Olena Tyshchenko: I want to create a precedent in English law to stop the racket of Ukrainian citizens
In June it was reported in the mass media that the London court allowed the arrest of the Ukrainian businessman Sergiy Tishchenko, who is a former Head of the Supervisory Board of now bankrupt Fortuna bank.
The claimant in these proceedings is the English company WWRT Limited, which is registered on Ukrainian citizen Olga Gutovska. She claims that Tyshchenko together ith his wife Olena Tyshchenko, intentionally caused damages to the bank.
These news appeared in mass media from the submissions of Gutovskaya and constitute manipulation, as the judge issued a bench warrant to bring Tyshchenko to the court for a hearing in a civil matter. Tyshchenko could not come to Great Britain for the hearing because of the war in Ukraine.
At the same time Tyshchenko's lawyer Andriy Gal informed that in relation to Gutovskaya in Ukraine was started criminal investigation under the allegation of blackmail and extortion.
In an interview, Olena Tyshchenko explained the essence of the issue, and commented that an organized group of fraudsters is engaged in blackmail of Ukrainian citizens through English litigations
- WWRT Limited applied to the English court with a claim against you and your ex-husband Sergiy Tyshchenko for the amount of 65 million pounds in connection with Fortuna bank. Tell me, please, what is the essence of this claim?
- At the moment of the withdrawal of the bank from the market, its statutory capital was $26 million. So, to withdraw from it £100 million the one should have been David Kooperfield. The bank was 99% owned by Motrona Tyshchenko - mother of my ex-husband Sergiy Tyshchenko. Shareholders did everything they could for save it from bankruptcy. But in the fall of 2017 its licence was revoked, and the temporary administration of the state Individual deposits guarantee fund was introduced. The bank was officially liquidated on 20 March 2020.
During the process of the bank’s closure in order to establish the reasons the non-payment under a number of loans issued by the bank, the Podil Department of the National Police of Ukraine in Kyiv opened criminal proceedings. The investigation was conducted until 2019. All unpaid loans, transactions were investigated. It was established that there was no fault on the part of the bank’s officials. Proceedings were closed on the basis of absence of crime as it was proven that bankruptcy of the bank was caused by hryvnia’s devaluation by 300% in 2014 whereas substantial number of loans was secured by the deposits in national currency. The National Bank of Ukraine ordered to such banks as Fortuna to make so-called swaps: to set off deposits against the unpaid amounts of loans. That allowed to partially repay the debts under the loan agreements.
The remaining debts under the loans remained not sufficiently covered by mortgages and proprietary rights securities. The loans in question were issued between 2008 and 2013. Until 2014 they were restructured. Therefore, if there were fake companies or agreements that would have been disclosed quite quickly. Especially since the Financial monitoring unit has access to any transaction and any bank account of the companies in Ukraine in the real time mode. So, to say that for more than 10 years existed some fake companies is impossible. From 2008 till 2018 more than eight inspections of the National Bank of Ukraine took place in the bank, every debtor was subject to the inspections of tax authorities.
When the bank was liquidated Sergiy Tyshchenko also announced his insolvency and in December 2019 applied to the Kyiv commercial court of Ukraine to be recognised a bankrupt. That was the first in the history of Ukraine application for the individual insolvency. Tyshchenko’s bankruptcy stems from the fact that the Bank belonged to his mother and he was a Head of the Supervisory Board. That was family business. So he provided personal guarantees in relation to the bank’s debts which he could not fulfil.
From 2016 the National Bank of Ukraine as per request of the International monetary fund insisted on the approval of the loans by all managing bodies of the banks including the Supervisory boards. However, loans in question were issued before 2013.
Loan portfolio issued by Fortuna bank which remained unpaid was sold at an auction by the DFG.
In terms of that there is quite difficult situation in Ukraine as DFG is selling assets for 1 percent of the loans value, o.3 percent. And in my opinion the market of the distressed debts is the shadow business. Many of the buyers are not even Ukrainian entities. At the auction the loan portfolio of Fortuna bank was sold among loan portfolios of the other banks.
- Who became the winner of the auction?
The winner was EiPiEs Ukraine which bought all auction lots. The assignment of right agreement was concluded on the 22 February 2019. It is part of the international collectors’ business. Later this company was renamed as Star Investment Van LLC. Usually behind such companies stand non-transparent fund which are funded from unclear resources source of which is not known. Collection of debts in principle is not a "white" business in any country.
- On what amount this company acquired the debts of Fortuna?
Assets of Fortuna-Bank which were sold at an auction had original value of approximately 20 million pounds. At the same time Star Investment Van bought them for UAH 10 million. That is around 270 000.00 British pounds.
- What was included in this portfolio?
This portfolio consisted of the debt obligations under the loan agreements and also securities. After the conclusion of the agreement by Star Investment Van seizure of assets which secured the loans. Some of the securities were bought back by Factor group to which the bank belonged. They were petrol and gas fueling stations etc. Only within a year, collectors earned twice as much as they paid for the Fortuna’s loans. Nevertheless they continued to seize securities.
When Sergiy Tyshchenko applied for his own bankruptcy and the insolvency proceedings started, Star Investment Van on the 14.01.2020 made an application to the arbitration trusteed. Star justified its claim by stating that while in the position of the Head of the Supervisory Board, Sergiy Tyshchenko allowed or intentionally caused losses to the bank for the full amount of unpaid loans.
The arbitration trustee refused to accept this application. The DFG also provided the statemen to the court clarifying that Star Investment Van was not transferred rights of claim towards Tyshchenko and that this entity acquired only rights under the loan agreements and security agreements which guaranteed the repayment of loans.
According to article 511 of the Civil Code of Ukraine agreements give rise only to their parties. Meaning that agreements do not create obligations towards any third parties. During the assignment the new creditor acquires rights only in the volume and on the terms existed under the original agreements. That is even if the lender under the loan is the bank. As a party to the agreement it can assign only rights towards the parties of the loan agreements. If a third part did not provide mortgage or personal guarantee it cannot be responsible for the non-payment under the agreements. from the third parties. Star did not acquire rights of claim towards any third party.
- What happened when the company went to court?
The company disagreed with arbitration trustee and continued to litigate. 25 May 2020 Commercial court of Kyiv issued a Judgement by which it made a final decision by which rejected the application of Star Investment Van to be included in the list of the creditors of Tyshchenko for the amount of unpaid loans. When the insolvency proceedings starts the court also introduces the moratorium on the satisfaction of all debts outside of the proceedings outside of the insolvency proceedings. Therefore, the court adjudicated the claim on the merits.
The court emphasised that there are two different types of civil obligation: contractual and non-contractual. That is regulated by article 11 of the Civil Code of Ukraine. Claim to compensate damages related to non-contractual obligation. Tortuous right of claim. Such right can stem only from causing damages, in this case, to the bank as an alleged victim. Thus, Star did not have a legal right to bring such claim. It was recently confirmed several judgements of the Grand Chamber of the Supreme Court of Ukraine, which clarified in details, that to claim damages can only the victim of the alleged wrongdoing. Such right is not assignable especially within the assignment of contractual rights. Therefore, application of Star from the very beginning was a legal sham.
Later we discovered that when the arbitration trustee first refused Star Investment Van in satisfaction of its claim an English company WWRT Limited was set up. It was registered on the name of Ukrainian citizen Olga Gutovska which was at the time 23 years old. She was assigned 80% of shares. 20% beneficiary was registered British solicitor Georgina Squire. She is a head and a partner of law firm Rosling King LLP.
- Olga Gutovska in her statements provided to the mass media calls her company WWRT Limited a "famous financial company". However, I did not find any references to the activities of this entity. What do you know about this company?
Statutory capital of WWRT Limited is 5 British pounds. Gutovska and Squire own this company through two intermediaries. Gutovska through Vigorous Ltd and Squire through Limeburner two. These dormant companies (companies which do not carry out any commercial activities) do not have bank accounts and registered at the address of mass registration. WWRT Limited also does not have a bank account. The company has only two employees: Gutovska and Squire who registered as directors. In February 2022 WWRT Limited was submitted to the strike out of the register by Registration body of Great Britain the Companies House for overdue accounts submission. Later the company submitted obviously false accounts of micro-company with the delay of three months and showed losses of £160 000.00.
- What this company was set up for? And what relation does this company have to Star Investment Van?
After Guarantee Fund produced its statement to the court, that rights of claim towards Tyshchenko were not assigned by it, Star Investment Van entered into the assignment agreement to transfer its rights to WWRT Limited. At the same time they artificially increased the volume of rights. What they did contradicts article 514 of the Civil Code of Ukraine. They included in the wording such phrases as "under this agreement rights towards any third party are transferred, which personally, or through intermediary, took part or can have a relation to… ". Meaning that they assigned more rights than they had. At the first hearing where we were not present, the English Judge asked them: "Do you confirm that you intentionally increased the volume of rights?" They replied: "Yes, we did it in order to catch this type of claim against Tyshchenko". That is illegal and we challenged the validity of it in the Commercial court of Kyiv within Sergiy’s Tyshchenko insolvency proceedings as any claims of the debtor should be resolved in this court.
They signed this agreement between themselves and artificially increased rights of claim to Tyshchenko but did nothing until Commercial court of Kyiv 25 May 2020 finally rejected the claim of Star Investment Van to be recognized as Sergiy’s creditor. So, they registered English company, signed the agreement not aimed at the legal consequences (repayment of loans) and were waiting for what will happen in court.
This gives me ground to assert that WWRT Limited is not an independent entity, but an alter ego of "Star Investment Van" which is a collectors’ company set up by two Czech citizens. Those are black collectors which function on the markets of Ukraine, Russia, Kazakhstan. According to my evaluation they accumulate funds of the shadow and non-shadow businesses, use them to by such debts and then through the various methods of pressure knock out money from their victims.
When Ukrainian court finally rejected the claim of Star Investment Van, they executed the assignment agreement and transferred rights of claim under it to WWRT Limited. At that moment we did not know about that. But it is interesting that securities were not assigned, and Star continued their seizure.
- How did you learn about that?
In July 2020 I and Sergiy started receiving calls from the phone number registered in Lebanon. In England the one can buy sim-cards of various countries in order to hide the true identity of the person calling. Sergiy answered and unknown man started threatening him and demand money. This person was threatening him with a claim being prepared by the English company and was telling him that all his assets and assets of his ex-wife would be frozen. After that this person sent a text message where he wrote that that is the last warning and WWRT limited will submit a claim and therefore it is better to transfer all assets onto him voluntarily.
On the 5 September 2020 when Sergiy Tyshchenko came to visit his children we were "served" in England "Service" is a process when you are given the claim and the litigation papers. Without that the process cannot start. For this, private detectives are usually hired. As a result, we found out about this story, the existence of WWRT Limited and its director Olga Gutovska. Ad I was included in the proceedings as a co-defendant.
In the claim they wrote that "Tyshchenko Sergiy and/or Tyshchenko Olena during 2008-2013 caused damages to the bank by procuring the issuance of the risky loans… we have such right of claim and therefore they owe us £65 million".
- How did they come to the claim amount of £65 million?
There is no logic as even the Fund sold loans for the full amount of £23 million including interests and penalties. WWRT then added to it some interests, devaluation of currency, lost profit (which is inadequate as the claim is non-contractual). From the very beginning the claim had a character of a threat. I in principle know why this amount as the claim is led by the law firm Rosling King partner of which, Georgina Squire wanted to "earn" on the legal fees in the first place. And legal fees in Great Britain is compensated at the first stage. At the same time legal fees are normally capped at 10% of the claim amount out of the claim for £65 million. They calculated that my house in England costs in this region (10% of £65 million). In reality my house is worth around £4.5 million. So, their idea was to push us in the litigation and "earn" on the legal fees. That is why they chose this amount and froze the house.
- What evidence did they have?
None. They brought to the court some documents at 6 thousand pages, in particular non certified copies which they called electronic records of Fortuna bank. There were copies which looked like electronic bank account statements of more than 60 bank clients. Those were not even companies – borrowers. They made an "expertise" of thee clients and their bank accounts and stated that the transactions have a fake character and the companies were transferring money between themselves. They formulated such position that from such and such until such and such period I and/or Sergiy Tyshchenko were the oeners of the bank. Although neither me, nor Sergiy were its owners.
What happened next? They "served" us and froze the assets within the claim amount of 365 million. But when they wrote that "assets worth £65 million were frozen" that is not true as we do not have assets worth £65 million. In England I have a house where I live and two cars. Sergiy does not have any assets in England as since the divorce he permanently lives in Ukraine on only visits his children in England.
What did Rosling King do? They took and expert report of prof. Vadymm Tsiura, the tutor from the Shevcnehko university (where Gutovska studies). In his report he stated that it was possible for star to assign rights of claim towards third parties. We submitted a claim against him on this ground for the knowing provision of false statements in the expert report. At this stage of the litigation Sergiy was represented by English solicitors and I was a Litigant in person. And at this stage, in my opinion, the problem was that Sergiy was represented by English lawyers who did not understand Ukrainian law. At the same time Tsiura’s report was obviously written by English lawyers and because of that the judge liked it more. As for our expert reports he Judge said that they were difficult to read. Our expert report was produced by Academician, honoured lawyer of Ukraine Anatoliy Selivanov. Because the judge did not like the format of our expert report, we ironically lost that stage.
Sergiy submitted that he cannot have a litigation in this jurisdiction as he lives in a different state. At the same time I stated that England is not convenient forum for such claims as all witnesses, documents are in Ukraine. And the claim is subject o the Ukrainian law.
Why were they able to mislead the judge so easily? Because she does not know Ukrainian law and that is the law applicable to the proceedings. Yet the law of the loas is Ukrainian and according to the agreements the litigation should have taken place in Ukraine as well.
Because Sergiy did not win on the jurisdiction point the judge awarded the other side interim fees in the amount of £150 000.00. That is how it works in England: you did not lose the case, you lost the case you still have to pay. English courts are a trap where you can enter for free but to come out you have to pay a lot. Therefore, English jurisdiction is famous for being a place where only lawyers benefit from litigations.
- But after that litigation continued?
Yes. From the very beginning my position was that this litigation is subject to the Ukrainian law, related to the Ukrainian loans, all documents, witnesses are in Ukraine. In the bank those loans were approved by 100 people. Most of the documents contain banking secrecy. We argue that they could not have access to the banking secrecy. And that is a separate issue. At the same time, they could have not received bank records of Fortuna bank’s clients bank accounts which they brought to the court as they did not have access to them. We were explaining the Judge that in Ukraine such documents may be obtained only with the permission of the court as they constitute banking secrecy. And therefore the claimant could not rely on the some copies of the bank records as they are not certified, they do not have electronic or other stamp and signature of authorised person on them. So the claim from the beginning did not look serious.
But position of the Judge in England is very serious. And gentlemen’s word is trusted there. Or this reason, I assume, the Judge could not believe that she was defrauded to that extent by the "respectable lawyers". And therefore, she treated their claim very seriously up until it become the opposite will become obvious to her. More a to say that proceedings are subject to the Ukrainian law which the Judge simply does not know.
The other side relied on what? That Ukrainian court which adjudicated the claim of Star Investment Van relied in its submissions on the article 58 of the Law on Banks and banking activities: compensation of damages caused to the bank by the officers of the bank and related parties. But when they fabricated the claim they submitted Tsiuras expert report, where he wrote that judgement of the Commercial court of Kyiv was based on the article 58 of the Law, whereas the claimant in England relies on article 1166 (losses caused by unlawful act or omission) of the civil Code of Ukraine. He stated that those are totally different laws in nature and that such claim was not adjudicated by Ukrainian court. Which in fact applied this rule of law by default as it has a general character. That is a knowledge of a student level. To be honest, I feel ashamed for my Alma Mater where such "professors" are teaching. His "expert report" is a legal mess with the reckless attitude that those reading it will not know Ukrainian law.
Article 1166 is a general tort. It merely states the general rule that damages caused by unlawful acts have to be compensated. However, we are a civil law country. For the damages to be compensated the fault, actual loss and the rule of law which was breached has to be established (specific delict). Needless to say, that is not the case. The claimant did not show a breach of a civil law neither the criminal law in which case only Ukraine could have had a jurisdiction. So, the claim against us is a legal fraud.
The only legal rule applicable to the essence of the claim is already adjudicated by the Ukrainian court: article 58 of the Law On banks and banking activities. They could not find any norm close to it. For this reason, they were fooling the Judge with article 1166 of the Civil code of Ukraine presenting it as a free-standing tort.
What we received today? Ukrainian court clarified its own Judgement of 25 May 2020 tat article 58 claim was a tortuous, non-contractual claim. At the same time on the assignment of contractual rights only contractual right may be assigned. Thus, the court additionally clarified that according to the assignment agreement between the Fund and Star Investment Van were transferred only contractual rights towards the parties of the agreement. No non-contractual rights including under article 58 were assigned.
So, the claimant does not have a right of claim against us. Moreover, only Deposit Guarantee Fund have a legal standing for bringing such claims according to the law on behalf of the liquidated bank.
Also, the Fund confirmed that no electronic database was provided to Star Investment Van. What Gutovska claimed at court under oath. The reasonable question arises: where did they get it from. And this is already a crime under article 232 of the Criminal code of Ukraine: obtaining, spread and usage of the information containing banking secrecy.
- Did you notifiy the law enforcement?
We applied, the criminal proceedings were launched but until we received answers from Fund we did not have enough evidence The criminal proceedings are ongoing at the Kyiv department of the National police for the illegal obtaining and usage of banking secrecy and extortion.
Moreover, we received the demand from WWRT Limited to pay them £55 million and then they said they would refuse from the claim. Also they claim that if we refuse to do so, the Judge who is "under their full conrtol" would issue a judgement for £90 million against us. They stated that judge is "under their full control" and will issue any judgement they request. To be honest, such inadequate amounts look childish at very best. However, you can expect that from English litigation lawyers as they "grow" in the law firms disconnected from any real businesses. Usually they do not have even basic practical knowledge apart from the litigation process. Unlike corporate lawyers. But these ones do not even understand that to hide £65 million without leaving any traces is unrealistic. Yet they are unaware of anti-money laundering procedure, banking regulations, supervisory bodies and their role etc. The same applies to 23 year old beneficiary of WWRT. Bank is not a pocket. You cannot take from there £ 65 million without anyone noticing for 10 years.
Until they claimed these amounts from us at court that was a legal matter. Now, after their another extortion demand we can talk about complete number of elements needed for the qualification of extortion. Therefore, we now resume criminal proceedings. Gutovska will be a suspect and we will ask investigators to move behind the border and ask for it to take place in England as well it is obvious that as against us is acting an international criminal organization of black collectors.
We recorded conversation with the intermediary who sent us the extortion demand. This person said: "These people are rubbing the skin on Ukrainian market for a while and are engaged in knocking out the debts. You know this Olya (Gutovska)? Behind her is what you call the OCG (organized criminal group)".
- Is there a possibility to change the jurisdiction to Ukrainian?
In London another hearing took place recently in relation to Zhevago. Credit and finances bank represented by the Deposit Guarantee Fund against the businessman Kostyantyn Zhevago. Identical claim, with the difference that it was brought by a proper claimant, the Fund. Anf no one touched his wife. The Judge ruled that it is not relevant that Zhevago has business interests and visits England regularly. What is important that all witnesses, documents, evidence are in Ukraine. And that English court does not have the same powers as to that as Ukrainian including the access to the banking secrecy. But Zhevago’s judgement came in September 202 so we could not rely on it as on the precedent.
- Please comment on the decision of the English court to arrest Sergiy Tyshchenko. High court of England in June issued a bench warrants and the judge ordered to bring him to the court for the hearing.
Last time Sergiy came to England in April to visit children during school holidays. After that he returned to Ukraine where there is his family’s business. He is actively involved in aid to the Ukrainian military. His parent became unwell. And in the end of the day he is a true man. Who wants to stay in his country during this time. But then he was called for examination at court in person. From the beginning this hearing was listed for September 2021.But due to COVID it was re-listed for May 2022. In May his parents became quite ill, plus the enemy increased it activity on the ways to Europe from Ukraine. He asked the court to hold the hearing via video-link. But the Judge refused. She stated that war is not a serious reason not to come to England for the hearing. As a result, she issued a bench warrant. So, obviously he will not be placed to prison as it is merely a civil proceedings. But he is preparing an application in relation to such unusual, to say the list, decision. He is nevertheless prepared to come to England.
- What will you do next?
The other side does not want the adjudication of the case on merits to take place as it was originally planned as a method of threat. That is why they threatened us, blackmailed. On the 20 June I managed to persuade the court to adjourn one of the hearings for September. I also submitted to the court recent judgement of the Kyiv commercial court and letters received from the Guarantee Fund. And now, I think, the judge started doubting the claim against us. In general the volume of evidence we have is enough to strike the fraudulent claim of WWRT out of the English court. As this claim has been already adjudicated by the Ukrainian court and re-visiting it will breach the international legal principles. No-court has the right to re-adjudicated the proceedings already adjudicated by another court. Interestingly, that at the hearing at some point the representative of WWRT tried to persuade the Judge that Ukrainian judges might need "a helping hand" from the English lawyers to understand Ukrainian law better. I very much wanted to say that we are a proud nation and every second of us now has a military grade weapon.
But on a serious note, I made a decision to litigate with these fraudsters myself. Previously most of the applications were submitted by Sergiy as he has nothing to lose in England. I, on the other hand, if unsuccessful, may lose the house where I live with my children. However, I am certain that truth and law are on my side. I will risk my property, but I want to create a precedent in English law. At this point WWRT Liited was assigned by Star rights of claim under the loan agreement of various banks including Platinum, Finances and credit and others. Their project was designed as a large scale scam. Under the same grounds they can blackmail any owner, officer of the banks or directors and shareholders of the debtors under the loan agreements. Just by referring to the Ukrainian law which remains an unknown territory for English courts. Me and Sergiy just became first victims. So, I want to make such a precedent in English law which will prevent fraudsters from illegal pursuing of Ukrainian citizens through the English courts. And, effectively will prevent further abuse of English justice system. And most importantly, I want us and our laws to be respected.
