Litigation, Ogier updates

Cayman Islands

Contributed by Ogier
Grand Court provides clarity on costs
  • Cayman Islands
  • 04 May 2021

A recent costs ruling has provided welcome clarity on the circumstances in which the Grand Court will make a costs award on the indemnity basis. A successful party can expect to recover a higher proportion of its costs when an award is made on the indemnity basis (rather than the standard basis) since only costs that are unreasonably incurred or are of an unreasonable amount will be disallowed on taxation and any doubts as to reasonableness are resolved in favour of the successful party.

Snapshot: notification injunctions
  • Cayman Islands
  • 20 April 2021

A notification injunction is an alternative to the conventional freezing order that is available where there is concern that a respondent may deal with their assets so as to frustrate the enforcement of any future judgment. This new breed of quia timet 'notification' injunction is to be welcomed: it represents a further weapon in the Cayman court's arsenal to assist litigants, particularly in fraud and asset tracing cases, to prevent the frustration of judgments.

Short-form mergers: Changyou.com judgment confirms appraisal rights
  • Cayman Islands
  • 06 April 2021

The Grand Court has confirmed that shareholders of companies that effect a short-form merger pursuant to Section 233(7) of Part XVI of the Companies Act (2021 Revision) are entitled to be paid the fair value of their shares on dissenting from the merger under Section 238 of the act. The eagerly awaited judgment in Changyou.com clarifies an issue which was previously the subject of extensive debate and provides welcome certainty to minority shareholders of Cayman companies.

Commencing proceedings against a Cayman company in liquidation: having a case worth entertaining
  • Cayman Islands
  • 23 March 2021

The Grand Court recently considered the statutory moratorium against commencing proceedings against a Cayman company in liquidation. The court held that a plaintiff which launches originating proceedings against a company in liquidation, seeking adverse orders against that company, requires leave of the court to bring the proceedings. It also held that the plaintiffs in this case did not have "a case worth entertaining" in respect of either basis on which they had brought their applications.

Clarification on scope and meaning of Cayman firewall legislation and forum for administration clauses
  • Cayman Islands
  • 16 March 2021

A recent court judgment is the latest in a line of Cayman Islands court decisions which have considered the meaning and scope of the Cayman firewall provisions. The Grand Court has now provided important clarification about the effect of Section 90 of the Trusts Act 2020, confirming that it does not operate to bestow exclusive jurisdiction on the Cayman Islands courts (as previous cases have suggested) and that common law principles of forum non conveniens still have relevance and application.


Guernsey

Contributed by Ogier
Snapshot: application to court for restoration of Guernsey company
  • Guernsey
  • 04 May 2021

In Guernsey, there is a relatively quick and easy process for restoring companies to the Register of Companies when they have been struck off and dissolved. Applications can be made by various parties to the Non-contentious Court, which will deal with the matter 'on the papers'. However, if a party is likely to oppose the application to restore, an application should be made to the Ordinary Court and court attendance will be required.

Director disqualification: 12-year disqualification penalty imposed
  • Guernsey
  • 20 April 2021

When considering the penalties imposed on directors of Guernsey companies for misconduct or breaches of the Companies (Guernsey) Law 2008, arguably the most serious penalty which can be imposed is a disqualification order. Such an order can, at its highest, be career ending for a director, with the maximum period of disqualification being 15 years. This article examines a recent decision in which the Royal Court imposed a disqualification period of 12 years.

Snapshot: 'momentous decision' applications by trustees
  • Guernsey
  • 13 April 2021

The terms of a trust deed will usually extend the powers conferred on trustees by the Trusts (Guernsey) Law 2007. When deciding to exercise these powers, trustees must consider all of their legal and fiduciary obligations. However, it is not always that simple; at some point a trustee will be faced with a decision so important or complex that it wishes to seek the blessing of the Royal Court. In Guernsey, such applications are known as 'momentous decision' or 'blessing' applications.

Snapshot: starting civil proceedings in Guernsey
  • Guernsey
  • 16 March 2021

Civil litigation procedure in Guernsey is governed by the Royal Court Civil Rules 2007. All commercial disputes with a value over £10,000 are heard in the Royal Court; disputes with a lower value are dealt with in the Magistrate's Court. This article outlines the procedure for civil proceedings in Guernsey, which differs depending on whether the defendant is in or outside Guernsey.

The Carlyle case – the final chapter
  • Guernsey
  • 09 March 2021

The long-running Carlyle case recently came to an end when the parties reached a non-confidential settlement. The case arose from the March 2008 collapse of Carlyle Capital Corporation Ltd, a Guernsey fund which invested mainly in residential mortgage-backed securities issued by US government-sponsored entities Fannie Mae and Freddie Mac. The case is of particular relevance now during the COVID-19 pandemic, which will likely lead to more fund collapses.


Jersey

Contributed by Ogier
Trust company's £550,000 fine demonstrates importance of effective and consistent AML procedures
  • Jersey
  • 20 April 2021

The Royal Court recently imposed a hefty £550,000 fine on a firm for failing to ensure that, in practice, its anti-money laundering (AML) policies and procedures were being applied effectively and consistently. Notably, the Royal Court was not deterred from imposing a fine by the fact that the failings related to only one client structure. Firms must therefore ensure that their AML controls are being applied effectively across their entire business – for, as this judgment shows, the cost of failing to do so can be high.

Royal Court intervenes to set aside trustee decision
  • Jersey
  • 13 April 2021

In a recent case, the Royal Court intervened to set aside a decision of the trustee not to make the spouse of the settlor a beneficiary in her own right. The court's decision has implications for trustees and their obligation to act reasonably despite the trustee setting out reasons for its original decision.

Royal Court demonstrates its ability to assist in administration of foreign trusts
  • Jersey
  • 27 October 2020

In a recent decision, the Royal Court considered – for the first time – whether it can exercise a foreign statutory power on the application of a trustee of a foreign trust. The court concluded that it can do so as a matter of principle and went on to exercise an English statutory power so as to permit the trustees of a trust governed by English law to self-deal. The judgment is a welcome one for trustees in two particular respects.

Slowly getting to grips with unjust enrichment and Jersey's legal 'hot potatoes'
  • Jersey
  • 14 January 2020

A long-running Jersey fraud case illustrates the difficult task that the Channel Island courts sometimes have in comparing and distinguishing between developed principles of English law and foundational elements of the islands' customary law. The case tackles two Jersey law 'hot potatoes': the question of the rights between wrongdoers to claim an indemnity or contribution outside the scope of the limited statutory scheme between joint tortfeasors and the extent and nature of the doctrine of unjust enrichment under Jersey law.

Z Trusts judgment: whose rights take priority when a trust is insolvent?
  • Jersey
  • 13 August 2019

The Jersey Court of Appeal recently handed down a long-awaited judgment in the Z Trusts case. The decision considers important questions regarding the equitable rights of former trustees and whether those rights have priority over the rights of other claimants to the assets of a trust (including successor trustees) whose liabilities exceed its assets. As such, trustees must consider the practical implications of this judgment and whether and how they should be mitigated.


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