OFFSHORE CASE DIGEST: - Conyers Dill & Pearman

BRITISH VIRGIN ISLANDSThe Appellant company sought to appeal the decision toappoint liquidators over it following the Appellant’s failure to setaside a statutory demand served on it. The grounds of appealincluded an allegation that the Learned judge misdirectedhimself by substituting his own opinion for that of the expertrelied on by the Appellant in the court below. Applying the dictain Eng Mee Yong & ors v Letchumanan [1980] A.C. 331, theCourt held that although in the normal way it is not appropriatefor a judge to attempt to resolve conflicts of evidence onaffidavit, this does not mean that the judge is bound to acceptuncritically every affidavit statement however equivocal andlacking in precision it may be as raising a dispute of fact whichcalls for further investigation. In order to determine whether adispute was substantial the Court had to carry out a preliminaryassessment of the facts on which the injustice was raised. Itwas for the Judge to determine in the first instance whetherstatements contained in affidavits that are relied on as raisinga conflict of evidence on a relevant fact, have sufficient primafacie plausibility to merit further investigations as to their truth.The appeal was dismissed.MarchCPR rule 7.3(3)(b) on Swisstor and Wise Global Wise. Leavewas subsequently set aside by the Commercial Judge. TheReceiver appealed. The Court of Appeal made three (3) notablefindings. First, that the Learned Commercial Judge construedCPR 7.3(3)(b) too narrowly. The Court followed E.F. Hutton &Co (London) Ltd. v Mofarrij which held that a claim sufficiently“affected” a contract if there was a “sufficient direct link” to thecontract. Second, the power in CPR 8.13 to extend the validityof the claim form is only to be exercised for “good reason”.Third, that Swisstor and Wise Global had a right to be sued bymeans of a claim issued within the statutory period of limitationand served within the period of the validity of the claim form.The court observed that the statutory limitation period shouldnot be made elastic at the whim or sloppiness of a litigantand the public interest required that claimants adhere strictlyto the time limit for service or else provide a good reason fordispensation. In coming to this decision the Court applied City& General (Holborn) Ltd. v Royal & Sun Alliance plc [2010] 131ConLR; [2010] BLR 639; [2010] EWCA Civ 911.COMPANIES – INSOLVENCY – WINDING UP ORDER –PROCEDURE FOR CHALLENGEPROCEDURE – CPR 7.3(3)B – CPR 8.13 – SERVICE OUT– CLAIM “AFFECTING A CONTRACT” – RESTITUTIONIgors Kippers et al v Stanford International Bank Limited(In Liquidation)Marty Steinberge, Receiver and Lancer Offshore Inc, TheOmnifund Limited v Swisstor & Co and Wise Global FundLimitedThe claim was essentially one for repayment of moneymistakenly and/or fraudulently paid under a contract. Therespondents, Swisstor and Wise Global and others, hadinvested in funds held by Lancer and Omnifund, which wereoperated as a Ponzi scheme. Swisstor and Wise Global hadbenefitted from dishonestly calculated redemptions by severalmillion dollars each. The Receiver began proceedings inthe BVI seeking restitution of the moneys paid to Swisstorand Wise Global. The court below granted the Receiverpermission to serve the claim form out of the jurisdiction underThis appeal brought under s. 11 of the Eastern CaribbeanSupreme Court (Antigua and Barbuda) Act concerned thejurisdiction of the Master to raise an issue and pronounceon the validity of claims brought after Stanford InternationalBank was placed into compulsory liquidation. The Court held,inter alia, that in the absence of local statutory provisions andrules regulating the practice and procedure for challenginga winding up order made pursuant to section 304 of theInternational Business Act or relating to proceedings duringthe pendency of the winding up proceedings against or onbehalf of the Company in liquidation, The Third Group of Parts:Part V11 in the English Insolvency Rules 1986 as amendedrelating to the Court Procedure and Practice Direction PD5relating to the Distribution of Business of the Companies Courtconyersdill.com • 11