Bitech Downstream Ltd v Rinex Capital Ltd and another

• Jurisdiction: British Virgin Islands
• Judge: d'Auvergne J
• Judgment Date: 28 November 2003
• Neutral Citation: VG 2003 HC 21
• Docket Number: SUIT NO. 233/2002
• Court: High Court (British Virgin Islands)
• Date: 28 November 2003

IN THE HIGH COURT OF JUSTICE

SUIT NO. 233/2002

SUIT NO. 0008/2002

BETWEEN

Bitech Downstream Limited

Claimant

and

Rinex Capital Limited

Defendant

BETWEEN

Bitech Downstream Limited

Claimant/Respondent

and

Woodbridge Trading Limited

Defendant/Applicant

Appearances:

Mrs. Tana'ania Small-Davis for Woodbridge Trading Ltd.

Mr. Michael Faye for Bitech Downstream Ltd. Respondent/Claimant

d'Auvergne J

1 The Applicant in this application filed on the 10 ^th September, 2003 seeks an order that the Claimant be required to provide security for cost in the sum of $330,000.00 within twenty-one days of the date of the order failing which proceedings in the action be stayed.

2 The grounds upon which the application is being sought are that:

The Claimant is a company that is ordinarily resident out of the jurisdiction and is not a body against which a claim can be enforced and secondly that there is reason to believe that the Claimant will be unable to pay the Applicant's costs if ordered to do so.

EVIDENCE

3 It is not disputed that the Company is a relatively young company incorporated on the 17 ^th of March 1999 and registered in Cyprus.

4 This application is supported by evidence on affidavit as mandated by order 24.2(3) of CPR 2000.

5 Mr. Max Blauenstein, the director of the Applicant supplied the evidence. He referred to the Claimant as a brass plate company with no identifiable assets. That there were no accounts or any other financial information available to the public. He referred to the various correspondence to the Claimant seeking information on its assets, to no avail.

6 He deposed that the matter was one of great urgency; that the Court had given a timetable of directions to be complied with towards progressing the case to trial.

7 It is noteworthy that a perusal of the Court file will show that all the parties in this case have been delinquent in the adherence to the timetable set by the Court.

8 The Applicant exhibited four (4) letters written to the Claimant's solicitors seeking information about the Company, a document headed search in the office of the Registrar of Companies and a document headed Estimate of Defendant's costs dated 8 ^th July 2003.

9 Counsel for the Claimant placed much reliance on paragraph 4 of Mr. Blauenstein's affidavit in which he deposed, ‘I have been advised and do verily believe that while a BVI order may be registered in Cyprus, there will be considerable difficulties in enforcing it and at significant cost.’ He said that by this statement the Applicant had agreed that a BVI order could be registered so there was no need for the Court to grant security for costs.

10 Counsel for the Claimant quoted extensively from the White Book. He noted the application of the principles of Human Rights Law, e.g. the Brussels Convention and the Lugano Convention though he emphasized that the application was not relevant to the CPR 2000 and I agree with Counsel on this point/

11 The conditions to be satisfied before an order for security for cost is granted are clearly set out in 24.3 (a) to (g) of CPR.

12 Learned Counsel for the Claimant made much of the fact that the wording of 24.3(g) reads:

‘The Claimant is ordinarily resident out of the BVI and 24.3(d) reads that ‘the Claimant is acting as a nominal claimant, other than as a representative Claimant under Part 21, and there is reason to believe that the Claimant will be unable to pay the defendant's...