Offshore Litigation Blog

In the recent decision of Lenkor Energy Trading DMCC v Puri [2022] EWHC 2113 (Comm), the English High Court has considered whether to permit a defendant to deal with his assets in the ordinary course of business in the context of a post-judgment freezing order. While this is an English decision, it will be of relevance and interest to practitioners in the Cayman Islands, British Virgin Islands and Bermuda, where the legal principles relating to freezing orders are largely derived from English law.

In its recent decision in Virgin Gorda Yacht Harbour Limited (VGYH) v Little Dix Hotel (LDH) the BVI High Court considered and affirmed the relevant legal principles governing the interpretation of an option contained in a contract for the purchase of land.

In the recent case of Oscar Trustee Limited v MBS Software Solutions Limited, the Eastern Caribbean Court of Appeal upheld the decision of the Commercial Court and reaffirmed that the convenience of witnesses including their availability and location remains not simply a relevant but in fact a core factor in forum non conveniens applications.

On 9 August 2022, the Grand Court of the Cayman Islands dismissed a winding up petition in Seahawk China Dynamic Fund. In giving his judgment, Justice Doyle took the opportunity to urge practitioners to exercise more discipline and focus on making skeleton arguments and written submissions shorter.

In a recent decision of the Grand Court in Seahawk China Dynamic Fund, Justice Doyle considered whether the need for an investigation can be a self-standing ground for winding up a company. In dismissing the petition, Justice Doyle recorded his preliminary view that the need for an investigation may be a sufficient ground for winding up a company by itself, but he left the issue open for determination, suggesting that this position is not settled law in the Cayman Islands, notwithstanding prior cases on the issue. Harneys acted for the successful respondent to the petition.

In a recent decision of the Privy Council in Ennismore Fund Management Ltd v Fenris Consulting Ltd [2022] UKPC 27, on appeal from the Cayman Islands, the key principles for making an award under the cross undertaking in damages following the discharge of an interim injunction were set out.

In the recent English High Court decision of Brake & Anor v Guy & Ors [2022] EWHC 1746 (Ch) (11 July 2022), a judgment creditor successfully obtained an injunction against a judgment debtor requiring him to draw down his pension, and a third party debt order against the pension trustee in respect of the proceeds of that draw down.

Under the English regime, where one or more meetings of creditors or members has not approved a plan of arrangement by the requisite majority, the court is empowered nevertheless to sanction the plan, by using the cross-class cram-down power. English cases are of interest since they are persuasive in the offshore jurisdictions. Harneys believes that cram downs, if implemented by future legislative change, would make a positive contribution to offshore restructuring.

In the recent Grand Court case of Jian Ying Ourgame High Growth Investment Fund (In Official Liquidation), Justice Doyle considered an application by Powerful Warrior Limited, a BVI company, that the learned judge ought to recuse himself. He acceded to that request.

In a recent decision, Kelly and Anor v Baker and Anor [2022] EWHC 1879 (Comm), the English High Court has considered the circumstances in which a director may owe fiduciary duties directly to a shareholder. This issue is of direct relevance to the Bermuda, British Virgin Islands and Cayman Islands Courts given the heavy amount of case law on directors’ duties in those jurisdictions.