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Anastasia Goncharova v Natalia Zolotova et al

Published November 2015

John Wardell QC and Laura Newton were instructed in these urgent proceedings in the Queen’s Bench Division in October 2015 in a high profile dispute concerning the estate of Mr Kakha Bendukidze.

Mr Bendukidze was a Georgian businessman and statesman, who died at a hotel in London on 13th November 2014 of natural causes.  There are ongoing proceedings in Russia and in Georgia over the assets in Mr Bendukidze’s estate, in which it was initially held that the estate vested in his widow Mrs Zolotova. However, that ruling was challenged by Miss Goncharova, who claims to be the daughter of Mr Bendukidze and thus entitled to the entirety of his estate.  Miss Goncharova relies in the Georgian proceedings upon a provision of Georgian law which deprives a widow of her husband’s assets if it is established that the couple were separated for a number of years prior to the husband’s death.  Mrs Zolotova says that she first became aware of Miss Goncharova at her husband’s funeral and contests her claim to parentage.

The proceedings in this jurisdiction concerned bodily samples taken as part of the post mortem conducted on Mr Bendukidze at the direction of the Westminster District Coroner.  These samples remained in the custody of the Coroner and became the focus of hotly-contested litigation between the parties.  In September 2015 Miss Goncharova obtained in Russia an order requiring the transfer of the samples to Moscow for DNA testing.  She applied to the English High Court under section 1 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (“the 1975 Act”) and/or section 25 of the Civil Jurisdiction and Judgments Act 1982 (“the CJJA”) for an order requiring such transfer.

Mrs Zolotova resisted the application, primarily on the grounds that the 1975 Act was not engaged because the transfer of the samples to Russia for testing there did not constitute “obtaining evidence in the United Kingdom” for the purposes of the 1975 Act; and further on the basis that as a matter of English law she was entitled to withhold consent to testing of the samples under the provisions of the Human Tissue Act 2004 (under section 27 of which she was the first person in the hierarchy of qualifying relationships to give consent to such testing), such that the English Court would not grant the relief sought if the substantive proceedings were in this jurisdiction (the test under the first limb of the CJJA).

Mrs Justice Thirlwall determined the application in favour of Miss Goncharova, taking a pragmatic view that the time and cost of carrying out a DNA test were minimal in the context of the extensive multi-jurisdictional proceedings over an estate allegedly worth $750 million.  She rejected the argument that the 1975 Act was not engaged, holding that an order requiring the samples to be transferred to Russia for testing amounted to an order for obtaining evidence.  She also found that if the proceedings were taking place in England the English Court would require DNA testing to be carried out, and that the DNA testing would not be unlawful under the Human Tissue Act 2004 if carried out under a court order.  The Judgment contains some consideration of the application of section 25 of the CJJA, approached firmly from the perspective that the DNA test would be carried out in English proceedings and that the English Court ought to assist the Russian Court by making the order sought for transfer of the samples to Russia. Permission to appeal was refused by the Court of Appeal.

Written by Laura Newton

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