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/ BERMUDA / BRITISH VIRGIN ISLANDS / CAYMAN ISLANDS MARCH 2015 – JUNE 2015 ISSUE NO. 10 BERMUDA BRITISH VIRGIN ISLANDS CAYMAN ISLANDS DUBAI HONG KONG LONDON MAURITIUS SINGAPORE / conyersdill.com OFFSHORE CASE DIGEST

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Page 1: OFFSHORE CASE DIGEST - Conyers Dill & Pearman · PDF fileThe Offshore Case Digest offers readers a high level summary of the major commercial cases decided in Bermuda, the British

/ BERMUDA

/ BRITISH VIRGIN ISLANDS

/ CAYMAN ISLANDS

MARCH 2015 – JUNE 2015

ISSUE NO. 10

BERMUDA BRITISH VIRGIN ISLANDS CAYMAN ISLANDS DUBAI HONG KONG LONDON MAURITIUS SINGAPORE / conyersdill.com

OFFSHORE CASE DIGEST

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/ Editor Bermuda Christian R. Luthi / Assistant Editor Bermuda Stephanie Hanson / Contributors Bermuda Ben Adamson Scott Pearman British Virgin Islands Tameka Davis Cayman Islands Paul Smith Erik Bodden Hong Kong Nigel K. Meeson, QC Norman Hau

About Conyers Dill & PearmanFounded in 1928, Conyers Dill & Pearman is an international law firm advising on the laws of Bermuda, the British Virgin Islands, the Cayman Islands and Mauritius. With a global network that includes 140 lawyers spanning eight offices worldwide, Conyers provides responsive, sophisticated, solution-driven legal advice to clients seeking specialised expertise on corporate and commercial, litigation, restructuring and insolvency, and trust and private client matters. Conyers is affiliated with the Codan group of companies, which provide a range of trust, corporate secretarial, accounting and management services.

This update is not intended to be a substitute for legal advice or a legal opinion.

It deals in broad terms only and is intended to merely provide a brief overview

and give general information.

BERMUDA | BRITISH VIRGIN ISLANDS | CAYMAN ISLANDS

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This update is not intended to be a substitute for legal advice or a legal opinion.

It deals in broad terms only and is intended to merely provide a brief overview

and give general information.

3 / conyersdill.com

The Offshore Case Digest offers readers a high level summary of the major commercial cases decided in Bermuda, the British Virgin Islands and the Cayman Islands between March 2015 and June 2015. Our goal is to provide a useful reference tool for clients and practitioners who are interested in the development of case law in each jurisdiction.

ABOUT THE DIGEST

We would welcome any feedback and suggestions from readers on the content. If you would like to obtain further information on any of the cases feel free to contact any of the Conyers Dill & Pearman litigation team.

JURISDICTION PAGE

Bermuda 2

British Virgin Islands 7

Cayman Islands 9

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Bermuda

BERMUDA

SUPREME COURT

TRUSTS (SPECIAL PROVISIONS) ACT, 1989 – BEDDOE RELIEF – NON CHARITABLE PURPOSE TRUST – INDEMNITY – DEFENCE BY TRUSTEES

Trustee L and Others –v– The Attorney General and Others [2015] SC (Bda) 41 Com (15 May 2015)

The Plaintiffs are the Trustees (the “Trustees”) of certain Bermuda

Purpose Trusts (the “Trusts”) established under the Trusts (Special

Provisions) Act, 1989 (the “1989 Act”). This was a ruling on the Plaintiffs’

application for Beddoe relief with respect to proceedings (the “Main

Action”) brought against them by the Second Defendant (“D2”).

The application was novel in two respects: (i) so far as the Court or

Counsel were aware this was the first time that Beddoe relief has been

sought by the Trustees of a non-charitable purpose trust, albeit the

purposes of the trusts in question did include some charitable

purposes and (ii) there has not previously been a claim made to trust

assets of such high value as those with which the present case is

concerned without any beneficiaries to defend the Claim.

The total value of the Trust assets was large with a substantial part of

those assets consisting of shares in a group of companies (the

“Companies”) founded by S and T. Both men were deceased. The

Directors of the Trustees included Child 1 and Child 2, who were

children of S and T. D2 sued in its proposed capacity as administrator in

Bermuda of S’s estate; in D2’s capacity as one of the heirs of S (and

purportedly on behalf of all the heirs). D2’s primary case in the Main

Action was that all the Trusts were void, or alternatively that the

transfers of assets into the Trusts should be set aside, and that the

assets form part of the estate.

The primary issue arising on the Beddoe application was whether the

Trustees should defend D2’s primary case in the Main Action and have

an indemnity in respect of their costs of doing so. In considering the

issue, the Judge attached particular importance to the absence of any

person with a real interest in defending the claims and the fact that

there were sufficient prospects of success to warrant the Trustees in

defending them. The Judge was satisfied that these factors

outweighed the risk of injustice to D2 and the other heirs, should D2

prevail in the Main Action. As such, the Judge was satisfied that the

Trustees should, if so advised, defend D2’s primary case in the Main

Action and granted an indemnity from the Trust assets for that

purpose.

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BERMUDA

RULING ON COSTS – THE EVIDENCE ACT, 1905 (AS AMENDED) – ORDER 70 OF THE RULES OF THE SUPREME COURT, 1985

The Patriot Group, LLC –v– Hilco Financial, LLC N/K/A 1310 Financial, LLC & Others [2015] SC (Bda) 38 Com (23 June 2015)

This hearing was listed to determine how to deal with the costs arising

from a prior judgment in which the Court refused the Applicant

witness’ application to set aside an, ex parte, Order for her

examination; an order that had been made without a hearing. While

the Judge had found that the Order, as originally granted, was liable to

be set aside on various grounds including material non-disclosure,

these irregularities occurred in part because the application was

prepared and prosecuted as if it was a non-opposed application when

in fact the witness had not previously been contacted. In light of the

fact that the Respondents had subsequently: (a) offered to vary the

Order by including conditions in relation to the proposed examination

and (b) on or about 7 November 2014 filed an affidavit which fortified

the strength of the merits of the original application and to save costs,

the Judge exercised his discretion in favour of varying the Order rather

than setting it aside. The Applicant also achieved some marginal

outcome of success in terms of broadening the scope of the

examination conditions, which the Respondents had previously

offered prior to the hearing.

The Respondents sought to persuade the Court that since they had

substantially succeeded on the application to set aside, and were

willing to concede that they should pay the Applicant’s costs up to 7

November 2014, the Applicant should be required to pay the costs of

the application to set aside. The standard rule that costs should follow

the event, having regard to which party had succeeded in ‘real-life’

terms was relied upon: Binns –v– Burrows [2012] Bda LR 3 (at

Paragraph 5) and Kentucky Fried Chicken (Bermuda) Ltd. –v– Minister

of Economy [2013] Bda LR 34 (at Paragraph 14).

The Applicant contended that the Applicant should be awarded her

costs and in any event not be required to pay the Respondents’ costs.

It was submitted that the position of a non-party witness engaged

distinctive costs rules according to which the starting assumption was

that where evidence was being sought from a non-party, that party is

entitled to their costs. The Applicant relied on the authority of

Paragraph 46.1 of the Civil Procedure Rules, 2000 (“CPR”)

The Judge agreed with the Respondents’ submission that the

ordinary rules as to costs apply. In doing so the Judge declined to

follow by analogy the practice under Rule 46.1 of the CPR on the

grounds that the type of application it dealt with was not analogous.

In the exercise of the Court’s discretion, the Judge ordered the

Respondent to pay the Applicant’s costs of responding to and

applying to set aside the, ex parte, Order up until 7 November 2014.

The Judge held that prior to that date, it was inconceivable that the

application to set aside would not have succeeded both on the merits

and in the result. After that date the Judge found that the parties

ought to have been content to negotiate a consensual variation of

the, ex parte, Order in terms which were, at that point, substantially

agreed.

EX TEMPORE RULING ON COSTS – COSTS FOLLOW THE EVENT – REAL WORLD SUCCESS OF CLAIM – CONSIDERATION OF THE BACKGROUND TO THE LITIGATION

David R. Whiting –v– Torus Insurance (Bermuda) Limited [2015] SC (Bda) 17 Civ (6 March 2015)

In this matter the Plaintiff, was awarded US$1909 out of a Claim for

wrongful dismissal that was potentially worth just over US$300,000.

The Plaintiff sought costs on the usual ‘costs follow the event’ basis.

The Defendant contended that having regard to the ‘infinitesimal’

financial success that the Plaintiff achieved, the appropriate order

should be no order as to costs.

In the present case the Judge accepted that the starting assumption

must be that the Plaintiff should be entitled to his costs. But, having

regard to the authorities cited and looking at the huge disparity

between the amount awarded and the amount originally claimed,

stated that the Court was bound to find that in ‘real world’ terms the

Plaintiff had not succeeded because this case was quintessentially a

claim about money.

The only question to consider was, to what extent the Court should

award the Plaintiff any costs at all. In this regard, the Judge outlined

that it was the Court’s duty to look at the background to the litigation

to see how the litigation should have been conducted. In doing so the

Judge held that from 13 June 2014 when the Defence was filed, it

would not be reasonable for the Court to exercise its discretion to

award the Plaintiff any costs.

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TRUSTS – COURT’S FUNCTION IN APPROVING EXERCISE OF TRUSTEE’S DISCRETION – DOES REGARD NEED TO BE GIVEN TO WIDER SOCIAL EFFECTS OF PROPOSED SETTLEMENT

In The Matter Of ABC Trusts [2015] SC (Bda) 29 Civ (10 September 2014)

On 18 August 2014, the Judge approved a decision of the Trustees to

proceed to conclude negotiations commenced some years ago with

the onshore tax authorities about certain personal ‘wealth’ taxes

which were potentially due from the Trusts and/or the Beneficiaries.

The contested application by the Trustees for further directions in

relation to the approval sought, raised legal questions which are likely

to be relevant in future cases and therefore, the Judge provided

reasons for the same.

Court’s function in approving proposed exercise of Trustees’ discretion

The fifth Defendant in this matter sought to argue that: (a) the Trustees’

application involved a surrender of their discretion to the Court, (b) the

Court should accordingly be put in possession of all material relevant to

the exercise of that discretion and (c) the Court’s function is solely to

determine what ought to be done in the best interests of the estate.

The first two limbs of that submission were controversial.

The Judge did not accept that the Court was compelled to find that in

seeking the directions which the Trustees sought, they were surrendering

their discretion to the Court. Instead, the application was more properly

characterised as seeking the blessing of the Court for a momentous

decision.

Were the Trustees required to have regard to the wider social effects of the proposed settlement and to interests other than those of the Beneficiaries?

The Trustees in the present case effectively conceded that it was

consistent with the commercial interests of both the Trust and the

Trustees to avoid a situation where the Trustees and/or the Beneficiaries

could be fairly accused of manifesting a socially irresponsible attitude to

the payment of onshore taxes which were properly due. That was the

driving motivation behind initiating the negotiations, which have resulted

in the proposed settlement. The Trustees’ definition of the content and

scope of their duties in this regard was entirely consistent with the

Judge’s extra-judicial opinion in that:

“…it is simplistic to imply that offshore commercial law operates in an

ethically deprived legal zone... Bermudian offshore structures are formed

in and regulated by a legal framework which aims to…ensure compliance

with internationally recognised standards of commercial morality.”

(See Offshore Commercial Law in Bermuda (Wildy Simmonds & Hill:

London, 2013), Paragraphs 1.64, 1.69)

Applying the above principles to the facts of the present case, the Judge found that in all the circumstances:

1. it would be an unreasonable way of expending trust assets to

investigate the need to pay a further premium to ward off the

risk of wholly unjustified criticism of a tax settlement which was:

(i) manifestly hard-fought and negotiated on objectively

credible terms and (ii) negotiated in circumstances where there

appeared to be no obvious inequality of arms between the

well-resourced Trustee and Beneficiary team and an apparently

well-resourced revenue authority team working on behalf of a

stable and sophisticated State;

2. the Trustees’ decision to pursue the negotiations to their

conclusion was based on their genuinely formed view that this

course is consistent with the best interests of the Trusts and

their Beneficiaries as a whole;

3. the said view was one which a reasonable body of Trustees

could properly have arrived at;

4. the Trustees had no actual or potential conflicts of interest and

5. the Trustees had placed before the Court sufficient relevant

information to support the findings in (1) to (3) above, without

the need for any further enquiry.

COURT OF APPEAL

INTERNATIONAL COOPERATION (TAX INFORMATION EXCHANGE AGREEMENTS) ACT, 2005 (THE “ACT”) – DISCLOSURE OF DOCUMENTS PLACED BEFORE THE COURT

The Minister of Finance –v– AD [2015] CA (Bda) 18 Civ (12 June 2015)

This was an appeal of an earlier ruling by Hellman J ordering the

Minister of Finance to disclose documents which were placed before

the Judge in support of an, ex parte, application for a Production

Order. Prior to the hearing the Minister voluntarily disclosed the

documents, however due to the importance of the decision to other

pending and anticipated cases the Minister wished to continue with

the appeal. AD was not represented but the Court was assisted by the

submissions of the amicus curiae.

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Kay JA gave the Judgment of the Court, dismissing the appeal and

upholding the decision at first instance. The appeal was essentially

based on the submissions that the words used in the Act were clear

and unambiguous, that the relevant subsection (Section 5(6A)) was

intended to prevent fishing expeditions, which the Judge ought to

have found were commonplace, and that the Judge erred in finding

that the subsection related to redacted information.

The Court of Appeal confirmed the Judge’s findings that the right to

disclosure is a fundamental principle of fairness at common law and

that any abrogation from this right requires legislation that is “crystal

clear”. The argument that the wording of the Act was a clear and

unambiguous abrogation was rejected. The Court of Appeal also

found that there was no evidence of fishing expeditions being

commonplace; conversely, the Court was willing to accept that the

requests for disclosure did not impose a significant burden on the

Minister.

The Court was willing to find that the requirement for disclosure was

limited to those documents placed before the Court, and did not

apply to information about oral statements or documents not

exhibited but expressly referred to.

The Court held that the change in procedure from an executive

decision (subject to judicial review) to an originating judicial process

necessarily carried with it the fundamental right of disclosure.

In a further ‘swing-and-a-miss’ the Minister sought to argue that the

decision at first instance resulted in Bermuda being in breach of the

confidentiality obligations imposed by Article 8 of the OECD

Agreement on Exchange of Information on Tax Matters. The Court

noted the exception for information being disclosed in court

proceedings and judicial decisions, contained in Article 8 itself, and

rejected the argument.

RSC ORDER 45 – BERMUDA INTERNATIONAL CONCILIATION AND ARBITRATION ACT, 1993 (THE “1993 ACT”) – APPEAL AGAINST REFUSAL OF STAY OF ENFORCEMENT

Laep Investments Ltd –v– Emerging Markets Special Situations 3 Ltd. [2015] CA (BDA) 10 Civ (9 April 2015)

On 18 March 2013 the Respondent, Emerging Markets Special

Situations 3 Ltd. (“EMSS”) obtained an arbitration award in Brazil

against the Appellant company (Laep Investments Ltd (the

“Company”)). EMSS then quickly proceeded to obtain an

Enforcement Order and a Worldwide Freezing Order in quick

succession in Bermuda.

The Company unsuccessfully sought an Annulment of the arbitration

award in Brazil, and EMSS went on to serve a Statutory Demand in

Bermuda. The application for an annulment was successfully

appealed and remitted back for a rehearing. EMSS then issued a

petition to wind up, the Company having failed to satisfy the

Statutory Demand, in response to which the Company served a

summons seeking the dismissal of the petition.

Meanwhile in Brazil, the Company unsuccessfully sought a stay of the

arbitration award pending the outcome of the annulment application,

however the application was successful on appeal and an interim stay

was granted on 19 December 2013.

Shortly before the hearing of the application to dismiss the winding

up petition, the Company also issued an application seeking a stay of

the Enforcement Order pursuant to RCS Order 45 Rule 11, which

states that the Court may order a stay of execution of a Judgment or

Order on the ground of matters which have occurred since the date

of the Judgment.

On 1 April 2014 the Supreme Court dismissed the application to stay

the Enforcement Order and dismissed the application to dismiss the

winding up petition. The Company appealed.

The Company submitted that the temporary stay was a matter that

had taken place since the Enforcement Order and that the Judge at

first instance had erred in considering guidance under Part 52 of the

2014 White Book, which is applicable to a stay pending appeal. In

addition, the Court at first instance had erroneously considered

Section 42(5) of the 1993 Act rather than Section 42(2)(f), the former

dealing with circumstances where an application to suspend has been

made but not yet determined (here there was an order granting a

stay, albeit an interim order).

The Court of Appeal agreed that the Judge appeared to have

concentrated on the prospects of success of the annulment

application, rather than the manner in which the application for

enforcement would or might have been decided in light of the

suspension of the Award.

The Judge fell into error when he appeared to consider the principles

applicable to the grant of a stay in the context of an application

following Judgment and pending the outcome of an appeal. He

similarly fell into error when he considered Section 42(5) rather than

Section 42(2)(f). The Court of Appeal found that the case law referred

to by the Judge did not assist in relation to Section 42(2)(f). The test

applied under Section 42(5) (being a consideration of the prospects

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of success) was inappropriate in relation to Section 42(2)(f). In

particular, the Court held that the Judge was wrong to refer to the

absence of material before him, which might outweigh the bias

towards enforcement inherent in the 1993 Act.

Essentially, the Court of Appeal held that the Judge failed to

appreciate the nature of the Brazilian Stay Order, which led him to

consider the wrong part of the 1993 Act. This led to him failing to find

that there could be no question of the Court allowing enforcement in

respect of an award, which was subject to a stay in the country where

it had been made. The Court went on to find that this

misunderstanding and misapplication of the law entitled the Court to

exercise an original discretion in favour of the Appellant.

The Court went on to find that the Judge was correct in his refusal to

dismiss the winding up petition, in spite of a finding that the Judge’s

rejection of the various grounds of opposition to the winding up

petition were very much influenced by his findings in regards to

enforcement. However, as he had erred in his discretion regarding the

stay of enforcement, the issue ought not to have arisen.

The Court of Appeal therefore granted a stay of the Enforcement

Order and set aside the Order to wind up the Company.

INTERPRETATION OF CONTRACTS – SHARE REPURCHASE AGREEMENTS

Aircare Limited –v– Wyatt Sellyeh [2015] CA (BDA) 6 Civ (20 March 2015)

The Appeal concerned the construction of a provision in a share

repurchase agreement (the “Agreement”) whereby Aircare Limited

(“Aircare”) agreed to repurchase shares from, inter alia, Mr. Sellyeh. The

shares were to be purchased in four tranches. The first of those

tranches would take place at a time when there were no audited

accounts, and so there was a provision in the Agreement for

recalculation by a specified formula of the purchase price of the first

tranche.

Aircare paid Mr. Sellyah the agreed purchase price. Upon the

recalculation, the new purchase price was less than the initial price and

so Aircare sought judgment in the sum of the difference. The Judge at

first instance held that there were two meanings to the relevant clause.

He went on to agree with Mr. Sellyeh that the correct interpretation of

the Agreement was that the initial price was a minimum price. The

claim by Aircare was accordingly dismissed.

Aircare sought to argue that the Judge was correct to find that this

was a case where the contractual term had two meanings, but that

business common sense compelled an interpretation of the Agreement

which permitted an upward and downward recalculation. Mr.. Sellyeh

submitted that the relevant clause was unambiguous and provided for

upward recalculation only, and even if the Judge was correct in finding

that the clause was capable of two meanings, business common sense

still resulted in the clause providing for upwards recalculation only.

The Court of Appeal referred to the well-known speech of Lord

Hoffman in Investors Compensation Scheme Ltd –v– West Bromwich

Building Society and the principles propounded therein for the

interpretation of contracts.

The Court was sympathetic to the Appellant’s argument that following

a finding of two meanings, it was necessary to consider which meaning

was more reflective of business common sense, whereas the Judge

reverted to a close consideration of the language. However, the Court

considered and agreed with the Respondent’s assertion that this was in

fact a clause that plainly had one meaning.

The Court went further and found that even if the clause was

susceptible to two interpretations, business common sense fell in

favour of the Respondent’s interpretation. The appeal was therefore

dismissed.

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BRITISH VIRGIN ISLANDS

British Virgin Islands

BRITISH VIRGIN ISLANDS

COURT OF APPEAL

CIVIL APPEAL – WHETHER LEARNED MASTER ERRED IN REFUSING TO SET ASIDE DEFAULT JUDGMENT – WHETHER LEARNED MASTER ERRED IN THE EXERCISE OF DISCRETION

Yates Associates Construction Co Ltd –v– Brian Quammie BVIHCAP2014/0005 (May 2015)

In this appeal Yates Associates Construction Co Ltd (the “Appellant”),

sought to appeal the decision of the Learned Master to refuse to set

aside the default Judgment entered against it.

In the Court below, the Appellant relied on inadvertence as the reason

for its failure to file its defence in time. In dismissing the Appeal the

Court of Appeal held, inter alia, that a court may set aside a default

judgment entered under Part 12 of the Civil Procedure Rules, 2000

only if certain requirements were met, one such requirement was the

need to provide the Court with a good explanation for the failure to

file an acknowledgment of service or a defence.

The Court held applying the Privy Council’s decision in the Attorney

General –v– Universal Projects Limited [2011] UKPC that where the

explanation for the failure to file a defence or acknowledgment of

service connoted real or substantial fault on the part of the defendant,

then that could not be a good explanation for the failure and while

oversight may be excusable in certain circumstances oversight which

included administrative inefficiencies was inexcusable and would not

amount to a good explanation (John Cecil Rose –v– Anne Marie Uralis

Rose SLUHCVAP2003/0019 followed).

INTERLOCUTORY APPEAL – ASSESSMENT OF COSTS – RULE 65.12 OF THE CIVIL PROCEDURE RULES, 2000 – WHETHER LEARNED MASTER ERRED IN ASSESSING COSTS WHERE THERE WAS NO ADEQUATE MATERIAL OR ITEMISED BILL OF COSTS – WHETHER LEARNED MASTER ERRED IN APPLYING ENGLISH HIGH COURT CASE TO ASSESSMENT OF COSTS UNDER CPR 65.12 – WHETHER LEARNED MASTER ERRED IN AWARDING REFRESHER FEES TO COUNSEL

Dawn Emberson Bain –v– Tortola Investment Trust Limited BVIHCVAP 2014/001 (May 2015)

This Appeal arose out of the decision of the Learned Master to assess

costs, although the bill of costs was found to be deficient, and to do

so, based on the test formulated in the English High Court case of

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Simpsons Motors Sales (London) Ltd. –v– Hendon Corporation (No 2).

Allowing the Appeal the Court of Appeal held that Rule 65.12 of the

Civil Procedure Rules, 2000 (“CPR”) required that an application for

assessment of costs must be accompanied by a bill of costs or other

document showing the sum in which the Court is being asked to

assess the costs and how such sum was calculated. The Learned

Master, having found that the bill of costs was deficient, should have

complied with CPR 65.12(5) and not assessed the costs, but fixed a

date, time and place for the assessment to have taken place and by

failing to do so the Learned Master was wrong to exercise his

discretion and to assess costs.

The Court also held that the test formulated in the English High Court

case of Simpsons Motor Sales (London) Ltd. –v– Hendon Corporation

(No. 2) was based on the application of Rule 28(2) of the English

Supreme Court Costs Rules, 1959 which was dissimilar to CPR 65.12

and 65.2. Thus by assessing costs using the test laid down by the

English High Court in the Simpson case the Court of Appeal held that

the master was wrong in law.

INTERLOCUTORY APPEAL – DEALING WITH FIXED DATE CLAIM SUMMARILY RULE 27.2(3) OF THE CIVIL PROCEDURE RULES, 2000 – APPELLANT’S DEFENCE STRUCK OUT BY LEARNED JUDGE IN COURT BELOW AND FIRST HEARING OF CLAIM TREATED AS TRIAL AND/OR MATTER DEALT WITH SUMMARILY – NO EVIDENCE RECEIVED FROM OR ON BEHALF OF RESPONDENT/CLAIMANT BY JUDGE IN DEALING WITH CLAIM AND JUDGMENT ULTIMATELY ENTERED FOR RESPONDENT/CLAIMANT – WHETHER LEARNED JUDGE ERRED IN ADJUDICATING CLAIM IN THIS MANNER

Travis Augustin –v– Choc Estates Limited SLUHCVAP 2014/0002 (June 2015)

This Appeal was against an Order made by Wilkinson J wherein the

Learned Judge ordered, inter alia, that the defence should be struck

out and Judgment entered for the Claimant. Following the case of

Richard Frederick et al –v– Comptroller of Customs et al

SLUHCVAP2008/0037, the Court of Appeal allowed the appeal and

held that having decided to treat the first hearing of the fixed date

claim as a trial after striking out the Appellant’s defence, the Learned

Judge was obliged to receive evidence from the Claimant whether

orally or on affidavit.

Notwithstanding that the Claim was being dealt with summarily, the

Court held that the Claimant must prove that he/she was entitled to

the relief being sought and that a trial must be conducted, albeit in a

summary way. As a result the Court of Appeal found that the Learned

Judge erred by proceeding to adjudicate the Claim in favour of the

Claimant without receiving evidence.

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CAYMAN ISLANDS

Cayman Islands

CAYMAN ISLANDS

GRAND COURT

THIRD PARTY COSTS ORDER – COSTS AGAINST NON-PARTIES TO PROCEEDINGS

In the matter of VC Computer Holdings (in official liquidation), FSD 63/2014, per Jones J (17 April 2015)

The Applicant sought Orders for Luis Filipe DaCosta De Souza

Azevedo (“Mr. Azevedo”) and Mertal Overseas SA (“Mertal SA”) to be

held jointly and severally liable for the costs of winding up VC

Computer Holdings Limited (the “Company”). Mertal SA, a special

purpose company incorporated in the British Virgin Islands, was the

sole shareholder of the Company. Mr. Azevedo, the ultimate beneficial

owner of Mertal SA, was the ultimate beneficial owner of Mertal SA

and the Company.

As a general rule, costs incurred by a person who successfully

presents a creditor’s winding up petition will be paid out of the assets

of such company. However, in exceptional circumstances Courts may

make an order against a non-party to the proceedings. Specifically, in

the current case, the Court had discretion to make orders: (1) against

Mertal SA due to the fact that the Company chose to participate in the

proceedings and to defend the petition in its capacity as the

Company’s sole shareholder and (2) against Mr. Azevedo, even though

he did not make himself a party to the proceedings, under Section

24(3) of the Judicature Law which provides the Court discretion to

determine by whom and to what extent the costs of proceedings are

to be paid.

In determining whether Mertal SA and Mr. Azevedo should be held

jointly and severally liable for the costs of winding up the Company,

the Court followed the principles set out in the New Zealand Privy

Council case of Dymocks Franchise Systems (NSW) Pty Ltd –v– Todd

[2004] 1 WLR 2807, which provided guidance on when the Court

could use its discretion to make an Order against a non-party to

proceedings. In particular, it was held that:

1. Generally speaking the discretion will not be exercised against

“pure funders”, namely “those with no personal interest in

litigation, who do not stand to benefit from it, are not funding it

as a matter of business, and in no way seek to control its course

giving priority to the public interest in a funded party getting

access to justice.”

2. Where, the non-party not merely funds the proceedings but

substantially also controls or at any rate is to benefit from

them, justice will ordinarily require that, if the proceedings fail,

he will pay the successful party’s costs. The non-party in these

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cases is not so much facilitating access to justice by the party

funded as himself gaining access to justice for his own

purposes. He himself is “the real party” to the litigation.

In applying the above principles to the facts of the case, the Court

ultimately concluded that there were exceptional circumstances and

accordingly exercised its discretion against Mertal SA and Mr.

Azevedo. In particular, the Court found that it was just to make Orders

against Mertal SA and Mr. Azevedo as: (1) Mr. Azevedo conducted the

defence of the petition in his own interest (essentially, the only

interested parties were Mr. Azevedo and the petitioner); (2) the Court

found that Mr. Azevedo’s defence of the petition was conducted in an

improper manner (Mr. Azevedo put forward three different and

inconsistent defences) and (3) Mr. Azevedo consistently failed to

comply with Orders for directions, which led to multiple interlocutory

applications, which ultimately led to increased expenses and delays.

Although the ultimate beneficial owner of the Company was not held

fully liable for the debts of the Company, it does show that in

questions of costs the Courts are willing to look behind the corporate

veil to hold Mr. Azevedo accountable as he had acted solely in his own

interest as the sole beneficial owner of the Company to the detriment

of the creditors.

REDEMPTION OF SHARES – RECTIFICATION OF THE REGISTER OF MEMBERS – SECTION 37(7) OF THE COMPANIES LAW – UNDER SECTION 112 OF THE COMPANIES LAW

Primeo Fund (in official liquidation) –v– Herald Fund SPC (in official liquidation), FSD 27/2013, per Jones J (12 June 2015)

This case concerned Herald Fund SPC (In Official Liquidation) (“Herald”),

which was an open-ended investment fund, which was incorporated on

24 March 2004. Herald invested the majority of its funds in the Bernard

L. Madoff Investment Securities LLC (“BLMIS”). The Primeo Fund (In

Official Liquidation) (“Primeo”) was incorporated on 18 November 1993

and also carried on business as an open-ended investment fund. Primeo

initially placed funds for investment directly with BLMIS in 1993 but, from

2004 onwards, it invested in Herald which resulted in it becoming an

indirect victim of the Madoff Ponzi scheme.

The above proceedings concerned an application that certain issues

involved the liquidation of Herald (which included an additional liquidator

(the “Additional Liquidator”) acting as Herald’s representative) and

Primeo be resolved through the direction of the Court. Primeo was

placed into voluntary liquidation on 23 January 2009 and its liquidation

was brought under the supervision of the Court on 8 April 2009. Herald

had suspended the calculation of its net asset value (the “NAV”) and the

issue and redemption of shares on 12 December 2008 (the day after the

revelation of the Madoff fraud) but remained under the control of its

Directors until 23 July 2013 when a winding up order was made on the

petition of Primeo.

The first issue in question was whether Section 37(7)(a) of the

Companies Law applies in relation to the Participating Non-Voting

Shares, which form the subject of redemption requests submitted to

Herald by various shareholders in December 2008 (the “December

Redeemers”). HSBC Securities Services (Luxembourg) SA (“HSSL”),

acting on behalf of Herald in its capacity as administrator, received

requests from the December Redeemers requesting the redemption of

Participating Non-Voting Shares (the “December Redeemer Shares”) for

a redemption day of 1 December 2008. On or about June 2011, HSSL

acting for, and on behalf of, Herald sent the December Redeemers

confirmation that their shares had in fact been redeemed. One of the

December Redeemers ultimately was paid prior to the suspension of

trading on 12 December 2008 (as a result of Madoff’s confession of his

fraud on 11 December 2008) whilst the others were not.

The Court considered Section 37(7) of the Companies Law issue

regarding the redemption of shares. In Culross Global SPC Limited –v–

Strategic Turnaround Partnership Limited (2000) 23 CILR 364, it was

indicated that the question of when shares are redeemed is a question

not only for the Companies Law but also for the relevant company’s

articles of association. On the basis of the facts, this was non-contentious

and it was clear that the December Redeemers had redeemed their

shares in accordance with the Company’s articles of association. In that

case, it was determined that the plaintiff shareholder had in fact served a

valid redemption request before the suspension of trading. The Privy

Council held that the power to suspend the redemption process did not

apply to the Plaintiff in question as the redemption had already taken

place. Similarly in RMF Market Neutral Strategies (Master) Limited –v– DD

Growth Premium 2X Fund (Unreported, 17 November 2014), the Chief

Justice concluded that the effect of the articles was that upon service of

a valid redemption notice, the shares in question ceased to be

outstanding on the relevant valuation day, whereupon the shareholder

became a creditor in respect of the redemption proceeds. Jones J held in

favour of Primeo.

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In addition to the issue of redemption, the Court also considered the

matter of rectification of the register of members. In particular, the

Courts considered whether: (a) the NAVs determined pursuant to the

articles of association during the period from 24 March 2004 (being the

date of its incorporation) to 10 December 2008 (being the date

immediately before the revelation of the Madoff fraud) in respect of each

class of Participating Non-Voting Shares issued by Herald were not

binding on Herald by reason of ‘fraud or default’ within the meaning of

Section 112 of the Companies Law and Order 12, Rule 2 of the Companies

Winding Up Rules and (b) Section 112 of the Companies Law and Order

12, Rule 2 of the Companies Winding Up Rules applied so as to empower

the Additional Liquidator of Herald to rectify its register of members.

Section 112(2) of the Companies Law empowers an official liquidator to

rectify the register of members in the case of a solvent liquidation of a

company, which has issued redeemable shares at prices based upon its

NAV from time to time. Jones J reasonded that for the NAVs not to be

binding between the company and its members, there must be some

conduct on the part of the company or its agent, which has the effect of

vitiating the company/member contract. Further, he reasoned that the

mere fact that Herald’s NAVs were negatively affected by the BLMIS

scandal would not be sufficient to vitiate the contract (see Fairfield

Sentry Ltd –v– Migani [2014] UKPC 9). Furthermore, Jones J held:

“I think that it is highly improbable that Rule 2 was intended to

operate in a way which would make the determination of a company’s

NAV open to challenge whenever it could be said, with the benefit of

hindsight, that it had been mis-stated by reason of the fraud or default

in some way which would not have the effect of vitiating the contract”.

The key issue is when the Additional Liquidator should use this power

under Section 112 of the Companies Law and what methodology

should be used by the Additional Liquidator to determine how the

rectification of the register of members should take place. Jones J

ultimately adjourned this question until the next hearing.

JUDGMENT ON COSTS – COSTS THROWN AWAY AND OCCASIONED ON PLAINTIFF’S AMMENDMENT TO STATEMENT OF CLAIM – COSTS OF AND THROWN AWAY BY ABANDONED CLAIMS IN DECEIT – INTERIM PAYMENT ON ACCOUNT PENDING TAXATION

Weavering Macro Fixed Income Fund Limited (In Official Liquidation) –v– Ernst and Young Chartered Accounts (a Firm) and Others (5 May 2015)

The Judgment concentrated on three key issues relating to costs: (i)

costs thrown away and occasioned by amendments to the Plaintiff’s

statement of claim; (ii) costs thrown away by the abandoned claims in

deceit and (iii) an invitation for the Court to exercise its discretion and

to award an interim payment on account pending taxation.

On the first issue the Court took guidance from Order 20 Rule 8 of the

Supreme Court Practice, 1999 where Paragraph 20/8/52 states that:

“The usual penalty imposed on a term for giving leave to amend is that

the party seeking the amendment should pay in any event all the costs

incurred and thrown away by the amendment and the costs of any

consequential amendment”.

The Defendants argued that the Plaintiff should pay costs of and

occasioned by preparing, issuing and serving of the summons. Justice

Quin ordered that the Plaintiff pay the costs of, thrown away and

occasioned by the amendments to its amended statement of claim up

to and including the first day of the hearing (10 February 2015) in any

event and further that these costs be taxed on the standard basis if

not agreed.

The Defendants’ second submission related to costs thrown away by

abandoned claims in deceit against Ms. Allen and Mr. Barber. They

argued that the costs should be paid by the Plaintiff in any event and

further that these costs should be assessed on an indemnity basis. The

Plaintiff took the position that the claim in deceit in relation to the

2006 audit would continue and the claim in negligence in relation to

the 2007 audit would continue but the deceit claim be abandoned. As

a result, the Plaintiff submitted that they could not say that none of

the costs incurred in relation to the original case were of no value to

the amended case, but also that the Defendants could not say that all

the costs incurred in relation to the original case were of no value to

the amended case and therefore useless.

Justice Quin agreed that there must be a high degree of overlap

between the work done in relation to the withdrawn allegations and

the work which will be necessary for the Claim as amended, however,

separating what work would be of value would be incredibly difficult.

Furthermore, Justice Quin believed this exercise would be unjust to

both parties due to the time and expense involved. The Defendants’

followed the position as in Sagicor General Insurance (Cayman) Ltd.

–v– Corporate Adjusters (Cayman) Ltd. [2008] CILR 482, contending

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that an award as to their costs of the abandoned claims in deceit be

on an indemnity basis.

The court held that “...such an award should be made only in

exceptional circumstances, such as where the losing party has

behaved improperly, negligently or unreasonably”. It found no

exceptional circumstances, in this case and at this stage of

proceedings, and decided to reserve the question of any costs in

relation to the abandoned allegations of deceit – whether on a

standard or on an indemnity basis – until the outcome of the trial of

this action. However, in relation to the abandoned allegations of deceit

against Mr. Barber and the Plaintiff’s discontinued claim in deceit

relating to the 2007 audit, the Defendants were awarded costs to be

taxed on a standard basis if not agreed. The question of indemnity

costs remains a live issue.

The third point that Justice Quin considered was the Defendants’

application for an interim payment. The Defendants’ contended that

the costs of dealing with the abandoned claims were substantial and

would need to be taxed. Consequently, they were seeking a payment

on account of those costs, pending taxation. The Defendants

submitted that it would be unjust to keep the Defendants out of their

costs of the abandoned Claims until the conclusion of the

proceedings. Relying on the decision in Al Sadik –v– Investcorp Bank

BSC (2012) (2) (CILR) 33 the Defendants maintained that an award on

an interim basis would be justified on the facts. The Court held that an

interim award of costs was not within the inherent jurisdiction of the

Court, not following Al Sadik –v– Investcorp Bank (unreported) 3 July

2012, and found no basis for making an interim order in this case, and

ordered costs to be costs in the case.

DIVIDEND DECLARED BY COMPANY – WHETHER SHAREHOLDERS ENTITLED IMMEDIATELY TO PAYMENT – DISPUTE ARISING OVER CERTAIN PAYMENTS MADE AMIDST ALLEGATIONS AND COUNTER-ALLEGATIONS OF FRAUD

Talent Business Investments Ltd. –v– China Yinmore Sugar Company Ltd. and Another (24 April 2015)

The case arises out of a Claim by the Plaintiff, Talent Business

Investments Limited (“Talent”) for unpaid dividends, claiming as a

shareholder of the Defendant, China Yinmore Sugar Company Ltd.

(“China Yinmore”). Talent’s Claim, which was for US$5,663,761, was

supported by evidence of Mr. Zhang Nan, acting as its majority

shareholder and sole director. The Claim was met with a defence and

Counterclaim by China Yinmore, alleging not only that Talent received

its dividend but also that it was overpaid by some US$2.8 million, the

amount for which the Counterclaim was raised.

The law on entitlement to dividends, once they are declared, is settled

and its applicability to the circumstances of this case was not disputed

once the dispute over the circumstances of the payment was resolved.

In Inland Revenue Commissioners –v– Laird Group Plc [2003] UKHLL

54, Lord Millet speaking on behalf of the Court, explained that:

“…by declaring a dividend, the directors [of the company] effectively

release the funds due to the shareholders from their [i.e. the directors’]

power to retain them in the business”.

It follows that once declared, the Company has no power to retain the

money; it has been released to those entitled to share in the amount

payable by way of dividend. Under the Companies Law, there is no

provision stipulating the time for a company to distribute the

dividends. Accordingly, Smellie CJ accepted that the Common Law

Rule applied.

On 24 May 2012, a resolution was passed which declared dividends

payable to Talent at US$5,663,761.37 (the “Dividend”) without

stipulating a date for payment, therefore, in accordance with common

law, the Dividend was (and remains) immediately due and payable.

There was a further dispute over a payment instruction to Great Ally

Group Limited (the “GAPI”), dated 31 July 2012, bearing the Great Ally

corporate seal, for the payment of US$8,503,460 in respect of

dividends to which they were entitled. The dispute pivoted on

whether the payment was made and received by Ms. Wen Xia on

behalf of Mr. Zhang Nan (76.86% shareholder of Talent) as an

overpayment of Talent’s dividends (as China Yinmore contended) or

whether it was made to and received by her on behalf of Great Ally on

Mr. Li Jinquan’s (68.42% shareholder of Great Ally Group Limited)

instructions, as Mr. Zhang Nan (and through him Talent) contended.

Smellie CJ found that the GAPI was created as Mr. Zhang Nan testified

under the instruction of Mr. Li Jinquan. The payment of US$8,503,460

was accepted by Ms. Wen Xia on behalf of and at the request of Mr. Li

Jinquan and the money therefore represented a payment from China

Yinmore to Great Ally. Accordingly Smeille CJ found that Talent had

not received any of its dividends for the year 2011 and that China

Yinmore was indebted to Talent for the payment of the Dividend in

the amount of US$5,663,761.37, as was claimed. The defence and

Counterclaim brought by China Yinmore was rejected.

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COURT OF APPEAL

CIVIL PRACTICE AND PROCEDURE – APPLICATION FOR SECURITY FOR COSTS OF AN APPEAL – SUB-SECTION 19(2) OF THE COURT OF APPEAL LAW (2011 REVISION) – SECTION 74 OF THE COMPANIES LAW (2013 REVISION) (JUSTICE MANGATAL SITTING AS A SINGLE JUDGE OF THE COURT OF APPEAL)

DD Growth Premium 2X Fund –v– RMF Market Neutral Strategies (Master) Limited. CICA 24/2014 (was FSD 33/2011), per Mangatal J (29 May 2015)

Conyers Dill & Pearman (“Conyers”) represented RMF Market Neutral

Strategies (Master) Limited (“RMF”). This case concerned a fund

named DD Growth Premium 2X Fund (In Official Liquidation) (“2X”),

which suffered severe financial difficulties in the wake of the Lehman

Brothers’ collapse in 2008. RMF was an investor in 2X for some time

and redeemed shares from 2X on multiple occasions. RMF’s

redemption of shares is the primary basis for this dispute.

The issue in this case primarily concerned redemption requests made

by a group of redeeming shareholders known as the “December

Redeemers” when 2X was of questionable solvency. Certain parties,

such as RMF amongst others, were able to redeem their shares and

obtain payment whilst others received nothing. Consequently, the

dispute involved 2X’s Joint Official Liquidators attempting to “claw

back” monies paid to RMF during this period. The Judge ultimately

agreed with Conyers’ point regarding Section 37(6)(a) of the

Companies Law. In particular, Section 37(6)(a) – (b) of the Companies

Law states:

(a) A payment out of capital by a company for the redemption or

purchase of its own shares is not lawful unless immediately

following the date on which the payment out of capital is

proposed to be made, the company shall be able to pay its debts

as they fall due in the ordinary course of business.

(b) The company and any director or manager thereof who

knowingly and wilfully authorises or permits any payment out of

capital to effect any redemption or purchase of any share in

contravention of paragraph (a) commits an offence and is liable

on summary conviction to a fine of fifteen thousand dollars and

to imprisonment for five years”.

This case has significant legal implications because it concerned the

capital maintenance doctrine which is designed to protect the

creditors of a company. Smellie CJ held that ultimately, RMF did not

have to repay the redemption monies despite the fact that 2X was

insolvent when the payments were made. Smellie CJ reasoned that as

the funds were paid from share premium, they were not legally

classified as capital and as a result, the redemptions did not breach the

Companies Law.

The above referenced hearing concerned an application for security

for costs of an appeal under Section 19(2) of the Court of Appeal Law

and Section 74 of the Companies Law. 2X appealed the prior

Judgment made by the Honourable Chief Justice Smellie on 17

November 2014. In particular, Section 19(2) of the Court of Appeal Law

states:

“The appellant shall, at the time of lodging the notice of appeal

required by subsection (1), deposit in the Grand Court the sum of fifty

dollars as security for the due prosecution of the appeal together with

such further sum as security for costs of the appeal as a Judge of the

Grand Court may direct, and such security for costs may be given by

the appellant entering into a bond by himself and such sureties and in

such sum as the Judge of the Grand Court may direct, conditioned for

the payment of any costs which may be awarded against the appellant

and for the due performance of the judgment of the Court”.

Furthermore, Section 74 of the Companies Law states:

“Where a company is plaintiff in any action, suit or other legal

proceeding, any Judge having jurisdiction in the matter, if he is

satisfied that there is reason to believe that if the defendant is

successful in his defence the assets of the company will be insufficient

to pay his costs, may require sufficient security to be given for such

costs, and may stay all proceedings until such security is given”.

In support of the application for security for costs, RMF argued,

amongst other things, that: (1) unlike a court of first instance, the Court

of Appeal has to take into account the fact that 2X, the Appellant, had

already had the issue of security for costs determined against it; (2) it

would be an injustice to allow the Appeal by 2X to proceed without

security for costs being furnished as RMF would be unable to enforce

a costs order against 2X due to its impecuniosity and (3) when

determining whether an Order for security for costs would prevent an

Appeal, it is necessary for 2X to establish not only that it is unable to

furnish security from its own resources but it is also unable to realise

the money from elsewhere, namely shareholders (i.e. banks and large

institutional investors) or third party funders.

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In determining that 2X should provide security for costs, the Court

ultimately held, amongst other things, that 2X did not provide suffice

evidence: (1) of its investors or backers; (2) of its investors’ inability, as

opposed to unwillingness, to provide the security for costs and (3) to

satisfy the Court that RMF, which had previously obtained a Judgment

in its favour and an Order for security for costs, was attempting to

stifle a genuine appeal by 2X.

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15

INDEX

CASES BY SUBJECT

SECTION:

Trusts

2 BERMUDA - SUPREME COURT - TRUSTS (SPECIAL PROVISIONS) ACT, 1989

- BEDDOE RELIEF - NON CHARITABLE PURPOSE TRUST - INDEMNITY

- DEFENCE BY TRUSTEES

4 BERMUDA - SUPREME COURT - TRUSTS - COURT’S FUNCTION IN APPROVING

EXERCISE OF TRUSTEE’S DISCRETION - DOES REGARD NEED TO BE GIVEN TO

WIDER SOCIAL EFFECTS OF PROPOSED SETTLEMENT

Practice and Procedure

3 BERMUDA - SUPREME COURT - RULING ON COSTS - THE EVIDENCE ACT,

1905 (AS AMENDED) - ORDER 70 OF THE RULES OF THE SUPREME COURT,

1985

4 BERMUDA - COURT OF APPEAL - INTERNATIONAL COOPERATION (TAX

INFORMATION EXCHANGE AGREEMENTS) ACT, 2005 (THE “ACT”) -

DISCLOSURE OF DOCUMENTS PLACED BEFORE THE COURT

5 BERMUDA - COURT OF APPEAL - RSC ORDER 45 - BERMUDA

INTERNATIONAL CONCILIATION AND ARBITRATION ACT, 1993 (THE “1993

ACT”) - APPEAL AGAINST REFUSAL OF STAY OF ENFORCEMENT

7 BVI - COURT OF APPEAL - CIVIL APPEAL - WHETHER LEARNED MASTER

ERRED IN REFUSING TO SET ASIDE DEFAULT JUDGMENT - WHETHER

LEARNED MASTER ERRED IN THE EXERCISE OF DISCRETION

8 BVI - COURT OF APPEAL - INTERLOCUTORY APPEAL - DEALING WITH

FIXED DATE CLAIM SUMMARILY RULE 27.2(3) OF THE CIVIL PROCEDURE

RULES, 2000 - APPELLANT’S DEFENCE STRUCK OUT BY LEARNED JUDGE

IN COURT BELOW AND FIRST HEARING OF CLAIM TREATED AS TRIAL AND/

OR MATTER DEALT WITH SUMMARILY - NO EVIDENCE RECEIVED FROM OR

ON BEHALF OF RESPONDENT/CLAIMANT BY JUDGE IN DEALING WITH

CLAIM AND JUDGMENT ULTIMATELY ENTERED FOR RESPONDENT/

CLAIMANT - WHETHER LEARNED JUDGE ERRED IN ADJUDICATING CLAIM

IN THIS MANNER

Costs

3 BERMUDA - SUPREME COURT - EX TEMPORE RULING ON COSTS - COSTS

FOLLOW THE EVENT - REAL WORLD SUCCESS OF CLAIM - CONSIDERATION

OF THE BACKGROUND TO THE LITIGATION

7 BVI - COURT OF APPEAL - INTERLOCUTORY APPEAL - ASSESSMENT OF

COSTS - RULE 65.12 OF THE CIVIL PROCEDURE RULES, 2000 - WHETHER

LEARNED MASTER ERRED IN ASSESSING COSTS WHERE THERE WAS NO

ADEQUATE MATERIAL OR ITEMISED BILL OF COSTS - WHETHER LEARNED

MASTER ERRED IN APPLYING ENGLISH HIGH COURT CASE TO ASSESSMENT

OF COSTS UNDER CPR 65.12 - WHETHER LEARNED MASTER ERRED IN

AWARDING REFRESHER FEES TO COUNSEL

9 CAYMAN ISLANDS - GRAND COURT - THIRD PARTY COSTS ORDER - COSTS

AGAINST NON-PARTIES TO PROCEEDINGS

11 CAYMAN ISLANDS - GRAND COURT - JUDGMENT ON COSTS - COSTS

THROWN AWAY AND OCCASIONED ON PLAINTIFF’S AMMENDMENT TO

STATEMENT OF CLAIM - COSTS OF AND THROWN AWAY BY ABANDONED

CLAIMS IN DECEIT - INTERIM PAYMENT ON ACCOUNT PENDING TAXATION

13 CAYMAN ISLANDS - COURT OF APPEAL - CIVIL PRACTICE AND PROCEDURE

- APPLICATION FOR SECURITY FOR COSTS OF AN APPEAL - SUB-SECTION

19(2) OF THE COURT OF APPEAL LAW (2011 REVISION) - SECTION 74 OF THE

COMPANIES LAW (2013 REVISION) (JUSTICE MANGATAL SITTING AS A

SINGLE JUDGE OF THE COURT OF APPEAL)

Companies

6 BERMUDA - COURT OF APPEAL - INTERPRETATION OF CONTRACTS - SHARE

REPURCHASE AGREEMENTS

10 CAYMAN ISLANDS - GRAND COURT - REDEMPTION OF SHARES -

RECTIFICATION OF THE REGISTER OF MEMBERS - SECTION 37(7) OF THE

COMPANIES LAW - UNDER SECTION 112 OF THE COMPANIES LAW

12 CAYMAN ISLANDS - GRAND COURT - DIVIDEND DECLARED BY COMPANY

- WHETHER SHAREHOLDERS ENTITLED IMMEDIATELY TO PAYMENT -

DISPUTE ARISING OVER CERTAIN PAYMENTS MADE AMIDST ALLEGATIONS

AND COUNTER-ALLEGATIONS OF FRAUD

INDEX

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Contact Us

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