Offshore Litigation Blog

In the recent Supreme Court decision of Crown Prosecution Service (CPS) v Aquila Advisory Ltd (the Company), the Supreme Court held that the Company was entitled to secret profits obtained by the directors from the unlawful use of the Company’s property and was therefore held on constructive trust for the Company.

In the recent decision in Wang v Darby the English High Court considered whether the defendant held cryptocurrency on trust for the claimant and whether the claimant, therefore, had a proprietary right over the cryptocurrency and could retain a proprietary injunction over it. Ultimately the High Court found that whilst cryptocurrency could form the subject matter of a trust, no trust arose in the circumstances and as such, there was no basis for proprietary claims or a proprietary injunction. But the High Court did continue the worldwide freezing injunction against the defendant to protect the claimant’s personal claims.

The power to exclude a beneficiary from a trust must be exercised with due care failing which an excluded beneficiary may be able to obtain relief from the court.

In a judgment dated 11 March 2020 in the Dawson-Damer v Taylor Wessing litigation, the Court of Appeal confirmed that legal advice obtained for the benefit of a trust cannot be withheld from a beneficiary where it is responsive to that beneficiary’s subject access request (SAR) under the UK Data Protection Act (DPA).

As in many onshore jurisdictions, applications regularly at the forefront of the offshore trust landscape are blessing applications made by trustees under the jurisdiction arising from the English case of Public Trustee v Cooper.

In an arguably unnecessary but nonetheless welcome determination, the English High Court has ruled that the use of offshore structures does not of itself constitute a ground for believing that such structures were intended to be used or were being used for wrongful purposes and that there had to be some additional evidential basis for such a belief.

In a recent decision of the English High Court (Clarke-Sullivan v Clarke-Sullivan), which will be of interest and relevance in Cayman and elsewhere, the Court was tasked with construing a will and its effect in circumstances where the deceased was very sadly killed in an avalanche while skiing. The Will provided that the residuary estate was to go to a New Zealand discretionary trust which had subsequently been wound up.

In a recent decision of the Grand Court of the Cayman Islands (Re Stingray Trust), Kawaley J resolved the previously unclear issue from previous decisions on whether s.90 of the Trusts Law (now “Act”) provides that all questions relating to, among other matters, the validity of a Cayman Islands Trust can only be adjudicated by the Cayman Islands courts.

Byers and Dickson v Samba Financial Group (Samba) [2021] EWHC 60 (Ch) The liquidators (Claimants) of Saad Investments Company (SICL) have lost their seven-year battle in the English Courts to claw-back US$318 million worth of shares from the Saudi bank, Samba. The shares were transferred to Samba in 2009 by Maan Al Sanea, SICL’s founder, the Kuwaiti-born former fighter pilot whose business affairs have been the subject of litigation for over a decade, including the long-running case of AHAB v Saad & Ors in the Cayman Islands.

On 30 March 2020 the Eastern Caribbean Court of Appeal handed down its much anticipated judgment in Paraskevaides v Citco Trust Corporation and ors, which provides important guidance for those seeking urgent injunctive relief on an ex parte basis and clarifies principles that are commonly applied by the BVI Commercial Court.