The Commercial Court recently confirmed that the BVI courts have jurisdiction to grant charging orders. Charging orders are a critically important tool, particularly when enforcing foreign judgments, as they allow creditors to take a proprietary interest over assets owned by a debtor and can ultimately facilitate the sale of such assets to allow the creditor to realise their debt.
A BVI court recently considered a contempt application seeking further disclosure by way of an 'unless' order and whether cross-examination of the respondents should be ordered to determine the issue of contempt. The decision highlights the exceptional nature of cross-examination orders and the high standard of proof required for contempt orders.
The BVI Court of Appeal recently considered the scope of its jurisdiction to interfere with findings of fact made at first instance. This is the second time in 2018 that the court has addressed this issue. While the threshold for intervention is high, the court will intervene on appropriate occasions. The thoroughness of the evaluation of evidence and the credibility of the judge's conclusions at first instance are likely to be pivotal to that determination.
The BVI courts have again stepped in to ensure that proper thought and process is applied to requests made by foreign governmental bodies. In the first case of its kind to successfully challenge the exercise of the attorney general's powers under the Criminal Justice (International Cooperation) Act, the BVI High Court held that the attorney general is required to do more than rubber stamp the requests received under the act.
In a recent case, the BVI Court of Appeal addressed standing in the context of applications under Section 273 of the Insolvency Act 2003, whereby an aggrieved person can ask the courts to reverse or vary a liquidator's decision. The court held that, as a shareholder of a company in liquidation, the appellant was an outsider to the liquidation who had no legitimate interest that entitled him to standing under Section 273.
Following the recent Court of Appeal decision in Qunar, the Grand Court handed down written reasons for its further directions for dissenters' discovery in a Section 238 appraisal action. The reasons acknowledge that the Grand Court's approach to discovery has changed as a result of the Court of Appeal's decision, such that a "general requirement for automatic mutual disclosure" now applies.
The Grand Court has set out the requirements for pleading a cause of action of dishonest assistance and reaffirmed the established principles of the defence of estoppel. The decision provides welcome comfort to corporate entities with robust and thorough systems for detecting fraud.
During the early stages of litigation, a well-advised defendant will consider how to enforce a Cayman Islands court costs order in the foreign jurisdiction where the claimant's assets are located, and whether it should seek security from the claimant for the costs of doing so. The Court of Appeal has recently considered whether a foreign claimant should give security limited to the costs of enforcing an order in the foreign jurisdiction only or for the (much greater) amount of defending the appeal.
The recent Grand Court decision in T Co v AA, BB, CC, DD, EE (a minor) is a good reminder of the court's approach to service out of the jurisdiction and provides insight on the scope of jurisdiction clauses contained in trust instruments.
In Nord Anglia the justice made directions orders regarding the use of keyword searches, the number and scope of information requests, and the conduct of management meetings consistent with the orders made in Xiadu Life Technology. Further, the judgment will provide welcome safeguards for companies facing appraisal litigation in the Cayman Islands if adopted on a wider basis.