The judgment is a useful restatement of the demanding test that an applicant must satisfy where it asks the court to put its own proceedings on hold to await the resolution of foreign litigation.

In April 2022, Guanghua SS Holdings Limited (Guanghua) obtained a Hong Kong High Court Judgment arising out of two US$80 million loan facilities personally guaranteed by Mr Lim and his son, Lin Minghan. In June 2024, Guanghua commenced recognition and enforcement proceedings in the BVI, which Mr Lim sought to stay, first relying on pending separate Hong Kong proceedings (the Hong Kong Proceedings) and, subsequently a further claim issued in Hong Kong and derivative proceedings brought in the BVI. Mithani J (Ag.) refused both the stay and a related adjournment application, and Mr Lim appealed.

The central question on appeal was whether Mithani J, when considering whether it was appropriate to grant stay of the enforcement proceedings on case management grounds, had applied the wrong test by failing to follow Athena Capital Fund SICAV-FIS SCA v Secretariat of State for the Holy See. Ward JA accepted that the single test  is whether, in the particular circumstances, it is in the interests of justice to grant a stay. However, drawing on the analysis of Males LJ in Athena Capital, the Court emphasised that the presence of “rare  and  compelling  circumstances” remains a highly relevant factor where the stay sought is to await foreign proceedings.

The Court held that, while the “rare and compelling circumstances” formulation is not itself the legal test, “it is only in rare and compelling circumstances that it will be in the interests of justice to grant a stay on case management grounds to await the outcome of foreign proceedings”, describing this as a ”high threshold” and noting that the usual function of the court is to decide cases, not decline to do so.

The Court observed that while the first instance judge did not expressly articulate the test he applied, the factors he relied upon were “plainly relevant” to the interests of justice question under the applicable test. These included the facts that (a) the Hong Kong Judgment had not been appealed, (b) no application had been made to stay the Hong Kong Judgment in Hong Kong, which would have been an obvious and effective way to bring a halt to the BVI enforcement proceedings, and (c) the relief sought in the Hong Kong Proceedings did not seek to set aside the Hong Kong Judgment. In those circumstances, there was no reason to regard the Hong Kong judgment as not final and no reason why the judge could not proceed with the recognition and enforcement claim.

The appellant, Mr Lim, also sought to make much of the judge’s statement that he had not considered his late evidence in great detail. The Court noted, however, that the judge had been deluged at the eleventh hour with over 100 pages of evidence and more than 2,000 pages of exhibits, comprising allegations yet to be proven at trial in support of the appellant’s stay application. The Court found nothing to suggest that the judge had failed to appreciate the appellant’s case for a stay; to the contrary, the judge’s recital of the background showed that he was well acquainted with the case.

Accordingly, nothing before the judge amounted to “rare and compelling circumstances”, and his decision sat comfortably within the generous ambit of his case management discretion.

The decision is a clear signal that BVI courts will not lightly stay recognition and enforcement of a final foreign judgment to await collateral foreign proceedings, particularly where no stay has been sought in the originating jurisdiction and the foreign challenge does not directly seek to set the judgment aside. Litigants seeking such relief must come armed with genuinely exceptional circumstances and substantive evidence.

Harney Westwood & Riegels (Jayesh Chatlani, James Petkovic, Eunice Lau, Mark Wells, and Isobel McNaught) act on behalf of Guanghua in the BVI proceedings, alongside King & Wood who represent the company in Hong Kong. Before the Court of Appeal, Guanghua was represented by Alex Barden KC of Fountain Court Chambers, together with Mark Wells of Harneys.