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Tim Penny QC

Call: 1988    QC: 2016

+44 (0)20 7306 0102tpenny@wilberforce.co.uk

Civil Fraud

Commercial fraud/cross-border cases

Tim has particular expertise in commercial fraud cases, many of which are cross-border. He therefore has excellent knowledge of search and worldwide freezing orders, jurisdiction and choice of law clauses and applications for permission to serve outside the jurisdiction; these cases often involve cross-examination on asset disclosure, contempt of court applications and without notice applications testing the boundaries of the court’s jurisdiction to ensure that assets are eventually available for the enforcement of judgments or arbitral awards. Tim is also experienced in taking steps to assist fraud disputes taking place abroad (for example, by orders under s.25 CJJA) or in arbitrations. Tim’s cases often involve allegations of breach of fiduciary duty and conspiracy.

Some of his recent cases include:

  • National Bank Trust v Yurov & Others: in October and November 2018, Tim represented the 2nd and 5th Defendants in a 9 week Commercial Court Trial in which a Russian Bank claims damages for fraudulent breach of duty in the sum of c.US$1 Billion against its former director/shareholders.
  • Akhmedova v Akhmedov [2019] EWHC 1705 (Fam), in which Tim successfully applied on notice for freezing order relief to prevent assets being removed from Dubai in support of the applicant’s financial relief award of c.£500 million in the Family Division. The decision is notable for the finding of a good arguable case that individual directors of the corporate director of the respondent are to be treated as ‘de facto’ directors of the respondent.
  • VTB Bank v Skurikhin [2019] EWHC 1407 (Comm), a decision of the Commercial Court dismissing the application of a Liechtenstein Foundation to discharge a receivership order obtained by Tim in 2015. Tim has acted in this matter for the claimant, a Russian Bank, since 2012. The case concerns the enforcement of Russian judgment against assets in England and Italy. The judgment notably applies principles relating to issue estoppel and Henderson v Henderson abuse of the process.
  • Since April 2017, Tim has been instructed as lead counsel representing the Court appointed receivers of Sebastian Holdings following the US$300m judgment obtained by DBAG against SHI. Tim has appeared in first instance courts and the court of appeal of the Turks and Caicos Islands on a number of occasions since November 2017, as well as appearing in the Commercial Court in England and Wales ([2017] EWHC 3265 (Comm)).
  • In Hi-Level v Levine [2018] EWHC 1882 (Ch), Tim obtained orders for further searches following a without notice ‘Doorstep Piller’ order relating to breaches of database right and breaches of confidence.
  • In BM-Bank JSC v Chernyakov [2017] EWHC 2564 (Comm), Tim obtained the maximum 2 years sentence against a contemnor for multiple breaches of a high value WFO.
  • Abela v Fakih [2017] EWHC 269 (Ch) (search order); a judgment on the jurisdictional basis for the granting of a search order against a third party to the litigation. In 2013, Tim was involved in the Supreme Court ([2013] UKSC 44) in this long-running case in what is now the leading case on applications for permission to serve by alternative means under CPR r6.15 and r6.37 in non-Convention States; in 2015 Tim was involved in contempt of Court proceedings and in 2016 obtained WFOs and a search order.
  • Marashen v Kenvett [2017] EWHC 1706 (Ch) (service outside the jurisdiction); an appeal on whether the Court was correct to permit alternative service within the jurisdiction of an application for a third party costs order in circumstances where, but for the alternative service order, service would have been effected through Hague Service Convention channels in Russia.
  • FCA v Capital Alternatives [2016] EWHC 1984 (Ch); a judgment on costs following cross-examination of a defendant on his defective asset disclosure.
  • During 2016, Tim was instructed by the trustee in bankruptcy of a Russian individual in a complex case in restitution against third parties alleged to have been holding assets of c.$14m belonging to the bankrupt. Tim obtained urgent without notice proprietary injunctive relief and the claim settled before trial.
  • During 2015 and 2016, Tim was instructed by the claimant to enforce a c.US$40m U.S. judgment in this jurisdiction; a without notice injunction was obtained and the claim eventually settled.
  • In 2017, Tim obtained a ‘Doorstep Piller’ against a party alleged to have defrauded a well-known technology company.
  • Between 2016 and 2018, Tim was instructed as lead counsel for the claimant/purchasers in a substantial multi- party cross-border claim arising from alleged breaches of warranty in a Sale and Purchase Agreement and allegations of breaches of fiduciary duty/secret profits by the leaving directors.
  • Tim acted for the claimant who is endeavouring to enforce a USVI arbitration award in various offshore jurisdictions including in particular the Cayman Islands.

Older cases include:

  • VTB Bank v Skurikhin and others [2015] EWHC 2131 (Comm); [2014] EWHC 2254 (QB); [2014] EWHC 1053 (Comm); [2014] EWHC 271 (Comm); [2013] 2 All ER 418 (Comm); [2012] EWHC 3116 (Comm); [2012] EWHC 3916 (Comm) : Tim acted for VTB, one of Russia’s largest banks, in a claim which started off as a contested ‘without notice’ claim for interim relief under s25 CJJA 1982 in support of proceedings in Russia against a high profile Russian businessman, and concluded with the appointment of an equitable receiver against the target entity.
  • A v B [2014] EWHC 719 (Ch); [2013] EWHC 1776 (Ch); [2013] EWHC 330 (Ch): Between 2009 and 2014 Tim acted for the successful claimants in this £3 million fraud claim. Tim obtained a WFO in late 2009 and conducted a 15-day trial in early 2013, following which his clients obtained a substantial judgment for dishonest breaches of fiduciary duty and forfeiture of agent’s commissions/fees. Post-Judgment, Tim obtained a WFO against the judgment debtor’s offshore trust company, post-judgment disclosure orders a post-judgment charging order and the claim settled in the middle of a trial under s423 of the Insolvency act 1986.
  • A v B: In this case arising in the regulated sphere, Tim acted for a defendant facing allegations of bribery and breach of fiduciary duty.
  • Key Homes v Patel [2014] WL 16417: Tim acted for the defendant in this case, in which the client sought to challenge the jurisdiction of the Court to hear the claim.
  • Ukrsibbank v Polyakov (2013): Tim was part of a team instructed by the claimant in a US$100m WFO pursuant to section 25 CJJA in support of proceedings in Ukraine.