Bogolyubov (Appellant) v JSC Commercial Bank Privatbank and another (Respondents)

Permission to Appeal application lodged

Case summary
Linked cases
Permission to Appeal
Previous proceedings

Case summary

Case ID

UKSC/2026/0125

Parties

Appellant(s)

Gennadiy Bogolyubov

Respondent(s)

Igor Kolomoisky

JSC Commercial Bank PrivatBank

Issue

Did the Court of Appeal apply the correct legal threshold for appellate review when declining to interfere with the trial judge’s findings of Ukrainian law? If a defendant misappropriates two sums of money from the claimant, and uses the proceeds of the second misappropriation to repay the amount taken by way of the first misappropriation, does the claimant still have a cause of action in respect of the first misappropriation? What is the correct legal test to determine whether a claimant has abandoned his pleaded case in favour of a new and unpleaded case?

Facts

The appeal arises out of proceedings brought following the insolvency and nationalisation of the Respondent, Ukraine’s largest bank, in December 2016. The Appellants are two of the Respondent’s founding shareholders and together owned a controlling stake in the Respondent prior to its nationalisation. The Respondent brought proceedings in December 2017 against the Appellants and six companies owned or controlled by them, seeking compensation for losses caused by their alleged participation in a fraudulent scheme between November 2013 and September 2014. The Appellants were alleged to have caused the Respondent to advance funds to various borrowers under their control pursuant to sham loan agreements, with the proceeds ultimately being used to fund the Appellants’ other businesses. Some of these drawdowns were recorded in the Respondent’s books as being repaid by proceeds from further fraudulent drawdowns by borrowers under the Appellants’ control. At trial, the Appellants argued that the Respondent suffered no loss for which it could claim in tort, as the relevant drawdowns underpinning the Respondent’s claims were almost entirely repaid by proceeds from subsequent misappropriations (the “Repayment Defence”). On 30 July 2025, Trower J found the Appellants jointly and severally liable under Article 1166 of the Ukrainian Civil Code for the misappropriation of the Respondent’s funds in an amount of approximately US$1.9 billion (less the value of certain assets transferred to the Respondent). In his decision, the trial judge rejected the Repayment Defence on the basis that (a) as a matter of Ukrainian law, the purported repayments did not extinguish the loss suffered by the Respondent and (b) in their closing submissions, the Appellants had abandoned their original case in favour of a new, unpleaded case (which would have been prejudicial to the Respondent were it allowed to be advanced) and, in any event, such case was not supported by the evidence. The Appellants appealed against the trial judge’s decision, arguing that he had erred in his findings of Ukrainian law, as well as in his rejection of the factual premise of the Repayment Defence. On 22 May 2026, the Court of Appeal rejected the appeal and affirmed the trial judge’s findings as to the Repayment Defence. The Court of Appeal further declined to interfere with the trial judge’s findings of Ukrainian law. The Appellants now seek permission to appeal to the Supreme Court.