A recent Grand Court decision is significant for Cayman master-feeder fund structures. Funds and their advisers should review the redemption provisions in master fund articles of association and partnership agreements to ensure that, operationally, redemptions are being effected in accordance with such documents.
The plaintiff in a recent Court of Appeal case concerning the enforcement of a pledge on shares given to a bank as part of a financing believed that the court's original decision was unclear. It consequently asked the court to clarify whether the decision ordering the return of the shares entailed that the plaintiff should be considered a shareholder from the date on which the bank had unlawfully acquired the shares or effectively returned them to the plaintiff.
The Court of Appeal recently held that a director who had made continuing fraudulent misrepresentations was liable for damages calculated at the point of sale and not at the point of entering into the contract. This judgment is a reminder that, in the right case, deceit may be used to pierce the corporate veil. It also highlights the considerations when assessing damages regarding continuing representations, particularly when there is time between the representation being made and the performance of the contract.
An excavation contractor who was found guilty of manslaughter and criminal negligence causing death has been sentenced to 18 months' imprisonment by the Court of Quebec. The sentence – which is a first in Quebec legal history – sends a clear message to employers concerning the importance of complying with their occupational health and safety obligations.
The Hong Kong government recently issued a consultation paper, and sought views from members of the public and interested stakeholders, on a proposed arrangement between Hong Kong and the mainland for the reciprocal recognition and enforcement of judgments in civil and commercial matters. The proposed arrangement seeks to provide a mechanism which widens the existing and limited scope for the enforcement of mainland court civil judgments in Hong Kong and vice versa.
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.
The Court of Appeal recently ruled on the prorogation of general shareholders' meetings. Although this decision confirms the existing case law on prorogation, it is notable as it is the first time that a court has ruled that a prorogation request can be made before, and not only during, a shareholders' meeting. Ultimately, the decision strengthens the rights of minority shareholders.
A recent Larnaca District Court judgment examined the requirements for granting mandatory injunctions on interim applications. The decision is in line with well-established legal principles, as mandatory orders are an extraordinary remedial process granted not as a matter of right, but rather after the exercise of sound judicial discretion. Their application is restricted to clear and exceptional circumstances in which order needs to be restored without delay.
The High Court recently considered the proper basis for the distribution of money in the client account of a closed law firm. The money is held by the relevant regulator on trust for the persons beneficially entitled to it – namely, the former clients. Where there is a shortfall between the verified claims of former clients and the balance in the client account, the court may need to direct how the money should be distributed.
An assistant fire chief recently won a wrongful dismissal suit after he was fired for receiving a 90-day administrative driving prohibition for impaired driving while off duty. The court held that the assistant fire chief's off-duty conduct was not incompatible with the faithful discharge of his duties or otherwise prejudicial to the interests or reputation of the fire department and awarded him five months' salary as provided for in his employment contract.
To render a force majeure clause watertight, time should be taken to consider all of the potential risks that may prevent parties from fulfilling their obligations under the contract and spell these out in the clause. Also, where an event has occurred, parties must be able to demonstrate that the force majeure event was the sole cause of any failure to fulfil their contractual obligations. This was recently upheld by the High Court.
In a recent decision, the Supreme Court established that drinking water is a product within the meaning of the Product Liability Act. Therefore, the determination of damages for municipalities and municipal companies which supply contaminated drinking water can be tried in accordance with this act. If a clear causal connection is established, it will be much easier for injured parties to obtain compensation.
In May 2017 the Arnhem-Leeuwarden Appellate Court referred questions regarding which kinds of object can be classified as copyrightable works to the European Court of Justice (ECJ). The case addresses the interesting question of whether certain tastes can be protected under copyright law (the specific taste for which protection was sought was Levola's popular cheese product Heks'nkaas). Advocate General Wathelet recently advised the ECJ not to allow tastes to be granted copyright protection.
It is understandable that directors might be reluctant to seek legal advice – be it due to concern about time or cost or a potential conflict of interest if seeking advice internally. However, as a recent case demonstrates, this is a small price to pay to avoid the time and financial cost of a claim, especially when a company's subsequent precarious financial position shines a light on an officer's behaviour and competence.
The Alberta Court of Appeal recently provided clarity on what the Crown must prove in a prosecution under the Alberta Occupational Health and Safety Act regarding the failure to ensure the health and safety of workers. The key question before the court was whether the expression "as far as is reasonably practicable for the employer to do so" in the general duty section of the act was part of the physical components of the offence that the Crown had to prove.
The EU European Account Preservation Orders (EAPO) Regulation states that attachment orders must be enforced through the courts in accordance with the procedures applicable to the enforcement of equivalent national orders in the member state of enforcement. As Luxembourg's existing legislation proved to be poorly adapted to the execution of EAPOs, it recently implemented the EAPO Conversion Law in order to introduce a specific court enforcement procedure applicable only to EAPOs.
Life imprisonment generally does not constitute a whole-life sentence because the prisoner will, in most cases, be eligible for early release after a fixed period set by the court. In exceptionally grave cases, the court may order that life should mean life and that the prisoner should remain incarcerated for the rest of their life. The case of Panagiotis Kafkaris was considered sufficiently serious to merit a whole-life sentence and his release marks the end of a landmark case on this issue in Cyprus.
Following a recent Court of Appeal decision on staying proceedings pending appeal, the test as to whether a stay ought to be granted under Section 44 of the Courts of Judicature Act has been simplified (ie, it now focuses on whether the true purpose of the stay is to preserve the integrity of the appeal). The new threshold to obtain a stay is considerably lower than that of the special circumstances rule under Section 73 of the Courts of Judicature Act.
In certain circumstances the courts in Hong Kong can extend Mareva relief against a defendant to third parties under the so-called 'Chabra' jurisdiction. In a recent case, the assets which the trustees sought to locate were not directly held by the bankrupt, but appear to have been indirectly held through a family trust and related companies. As before, the court demonstrated its willingness to extend Mareva relief under the Chabra jurisdiction in deserving cases.
In Fairfield Sentry Limited (In Liquidation) v Farnum Place LLC the BVI Court of Appeal varied a costs order based on a material change of circumstances – namely, a decision of the US Court of Appeals for the Second Circuit. The BVI court held that the US decision was a "material change of circumstances" which allowed it to vary the costs order by disallowing the costs of Farnum's expert.