no

8 response in writing. Mr Stroilov has said, off the

9 cuff, in court, on one or two occasions, there may be

10 issues with some names having been redacted. Redactions

11 have been made on grounds of proportionality, he said on

12 a number of occasions. We have challenged that in

13 correspondence saying: we don’t accept that

14 proportionality is an approach to redactions, and we

15 don’t understand which names or what other material is

16 being held on which ground.

17 All we want at this stage is an explanation for

18 these redactions. Is it because the material is said to

19 be irrelevant? Is it because it is said to be

20 privileged and falling outside the scope of the waiver

21 of privilege, which has already been accepted to be

22 given on this material. Really, until we have that, we

23 can’t take it any further, my Lord, and it is incumbent

24 upon the party putting forward those redactions when

25 they are not self-explanatory which we say these aren’t,

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55 :1 to give us an explanation, and my Lord said last time
2 this was raised in court that Mr Stroilov doing it off

3 the cuff sounded a bit vague, and with respect, we

4 agree: it should be dealt with in writing so that we can

5 properly address it in short order, my Lord.

6 MR JUSTICE HILDYARD: Mr Stroilov is right technically: the

7 disclosure of the documents has been given. Inspection

8 is less satisfactory because of the redactions, but the

9 burden is on you to show that the redactions were not

10 proper. I think that’s the point he is making.

11 MR BIRT: Yes.

12 MR JUSTICE HILDYARD: Your point is the pragmatic one that,

13 rather than have a pitched battle which will probably

14 result in my having to ask for clarity, it would be

15 useful if an explanation should be given as to the basis

16 on which — and differing bases, if that is

17 applicable — the redactions have been made.

18 MR BIRT: My Lord, yes. We are trying to avoid having

19 a long, drawn out, sort of itty-bitty fight in front of

20 your Lordship where we have to issue an application

21 attaching all the documents and so on and so forth. We

22 thought we might get a little bit of constructive

23 cooperative and it may be that we are satisfied with the

24 explanation but without having received a formal

25 explanation, it is slightly difficult to know.

56 :1 MR JUSTICE HILDYARD: I would have thought a short
2 explanation would be appropriate, Mr Stroilov?

3 MR STROILOV: I have just given one. In the previous three

4 hearings, I have given it again.

5 My Lord, there are so many things are much better to

6 put in writing, that really if you follow that you have

7 to write a book every day in litigation.

8 MR JUSTICE HILDYARD: I don’t think this would be a long

9 letter. You may say it has all been done, in which

10 case, fish through the transcripts and just say where

11 they are for my purposes. But I do think that, despite

12 the difficulties, the rule book still applies. We have

13 to keep some reasonable root in the rules, and I think

14 you are quite right that the burden will ultimately be

15 on them, but it would be a crying shame if I had to eat

16 into days which otherwise would be reserved for your

17 homework for this sort of thing.

18 MR STROILOV: Right, well obviously otherwise it is me

19 cutting into my preparations and then gives new material

20 for new complaints which we don’t accept are —

21 MR JUSTICE HILDYARD: Just see if you feel that in

22 the transcripts you have already done it and want to

23 rest on that, just tell them that, and I will have to

24 adjudicate in due course. I think I am implying that if

25 I decide that these matters which should have been

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57 :1 agreed, then I will pinch the days of rest to deal with
2 this, because I really can’t allow this case to go on ad

3 infinitum.

4 MR STROILOV: Yes, my Lord. I don’t know if Mr Birt would

5 want to start on Mrs Malysheva employment documents or

6 should I say what —

7 MR JUSTICE HILDYARD: I think I have the hang of it.

8 I haven’t read it in detail, but there is some Russian

9 law which is said to proscribe, without a court order of

10 a recognised jurisdiction which would be enforceable in

11 Russia, disclosure of that document.

12 MR BIRT: My Lord, yes. We were going to go to it on my

13 agenda now, but we can promote it up the order.

14 Mr Stroilov is keen to deal with it.

15 MR JUSTICE HILDYARD: What else do we have to deal with?

16 I have one or two questions of process.

17 MR BIRT: My Lord, yes, I was simply going to, really,

18 update your Lordship on the next items.

19 As your Lordship knows, there has been outstanding

20 for a while a number of letters on City Centre, mirror

21 companies and so on, and —

22 MR JUSTICE HILDYARD: Well, I think I can’t say more than

23 what I have said twice, which is orderly description of

24 this in written form might be in the interests of the

25 Arkhangelskys. I can’t say more than that.

58 :1 MR BIRT: And I am not urging you to say more than that,
2 my Lord. In fact, I was going to give you a slight

3 update, which is that Mr Arkhangelsky has sent an e-mail

4 touching on some of these points, which we say is not at

5 all adequate, but that is something we will take up when

6 he comes to give his evidence.

7 MR JUSTICE HILDYARD: Yes.

8 MR BIRT: Item 6 on my list, I do wonder, my Lord, whether

9 we still have Mrs Arkhangelskaya in contact as I stand

10 here. I simply raise that because there doesn’t seem to

11 be much — oh it is, it is just the screen that has

12 frozen then.

13 MRS ARKHANGELSKAYA: I can hear very well.

14 MR JUSTICE HILDYARD: Mrs Arkhangelskaya, it is good that

15 you are there. Thank you.

16 MR BIRT: I beg your pardon, my Lord.

17 Item 6, the defendants’ evidence as to assets,

18 again, this is really by way of update at this stage.

19 Your Lordship will remember the order made about 10 days

20 ago.

21 MR JUSTICE HILDYARD: Yes.

22 MR BIRT: Ms Bidault’s affidavit has now been sworn and

23 a version was sent through last night, although it

24 appears to have been sworn on Friday, and the defendants

25 served their own affidavits towards the end of

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59 :1 the morning, at about 11.00, I think. We have to
2 reserve our position in relation to those. The

3 affidavits themselves are relatively short. The

4 exhibits appear to be lengthy, but in the time available

5 before coming to court, we weren’t able to get on top of

6 that material.

7 Two points, two brief points arose from those

8 statements —

9 MR JUSTICE HILDYARD: Yes.

10 MR BIRT: — I wonder if I can quickly show them to my Lord.

11 MR JUSTICE HILDYARD: This is {I21/28/73}, is it? Is this

12 Société Générale? No.

13 MR BIRT: It’s not a reference, I think, which exists on

14 my …

15 These are an affidavit from each of Mr and

16 Mrs Arkhangelsky which were served this morning.

17 MR JUSTICE HILDYARD: I thought you weren’t going to deal

18 with those.

19 MR BIRT: I was just giving you an update to walk you

20 through it, my Lord, if that is okay.

21 MR JUSTICE HILDYARD: I have an affidavit. It walked into

22 town just as I was getting myself organised. I have got

23 one from Mrs and one from Mr Arkhangelsky.

24 MR BIRT: My Lord, I’m very grateful.

25 MR JUSTICE HILDYARD: I don’t think either are sworn.

60 :1 MR BIRT: My Lord, the points I just wanted to flag today,
2 having said that we would leave these points, really, to

3 be taken up once we have had a chance to absorb them —

4 MR JUSTICE HILDYARD: Yes.

5 MR BIRT: — in Mr Arkhangelsky’s affidavit — sorry,

6 Mrs Arkhangelskaya’s statement, at paragraph 13.

7 MR JUSTICE HILDYARD: Mm.

8 MR BIRT: She —

9 MR STROILOV: Is there an extra copy so that I can follow?

10 MR BIRT: My Lord will see the nature of the points I am

11 making. They are not forensic points, they are simply

12 looking for completeness.

13 They have been unable, so far, to find bank

14 statements for two particular periods: «I requested

15 these statements from the Bank». We are unclear from

16 that whether that is a request that is still

17 outstanding. We are not going to ask your Lordship to

18 make another order today, but it seems to us that those

19 ought to be obtained, if possible, in order to comply

20 with your Lordship’s order. If that turns out, after

21 reasonable endeavours, to be an impossible task to be

22 carried out, then we ought to be told, but we would hope

23 those would follow in relatively short order, if

24 possible.

25 In Mr Arkhangelsky’s statement, paragraph 9 deals

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61 :1 with some points relating to the records and tax
2 statements of CoFrance, which my Lord may recall was

3 a particular point that my Lord ordered that he

4 disclose. Having disclosed accounts for 2013 and 2014,

5 as he describes in paragraph 8 — and we haven’t had

6 a chance to look at those yet, my Lord, but the point

7 I am on is in paragraph 9, where he explains that the

8 records and tax statements are kept by a company of

9 chartered accountants and the accountants dealing with

10 those accounts are said to have been on holiday since

11 8 February, and will remain on holiday all of the next

12 week, «since in our region this is a period of school

13 holidays».

14 MR JUSTICE HILDYARD: Yes.

15 MR BIRT: So he hasn’t been able to ask, he says.

16 Well, we don’t want to make forensic points at this

17 stage as to whether it really is the case that there is

18 nobody in the office who can supply accounts or if they

19 couldn’t have been asked before they went on holiday and

20 things like that, but we would hope as soon as they can

21 be obtained in so far as any accounts, interim accounts,

22 VAT statements or equivalent for 2015 exists, they ought

23 to be provided pursuant to your Lordship’s order. In

24 other words, this ought not to be not done now so never

25 done; it ought simply to be once the relevant person is

62 :1 back and can deal with it, that the relevant documents
2 should be supplied. We would hope that maybe that can

3 be achieved before Mr Arkhangelsky leaves the witness

4 box, by Mrs Arkhangelskaya perhaps. But if it can’t be,

5 then as and when they are produced, we will have to take

6 a view and address matters with your Lordship at that

7 stage. We would urge that these tasks be completed

8 before Mr Arkhangelsky finishes his evidence in order to

9 make an efficient conduct.

10 MR JUSTICE HILDYARD: We have to keep a sense of proportion

11 about this too, because their sworn evidence is it is

12 worth less than €5,000. I wouldn’t want to spend

13 €50,000 investigating that.

14 MR BIRT: My Lord, we are not suggesting it is. The excuse,

15 for example, for the accounts is the right people

16 haven’t been in the office and if they had, then

17 something could have been produced. We are simply

18 saying if there is somebody back in next week who can

19 deal with it …

20 MR JUSTICE HILDYARD: I think it is a linguistic problem as

21 much as anything. The:

22 «I therefore may not ask my accounting company…»

23 Gives a rather strange view, but I take it what it

24 really means is he has been unable to do so, but I also

25 take it that he will ask them to provide it if and when

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63 :1 they return from holiday.
2 MR BIRT: My Lord, yes, and we assume they will at some

3 point. I suppose the point we are making is simply just

4 because the affidavit has now been served, that doesn’t

5 discharge them from obligations or fulfilling, if they

6 are capable of producing the documents your Lordship has

7 ordered in the course of the trial.

8 MR JUSTICE HILDYARD: Yes. And these statements, I think

9 I did ask for an affidavit; I can’t remember. I think

10 they ought to be sworn in in formal terms.

11 MR BIRT: My Lord, they ought to be. My recollection is

12 that the covering e-mail which came with them explained

13 that:

14 «Due to technical difficulties we were not able to

15 print them, sign and scan in due time.»

16 MR JUSTICE HILDYARD: That is fine. As long as they are, in

17 due course, done, that is fine.

18 MR BIRT: Mr Arkhangelsky’s e-mail said he intends to bring

19 signed originals with him on Wednesday to the court in

20 Paris.

21 MR JUSTICE HILDYARD: Good. Excellent.

22 MR BIRT: We can move, I think the next item, item 7, we do

23 get to Mrs Malysheva’s contract, and I think my Lord has

24 seen the letter. I don’t know how much time my Lord or

25 Mr Stroilov has had to look at that. In a sense, it

64 :1 speaks for itself, and if my Lord wants to spend some
2 time reading it, then that may be the best way forward,

3 but it is essentially a pragmatic solution that we are

4 proposing. There are issues relating to data protection

5 law in Russia, and they probably will be engaged and

6 they may be circumvented — or, rather, an order of

7 the English court may be good enough, although it is not

8 clear that it definitely will be good enough, but it is

9 thought that, as a practical measure, if they are

10 disclosed pursuant to an order of the English court and

11 subject to sensible confidentiality requirements, that

12 will reduce the likelihood of anybody wanting to bring

13 a claim, or if they can bring a claim, being able to

14 show that they have really suffered.

15 So hence our practical and workable, we hope,

16 solution to this, which is to disclose these documents

17 and to lift the redactions on the document my Lord has

18 already seen, subject to the confidentiality club regime

19 that we have set out in the attached draft, my Lord.

20 MR JUSTICE HILDYARD: Well, I haven’t studied this. I don’t

21 know whether Mr Stroilov has. It may very well be that

22 that is a pragmatic solution. I suppose if I were

23 hard-nosed I would say this: that whilst I would not

24 wish to cause any upset, nevertheless, in this court the

25 document has been introduced and the consequences in

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65 :1 Russia are nothing to do with me.
2 MR BIRT: Well, my Lord, in a sense the English rules of

3 disclosure are the rules that apply here.

4 MR JUSTICE HILDYARD: Yes.

5 MR BIRT: And it was a document that, if one was adopting

6 a technical position, one may say is not relevant within

7 the provisions of the CPR applying to disclosure. It

8 may or may not go to collateral issues, but it was

9 provided subject to a request of my Lord —

10 MR JUSTICE HILDYARD: I think that would be a difficult

11 argument.

12 MR BIRT: In a sense we are trying to avoid those sorts of

13 arguments by supplying what we hope is a solution. We

14 haven’t heard Mr Stroilov, but we struggle to see how

15 data which may be of a personal kind, in whatever

16 jurisdiction, such as the level of remuneration that

17 somebody has been receiving, the court would often take

18 steps to see that that is not disseminated widely.

19 My Lord, as you know, we have had concerns from time

20 to time during the first few weeks of this trial that

21 matters that are put in play in this court are put in

22 play in the press, and it seems to us that material such

23 as the terms of Mrs Malysheva’s employment contract and

24 her remuneration are the sort of things that, in any

25 event, ought not to find their way into the press.

66 :1 So we suggest that this is a sensible way through
2 the thicket here, which holds the ring between —

3 MR JUSTICE HILDYARD: I don’t disagree with that. Through

4 using English spectacles, notoriously unclear vision in

5 Russian, one is rather surprised that Mrs Malysheva’s

6 remuneration was not disclosed in the Bank’s accounts in

7 the ordinary way, but there we are, it may be that there

8 wasn’t —

9 I think that nothing I say should be taken to

10 portray any hostility to the notion of her

11 confidentiality club. I don’t want to cause

12 embarrassment for the sake of it, but I think

13 a pragmatic solution is the best, but I was simply

14 reminding everyone that, at the end of the day, the

15 English process invoked by you involves certain

16 consequences.

17 MR BIRT: It does, my Lord, and the court, as ever, with

18 disclosure — there is a whole run of cases, as far as

19 I remember, as to when, if you disclose something in

20 these proceedings, you might put yourself in breach of

21 a foreign law, the court has a discretion and there are

22 different —

23 MR JUSTICE HILDYARD: It usually arose in the case of, in

24 those days, Swiss confidentiality rules.

25 MR BIRT: It did, my Lord, and there is a whole run of cases

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67 :1 whose names now escape me, but there is a run and the
2 court has a discretion as to how to deal with it.

3 Anyway, my Lord, I think I would be repeating myself if

4 I went over the ground again.

5 MR JUSTICE HILDYARD: The court shouldn’t stand on its own

6 powers when there is a more reasonable solution.

7 MR BIRT: My Lord, quite.

8 MR JUSTICE HILDYARD: Mr Stroilov, I haven’t read this. It

9 seemed to me to be a neat solution, especially given the

10 concerns as to confidentiality, which the events we

11 discussed lightly on previous occasions arise. I think

12 unless you have an answer already, I will let you

13 consider whether, between you, you and your clients

14 think this is an appropriate solution.

15 MR STROILOV: It’s recent and I would reserve our position.

16 I may express a few concerns on that. It has been our

17 position throughout. On the way here I looked at 2013

18 correspondence on that. We always took the view that

19 the entire employment file of Mrs Malysheva was

20 a disclosable document. We demanded disclosure. As far

21 as we are concerned, they are in breach of the order,

22 and, well, in a way we are quite happy with that because

23 if something is not disclosed, we are entitled to invite

24 as sinister an inference as we like.

25 If they do disclose it, it is subject to the usual

68 :1 implied undertaking, and I don’t immediately see why it
2 should be taken further. If is something usual and

3 uninteresting, then it will not go anywhere. If it is

4 something unusual, and from what we want to invite

5 inferences in open court and put to witnesses and so on,

6 we should be entitled to do so.

7 MR JUSTICE HILDYARD: A pinch point may come when you are

8 cross-examining Mr Savelyev, who was involved in

9 the ultimate agreement.

10 MR STROILOV: Quite.

11 MR JUSTICE HILDYARD: And that pinch point may mean that

12 confidentiality, because we are in open court, subject

13 to any direction for a private hearing, which would be

14 very, very unusual in those sorts of circumstances, that

15 may be the pinch point.

16 But I wonder whether in the first instance, it may

17 be that an arrangement such as is proposed, which would

18 enable you to consider, as you, I think, elegantly put

19 it, whether there is something exceptional or not, might

20 be a solution, but I want you to have time to consider

21 it.

22 Put another way, it seems to me that there are

23 likely to be two stages: one is, the people who need to

24 know, which does not presently include the general

25 public, but the confidentiality club assess carefully,

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69 :1 and proportionately, whether the terms are such as to
2 invite questioning. If they are, then we will have to

3 move on to the next stage. If they are not, then we

4 will have avoided a lot of trouble.

5 MR STROILOV: Well, it is obviously, given too many

6 unnecessary undertakings on confidentiality, the risk

7 for us, because if then something leaks out not from our

8 end and then we are accused and we have to attend five

9 hearings and serve ten affidavits —

10 MR JUSTICE HILDYARD: I won’t press further on this, but

11 that seems to me a solution. My own bet is, for what

12 it’s worth, there will be questions on this.

13 MR STROILOV: If I may just flag a point, just for the

14 claimants to consider — I am not asking for an order,

15 and I don’t think I will — but another individual who

16 seems to have been heavily involved and left recently is

17 Mr Kolpachkov, so I wonder if the claimants want to —

18 who was Ms Mironova’s deputy, I think a number of

19 witnesses have named him.

20 MR JUSTICE HILDYARD: Yes.

21 MR STROILOV: And I wonder if the claimants want to consider

22 giving some disclosure on that, lest we invite

23 inferences from no disclosure being given.

24 MR JUSTICE HILDYARD: All right, you are forewarning them

25 that one of your questions may lead to a request for

70 :1 disclosure of those documents.
2 MR STROILOV: Really I think I am forewarning that if things

3 remain as they are now in the closing submissions,

4 I will tell your Lordship that it was all a sham because

5 nothing has been disclosed and they are just hiding him.

6 So they had better — well, that’s a forewarning,

7 and nothing else.

8 My Lord, one further issue, I think as the

9 complaints on publicity have been reminded about,

10 your Lordship has mentioned the possibility of

11 transcripts being published in a neutral way.

12 MR BIRT: My Lord, I am sorry to interrupt Mr Stroilov.

13 Could I just finish a couple of points on Mrs Malysheva

14 and absolutely come onto transcripts. There are

15 a number of further points to come on to.

16 MR JUSTICE HILDYARD: Yes.

17 MR BIRT: I just wanted to add in relation to Mrs Malysheva

18 that, with respect, your Lordship’s solution of one

19 takes it in stages and see where it goes is, undoubtedly

20 the right one, and if it is genuinely felt that

21 questions need to be asked, then the situation of

22 whether one should or should not go into private will

23 then have to be addressed, and I take on board

24 your Lordship’s observation about that.

25 I understand that the details include not only

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71 :1 financial information; it includes things like personal
2 telephone numbers and passport details and things. One

3 has to cross that bridge when we come to it, but that

4 was simply my own marker on that.

5 As to Mr Kolpachkov, we have heard what Mr Stroilov

6 has said, but if the idea is that by asking certain

7 questions in cross-examination about somebody you can

8 then turn up in final submissions and say: oh, you

9 haven’t given disclosure of when he left, well, it’s

10 a bit late to do it at that stage. I think we do need

11 such a point to be properly made and it can be properly

12 considered. In a sense, with Mr Kolpachkov, he has now

13 given warning and we will take that on board. But if

14 there are other such points they do need to be properly

15 flagged at this stage if, in my submission, any

16 inference is to be drawn that we haven’t done anything

17 about it, because one needs to know what you are meant

18 to be doing something about.

19 MR JUSTICE HILDYARD: Well, Mr Stroilov, inferences,

20 including inferences from non-disclosure, often strike

21 the person proposing them as much more obvious than they

22 do the person to whom the suggestion is made, if I can

23 put it that way. Inferences are difficult to establish.

24 I think, in the first instance, at any rate, if you

25 think these are disclosable, that they are within the

72 :1 possession or control of the Bank, and you intend, as
2 I think you have indicated you may, to pursue that,

3 I take really what you are saying to me as the Bank and

4 the individual witness would be better off bringing it

5 to court rather than have to have his examination

6 delayed until he does so. Unless there is some complete

7 answer to this.

8 MR STROILOV: I don’t think — we really don’t have the

9 resources to pursue any further applications for

10 disclosure. So really the choice we are left is to flag

11 the issues from time to time, otherwise invite

12 inferences.

13 MR JUSTICE HILDYARD: Well, I don’t think I can say more

14 than that, Mr Birt. I think these contracts are bound

15 to be within the possession or power of the Bank.

16 MR BIRT: My Lord, yes.

17 MR JUSTICE HILDYARD: If they are said to be relevant, it

18 may be a good course to have copies just in case.

19 MR BIRT: We will go back over what Mr Stroilov has said

20 today on the transcript, and he will ask whatever

21 questions he thinks are proper.

22 MR JUSTICE HILDYARD: In the meantime you must consider

23 carefully whether it is already your continuing

24 obligation to disclose them, they having been

25 identified.

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73 :1 MR BIRT: My Lord, of course.
2 MR JUSTICE HILDYARD: All right, does that deal with that?

3 MR BIRT: I think it does. We will wait to hear from the

4 defendants on the proposal we have made relating to

5 those particular documents.

6 MR JUSTICE HILDYARD: All right. Are you happy with that,

7 Mr Stroilov?

8 MR STROILOV: Yes, my Lord, I am happy with that. Then

9 I think the only thing we wanted to raise is publication

10 of transcripts. We haven’t heard — well, we indicated

11 to —

12 MR JUSTICE HILDYARD: Yes, I think that Mr Birt was going to

13 deal with that.

14 MR BIRT: My Lord, yes. My last point, being picky on my

15 agenda, was simply the organogram, which I have no

16 further update for your Lordship on, apart from somebody

17 has it in hand to adapt it following the end of

18 the evidence of Ms Stalevskaya.

19 MR JUSTICE HILDYARD: Thank you.

20 MR BIRT: Yes, so arrangements for Paris.

21 MR JUSTICE HILDYARD: You are well ahead with the

22 photographs of the witnesses, while I remember them all?

23 MR BIRT: Personally I am not, but I trust somebody behind

24 me is.

25 MR JUSTICE HILDYARD: Yes.

74 :1 MR BIRT: But, my Lord, seriously, we haven’t forgotten
2 about that request that your Lordship made.

3 Paris. My Lord referred last week to the issue

4 about the hearing being, or should be, in public, and

5 yet we are going to Paris to the ICC arbitration centre;

6 and the suggestion that transcripts were made available

7 to, if you like, cure that potential problem.

8 We have been able to take instructions and

9 investigate the technological side of things, and our

10 plan would be, subject to one caveat, to host the

11 transcripts, by which I refer not just to

12 the transcripts of Paris, but to the whole trial,

13 because if one is putting a partial selection —

14 MR JUSTICE HILDYARD: So they can be referred to a website

15 which will be dedicated to that?

16 MR BIRT: My Lord, yes, on a website, the precise details of

17 which I do not yet have, so that anyone can sign up and

18 see them. From my understanding of the technology, it

19 would be a sign-up website, which would provide

20 additional advantages, so that, for example, if

21 a transcript is subsequently corrected the next day,

22 then those who have signed up get a little e-mail

23 saying: alert, transcript from Day 17 corrected, which

24 sounds very sensible.

25 The only caveat, I understand, is that this just

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75 :1 needs to be checked with Magnum, with Opus 2, but that
2 may have been done since I received my instructions, or

3 it may be in the process of being done.

4 But, subject to that caveat, that would be the plan,

5 to put up the transcripts for the whole trial in that

6 way, and we would hope that that would deal with the

7 issue of who can witness the proceedings, as it were, in

8 Paris.

9 MR JUSTICE HILDYARD: Well, there are three issues there,

10 I think. I have thought about it a bit over the

11 weekend. I then have been in contact with

12 Lady Justice Gloster. There is very little experience

13 of doing this because it is very, very rare, and I think

14 maybe it is a developing experience.

15 I think there are three issues: one is the

16 transcript, which in the practical world is probably

17 going to be the most useful.

18 MR BIRT: Yes.

19 MR JUSTICE HILDYARD: Two is listing, and whether matters

20 should be listed as being in Paris. That wasn’t done

21 but I think probably, in technical terms, it should be.

22 The third is whether you need ICC, or any Foreign

23 Office or other acceptance of the fact that if someone

24 did want to — this is fairly theoretical — come into

25 the ICC to hear what was going on, they could do so.

76 :1 MR BIRT: We have made some inquiries in relation to the
2 logistics on that third point. I am not sure I have

3 a complete answer for your Lordship today, but we have

4 been in contact with some people at the ICC building,

5 and the usual practice, as one would imagine, is that it

6 isn’t just an open door that everybody walks into and

7 out of.

8 MR JUSTICE HILDYARD: No, because arbitration is a private

9 process.

10 MR BIRT: Exactly. Having said that, I understand that

11 people aren’t generally required to sign in or provide

12 separate identification. The only thing they are asked

13 to identify is which hearing they would like to go to.

14 MR JUSTICE HILDYARD: Right.

15 MR BIRT: Now, as I say, this is on the basis of a single

16 conversation that one of those from RPC has had. We

17 need to sort out the details.

18 MR JUSTICE HILDYARD: And you need to ensure that we are not

19 breaking any French law by doing so.

20 MR BIRT: We do, my Lord. What we hope is that if, indeed,

21 there are, members of the public sounds a wider than

22 likely category, but members of the press, for example,

23 who have gained an interest in this now that it has

24 moved to France, that there should be access. Whether

25 that means that somebody from RPC has to go down and

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77 :1 wave people in, I don’t know, but we will grapple with
2 that as it arises.

3 MR JUSTICE HILDYARD: And, as I say, my concern is that

4 I shouldn’t offend any French law in doing so.

5 MR BIRT: My Lord, yes. We will check that. Whether the

6 fact that it is more of a public process does so,

7 we obviously have the permission of the French

8 authorities to conduct the examination in France.

9 MR JUSTICE HILDYARD: Yes.

10 MR BIRT: My Lord, I think that was it.

11 The only other suggestion —

12 MR JUSTICE HILDYARD: And that’s as part of a trial. They

13 know, presumably, the full context in which it is?

14 MR BIRT: I can’t remember the precise details of

15 the relevant form, but somebody can go and check that,

16 my Lord, I’m sure.

17 MR JUSTICE HILDYARD: It’s not just taking a deposition; it

18 is as part of a trial. The trial is, in effect, being

19 removed to France for these purposes.

20 MR BIRT: Yes. It is taking the evidence of a witness for

21 the trial purposes.

22 My Lord, I think that was it on the transcripts,

23 unless Mr Stroilov has anything to add?

24 MR STROILOV: No, I think that’s very satisfactory, my Lord.

25 We will just hope that it happens rather quickly,

78 :1 because obviously for the period when Mr Arkhangelsky is
2 giving evidence, we are very much disabled from doing

3 very nearly anything because we can’t talk to him. So

4 while Mr Arkhangelsky is giving evidence, he can’t talk

5 to anyone about the case, and so we are pretty much

6 paralysed in everything.

7 MR JUSTICE HILDYARD: Well, as I mentioned previously, the

8 only experience I have of this didn’t relate to any

9 foreign process, but in the various Specsavers trials

10 the evidence — which was in fact done by Magnum — went

11 up every day on the solicitor for the claimants’ website

12 with a provision, I’m not quoting it, but which

13 basically said: this is to keep everyone informed,

14 judicial guidance is that no opinion nor comment must be

15 passed by us on the contents, which is there simply in

16 aid of a public trial.

17 MR BIRT: My Lord, yes, we will take that on board as well.

18 MR JUSTICE HILDYARD: Okay.

19 MR BIRT: And, as I say, I can’t give any further technical

20 details at the moment or say how quickly it will be

21 done, but obviously it will be done when it can be done.

22 The relevant people will speak to Magnum, then there is

23 the question of just setting up the internet

24 infrastructure, whatever that involves, which I am

25 afraid I can’t explain today.

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79 :1 MR JUSTICE HILDYARD: Thinking of the transcript writers,
2 how are you doing? Are you in need of a break? I have

3 about ten minutes’ worth; does anyone have anything

4 more.

5 MR BIRT: My Lord, I don’t think I have anything else.

6 MR JUSTICE HILDYARD: Mr Stroilov?

7 MR STROILOV: I don’t think so, I would like to check if —

8 I think I heard the respondent on the submissions made

9 in relation to the affidavits, and I suppose if anyone

10 can meaningfully say anything it is Mrs Arkhangelskaya

11 who has been working hard on this over the past week,

12 I don’t know if she would like to make any submission on

13 that. Possibly not. I don’t think there is a lot of

14 (inaudible) in dispute.

15 MR JUSTICE HILDYARD: Since the point is raised,

16 Mrs Arkhangelskaya, is there anything that you would

17 like to say with respect to the affidavits? My

18 understanding is you are going to check them and that

19 when they are checked, you are going to swear them in

20 the usual way and serve and eventually file them in

21 the usual way; is that right?

22 MRS ARKHANGELSKAYA: Yes, this is right. Absolutely.

23 MR JUSTICE HILDYARD: Is there anything else you want me to

24 know or to add?

25 MRS ARKHANGELSKAYA: My Lord, the only thing I wanted to

80 :1 add, because the other side already mentioned that
2 indeed my husband is missing three statements. We are

3 employing all efforts to get it from the bank, but

4 unfortunately things take a long time in France.

5 Tomorrow we will endeavour to go to the bank one more

6 time and request these extracts, to provide them to

7 the court. I already sent two e-mails to them. So far

8 no answer from them.

9 MR JUSTICE HILDYARD: I know these things can take some

10 time. Likewise with Co France, when the accountants

11 return from holiday you will ask them to provide

12 whatever update is available with respect to the 2015

13 accounts.

14 MRS ARKHANGELSKAYA: Absolutely, my Lord.

15 MR JUSTICE HILDYARD: Good. Thank you very much. In that

16 case shall we soldier on for 10 minutes and make a dash

17 for freedom after that?

18 They are all rather sort of procedural points. We

19 have dealt with the public matter. In Paris, I propose

20 to wear a suit and, therefore, I imagine everyone else

21 will. I raise this in order not to cause embarrassment

22 to anybody. I think it would be, despite Mr Stroilov’s

23 laudable preference for tradition, nevertheless I think

24 we would be over-egging it if we had to move through the

25 courts, even if it were within the law, which I don’t

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81 :1 know whether it would be. So I think, let us all do
2 that.

3 Court hours we were going to discuss. I imagine

4 that we will, broadly speaking, keep to the court hours

5 that we have here.

6 MR BIRT: My Lord, yes. I think on a previous occasion we

7 suggested at least on the first day starting at 10.30,

8 and seeing how we go, much as we do when we are sitting

9 here.

10 MR JUSTICE HILDYARD: Can you tell me, or can you describe,

11 if you know, roughly what the set-up of the room is?

12 MR BIRT: I may be able to take instructions, my Lord.

13 MR JUSTICE HILDYARD: Yes. (Pause).

14 MR BIRT: From the description given to me, my Lord, it

15 sounds rather like a large arbitration room in any of

16 the large arbitration facilities, with the tables

17 arranged roughly in a horseshoe with your Lordship

18 sitting at one end of it and the parties down each side

19 and a table in the middle for the witness, and I expect

20 that things are movable to some extent if when we get

21 there we don’t like what we see. Or if your Lordship

22 doesn’t like what he sees.

23 MR JUSTICE HILDYARD: Yes, I just want to be a little apart

24 from all of you so I can scribble at will, and I need to

25 see the witness, as well as cross-examining counsel need

82 :1 to see the witness.
2 MR BIRT: My Lord, yes, it may be that certainly some of

3 those from RPC who are involved are going to be there

4 tomorrow, rather than travelling tomorrow, and

5 I remember reading somewhere that your Lordship’s clerk

6 is going to be there at some point tomorrow afternoon.

7 MR JUSTICE HILDYARD: Yes, he is going midday tomorrow,

8 I think.

9 MR BIRT: So no doubt if there is any logistical moving

10 about that needs to be done, that can be achieved.

11 MR JUSTICE HILDYARD: And the transcription will be the same

12 there as here, will it, in effect?

13 MR BIRT: As I understand it, yes.

14 MR JUSTICE HILDYARD: So notwithstanding that I think

15 Mr Arkhangelsky is giving his evidence in English, if

16 there are any Russian bits, and particularly in the case

17 of Mrs Arkhangelskaya, there is a sort of sound booth,

18 is there?

19 MR BIRT: Yes. My understanding is that a sound booth is

20 being built, possibly as we speak, or certainly

21 tomorrow, in the room. We understand that

22 Mr Arkhangelsky will be giving his evidence in English.

23 MR JUSTICE HILDYARD: Yes.

24 MR BIRT: Mrs Arkhangelskaya in Russian, and the

25 simultaneous translators will be in situ, certainly for

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83 :1 Mrs Arkhangelskaya. We wrote asking whether the
2 videolink to Nice was required while we were in Paris.

3 We have presumed it wasn’t, and we certainly haven’t had

4 any response saying: no, it is. So as things stand, we

5 won’t be videolinked as well.

6 MR JUSTICE HILDYARD: Good, I am taking it that you won’t

7 need that and that those who wish to attend will attend

8 and can be there in person.

9 MR BIRT: My Lord, we are very grateful. As I say, we will

10 sort out the transcripts and will be able to provide

11 an update on exactly what is going to happen in relation

12 to putting something up on a website when we have got it

13 sorted out. We are just intending to put the

14 transcripts up and none of the other sort of documents

15 in the case. We are not going to put the trial bundle

16 in the public domain or anything like that.

17 MR JUSTICE HILDYARD: I see that the terrifying array of

18 bundles has gone and, presumably, is even now making its

19 way to Paris. There will be room in the room for that,

20 will there?

21 MR BIRT: It’s in a large van on its way to Paris, my Lord,

22 yes.

23 MR JUSTICE HILDYARD: Good. Well, I think that does it, but

24 I would like to feel that you are making any relevant

25 inquiries to ensure that we are doing the right thing,

84 :1 both in terms of a public hearing and in terms of
2 compliance with any relevant laws.

3 MR BIRT: Yes, my Lord. I hope putting the transcripts up

4 on a website will help towards that.

5 MR JUSTICE HILDYARD: I think that is a very good

6 suggestion, thank you.

7 MR BIRT: We will make inquiries as to how people who do

8 want to come in can come in, and we will find somebody

9 in France who can check the point for us that

10 your Lordship has raised about it not infringing any

11 French —

12 MR JUSTICE HILDYARD: Thank you very much. I think these

13 are points which arose in retrospect, actually, but it

14 is slightly uncharted waters.

15 MR BIRT: My Lord, it is, and following Friday, I talked to

16 somebody in chambers who had been in Lady

17 Justice Gloster’s case, and he recalled there had been

18 some discussion about public access that then petered

19 out to nothing and in the end he couldn’t remember what,

20 if anything, was done, so we are ahead of, I think,

21 where they were already, my Lord.

22 MR JUSTICE HILDYARD: Very good.

23 Is there anything else, Mr Stroilov?

24 MR STROILOV: No, I don’t think so. Again, I don’t think

25 now is the time to argue about it. I am slightly

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

85 :1 concerned about the suggestion of transcripts being
2 published without the documents referred to. Again, my

3 own experience is very limited on that. I was following

4 how it was done in the Litvinenko inquiry recently where

5 there was a website —

6 MR JUSTICE HILDYARD: What, you mean with links?

7 MR STROILOV: Yes, the transcript would be published and

8 then in parallel pretty much similar —

9 MR JUSTICE HILDYARD: I think that that would be unusual.

10 MR STROILOV: Well, the documents referred to in open court

11 are public documents.

12 MR JUSTICE HILDYARD: It is, that’s true, and I dare say if

13 someone was deeply interested in it they could make an

14 inquiry, but I think to have a system of links just as

15 my transcript — well, actually in this case my

16 transcript does, but it is unusual. It’s really just

17 what goes on in court.

18 MR STROILOV: Yes, I think it was done in the case of —

19 MR JUSTICE HILDYARD: In Litvinenko. Yes, I don’t know of

20 any other where it has been done.

21 MR BIRT: I think it is occasionally done in large scale

22 public inquiries. The Bloody Sunday inquiry leaps to

23 mind.

24 MR JUSTICE HILDYARD: That had links, did it?

25 MR BIRT: Yes, but it would be a huge additional

86 :1 administrative burden to do that, as well as the other
2 points my Lord has made. Effectively we are trying to

3 replicate to the best we can what if somebody was

4 sitting at the back of court and I am afraid people at

5 the back of court don’t usually get to see the

6 documents.

7 MR STROILOV: Yes, I am not pushing this.

8 MR JUSTICE HILDYARD: No, but it has been useful, hasn’t it,

9 Magnum, because it means you can travel around with all

10 the documents available. It is of the most

11 extraordinary assistance.

12 Thank you. Have a bit of a break, Mr Stroilov.

13 MR STROILOV: Thank you, my Lord.

14 MR BIRT: The only other quasi logistical point that occurs

15 to me for Wednesday is Mr Arkhangelsky’s evidence,

16 because Mr Stroilov isn’t going to be in Paris, we

17 assume that he will obviously be sworn, and then we will

18 have to work out a facility for getting him to give his

19 evidence in-chief. I don’t know whether your Lordship

20 intends to ask him to swear his statements.

21 MR JUSTICE HILDYARD: I think I shall. I have asked my

22 clerk to bring the relevant documentation for him to be

23 sworn in or to affirm. I think I shall then ask him to

24 confirm his — I shall think about re-examination, but

25 it may be that the re-examination would be more

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

87 :1 formalistic than real, and if there are points which
2 should have been put to the witness, then they will have

3 to be put at some other time I think. It is a very

4 difficult matter when there is someone asking themselves

5 re-examination.

6 Otherwise, well, thank you. Can I simply thank your

7 solicitors for making all the arrangements. I have to

8 say, I am extremely grateful for it, and so is my clerk.

9 Mrs Arkhangelskaya, I will see you some time the

10 week after next, I suppose, and your husband earlier

11 than that.

12 MR BIRT: Thank you very much.

13 MR JUSTICE HILDYARD: Thank you.

14 (4.07 pm)

15 (The court adjourned until 10.30 am on

16 Wednesday, 17 February 2016)
16
17
18
19
20
21
22
23
24
88 :1 INDEX
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3 Housekeeping …………………………………..1

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

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21

22

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

0

89 :1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

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Bank St Petersburg v Vitaly Day 10

Arkhangelsky [Master]

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adviser, ( 2 ) 15:21
another ( 11 ) 1:23 19:1
79:25 80:14 82:17

$ 15:23
21:12 25:16 36:22
82:24 83:1 87:9

affidavit ( 6 ) 58:22
46:6 49:19 53:23
Arkhangelskaya’s ( 2 )
59:15 59:21 60:5 63:4
60:18 68:22 69:15
32:8 60:6

$7007:10

63:9
answer ( 5 ) 36:24 67:12
Arkhangelsky ( 38 )
affidavits ( 5 ) 58:25
72:7 76:3 80:8
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A 59:3 69:9 79:9 79:17
answers38:11
7:4 7:9 7:23 8:1 8:10

affirm.86:23
anticipated ( 2 ) 2:21
8:20 9:9 9:13 9:18

abide33:4
afraid ( 7 ) 16:23 29:8
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29:11 29:22 48:16
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78:25 86:4
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anybody ( 4 ) 7:6 25:8
37:15 38:9 50:3 50:10

absolutely ( 7 ) 21:7

22:5 23:16 25:25
64:12 80:22
52:6 58:3 59:16 59:23

23:9 40:5 49:6 70:14

26:14 30:2 41:2 41:5
anyone ( 4 ) 74:17 78:5
62:3 62:8 78:1 78:4

79:22 80:14

44:3 60:20 80:17
79:3 79:9
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absolve52:11

87:10
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Arkhangelsky’s ( 5 )
absorb60:3

afternoon. ( 5 ) 1:4 1:5 6:22 9:16 11:11 12:17
6:10 60:5 60:25 63:18

accelerate30:1

1:6 10:2 82:6
12:19 17:23 51:9
86:15

accept ( 6 ) 17:7 34:4

again, ( 16 ) 5:6 8:13
52:14 53:15 62:21
Arkhangelskys.57:25

36:2 48:3 54:13 56:20

14:16 15:10 17:11
71:16 77:23 78:3
arose ( 3 ) 59:7 66:23

acceptable.15:4

17:12 27:15 35:9
79:3 79:5 79:10 79:16
84:13

acceptance75:23

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accepted, ( 3 ) 33:5

56:4 58:18 67:4 84:24
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accepts32:8

agenda ( 6 ) 1:17 31:10
22:9 47:15 67:3
arranged ( 3 ) 27:4 27:5

access. ( 2 ) 76:24

33:24 51:4 57:13
anywhere, ( 2 ) 38:18
81:17

84:18

73:15
68:3
arrangement68:17

accommodate ( 5 ) 5:21

ago, ( 3 ) 9:2 43:7 58:20
apart ( 2 ) 73:16 81:23
arrangements ( 6 ) 6:17

7:2 12:3 12:14 30:16
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apologies28:14
6:23 8:1 12:1 73:20

accommodated. ( 3 )
47:23 47:25 48:8 55:4
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5:13 8:21 24:16

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15:2 30:12 31:12
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37:16 40:17 44:9
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48:19 57:1
29:10 33:15
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accountants ( 3 ) 61:9

agreement ( 8 ) 33:4
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60:17 61:15 62:22

61:9 80:10

36:25 36:25 37:18
35:8 47:10
62:25 63:9 72:20

accounting62:22

37:23 38:3 44:3 68:9
appear59:4
80:11 86:20 86:23

accounts ( 8 ) 61:4

agreements ( 2 ) 38:4
appeared ( 2 ) 3:13
asked ( 13 ) 14:24 20:13

61:10 61:18 61:21

43:22
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28:20 28:23 29:12

61:21 62:15 66:6

ahead ( 2 ) 73:21 84:20
appears ( 6 ) 28:19
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80:13

aid78:16
29:24 41:7 42:18
53:5 61:19 70:21

accurate ( 2 ) 52:18

aired.12:4
43:19 58:24
76:12 86:21

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accused ( 3 ) 40:19

alighted46:21
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38:1 69:14 71:6 83:1

40:21 69:8

allegations35:18
applicable55:17
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achieved. ( 4 ) 7:5 41:16

alleged ( 3 ) 17:20 45:1
application ( 2 ) 33:25
assert,41:14

62:3 82:10
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across24:2

allow ( 4 ) 5:10 5:13 6:6
applications72:9
assets ( 2 ) 41:15 58:17

acting ( 2 ) 26:17 44:14

57:2
applies.56:12
assist12:19

actual ( 2 ) 38:3 41:2

allowing49:3
apply65:3
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adapt73:17

alone.17:3
applying65:7
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added ( 3 ) 27:9 45:23

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addition ( 2 ) 42:21 45:6

already ( 13 ) 10:21
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additional ( 10 ) 4:22
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48:11 49:4 51:7 74:20

64:18 67:12 72:23
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85:25

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36:16 55:5 62:6

13:6 34:9 39:6 46:9
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addressed,70:23

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amendment ( 5 ) 41:2
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awry22:11

B

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bad ( 3 ) 13:5 18:5 26:2

Balandin16:11

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37:3 42:9 42:13 60:13 60:15 72:1 72:3 72:15 80:3 80:5

Bank’s66:6 barred49:2

based ( 2 ) 5:3 44:4 bases,55:16 basically ( 2 ) 48:2
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basis ( 5 ) 6:7 12:10 48:1 55:15 76:15

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bearing ( 3 ) 6:3 29:9 34:12

beat15:10

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beg58:16

begin ( 3 ) 12:24 14:21 20:16

beginning ( 4 ) 15:5 17:5 20:7 44:23 behalf ( 2 ) 16:10 33:6 behind ( 3 ) 6:22 8:13
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bit ( 17 ) 1:14 6:6 16:8 16:21 18:5 18:21 18:25 19:3 21:11 22:10 36:3 37:25 55:3 55:22 71:10 75:10 86:12

bits ( 2 ) 45:23 82:16

Bloody85:22

board ( 9 ) 3:6 3:13 9:23 10:2 10:14 52:7 70:23 71:13 78:17

book ( 2 ) 56:7 56:12 booth, ( 2 ) 82:17 82:19 borrowers ( 2 ) 37:3
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bound72:14 boundless.22:18 box ( 4 ) 32:23 50:11
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14:5 14:13 17:4 17:13 23:25 28:13 79:2 86:12

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breaks ( 2 ) 19:11 19:24 breathing ( 2 ) 18:6

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bring ( 4 ) 63:18 64:12 64:13 86:22

bringing ( 2 ) 46:13 72:4 broadly81:4 building,76:4 built,82:20 bundle83:15 bundles83:18

burden ( 7 ) 50:7 52:24 53:11 53:13 55:9 56:14 86:1

buried39:21

C

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capable ( 3 ) 39:19
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constructive55:22

carefully, ( 2 ) 68:25
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contacting32:24

cart26:10
70:15 71:3 75:24 84:8
contained3:10

cases, ( 3 ) 47:10 66:18
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contemplating,24:24

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content ( 4 ) 32:3 33:3

cat’s18:25
coming ( 6 ) 11:24
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category,76:22
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contents,78:15

cause ( 5 ) 29:19 38:20
54:3 59:5
context. ( 3 ) 38:16 42:7

64:24 66:11 80:21
commence29:5
77:13

caveat, ( 3 ) 74:10 74:25
comment, ( 3 ) 11:11
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centre ( 3 ) 46:14 57:20
commitments,9:6
continuing72:23

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challenged ( 2 ) 38:6
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complain, ( 2 ) 17:2
conversation76:16

chance ( 2 ) 60:3 61:6
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changed.8:6
complaints ( 2 ) 56:20
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changes ( 4 ) 43:14
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complete ( 4 ) 15:6 35:7
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corrected ( 2 ) 74:21

checked ( 2 ) 75:1 79:19
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74:23

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childcare9:5
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concealment42:14
couldn’t ( 4 )8:10 20:22

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circle.30:4
concerned ( 8 ) 27:14
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consent, ( 4 ) 47:1
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consented47:7
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clarity. ( 2 ) 49:20 55:14
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consequences ( 2 ) critical50:8

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clearer ( 2 ) 6:9 49:10
consider ( 8 ) 48:14
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clearly ( 2 ) 14:12 34:5
52:22 67:13 68:18
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clerk ( 4 ) 4:12 82:5
68:20 69:14 69:21
( 4 ) 26:2 36:5 39:13

86:22 87:8
72:22
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close ( 2 ) 33:18 51:24
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( 3 ) 17:16 20:11

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closing ( 3 ) 33:20
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35:21 70:3
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68:25
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42:13 42:14
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coincide36:9
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crucial ( 2 ) 17:21 20:12 crying56:15 crystallised ( 2 ) 50:22
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day, ( 48 ) 4:1 4:15 4:16 4:20 6:6 6:16 6:20 7:8 7:22 8:24 9:10 11:6 11:24 13:5 13:18 14:1 14:5 15:13 15:14 16:15 18:3 18:4 18:16 18:18 19:12 20:21 21:4 23:6 25:2 25:2 25:12 25:12 25:13 26:10 26:21 26:22 27:25 28:7 28:10 28:15 28:25 29:1 56:7 66:14 74:21 74:23 78:11 81:7

days, ( 36 ) 5:12 5:16 6:9 8:21 10:5 15:15 15:15 16:15 16:18 16:18 18:2 18:2 18:4 18:19 19:11 20:14 20:22 20:25 21:6 21:13 21:18 21:20 23:25 24:4 25:7 25:15 25:15 25:25 27:3 27:21 27:22 28:25 56:16 57:1 58:19 66:24

dead39:21 deadline ( 2 ) 10:11
50:2

deal ( 13 ) 5:10 22:18 34:20 57:1 57:14 57:15 59:17 62:1 62:19 67:2 73:2 73:13 75:6

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71:25

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discretion ( 2 ) 66:21 67:2

discuss ( 4 ) 29:8 29:25 35:22 81:3

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doesn’t ( 8 )5:7 12:2 25:3 29:19 34:20 58:10 63:4 81:22 doing ( 14 ) 19:2 20:2
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done ( 25 ) 6:2 12:14 32:15 32:22 41:5 51:12 56:9 56:22 61:24 61:25 63:17 71:16 75:2 75:3 75:20 78:10 78:21 78:21 78:21 82:10 84:20 85:4 85:18 85:20 85:21

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63:14 63:15 63:17
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20:25 25:15 39:22
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82:15 82:22 86:15
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73:17 81:18 84:19
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endeavours,60:21
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30:24

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flights,13:23
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49:23 73:17 84:15
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84:4

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54:24 64:2
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21:15 21:18 25:1 25:5
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34:2 37:12 43:10
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39:15 40:2 40:7 40:15

43:16 43:19 49:22
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53:15 54:23 68:2
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60:4 60:7 61:14 62:10

68:24
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62:20 63:8 63:16

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63:21 64:20 65:4

76:11
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77:25
67:8 68:7 68:11 69:10

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76:8 76:14 76:18 77:3
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30:6 35:16 60:21
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78:18 79:1 79:6 79:15
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81:10 81:13 81:23
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79:14
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83:23 84:5 84:12
70:25
44:21

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54:10 64:4 65:8 72:11

61:10 61:11 61:19
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75:9 75:15

63:1 80:11
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indicate15:14
22:25 23:15 30:11

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32:2 39:17 44:6 44:8

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72:2 73:10
59:13 67:15 69:12

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85:16

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33:24 51:4 58:8 58:17

21:21 24:14 29:1 29:2
67:24 71:16
63:22 63:22

29:19 31:19 60:22
inferences ( 6 ) 68:5
items ( 2 ) 1:7 57:18

61:20 62:2 64:15
69:23 71:19 71:20
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65:13 75:6 76:20
71:23 72:12
34:22 42:3

77:25 84:3
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infinitum.57:3
83:18 83:21

34:18
information ( 2 ) 12:15itself,64:1

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71:1
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horses26:1
informed,78:13

horseshoe81:17
infrastructure,78:24
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host74:10
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24:13 28:21 30:18
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81:4
43:17 76:1 83:25 84:7
17:11

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replicate86:3
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received ( 7 ) 2:23 2:25
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shortening.51:14 shorter ( 2 ) 3:19 3:23 shorthand,35:20 shortly ( 2 ) 31:11 52:5 should ( 37 ) 4:19 4:25

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12th,11:19

14th. ( 9 ) 18:12 18:15 18:17 18:21 18:22 21:3 23:4 27:24 27:25

15th ( 5 ) 11:23 18:17 18:22 21:3 28:5 16th ( 4 ) 18:23 19:10
23:5 28:5

177,42:7 179(a).42:23

17th, ( 2 ) 23:6 28:6

18th ( 3 ) 18:24 21:5 28:6

19th. ( 3 ) 11:22 11:24 26:14

2

(2.00 ( 4 ) 1:2 18:6 20:24 23:5

2009, ( 2 ) 37:10 44:1

2012.41:4

2013 ( 2 ) 61:4 67:17 2014, ( 2 ) 44:24 61:4 2015 ( 2 ) 61:22 80:12 2016 ( 2 ) 1:1 87:16

22nd28:8

23rd ( 3 ) 9:24 13:13 28:9

24th, ( 8 ) 9:9 13:10 13:12 13:17 21:10 23:10 24:13 28:10

25th, ( 3 ) 9:13 9:24 13:10

26th,9:14

4

4.0050:2

(4.0787:14

4th, ( 10 ) 4:21 14:25 15:5 20:16 21:25 24:9 27:16 28:14 28:20 28:22

7

7th, ( 4 ) 16:24 19:8 20:17 27:19

8

8th ( 6 ) 15:6 20:17 20:20 22:6 27:19 27:20

9

9th, ( 2 ) 15:1 20:21