'Evidence destroyed' in war of the tycoons


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The Independent Online

The biggest High Court case of the year – the £2bn claim by the Ukrainian oligarch Victor Pinchuk that two fellow compatriots and billionaires duped him out of a mining project worth hundreds of millions of pounds – has heard the concerns of Mr Pinchuk about the destruction of potentially vital evidence.

Mr Pinchuk, a friend of high-profile figures including Tony Blair, Bill Clinton and the artist Damien Hirst, is suing the Belgravia-based Gennadiy Bogolyubov and Igor Kolom-oisky, who lives in Switzerland. He claims that in 2005 he paid them $143m (£85m) for the iron-ore mining business, but the duo have failed to honour the deal. The mine that he says they owe him is now worth as much as $2bn, he claims.

The defendants vigorously deny that any such agreement was made.

In preliminary hearings last week, Mr Pinchuk's QC, Lord Grabiner, highlighted the unorthodox attitude of Messrs Bogolyubov and Kolomoisky towards keeping documents relating to their business activities. Citing testimony from Mr Kolomoisky's own lawyers, Freshfields, the billionaire's "standard working practice" had been to dispose of all hard- copy documents immediately. He was also, Freshfields said, in the habit of disposing of all manuscript notes taken during business meetings.

Also, all his emails were "double-deleted" – meaning they were deleted and then the "deleted items" folder was itself deleted, making it very hard to retrieve anything.

Most concerning of all, Lord Grabiner added: "We see that in late 2013, Mr Kolomoisky's computer was destroyed."

That was months after Mr Pinchuk filed his claim against him.

Freshfields said relevant documents "available" had been retrieved prior to the computer's destruction. But Lord Grabiner argued that double-deleted emails may not have been retrievable.

It was not only Mr Kolomoisky's record-keeping that came under question. Lord Grabiner went on: "We are also told that Mr Bogolyubov has mysteriously lost access to one of the gmail accounts he used from 2008 to 2010."

Lord Grabiner is trying to head off Mr Kolomoisky and Mr Bogolyubov's attempts to delay the full court hearing until 2016, in essence arguing that the longer the delay, the greater the danger that key documents will disappear during the disclosure process.He said: "We want the documents now … there is a real risk that the documents won't be available in, whatever, three, four, five years hence."

He added: "Both the defendants have form, I'm afraid, for cheating over disclosure and doing so on quite a big scale."

Lord Grabiner cited a case where the pair had attempted to make a $39m insurance claim involving a business in the US called Felman. The insurer successfully fought the claim and the judgment, quoted by Lord Grabiner in court, referred to relevant documents being destroyed.

He said: "Given what happened in the Felman litigation, one might reasonably have expected that the defendants in this action would be careful to ensure that document-retention warnings were given internally. They obviously were given by the solicitors, but I'm afraid they were simply ignored."

Lord Grabiner also said the defendants were not told by their legal team to hold on to any documents relevant to the case until July last year – four months after the proceedings started. Mr Kolomoisky's computer was destroyed at the end of the year, and his secretaries were not told of the order until January –more than 10 months after the proceedings were first served.

After the uprising in Ukraine Mr Kolomoisky was appointed by the acting President, Oleksandr Turchynov, as governor of the Dnipropetrovsk region. Dnipropetrovsk is the base of Mr Pinchuk's struggling Interpipe empire.