International / Offshore

The Judicial Committee of the Privy Council handed down its decision in Tianrui, and confirmed that a shareholder has a personal claim against a company when the directors of the company exercise their powers for an improper purpose. More specifically, the Board confirmed that such a claim may be brought by a minority shareholder in circumstances where the directors have allotted shares for the improper purpose of diluting that shareholder’s voting power, thereby facilitating a takeover of the company.

This is a landmark decision confirming the rights of shareholders, including minority shareholders, to prevent improper exercises of power and oppression by a company.

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AFRINIC is trying to oust Cloud Innovation as a member and to forfeit its valuable internet resources. AFRINIC (through a former director) sought to remove the Official Receiver that had been appointed by the Commercial Court to manage and supervise the company AFRINIC pending the determination of Cloud’s Innovation’s shareholder oppression claim. Cloud Innovation successfully opposed the removal application arguing that AFRINIC had no lawfully appointed director in place, an election to appoint directors required to be held and in all the circumstances it was just for the Official Receiver to continue in his role.

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Mr Justice Calver acceded to the Claimants’ application for a Norwich Pharmacal order where the defendant law firm had obtained from an unnamed business consultancy a report which was subsequently deployed in s.68 proceedings against the Claimants with a view to setting aside an arbitration award. The report was subsequently revealed to be a forgery. The judgment contains a very interesting analysis of the circumstances in which a law firm might become amenable to a Norwich Pharmacal order and the extent to which privilege might bar such relief.

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On 3 October 2024, the Grand Court of the Cayman Islands (FSD) granted a case management stay of a just and equitable winding up petition in the case of Re TFKT True Holdings pending the resolution of separate proceedings in Hong Kong between the same parties to the petition. The judgment of Hon Justice David Doyle contains a comprehensive survey of the now very well-developed Cayman law on case management stays, which has become a very important aspect of Cayman procedural law.

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This was the first case before the HKCFA to consider the important and much debated practical question of the test for whether a Quistclose trust exists.

The decision sets out a clear test and guidance that will be important in future cases, along the way dealt with the recent Privy Council decision in Prickly Bay Waterside Ltd, and explains when such trusts can arise in the absence of express restrictions on the purpose for which the funds can be used by the recipient.

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Judgment handed down, following a 3-day hearing, in Cowan v Equis Special LP by Parker J sitting in the Financial Services Division of the Grand Court of the Cayman Islands. Some interesting observations about the meaning of ‘written agreement’ for the purpose of amendment of statements of case, the Cayman law of security for costs, and the identification of funders.

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The Hong Kong Court of Final Appeal allowed the appeal and held that, on the proper construction of the deed of mutual covenants (DMC), the external walls are common parts in that multi-storey building. The relevant character of the external walls is to be determined by reference to the DMC, though the first assignment may be referred to as an aid to construction in case of ambiguity in the DMC.

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The claimants brought an application seeking to commit the defendant for breach of an undertaking he had given to the court. At a trial in March 2023 HHJ Pelling KC, sitting in the Commercial Court, dismissed the application. The Court of Appeal dismissed the claimants’ appeal, emphasising the need to focus on the breach as actually alleged in the application notice and the importance of procedural fairness when a defendant is facing a committal application.

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Acting for the successful respondent before the Supreme Court in the now leading knowing receipt case of Byers v Saudi National Bank [2023] UKSC 51. The Supreme Court has now definitively stated the proprietary basis of such relief, and rejected the submission that it is a remedial response to unconscionability.

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The Royal Court of Guernsey dismisses a substantial unfair prejudice application, which represents a key aspect of multi-faceted ongoing litigation connected with the bankruptcy in the US of once high-flying billion-dollar investment firm Highland Capital Management LP. 

The judgment contains interesting discussion of (i) whether breach of a duty to act in good faith necessarily amounts to bad faith, and (ii) the circumstances in which equitable considerations may have a place in governing the proper conduct of the affairs of a company.

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Judgment has been handed down in the Court of First Instance of the DIFC by Justice Sir Jeremy Cooke.

Kirtanlal International DMCC, a steel trading company, brought a claim for damages of USD 18.51m in relation to what it said was the unlawful termination of its facility agreement with the Defendant bank. Kirtanlal claimed that the Bank acted in breach of a duty of good faith and/or a Braganza duty, alleging malice on the part of the Bank. Kirtanlal also alleged that there were breaches of tortious, fiduciary and regulatory duties by the Bank.

The Court rejected the $18.5 million damages claim.

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A Privy Council judgment delivered simultaneously with the Supreme Court decision in Republic of Mozambique v Credit Suisse International. Lord Hodge delivered two important judgments on how to define and identify the “matters” which give rise to stay of legal proceedings in favour of arbitration (in England under Section 9 Arbitration Act 1996) and certain other related issues. In doing so, these Courts have dropped the overly “granular” approach adopted by English Courts recently and opted for a more nuanced and analytical approach favoured by the Australian courts. The legal analysis in the two decisions is more or less identical.

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In a judgment handed down on 20 September 2023 following the trial of preliminary issues, the Deputy Judge of the Commercial Court held that it is not a rule of private international law that a final and binding foreign judgment on the merits must be enforceable in the foreign jurisdiction before it could be the subject of an application to ‘enforce’ the foreign judgment in this jurisdiction by a claim at common law, and dismissed the sixth defendant’s application to set aside a default judgment the claimant had obtained against the first defendant, as (i) there was accordingly no arguable defence, and (ii) the sixth defendant had not satisfied the Denton criteria.

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High Court confirms that a winding up petition may be brought notwithstanding a foreign exclusive jurisdiction clause.

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Successfully acting for the respondent in Bermuda Court of Appeal in decision on breadth of standard form consent powers of fiduciary protectors of trusts. The Court reached a unanimous decision following full argument that the role of a fiduciary protector having a power of consent in relation to the exercise of trustee powers is “narrow” rather than “wide”.

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The Cayman Islands Court of Appeal clarifies important aspects of Cayman Islands’ property law regarding restrictive agreements, easements and Land Register rectification.

Acting for the successful respondent in one of the first reported decisions in the Grand Court of the Cayman Islands in this important case on when the Court will appoint inspectors to examine into and report on the affairs of a company at the behest of a minority shareholder.  Although a case on s.64 of the Cayman Companies Act, similar statutory provisions are to be found in legislation throughout the Commonwealth, and hopefully this case will be a useful precedent in those jurisdictions too.

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A key Privy Council decision of significance throughout the common law world, concerning the interplay between insolvency and trusts law. It has particular importance in circumstances where the trust fund is ‘insolvent’, in the sense that the trust assets are insufficient to meet the amounts due under the trustee’s right of indemnity.

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A much-anticipated Privy Council decision on the interpretation of Article V of the New York Convention. The Privy Council confirmed that an ICC arbitration award obtained in favour of Gol was enforceable in the Cayman Islands and that the grounds upon which the appellants (the MP Funds) sought to challenge the Award had already been raised (and dismissed) before the courts in Brazil giving rise to an issue estoppel.

A US$1 Billion damages claim, which arose out of the collapse of NMC PLC, a former FTSE 100 company, and its operating subsidiaries in the UAE, all of which are now in administration in England and Wales and the UAE. The claimant is an Abu Dhabi-based bank, and the first to third defendants are the former private shareholders in NMC PLC. The Bank alleged that the defendants are responsible, with others, for a serious fraud that appears to have taken place within the NMC Group of companies. The defendants all deny involvement in the fraud.

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A multi-million euro, multi-faceted fraud claim in the Cayman Islands that made new law on the Cayman Fraudulent Dispositions Law.

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A South Africa’s largest ever private sector accounting fraud scandal. Alleged payments totalling approximately €95 million are said to have been made fraudulently. The case raises issues of German, Austrian, Swiss and BVI law.

The latest chapter in the long running and high-profile litigation instigated by the LIA seeking to recoup funds invested during the Gaddafi dictatorship in Libya. Successfully defended fraud and corruption claims to the value of £200m.

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Proceedings across multiple jurisdictions and involve inter alia efforts to enforce against a yacht formerly owned by Mr Abramovich which was under arrest in Dubai. Case also involved alleged transactions in defraud of creditors contrary to section 423 of the Insolvency Act.

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Representing a consortium of Indian banks, seeking Dr Mallya’s bankruptcy for a £1 billion debt. Dr Mallya, a famous and controversial public figure (and MP) in India, is the fallen Kingfisher Airways tycoon and is fighting extradition to India to face fraud charges. Enormously complex, involving Indian law, the concept of security in English and Indian law, cross-border issues (recognition and jurisdiction) and ulterior political motive.

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A high-value trusts dispute arising from the insolvency of the Freedom Bay property development scheme in St Lucia. The case raised important legal questions about trustees’ ability to rely on investors’ contributory negligence as a defence.

A case involving the first statutory free-standing worldwide freezing order in Cayman. The first common law case in which a freezing injunction was granted over claims for American treble damages under RICO. Fraud resulted in losses of $5bn, with the lead claim being for $60m.

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