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

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