Enzo Addari v Edy Gay Addari

• Jurisdiction: British Virgin Islands
• Judge: HARIPRASHAD-CHARLES J,Indra Hariprashad-Charles
• Judgment Date: 09 June 2006
• Docket Number: Claim No. BVIHCV2003/0209,Claim No. BVIHCV 2003/0209
• Court: High Court (British Virgin Islands)
• Date: 09 June 2006

THE EASTERN CARIBBEAN SUPREME COURT

IN THE HIGH COURT OF JUSTICE (CIVIL)

Claim No. BVIHCV2003/0209

Enzo Addari

Claimant/ Respondent

and

Edy Gay Addari

Defendant/ Applicant

Appearances:

Mr. Terrence Neale and Mr. John Carrington for the Defendant/ Applicant

Mr. Clyde Williams for the Claimant/ Respondent

FORUM NON CONVENIENS…WHETHER DEFENDANT'S APPLICATION IS AN ABUSE OF THE PROCESS OF THE COURT OR IS CALCULATED TO OBSTRUCT THE JUST DISPENSATION OF THIS MATTER…LATENESS IN BRINGING APPLICATION…WHETHER THERE HAS BEEN A SUBMISSION TO JURISDICTION…PART 9 OF CPR 2000

HARIPRASHAD-CHARLES J

1 (1) On 26 ^th July 2005, I struck out the application of the applicant/defendant, Edy Gay Addari for the claim herein to be stayed or dismissed under the inherent jurisdiction of the court. I gave oral reasons for my decision and promised to reduce it into a written judgment. I do so now.

2 (2) The grounds of Mrs. Addari's application are twofold in nature namely:

• i) The courts of the British Virgin Islands do not constitute the appropriate forum to hear and determine the causes of action raised in these proceedings in that:

  • (a) Neither the claimant nor the defendant reside or have ever resided in the British Virgin Islands.

  • (b) The subject matter of the claim, namely the Russian Notes purchased by the defendant in May 1998 from monies standing to her account at BCI Suisse in Zurich, Switzerland is no longer located in the Virgin Islands and there is no probability that it will be relocated to this jurisdiction.

  • (c) As the central issue in the proceedings will be ownership of the funds in the account at BCI Suisse, Zurich at the time of the purchase of the said Notes, principles of the laws of the Virgin Islands have no relevance to this issue which took place outside of the jurisdiction and between persons who had at the time and still have no connection to this jurisdiction.

  • (d) A judgment of the courts of the Virgin Islands for a declaration that the defendant holds the Notes in trust for the claimant will not be enforceable in Switzerland without re-litigation of the merits of the claim before the Swiss Courts.

  • (e) The costs of the proceedings in the Virgin Islands including bringing in 25 witnesses, interpreters and experts will be prohibitive.

• ii) The Courts of Zurich, Switzerland constitute the more appropriate forum for the resolution of the dispute in that:

  • (a) The account was held in Zurich at the time of the purchase of the said Russian Notes.

  • (b) Principles of Swiss Law would therefore be the relevant legal principles to determine the ownership of the funds in the account at the relevant time and/or the ownership of the Notes.

  • (c) The Swiss Court has jurisdiction over the applicant/ defendant by virtue of the fact that the Notes are currently located in Zurich.

  • (d) Most of the witnesses lives in Europe and can more conveniently and economically travel to Switzerland than to the British Virgin Islands.

  • (e) One of the official languages of Switzerland is Italian so that there would be little need for interpreters.

3 (3) Mr. Addari opposes the application and seeks an order for it to be struck out for two reasons namely (i) it is an abuse of the process of the court or is likely to obstruct the just disposal of the matter and (ii) the application does not have a real prospect of success.

4 (4) I pause here to observe that this application emerges 9 days after Rawlins J. reconsidered the November 2005 tentative dates for trial of the substantive claim. He ordered, among other things, that the trial shall commence on 26 ^th to 28 ^th days of July 2005 for the taking of the evidence of the claimant and some of his witnesses. He also ordered that the trial shall continue during 7 ^th to 18 ^th November 2005. In effect, what Rawlins J. did was to advance the trial date to facilitate the claimant who has to undergo surgery in September 2005 in Italy.

5 Abuse of the process of the Court

6 (5) Mr. Clyde Williams appearing for Mr. Addari asserts that the application is an abuse of the process of the court or is calculated to obstruct the just disposal of the matter. His reasons are quadruple namely:

• a) The applicant at the inter partes hearing on 4 ^th March 2004 expressly abandoned the relief now sought and expressly consented to the matter being tried in the British Virgin Islands.

• b) The proceedings have been ongoing for 18 months during which time the applicant actively participated in the case management proceedings and has during the said time filed an appeal.

• c) The claim has been set down for trial to commence on 26 ^th July 2005 and the claimant has already taken the requisite steps to arrange for his many witnesses to be present for the trial.

• d) A considerable amount of resources has already been spent by the parties and the court in dealing with this claim and commencing the matter de novo before a Court in Zurich, Switzerland or elsewhere would cause tremendous hardship to Mr. Addari.

7 Inter partes hearing

8 (6) On 23 ^rd January 2004, Mrs. Addari filed an application seeking 5 orders. One of them was that the Court should not exercise its jurisdiction to try the claim on the ground that the Court is not the natural or appropriate forum to hear claims for the determination of the beneficial interest in the said funds where neither of the parties resides in the Territory of the Virgin Islands, or is a native English speaker and the purported breach of trust has no real connection to the Virgin Islands and the laws of the Virgin Islands have no significant relationship to the alleged acts of the parties. The application was made pursuant to Part 9.7 of CPR 2000.

9 (7) At the inter partes hearing on 4 ^th March 2004, Mr. John Carrington, Counsel for Mrs. Addari, stated to the Court:

‘My Lord, may I just say up front that we are not proceeding with the application under Part 9.7: the forum non conveniens part of the application. We are quite happy that the matter be tried in the BVI eventually.’ 1

10 (8) This is also evident in the written skeleton arguments of Mr. Carrington 2 wherein he stated:

‘The defendant [Mrs. Addari] does not intend to pursue the forum non conveniens relief in the application.’

11 (9) In his written judgment delivered on 19 ^th July 2005, Rawlins J. stated (at paragraph 5):

‘In these proceedings, Mrs. Addari seeks 5 Orders against Mr. Addari….Mrs. Addari did not pursue her application for an Order challenging the jurisdiction of the Court to try the claim. This Judgment therefore considers the 4 aspects of the application that were canvassed…’

12 (10) It is crystal clear that since 4 ^th March 2004, the applicant had expressly abandoned the forum non conveniens relief. It is rather strange that she would, at the eleventh hour, seek to revive the very same issue when she expressly consented to the claim being tried in the British Virgin Islands.

13 Participation during case management

14 (11) Mr. Williams submits that the court should not entertain the application owing to the applicant's conduct over the last 18 months. Not only had the applicant actively participated in this matter since January 2004; she had also appealed an interlocutory order of the court. The appeal was heard on 26 ^th April 2005 and the decision was delivered on 25 ^th June 2005. On 6 ^th June 2005, at another case management conference, Rawlins J. gave further directions for the trial to commence on 26 ^th to 28 ^th July 2005 and to continue during November 2005.

15 Commencement of trial and resources

16 (12) The trial of this claim is due to commence in just a week's time on 26 ^th July 2005. Both parties have fully complied with case management directions in readiness for the trial. Witnesses for the claimant are coming from Italy and have already made travel arrangements. The parties have already expended a considerable amount of resources. A considerable amount of time has also been spent by the court to bring the matter to this stage of the proceedings. To commence the matter de novo before any court, be it in Switzerland or elsewhere would cause exceptional hardship to all parties especially to an ailing claimant.

17 To grant or not to grant the stay

18 (13) Mr. Neale correctly expounded the law that the court has an unfettered discretion to grant or refuse a stay of proceedings and in doing so, the court must take into consideration all relevant factors including whether the British Virgin Islands is the most appropriate forum or whether a more appropriate forum exists for the trial. The case of Spilada Maritime Corporation v Cansulex Ltd3 is the leading authority for the principle of forum non conveniens.

19 (14) As previously stated, the issue of forum non conveniens arose before. On 4 ^th March 2004, at an inter partes hearing, Counsel for Mrs. Addari informed the court that the applicant was not proceeding with the application of forum non conveniens and was quite happy that the matter will be tried in the BVI. One wonders why this point has surfaced again at such a very late stage in this protracted litigation.

20 (15) An application to stay proceedings is essentially a matter of case management. It has to be disposed of in a reasonably summary way. Mr. Williams argues that the conduct of Mrs. Addari in these proceedings amounts to a waiver of her right to challenge the jurisdiction in the BVI court. He relies on the case of SMAY Investments Limited and another v Sachdev and others4. In that case, the claimant argues that the defendants have waived their right to challenge the jurisdiction in the English Court. The claimants rely on the ticking of the box in the acknowledgement of service, indicating an intention to defend part of the claim and (in the case of Mr. Sachdev) the seeking and obtaining of...