Key takeaways
Variation of court order
Usually requires a material change of circumstances.
Collateral use of disclosed documents
May be permitted where there is a legitimate interest to be protected.
Cross-undertaking in damages
Decision whether to enforce will normally be taken at the conclusion of the proceedings.
Bourlakova & Anor v The Estate of Oleg Bourlakov & Ors [2026] EWHC 2548 (BP) (08 October 2026)
This dispute involves high-value fraud claims by Mrs Bourlakova and her daughter and two related companies against the estate of the late Mr Bourlakov and associated individuals and companies.
In our first article on the litigation, we looked at arbitral confidentiality in the context of an application for limited disclosure of confidential arbitral documents due to exceptional circumstances: see Arbitral confidentiality: the exceptions that prove the rule? | Hill Dickinson.
In our second article, we looked at whether and when the Court will order limited redaction of a judgment relating to arbitration proceedings for reasons of arbitral confidentiality: see Court redaction and arbitral confidentiality explained | Hill Dickinson.
This is the latest decision in the ongoing dispute between the parties regarding disclosure of confidential arbitral documents, including for collateral use.
The background facts
In brief, in November 2025, the Court granted the claimants (Bourlakovas) limited disclosure (Disclosure Order) of certain documents relating to a Moscow-seated arbitration (Arbitration) between one of the defendants in the English proceedings, Edelweiss Investments Inc (Edelweiss), and a third party, Mr Ploschenko. This was referred to as the Main Judgment.
In January 2026, the Court ordered that the Main Judgment be published with limited redactions but that the Main Judgment should be published in unredacted form within a specified period after the final award in the Arbitration. This was referred to as the Redaction Judgment.
Subsequently, by an award dated 21 January 2026 (Award), Mr Ploschenko’s claim against Edelweiss in the Arbitration was dismissed in full because he had not proved the existence of the agreement he relied on in support of his claim.
The Tribunal also awarded Edelweiss a sum in respect of its costs but made a deduction of US$100,000 from the amount of costs claimed to reflect the breach of arbitral confidentiality in providing documents pursuant to the English Court’s Disclosure Order. Mr Ploschenko sought to appeal both the main Award and the costs award.
In January 2026, a Mr Korovin commenced arbitration in Russia (Korovin Arbitration) against one of the claimants in the English proceedings, Hermitage One Ltd (Hermitage), seeking payment of a sum said to be due under a 2014 agreement between Mr Korovin, Mr Bourlakov and Hermitage. The claimants alleged that the Korovin Arbitration was very similar to the Ploschenko Arbitration. Mr Korovin had also been a witness testifying in favour of Mr Ploschenko in the Arbitration.
In March 2026, an order was made to vary the Disclosure Order so that the claimants could consider whether Hermitage should seek permission to use the information contained in the disclosed documents in connection with the Korovin Arbitration.
The applications
Edelweiss sought orders that:
(a) the Main Judgment should remain in redacted form but with the addition of a postscript setting out the result of the Arbitration
(b) the documents provided under the Disclosure Order be deleted by the Bourlakovas
(c) the cross-undertaking in damages given by the Bourlakovas in the Disclosure Order be enforced and the Bourlakovas be ordered to make a payment of $100,000 pursuant to that enforcement.
The Bourlakovas sought an order that Edelweiss comply with para. 7 of the Disclosure Order and provide a transcript or recording of the main hearing in the Arbitration, failing which Edelweiss’ application should be struck out.
Hermitage sought leave to use the information disclosed to the Bourlakovas pursuant to the Disclosure order for the purposes of the Korovin Arbitration.
The Court decision
Transcript/recording
The Court noted that Edelweiss had received the Tribunal’s permission to record the Arbitration hearing. It also decided that, on its true interpretation, para. 7 of the Disclosure Order did require Edelweiss to disclose that recording.
As to whether there had been a material change of circumstances since the Disclosure Order was made that justified the original Order, Edelweiss relied on the following:
The Tribunal had made an order refusing permission to disclose the recording.
The Tribunal had issued a fine in the form of the US$100,000 costs deduction.
The Tribunal’s Award had dismissed the Arbitration.
The Court had regard to the underlying purpose of the original Order, which was the protection of the assets of Edelweiss. As the Arbitration was not over due to Mr Ploschenko challenging the Award, the threat to Edelweiss’ assets remained to the extent of that challenge. It was said that the claim in the Arbitration appeared to be ‘bogus’ and the threat to Edelweiss’ assets both large in size and dubious in nature.
Deletion of documents
Edelweiss argued that the documents subject to the limited Disclosure Order were no longer needed because the Arbitration had been dismissed.
The Court stated, however, that the Arbitration was still ongoing due to the challenge to the Award and probably had some considerable time to go. There was also no real urgency in relation to the deletion of the documents because they did not have any particular quality of secrecy or confidentiality other than arbitral confidentiality and that had already been lost.
Further, the arbitral confidentiality of the documents itself arose from the inclusion in the relevant contract of an arbitration clause, but both sides accepted that the Arbitration was ‘bogus’ and an illegitimate attempt by Mr Ploshchenko to extract assets from Edelweiss. On the basis of the Award, Mr Ploshchenko had not proved the existence of the contract from which the confidentiality flowed.
The deletion application was, therefore, stayed.
Collateral use application
Hermitage argued that the Korovin Arbitration was a further attempt to extract assets from entities owned by the Bourlakovas by means of fraudulent arbitration claims, and that the startling similarities between the claim in the Arbitration and the claim in the Korovin Arbitration provided special circumstances giving a cogent reason to permit collateral use. It also said that Edelweiss would suffer no prejudice as a result.
Edelweiss did not object to the application in principle but sought to limit the permission to three specified documents only.
The Court found that Hermitage had a clear interest in being able to defend the Korovin claim. There was also a public interest in the Korovin Tribunal being able to consider the evidence relevant to the claim. There were substantial similarities and a material connection between the two arbitrations.
Therefore, Hermitage should be permitted to use more than the three identified documents. However, the Court limited the permission to those documents which were most directly relevant to the factual similarities between the two claims. The recording of the Arbitration should not be used in the Korovin Arbitration at this stage, however. Furthermore, Hermitage was required to provide Edelweiss with regular updates on the progress of the Korovin Arbitration and also when it ended. That would allow the monitoring of the continuation of the permission for collateral use.
Enforcement of cross-undertaking
The Court decided that this was premature and that the decision whether to enforce the cross-undertaking should be made at the end of the proceedings.
Publication of Main Judgment in unredacted form and/or with a postscript
Edelweiss argued that the Disclosure Order had been obtained on a false premise, namely that there was collusion in relation to the Arbitration. There had been no such finding in the Award, and this should be reflected by a postscript to the unredacted Main Judgment.
The Court stated that adding such a postscript was not usually necessary or appropriate. However, this was an unusual case with substantial distrust between the parties and serious allegations on both sides, including of collusion in the Arbitration.
The Court concluded that it would assist the proper understanding of the Main Judgment in its unredacted form if it contained a postscript which referred neutrally to the result in the Arbitration but also to the Redaction Judgment and this latest decision in order that it was clear there were three inter-connected judgments.
Comment
The circumstances of this dispute are unusual, and they have led to the English Court making orders on the basis of exceptional circumstances. Nonetheless, the three decisions so far highlight how the Court will approach disclosure issues of the nature arising in this case.
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