Conyers Offshore Case Digest (Issue No.11 April - December 2015)

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BRITISH VIRGIN ISLANDS BRITISH VIRGIN ISLANDS BRITISH VIRGIN ISLANDS COURT OF APPEAL INTERLOCUTORY APPEAL - CIVIL PROCEDURE RULES - SETTING ASIDE DEFAULT JUDGMENT - WHETHER A PERSON CAN BRING A CLAIM IN HIS OR HER BUSINESS NAME AND OBTAIN A DEFAULT JUDGMENT Deidre Pigott Edgecombe and Nordel Edgecombe -v- Antigua Flight Training Centre Claim No. ANUHCVAP2015/0005 (June 2015) This Appeal was against the decision of the Court below to refuse to set aside judgment obtained in default on the ground that there were exceptional circumstances. The Appellant contended that because the Claim was commenced in the name of an entity that was not a legal person the Judgment obtained was contrary to law because the Respondent, not being a juristic person, could not be a party to and obtain judgment in respect of the Claim. Rule and the omission of the words “a trading name” would not render the Claim bad in law and in any event could be rectified by an amendment of the Claim. The Court further held that the Claim could be brought in the business name (although not a corporate entity at the time) since CPR 22.2(2) provides for a Claim to be made by or against a person in his or her business name and that the rules regarding claims by or against partners apply as if that person had been a partner in a firm when the right to claim arose and the business name were the firm’s name. Although the Appeal was concerned with whether the Appellant had shown that exceptional circumstances existed in the context of a set aside application, the Court of Appeal observed that since the Appellant’s complaint was that the Judgment should be considered a nullity or one which was irregular that the true appeal was to the Court’s inherent jurisdiction to set aside the Judgment ex debito justitiae. Even then, the Court found that the Appellant’s complaint did not warrant the exercise of the Court’s inherent jurisdiction. The Appeal was heard on paper before the full panel. Dismissing the Appeal, the Court held that Civil Procedure Rules (“CPR”) 22.2 (b)(iii) allows a person to bring a claim if they were carrying on business in the jurisdiction when the right to claim arose, as “X.Y.” followed by the words “a trading name”. The Court found that this case fell within that 6
BRITISH VIRGIN ISLANDS INTERLOCUTORY APPEAL - DEFAMATION - LIBEL - CIVIL PROCEDURE AMENDMENT TO STATEMENT OF CASE AFTER FILING - RULE 20.1 OF THE ENGLISH CIVIL PROCEDURE RULES, 2000 - FACTORS TO BE TAKEN INTO ACCOUNT IN DECIDING WHETHER OR NOT TO ALLOW AMENDMENT TO STATEMENT OF CASE AFTER DATE FIXED BY COURT FOR FIRST CASE MANAGEMENT CONFERENCE - LEAVE TO AMEND DEFENCE TO INCLUDE ADDITIONAL DEFENCE OF JUSTIFICATION Mark Brantley -v- Dwight C. Cozier Claim No. SKBHCAP 2014/0027 This Appeal was against the decision of the Court below refusing permission to the Appellant, Mark Brantley to amend his defence and refusing his application for a stay of the proceedings pending the determination of unrelated proceedings in the Court of Appeal. The amendment was sought four years after the Claim was issued. Applying the decisions in Charlesworth -v- Relay Roads Ltd. and Others [2000] 1 WLR 230, Clarapede & Co. -v- Commercial Union Association (1883) 32 WR 262 and George Allert (Administrator of the Estate of George Gordon Matheson, deceased) et al -v- Joshua Matheson et al GDAHCVAP2014/0007 (delivered 24 November 2014, unreported), the Court held that in exercising its discretion in relation to amendments the Court should be guided by the general principle that amendments should be made where they are necessary to ensure that the real question in controversy between the parties is determined, provided that such amendments could be made without causing injustice to the other party and could be compensated in costs. The Court further held that the amendment should be allowed regardless of how negligent or careless the omission from the statement of case may have been, and no matter how late the proposed amendment was. CIVIL APPEAL - SETTING ASIDE STATUTORY DEMAND - SECTION 157(1) AND SECTION 157(2) OF THE INSOLVENCY ACT, 2003 - WHETHER STATUTORY DEMAND CONTRARY TO ARBITRATION CLAUSE IN CONTRACT - WHETHER THE RESPONDENT WAS BARRED BY THE CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS (NEW YORK, 1974). C-Mobile Services Limited -v- Huawei Technologies Co Limited Claim No. BVIHCMAP 2014/0006 (September 2015) This Appeal concerned the decision by the Court below to refuse the Appellant’s application to set aside the service of a statutory demand on it. The Appellant relying on Section 157(1) of the Insolvency Act, 2003 (the “Insolvency Act”), sought to set aside the statutory demand on various grounds, which it was alleged amounted to there being a substantial dispute as to the debt. Dismissing the Appeal, the Court held that while Section 157(2) of the Insolvency Act gives the Court a discretionary power, Section 157(1) did not. Moreover, to exercise the discretion given under Subsection (2) the Applicant would need to adduce evidence showing that a “substantial injustice would be caused”, unless the demand was set aside, this had not been done. The Court held that the test for determining whether there was a substantial dispute as to a debt was as set out in Sparkasse Bregenz Bank AG -v- Associated Capital Corporation Appeal 10 of 2002, an earlier decision of the BVI Court of Appeal. The Court also found that since the application to set aside had not been made under Section 157(2) of the Insolvency Act, the Learned Judge was not being asked to exercise a discretion. Accordingly, if having examined the evidence, he was of the view that a substantial dispute (as distinct from a fanciful or make-believe or mere trifling or frivolous one) existed, he was bound to set aside the statutory demand. CIVIL APPEAL - ARBITRATION - STAY PURSUANT TO SECTION 6(2) OF THE ARBITRATION ORDINANCE - APPLICATION FOR APPOINTMENT OF LIQUIDATORS - WHETHER ARBITRATION CLAUSE IN CONTRACT BROUGHT THE LIQUIDATION PROCEEDINGS WITHIN THE AMBIT OF SECTION 6(2) OF THE ARBITRATION ORDINANCE C-Mobile Services Limited -v- Huawei Technologies Co Limited Claim No. BVIHCMAP 2014/0017 (September 2015) Here, the issue on appeal was whether the application to appoint liquidators should be stayed pursuant to Section 6(2) of the Arbitration ordinance, where the agreement under which the underlying debt arose contained an arbitration clause. The Court of Appeal dismissing the Appeal held, applying Re Sanpete Builders (S) Pte. Ltd [1989] 1 MLJ and Community Development Proprietary Ltd -v- Engwirda Construction Co. (1969) 120 CLR 455, that, as a starting point, the winding up proceedings were not intended to be caught within the ambit of the mandatory stay provisions contained in the Arbitration Ordinance unless the Arbitration Agreement itself was so drawn to encompass such a proceeding. The Court found that under the Arbitration Clause of the agreement it was only matters “arising out of or in connection with the formation, construction, or performance of” the contract that was required to be referred to arbitration and that these winding up proceedings were outside the stay provisions of the Arbitration Act. 7
Page 1 and 2: APRIL 2015 - DECEMBER 2015 ISSUE NO
Page 3 and 4: ABOUT THE DIGEST The Offshore Case
Page 5 and 6: BERMUDA the parties involved can be
Page 7: BERMUDA apply to many cases, and as
Page 11 and 12: BRITISH VIRGIN ISLANDS INTERLOCUTOR
Page 13 and 14: BRITISH VIRGIN ISLANDS standing, ot
Page 15 and 16: CAYMAN ISLANDS On 18 September 2012
Page 17 and 18: CAYMAN ISLANDS J (applying Section
Page 19 and 20: CAYMAN ISLANDS The Judgment of the
Page 21 and 22: INDEX Arbitration 7 BVI - CIVIL APP

Conyers Offshore Case Digest (Issue No.11 April - December 2015)

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