Potanina v Potanin [2026] EWHC 1738 (Fam)

Judgment date: 14 July 2026

https://caselaw.nationalarchives.gov.uk/ewhc/fam/2026/1738

MacDonald J. Hearing concerning the husband’s application for Letters of Request under the Hague Convention 1970.

Relevant background and litigation history

In 2018, W made an application under Part III of the Matrimonial and Family Proceedings Act 1984 (‘the 1984 Act’) for financial remedies following an overseas divorce. There has since been extensive litigation, including hearings before the Court of Appeal and the Supreme Court, before permission was ultimately granted to W to proceed in 2025, nearly eight years after her initial application. (Our collection of these decisions and related commentary is here: Potanin v Potanina Collection.) W’s claim under the 1984 Act is said to be worth approximately US$5bn.

Since 2022, H has been subject to UK sanctions, including a travel ban prohibiting him from entering or remaining in the United Kingdom.

H has also been involved in other litigation in this jurisdiction, including proceedings in the King’s Bench Division and the First-Tier Tribunal. Whilst there were no formal arrangements for H to give evidence in the King’s Bench Division proceedings, the First-Tier Tribunal refused permission for H to give oral evidence by video-link from Russia (Potanin v Charity Commission for England and Wales [2026] UKFTT 271 (GRC)). This was because consent had not been obtained from the Russian Federation in accordance with Agbabiaka (Evidence from Abroad, Nare Guidance) Nigeria [2021] UKUT 286 (IAC).

H maintained that he was willing to give evidence at the final hearing in the Part III proceedings by way of video-link, provided that doing so would not breach any applicable laws. To that end, H applied for Letters of Request to be sent to the Russian Federation under the Hague Convention 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters (Hague Convention 1970). The application was made following guidance from the Foreign, Commonwealth and Development Office (FDCO) Taking of Evidence Team and the Foreign Process Section at the Royal Courts of Justice.

W contended that Letters of Request were not necessary because H had already volunteered to give evidence by video-link. She further argued that H wielded significant influence over the Russian courts and would rely on any refusal of Letters of Request as a pretext for declining to give evidence.

Legal framework

Contrary to the advice provided by the FDCO Taking of Evidence Team, both the United Kingdom and the Russian Federation are parties to the Hague Convention 1970.

FPR 22.3 permits the Family Court to allow a witness to give evidence by video-link. FPR PD 22A requires an enquiry of the FDCO only where there is doubt as to the position in the foreign jurisdiction.

In Morris v Banque Arabe [2001] ILPR 37, Neuberger J considered the significance of another state being a party to the Hague Convention 1970 where compliance with a disclosure order would otherwise contravene that state’s domestic law. He implicitly treated the Convention as optional and placed considerable emphasis on the delay that would result from relying upon it. This approach is consistent with Article 1 of the Convention.

The decisions in Nare (Evidence by Electronic Means) Zimbabwe [2011] UKUT 00443 (IAC) (“Nare”) and Agbabiaka (Evidence from Abroad, Nare Guidance) Nigeria [2021] UKUT 286 (IAC), [2022] Imm AR 207 (“Agbabiaka”) emphasised the need to obtain the permission of the foreign state before taking evidence directly by video-link from abroad.

Held

Although SA v AA [2023] EWHC 2016 (Fam) held that the principles in Nare or Agbabiaka applied equally to family proceedings, MacDonald J reached a different conclusion. He agreed that neither Nare nor Agbabiaka established that taking evidence by video-link abroad without the foreign state’s permission is unlawful (Raza v Secretary of the State for the Home Department [2023] EWCA Civ 29). He further noted that both authorities arose in the immigration jurisdiction rather than in family proceedings (Newcastle CC v JK [2025] EWHC 1767 (Fam)).

There has been a longstanding practice in family proceedings of not treating the Hague Convention 1970 as mandatory, and of permitting a party/witness who volunteers to give evidence from abroad by video-link to do so without engaging the procedures under the Convention or obtaining prior permission of the foreign State. This approach accords with the Overriding Objective in FPR Part 1 of dealing with cases fairly and expeditiously, a consideration of particular importance where these proceedings have already been ongoing for eight years. MacDonald J accepted, however, that where it is necessary to compel a witness/party to give evidence from aboard, it may be prudent to follow the procedures under the Hague Convention 1970.

H’s application for the issue of Letters of Request was therefore dismissed. H was directed to give any oral evidence required at the final hearing by remote video-link. MacDonald J made no criticism of H for bringing the application, recognising that there had been a lack of clarity as to the position in family proceedings concerning the taking of direct evidence by video-link from abroad.

MacDonald J made it clear that his decision was not to be taken by W as acceptance of her contention that H exercised influence over the Russian courts – no finding to that effect was made.