In Al Tamimi v Al Charmaa(1) the Jersey Royal Court clarified that any arrangement which detracts from the ability of regulators or law enforcement authorities to identify beneficial owners of companies or beneficiaries of trusts will not be recognised on grounds of public policy.
The parties to the case were a divorced couple who had been married in the United Arab Emirates under Sharia law in 2002 and subsequently divorced according to the laws of the United Arab Emirates in early 2015.
The dispute between them involved the beneficial ownership of two Jersey companies: First Grade Properties Limited and Jorum Limited. The companies were incorporated in 2007 (during the marriage) and owned UK property.
The evidence given to the company incorporation agents in Jersey and to the Jersey Financial Services Commission (JFSC) showed that the owner of the companies on incorporation was the former wife (Rouzin). The banking documentation also showed this to be the case, and board minutes of the companies recorded Rouzin as the beneficial owner.
However, the former husband (Essam) asserted that he was the ultimate beneficial owner of the shares in the companies and that Rouzin held the shares as his nominee on the basis of an oral agreement or understanding between them. In support of his case, Essam argued that he had provided finance to the companies both directly and through his negotiation of bank loans for the companies, which he personally guaranteed. He was also granted a power of attorney to act on Rouzin's behalf in relation to the companies, among other things.
Essam also argued that the shares were either held on trust for him, or that Rouzin had been unjustly enriched and should account to him for that.
The court confirmed that the burden of proof lay on Essam to show that he was the beneficial owner of the companies, and concluded that he had not done so.
On the evidence, the court was not satisfied that Rouzin had entered into an agreement to hold the shares as a nominee. In any event, the court also noted that in Jersey there is a rebuttable presumption that family arrangements do not create legally binding contracts and no such legally binding contract was suggested here.
The court also rejected the trust claims on the following basis:
- No trust could have arisen on incorporation, as the court did not believe that Essam would have misled the JFSC as to who the beneficial owner was intended to be. The suggestion that the power of attorney gave Essam a power of disposition of the shares was also rejected, as he could not use the power of attorney to dispose of Rouzin's beneficial interest without her consent.
- No 'resulting trust' (a type of implied trust that may arise where property is transferred for no consideration in circumstances where there is no presumption of advancement) arose. In the case at hand, no property had been transferred (Essam had not transferred the shares to Rouzin) and in any event a presumption of advancement arises between a husband and wife.
- No 'constructive trust' (a type of implied trust that may arise where someone makes or receives a gain from a breach of trust or equity operates on the conscience of the legal owner by reason of their unconscionable conduct) arose. As Essam had not established his case for an express trust or nominee agreement, the constructive trust claim necessarily failed as there was no inequitable conduct to found such a claim.
- While Rouzin had undoubtedly been enriched, given that she made no financial contribution to the acquisition of the UK properties or the incorporation of the companies, the enrichment was not unjust. The court accepted Rouzin's explanation that the incorporation of the companies and the acquisition of the properties was carried out in order to secure Rouzin's future. Rouzin and Essam had briefly separated in 2005 after Essam had an affair, and Rouzin agreed to take Essam back only if her future was secured. Thus, the shares in the companies were issued to her and finance was provided.
The Royal Court also noted that it would not, in any event, have upheld such an arrangement on the basis that it would be contrary to public policy. The court considered the test set out in the UK Supreme Court decision of Patel v Mirza(2) in relation to whether to uphold an illegal agreement. The Supreme Court stated that the court should assess whether public interest would be harmed by enforcing the illegal agreement, which in turn requires consideration of the underlying purpose of the prohibition which has been broken, and whether those purposes would be enhanced by denial of the claim.
In Essam's case, the JFSC was apparently deliberately given incorrect information. The court noted that a dishonest failure to make complete and accurate answers to incorporation questionnaires amounted to a criminal offence.
The court stated that:
"There is a public interest – a very strong public interest – in the Island being able to demonstrate that it has the ability to identify the beneficial owners of companies, or the beneficiaries under trusts. In our judgment the Court should not recognise any arrangement which detracts from the ability of regulators or law enforcement authorities to do so."
As the court noted, it is vital to the Channel Islands' international reputation that regulators and law enforcement authorities be able to identify the persons beneficially entitled under trusts, foundations, companies or limited partnerships. The islands' regulatory and enforcement systems have been examined at least twice by the International Monetary Fund and once by Moneyval in the past 11 years, and on each occasion the investigating body has been completely satisfied in this regard.
This judgment sends a clear message that the Jersey Royal Court will not allow those regulatory and enforcement systems to be undermined by arrangements designed to mislead the relevant authorities. Moreover, the judgment reiterates that anyone attempting to do so faces criminal penalties.
For further information on this topic please contact Oliver Passmore or Ashley Quenault at Ogier by telephone (+44 1534 514 000) or email ([email protected] or [email protected]). The Ogier website can be accessed at www.ogier.com.
Endnotes
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