Jurisdiction and Forum
When a Russian company brings a claim in the BVI against two Russian employees, employed under Russian law service agreements, it is perhaps not surprising that a forum challenge would ensue. In Livingston Properties Equities Inc et al v. JSC MCC Eurochem, the respondent, Eurochem, was the Russian company concerned, and the claim related to the alleged receipt of bribes. Eurochem had also sued the BVI companies that were said to have been the recipient of those bribes. The suitability of the BVI as the forum to decide a dispute, and the relevance to that consideration of the need to plead matters of foreign law, was considered by the Eastern Caribbean Court of Appeal, which held that Russia was clearly an available forum and, applying VTB v. Nutritek, held that it was also clearly the most appropriate forum, to determine the claims against the BVI companies. The Court of Appeal has since given leave to appeal to the Privy Council on the basis that the appeal raises points of public importance in relation to the need to plead foreign law.
An especially brazen attempt to avoid liability was attempted in the BVI case of Donna Union Foundation v. Svoboda Corporation. The day after an application had been made on short notice for the appointment of receivers, the respondent company took steps to re-domicile itself to another jurisdiction. The question which arose was whether the court retained a personal jurisdiction over that defendant. Adderley, J. held that the court clearly did, on the basis that it had been served in the BVI whilst a BVI company and additionally that Section 186(5) of the BVI Business Companies Act 2004 provides that companies that discontinue from the BVI, may continue to be sued in the BVI, in respect of pre-existing liabilities. Hot off the press at the time of publication, the Court of Appeal has since upheld that decision, in a judgment delivered on 17 January 2019.
In doing so, the court also distinguished a line of authority in which Bannister J holds that the court will not grant asset disclosure orders in support of freestanding freezing injunctions (so-called Black Swan relief), on the basis that these authorities are not to be applied where a statutory jurisdiction to obtain injunctive relief is invoked under the Arbitration Act 2013.
In Mauritius, two separate cases recently dealt with the status of the Commercial Division of the Supreme Court, which was established in 2009. SME Equity Fund Ltd v. RFA Ltd and Osman Mmon v. Timol both concerned the jurisdiction of the Commercial Division to hear certain bankruptcy matters. Both decisions relied on the 2017 Court of Civil Appeal decision in SMN Maudarbuccus v. The Mauritius Commercial Bank Ltd and confirmed that the Commercial Division is a division of the Supreme Court and its judges have jurisdiction in all matters (except a very limited category specifically reserved to the Chief Justice): “Issues about a case being heard by one Division rather than by another are issues of administration … case flow management and case allocation and not issues of jurisdiction or law.”
Pleadings (in particular pleading fraud and dishonesty)
In Ahmad Hamad Algosaibi & Brothers Company (AHAB) v. Al-Sanea & Ors, the Cayman Court delivered its judgment following what was the longest trial in history in that jurisdiction. AHAB had brought various claims against the defendants alleging fraud and seeking damages in the region of USD 9.2 billion.
AHAB alleged that, over a thirty-year period, Maan Al-Sanea had, without AHAB’s knowledge, entered into revolving credit facilities using the AHAB name. This came to the surface when the banks who had loaned the money started calling in the loans. AHAB alleged that Al-Sanea had committed forgery and then placed the fruits of the fraud in companies in the Cayman Islands. After a trial that spanned most of a year, each of the claims were dismissed on the basis that AHAB knew about the fraudulent borrowing, with the result that the court accepted the illegality defence of the defendants.
The court also found the plaintiff’s tracing claims to be lacking particularisation. AHAB argued that it did not need to show the unbroken chain of transactions in order to bring a tracing claim. However, the court rejected this and held that it is necessary to show a chain of transactional links. Although a trustee or fiduciary is required to account for trust funds in their hands, this did not mean that AHAB was discharged from showing that the funds were trust assets.
The issue of pleading claims involving dishonesty also came before the Grand Court of the Cayman Islands in Ritter and Geneva Insurance SPC Limited (In Voluntary Liquidation) v. Butterfield Bank (Cayman) Limited. The claim related to fraudulent transactions in excess of USD 700,000 made at the request of a former director of Geneva. The plaintiffs alleged that the bank was liable for breach of contract, negligence, and dishonest assistance in making the payments on the basis of forged requests.
The court set out the requirements for pleading a cause of action of “dishonest assistance” and held that when such a claim is made against a corporate entity, a particular individual or individuals must be identified (by their post if their name is not known) as having acted dishonestly and in what manner. It is not enough to allege that the corporate entity was aware or “ought to have been aware” of fraudulent actions by an outsider. A dishonest assistance claim is a serious allegation and is not to be pleaded lightly. It should not be tacked on to the less serious allegations of breach of contract and negligence but must be pleaded separately and first.
Applying those tests, the court dismissed the claim on the basis that the pleading was defective and there was no evidence that the bank deliberately allowed transactions that were fraudulent to be processed. At a subsequent hearing it awarded indemnity costs to the defendant on that part of the case.
The case was also interesting for confirming the applicability in Cayman of established English authority regarding the duty on a Bank’s customer who discovers fraud to inform the bank immediately. On the facts, the court found that Mr Ritter had been aware of the forgeries for almost a year before he informed the bank and his silence was deliberate. That, together with other findings as to reliance by, and detriment to, the bank meant that the plaintiffs were estopped from pursuing their claims for breach of contract and negligence.
In the Isle of Man, the equivalent to the remedy of judicial review as it exists in England and Wales is called a Petition of Doleance. Unlike in England, however, there is no separate stage where the court’s permission must be obtained before bringing the proceedings. As a result of Kniveton v. Public Services Commission & Other, that may soon change.
The case concerned whether or not the claimant was entitled to Flexible Early Retirement following negotiation of a severance package with her employer. In civil proceedings in 2017, the court had held that she had compromised any right she might have to claim it on a full and final basis. The claimant sought to appeal the decision, but withdrew it in favour of issuing a Petition of Doleance instead. In the absence of a permission stage, the defendants were obliged to apply for strike out/summary judgment on the grounds that the petition was an obvious abuse of process and had no prospect of success.
The petition was indeed struck out, but the case highlights the need to introduce a permission stage and representations have been made to the Tynwald (Isle of Man Parliament) Legislative Committee about reviewing the Petitions of Doleance process.
Access to materials filed in court
Cases in both Guernsey and BVI, both of them aspects of the well-publicised Tchenguiz litigation, concerned what access could be had to, or what use could be made of, materials filed in court proceedings.
The Guernsey case, In re the Tchenguiz Discretionary Trust, arose from an application under rule 79 of the Royal Court Civil Rules, concerning the use of disclosed documents in other proceedings. (The rule is materially identical to CPR 31.22).
The applicants, facing disclosure obligations in proceedings brought against them in the Commercial Court in England for damages for conspiracy and other torts, applied for permission to disclose in those proceedings certain documents obtained on disclosure in Guernsey. The Royal Court granted leave, but not without careful consideration and subject to strict limits on access and the signature by all involved of a confidentiality undertaking.
The case in the BVI, Robert Tchenguiz v. Mark McDonald et al concerned the availability for public inspection of evidence filed in support of a claim. This appeal decided that an Originating Application (for the appointment of a liquidator) is to be treated as if it were a claim form and, notably, that where an applicant failed to set out in the claim form the grounds upon which the application was made, then the claim form was to be treated as being read alongside the evidence filed in support. Given that CPR 3.14 provides that a claim form is available for public inspection on the court file, the result is that the supporting evidence also becomes available for public inspection. Potentially, this will have a significant impact upon the way applications are pleaded in the future.
Our first two cases in this area, both from the Cayman Islands, relate to third parties: one concerns when they can get disclosure and the other when they must give it. (Although in the Cayman Islands the term ‘discovery’ is still used, we will refer to it here as ‘disclosure’).
A first instance, decision to limit the scope of disclosure to a third party was overturned by the Court of Appeal in The International Banking Corporation BSC (in administration) (TIBC) v. AHAB. Where the Grand Court had held that TIBC could not obtain those witness statements and affidavits that did not refer to it, and could not have the transcripts of the proceedings at trial, the Court of Appeal allowed both. Relying on Guardian News and Media Ltd v. City of Westminster Magistrates Court and another it held that the “default position” for such applications is that disclosure should prevail unless there are powerful reasons for the court to order otherwise. Just because a legitimate purpose was not a “serious journalistic purpose” of the type in Guardian News, a party should not have less entitlement to disclosure. TIBC had a legitimate entitlement to witness statements and transcripts of the proceedings.
The decision is supportive for third or non-parties who seek disclosure of documents in a related matter, so long as their application is based on a legitimate purpose with a genuine interest in the litigation. There are limits, however; the court refused to order disclosure of documents referred to in the witness statements or transcripts.
In Andre Visser v. FFC Fund Ltd, Parker J reviewed the relevant test for disclosure of documents held by third parties. Mr Visser was petitioning for the winding up of FFC Fund Ltd, and sought an order for discovery against that company in respect of the company itself and also certain other entities in which it had direct or indirect shareholding or partnership interests.
The company argued that its disclosure responsibilities did not stretch to providing disclosure on behalf of other entities within its corporate structure. Parker J agreed and refused to make orders against the company in respect of the third parties. In particular, he relied on the fact that the company had no legal right to compel the directors of the affiliates concerned to produce documents.
A further Cayman case dealt with an application under the Norwich Pharmacal jurisdiction to order disclosure by third parties of information relating to wrongdoing in cases where they have become more than mere witnesses to the wrongdoing. Discover Investment Company v. Vietnam Holding Asset Management and another provides a useful review of the approach of the Cayman Court to the well-established tests for Norwich Pharmacal relief. But the case was primarily of interest for its review of how those applications intersect with the Confidential Information Disclosure Law. As previously reported here and here this law, dubbed CIDL, repealed and replaced the former Confidential Relationships (Preservation) Law, or CRPL, which had for many years overlaid criminal penalties onto the concept of breach of confidence, at least in the context of professional relationships.
CIDL, it is fair to say, was enacted in somewhat of a hurry; it was necessary in order to meet the requirements of one of the many rounds of reviews of Cayman’s laws in the context of international tax co-operation. As a result, it is not as well drafted as it might be, and the ruling in Discover attempts to make sense of it. In particular, Kawaley, J. considered the apparently mandatory language of s.4 of the Law concerning applying to court for authorisation to disclose. That section had been copied across from the old law, under which it was needed in order to avoid criminal sanction. Indeed, it was the most-used provision of the old law. On its face, even though CIDL now imposes no sanction and leaves breach of confidence entirely to the civil remedies of those affected, s.4 of the new Law still appears to require an application to court for approval to disclose confidential information in every case. Thankfully, the court recognised this as making no sense, and held that applying a purposive interpretation, the section should be regarded as merely directory.
On the question of the limits of disclosure, in Palladyne International Asset Management B.V. v. Upper Brook and Ors, Segal J refused to grant the plaintiff’s application for discovery of material over which the defendants claimed litigation privilege – but not because of the privilege. The court, while noting that on the facts of the case litigation privilege was not established, ultimately decided that ordering discovery would be disproportionate and inconsistent with the overriding objective or not necessary for the fair disposal of the proceedings. Pivotal to this decision was the fact that the plaintiff had not challenged the defendant’s claim to litigation privilege previously.
Three BVI cases in 2018 dealt with issues concerning time limits in litigation. In JSC VTB Bank v. Alexander Katunin, a Russian bank had commenced proceedings in 2014 to enforce an unsatisfied Russian judgment obtained against a Russian businessman. It obtained a worldwide freezing order and was granted leave to serve the defendant outside the jurisdiction. This order was set aside on appeal on June 2016 on the basis of a jurisdictional challenge.
In July 2016, after the expiry of the 12 month deadline, the Russian bank applied to extend the period for service of the claim form, seeking to rely on the court’s power to dis-apply deadlines on grounds of “special circumstances”. This was rejected by Wallbank J but overturned on appeal.
The Court of Appeal took the view that Wallbank J had sought to define the concept of special circumstances where it had deliberately been left vague. In doing so, the judge had elevated (to that of “truly exceptional”) the threshold that the Russian bank was required to cross. He therefore evaluated the evidence as against that incorrect standard. The Court of Appeal clarified that the judge should have had regard to the overriding objective in determining the relevant threshold to be applied.
The second case is an illustration of how Section 168 Insolvency Act 2003 contains a trap for the unwary: that where an application for a winding up application is not determined within six months, the application is deemed to be dismissed. In KMG International NV v. DP Holding SA, KMG’s lawyers failed to secure an extension of this period, and as a result the Court of Appeal was asked to dismiss appeals on the basis that they had become academic. The Court of Appeal declined to do so, holding that whilst the winding up petition was deemed to have been dismissed, the Court of Appeal’s jurisdiction was invoked by the filing of a notice of appeal and was not lost when time subsequently expired against the applicant.
The third BVI time limit case was another aspect of the litigation that gave rise to the decision on forum referred to above. In JSC MCC Eurochem v. Livingston Properties et al, the question arose as to whether service had taken place in Russia in accordance with the Hague Convention, in circumstances in which the claimants had improperly bypassed the BVI authorities, and made the request directly to the Russian authorities. The court held that this was “disrespectful” but did not interfere with the validity of service – a view which, unsurprisingly, is to be the subject of an appeal to the Court of Appeal. The court held that even in the absence of an order deeming service to have validly taken place, service validly took place on the defendant in Moscow when he was (without knowing of it) notified of a hearing before the Russian Court, at which he was to be served with the BVI process. However, the court sought to alleviate the injustice to which this decision would otherwise have given rise, by extending the time for service of his defence.
Two Cayman cases in 2018 touched on what happens when cases settle, in particular after a hearing or trial but before judgment.
In Toby v. Allianz Global Risks US Insurance Company, the court was asked to refrain from publishing its judgment, which had been circulated in draft, on the basis that the parties had settled their dispute. Mangatal J refused to withhold the judgment and confirmed that the court has discretion to deliver a judgment even post-settlement. This served to highlight what the court will consider in exercising its discretion in this way. The court will consider whether the case raises a point which is in the public interest, how advanced the preparation of any judgment is, the concerns of the parties to the litigation and the impact of publishing the judgment.
It is noteworthy that the court’s judgment was well advanced at the time the request was made and the court had been asked to address several key matters in an insurance dispute such as avoidance, non-disclosure and misrepresentation in respect of the contract of insurance. The court concluded that to not publish the judgment “would mean a truly wasted opportunity for … the Grand Court of the Cayman Islands to provide guidance on a wide range of difficult topics …” although on some occasions it may be suitable for publishing not to happen.
Similarly, in September 2018, McMillan J decided to publish his judgment in Re Torchlight Fund although the winding up petition had been withdrawn due to the parties reaching a settlement.
With the rising cost of litigation and the expansion of the market for third party funding, it is not surprising that there have been several judgments looking at the issue of litigation funding. In Cayman, where maintenance and champerty still exist both as torts and as crimes, such arrangements must be approved by the court, which has for the most part been satisfied that the proposed funding agreements put before it have not involved unlawful maintenance or champerty.
Two significant cases in 2018 were A Trustee v. A Funder and Re A Funder, which indicate that on an application for approval of third party funding, the Grand Court will consider in particular the extent to which the funder controls the litigation, its ability to terminate the funding agreement at will or without reasonable cause, the level of communication between the funded party and the solicitor, the prejudice likely to be suffered by a defendant if the claim fails, and the extent to which the funded party is provided with information about, and is able to make informed decisions concerning the litigation. It will also be relevant to take account of the amount of profit that the funder stands to make and whether or not the funder is a professional funder and/or is regulated.
In the particular circumstances of the jurisdictions in which Appleby operates, it is quite common for overseas lawyers to have some involvement in the conduct of litigation. The extent to which they can actually appear in court varies by jurisdiction, but it is common to see some involvement of onshore lawyers in the preparation of a case. In the BVI and Cayman in particular, the operation of laws regulating the legal profession and cost recovery rules can raise issues about the recoverability of their fees.
In the BVI there have been three decisions over the course of the year in relation to the Legal Profession Act 2015 (LPA). In Re Olive Group Capital Ltd, Leon J decided that the fees of a Canadian lawyer could not be recovered following the decision of the Court of Appeal in Shrimpton v. Scriven, but it left for a future occasion the treatment of costs incurred by paralegals and persons not admitted to the BVI Bar, but employed within BVI law firms. A similarly hard-line approach was taken in Re Unicorn Worldwide Holdings Limited where the issue did not concern the inter-parties assessment process, but the fees which liquidators had incurred, and which they sought to recover from a liquidation estate. The court held that the LPA barred recovery of those fees, despite the conventional view being that liquidators are entitled to an indemnity from the assets of the estate from fees reasonably and properly incurred. In Khan v. Gany Holdings SA, the court decided that the LPA did not bar recovery of fees which had been incurred before the LPA was enacted, although this decision is currently on appeal to the Court of Appeal and judgment has been reserved. In some circumstances, it may well still be appropriate to deploy overseas lawyers on particular aspects of a matter, but clients need to be aware of the costs consequences when this is done.
Mauritius, like the other jurisdictions covered here, provides for the making of orders for the provision by foreign claimants of security for the defendant’s costs. In Barnwell Enterprises Ltd and anor v. ECP Africa FII Investments LLC, the Supreme Court addressed the question of ‘frais’ i.e. costs which are claimed as disbursements. The Supreme Court upheld the principle laid down in the 2013 case of Al-Rawas I.S.A. v. Al Tani HH.S.K.B.H. & Ors which held that the term ‘costs’ captured “all necessary expenses incurred by the respondent and co-respondent to resist the applicant’s action, like lawyers’ fees, registration fees if any for documents which may have to be produced, travelling and accommodation expenses of a witness who, like in the present case, has had to travel to Mauritius from abroad to swear an affidavit and instruct legal advisers in Mauritius.” The Supreme Court went further and confirmed as correct the finding in Al Rawas that the amounts that may be claimed in respect of counsel and attorney’s fees are those set out in the Schedule to the Legal Fees and Costs Rules and that these do not exceed MUR 100,000 (approximately USD 2,778). Unless there is an arrangement in place between parties for lawyers’ fees these are governed by the Schedule and any amendments that may be brought to it.
The regulatory authorities in the BVI, like all the leading offshore jurisdictions, have a strong record of co-operating with foreign regulatory authorities. Magnum Investment Trading v. Niteroi tested the bounds of that co-operation. The court accepted that fairness required the subject of a request from an overseas authority to be entitled to see the request, or at least have sufficient information in relation to it, to satisfy itself that the request fell within the Attorney General’s power to provide assistance. The court also clarified that the role of the regulatory authorities is to scrutinise the request and then to exercise a discretion as to whether it should be complied with, including by hearing from the company where appropriate. This is a welcome clarification, which acknowledges the desirability of providing international co-operation, whilst ensuring that appropriate safeguards are put in place.
All of the jurisdictions covered by this report have the Privy Council as their court of final appeal, but they differ as to whether and when leave to appeal is needed. In Jersey, for example, statutory reform has introduced a requirement in all cases for permission from the court appealed from or from the Privy Council itself. Others, including Guernsey and the Cayman Islands, retain somewhat old-fashioned rules. Section 16 of the Court of Appeal (Guernsey) Law 1961 excludes the need for special leave of Her Majesty in Council or leave of the Court of Appeal when the monetary value of the claim is or exceeds £500. A similar rule in Cayman sets the limit at £300 (even though sterling has not been the currency of the jurisdiction since the 1960s).
In Guernsey, the Court of Appeal had tried to carry out a judicial reform of this out-dated provision by refusing to grant permission (which as a matter of process is still obtained even where the court is obliged to grant it) unless the appeal raises an arguable point of law of general public importance. In A v. R the Privy Council held that it is beyond the power of the courts to contradict the legislation and introduce such a test. That did not mean, however, that the Court of Appeal had no control over the appeal at all: it could refuse an appeal as of right where the appeal is an abuse of process. Likewise, the Privy Council has a limited discretion to refuse to hear an appeal in a case where there is an appeal as of right, if that appeal is devoid of merit and has no prospect of success and/or if the appeal is an abuse of process.
The Privy Council itself had the opportunity to consider these questions in an appeal from Mauritius, Jacpot v. Gambling Regulatory Authority. Jacpot was applying for special leave to appeal against the refusal of the Supreme Court to grant judicial review of the Authority’s decision to revoke its gambling house licence. The Privy Council refused leave on the basis that the matter did not raise a point of great general public importance.
In doing so, the Privy Council reviewed the different ways in which appeals can be brought and explained the fundamental distinction between appeals lodged as of right, with leave of the court below and by way of special leave of the Privy Council.
The judgment is wide-ranging and detailed but includes analysis that will be relevant to the other offshore jurisdictions covered here. In particular, Jacpot addresses the distinction between civil and criminal matters and how to categorise judicial review appeals; what types of decision are ‘final’; the operation of the value threshold (all of these points being relevant to the application of the rules relating to appeals as of right); and the types of case in which an application for special leave would be likely to succeed.
The Eastern Caribbean Court of Appeal resolved another issue regarding leave to appeal which has plagued BVI practitioners for some time, deciding that where an appeal is brought with leave of the court then any cross-appeal would not also require leave. In KMG International NV v DP Holding SA, the Court of Appeal also took the opportunity to confirm that relief from sanctions is not required in respect of procedural failures for which no sanction within the rules or a court order was expressed; there was no room for the implication of a sanction.
The other issue concerning appeals to come before the courts in 2018 was the question of security for the costs of an appeal. In the Bermuda case of Capital Partners Securities Co Ltd v. Sturgeon Central Asia Balanced Fund Ltd, the court took the opportunity to clarify the approach applicable to order for security on appeals to the Court of Appeal and held that the following factors must be considered in the exercise of the court’s discretion:
- The extent to which an order for security may deprive an appellant of access to justice;
- The financial ability or disability of the appellant and the impact of an order on the paying appellant;
- The level of risk to a successful respondent whose legal costs have been left unpaid;
- The extent of difficulty which a successful respondent is likely to encounter in enforcing payment of a costs award;
- The integrity of the ground of appeal on its face and whether or not such grounds are obviously unmeritorious or even abusive (in which case the quantum would be less conservative and potentially contemplate a costs order on an indemnity basis);
- The scope of the disputed issues for determination on appeal (this will include an assessment of volume and complexity of the relevant issues and any set off warranted by a cross-appeal);
- Particulars of any estimate of legal costs which will likely be incurred and/or a bill of costs for services rendered in preparation for the appeal together with likely deductions after taxation (using a broad-brush approach);
- Any known taxed or agreed fees in respect of the legal costs for the proceedings below; and
- The complement and practice experience of Counsel assigned to the case and whether the same Counsel were employed in the proceedings subject to appeal.
Appleby acted for the 8th Defendant in the Livingston Properties case in BVI; for the defendant in Ritter v. Butterfield in Cayman, for the Defendants in the Kniveton case in the Isle of Man, and for the Applicant in Donna Union Foundation v. Svoboda in BVI.