On 10 July 2026, Richards J handed down judgment in Bourlakova v Anufriev and others [2026] EWHC 1747 (Ch), dismissing the sixth to eighth defendants’ application for disclosure of documents withheld for privilege based upon the claimants’ alleged iniquity. The judgment has significant implications for the investigation of fraud allegations, and in particular the use of enquiry agents. Richards J made clear the wish to avoid any “chilling effect” on litigants that would arise from a finding of iniquity merely in the use of such agents, even when steps were taken to ensure their investigation was lawful.
The hearing arose in the context of ongoing litigation relating to the estate of Mr Oleg Bourlakov, and competing claims to the assets distributed by him in his lifetime or left by him after his death in 2020 (previous judgments can be seen here and here). The claimants, Loudmila and Veronica Bourlakova, allege that Mr Bourlakov and other defendants conspired to place assets beyond the reach of divorce proceedings initiated bv Loudmila in 2018, and the remaining defendants have continued that conspiracy following his death.
During the course of the litigation, the claimants instructed enquiry agents for the purposes of obtaining information for use in the proceedings. At various times, those enquiry agents came into possession of documents and information which were confidential and privileged to the relevant defendants. The defendants alleged that those documents had been obtained unlawfully, and that the Bourlakovas had acted iniquitously in obtaining them, or causing them to be obtained, such as to deprive them of legal professional privilege in communications relating to the instruction of the enquiry agents.
Richards J held that the beliefs of the individuals alleged to have acted iniquitously are relevant to determining whether the conduct is in the “ordinary run of cases” (at [30]-[35]). He further considered that it was not enough to prove that some other person acted unlawfully (at [165]) and rejected the submission that there was (or should be) a rule that it is per se iniquitous to “put in train” a process which results in the obtaining of confidential information without consent: at [167]. Such a broad rule would run the risk of preventing claimants obtaining evidence of suspected fraud, and would be a disproportionate way of controlling the conduct of investigations into wrongdoing (at [168]).
In considering whether the Bourlakovas’ motives rendered their conduct iniquitous, the judge concluded that the Bourlakovas and their solicitors were not engaged in “privilege hunting” (at [113]-[117]) and believed that their enquiry agents’ investigations were conducted lawfully (at [123], [133] and [176]), in particular through use of a whistleblower (at [139]). He further concluded that it was not iniquitous to engage an independent review counsel to ensure that potentially privileged documents which were obtained by the enquiry agents were withheld from the Bourlakovas and their solicitors (at [191]).
As a result, Richards J ruled that “none of the alleged iniquities has been established” (at [194]).
The underlying proceedings continue, and are listed for trial in October 2027.
Neil Kitchener KC, Patricia Burns and Matthew Hoyle acted for Loudmila and Veronica Bourlakova, instructed by Mishcon de Reya LLP.