Black Swan, stayin’ alive
In May 2020 the Court of Appeal of the Eastern Caribbean Supreme Court ruled that the Court lacked jurisdiction to grant freestanding injunctive relief, overturning the 10 year old Black Swan decision, and thereby removing a powerful weapon from the armoury of BVI litigants.
The Court of Appeal’s decision was referred to the Privy Council with leave granted to pursue the Appeal in July 2020. To preserve the interests of the Appellant pending the hearing of the Appeal before the Privy Council, an application was made to either stay the Court of Appeal decision or to grant fresh standalone injunctive relief. Whilst the Privy Council has jurisdiction to grant such interim relief it is granted only in exceptional circumstances (for example a stay of a death penalty or where the appeal will be rendered nugatory if interim relief is not granted). The Privy Council has seen fit to intervene and granted the Appellant interim relief, not only staying the Court of Appeal decision but also granting an injunction in the same terms as that which had been previously in place. The Appellant’s Black Swan injunction has therefore been reinstated pending the determination of the Appeal.
The Appeal before the Privy Council will be of great interest to any practitioner that seeks injunctive relief, and any party that is in need of Mareva protection from the BVI Court in support of foreign proceedings. It is the first time that standalone Mareva injunctive relief will be examined by the Privy Council in the 20+ years since the judgment in Mercedes-Benz A.G. v Leiduck  1 AC 284.
Harneys acts for the Appellant.