Federal Republic of Nigeria v Nerine Trust Company (BVI) Ltd
| Jurisdiction | British Virgin Islands |
| Judge | Jack, J |
| Judgment Date | 27 July 2021 |
| Judgment citation (vLex) | [2021] ECSC J0727-3 |
| Docket Number | CLAIM No: BVIHC (COM) 2021/0068 |
| Court | High Court (British Virgin Islands) |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(COMMERCIAL DIVISION)
CLAIM No: BVIHC (COM) 2021/0068
Formerly Anonymised as:
Mr. Philip Riches QC with him Ms. Claire Goldstein and Mr. Christopher Pease of Harney, Westwood & Riegels LP for the Claimants
Ms. Corine George-Massicote and Ms. Greenwood for the Second Defendant
Ms. Colette Corea for the Attorney-General of the Virgin Islands as amica curiae
The First Defendant did not appear
Jack, J [Ag.]: On 15 th April of this year, I granted an ex parte application for a seal and gag order as a precursor to an application for Norwich Pharmacal relief. 1 The
claimants said the first claimant (“Nigeria”) had been the victim of a substantial fraud committed by Process and Industrial Developments Ltd (“P&ID”) and various people and companies associated with it. The two registered agents, who were defendants to the action, had been innocently mixed up in the fraud. I wrote a short judgment 2 to explain that the fact that I had granted the seal and gag order did not mean that I had reached even a preliminary view on whether to grant Norwich Pharmacal relief. I anonymised Nigeria as EGE and the second defendant, Mr. Malami, Nigeria's Attorney-General as HLM. There seemed no need to anonymise the defendantsThe background can be seen from a judgment of Sir Ross Cranston, sitting as a judge of the English High Court in Federal Republic of Nigeria v Process and Industrial Developments Ltd, 3 on an application by Nigeria to extend the time for challenging an arbitral award:
“2. These challenges and the enforcement application concern arbitral awards by a London Tribunal relating to a gas processing contract (‘the GSPA’) between Nigeria and [P&ID] dated 11 January 2010. The Tribunal's Final Award of 31 January 2017 ordered Nigeria to pay P&ID damages of US$6.6 billion, as well as pre- and post- judgment interest at 7 percent. The current outstanding amount is some US$10 billion.
3. Nigeria's case for an extension of time is that the GSPA, the arbitration clause in the GSPA and the awards were procured as the result of a massive fraud perpetrated by P&ID, and that to deny them the opportunity to challenge the Final Award would involve the English court being used as an unwitting vehicle of the fraud. P&ID's case is that the awards date back some three to five and a half years and it would be unprecedented to grant the extensions. Speed and finality are essential features of London arbitration and the case that there has been any fraud (which is denied) is at best weak.”
The judge decided that there was a prima facie case of fraud against P&ID and extended the time for challenging the arbitration award. A trial of the fraud
It is in order to obtain further evidence of the alleged fraud that the claimants make the current application for Norwich Pharmacal relief. Detailed orders have been made in respect of disclosure in the English proceedings. The claimants say, however, that they need Norwich Pharmacal relief in order to make a wider case of fraud than is possible in the current English proceedings.
The substantive Norwich Pharmacal application was issued on 15 th April 2021 with an initial return date of 29 th April 2021. On that date the claimants appeared represented by Mr. Philip Riches QC and Ms. Claire Goldstein. The first defendant (“Nerine”) was represented by Mr. Shane Donovan and the second defendant (“Trident”) by Ms. Corine George-Massicote. On that occasion I indicated that I had two concerns about the substantive application: firstly, whether it was legally permissible (and if so whether it was appropriate) to make a Norwich Pharmacal order in support of foreign criminal proceedings, and secondly whether it was appropriate to make such an order if other remedies were available, such as under the various treaties for international mutual legal assistance.
As is usual on these applications, the registered agents had (so long as their costs and expenses were paid) no interest in whatever the Court might decide and no interest in arguing these two points. I therefore adjourned the matter in order that the BVI Attorney-General might consider whether to appoint an amicus curiae.
In the meantime, on 19 th May 2021 P&ID issued an application to inspect the documents on the Court file in this current matter pursuant to CPR 3.14(1)(d) and 26.1(2)(w). How, one might ask, did P&ID come to know of the Norwich Pharmacal application, given that I had made a seal and gag order? It appears that Kobre & Kim, P&ID's legal advisors, carry out regular searches of the e-Litigation Portal to see what claims have been issued. This is, I believe, a fairly common practice among law firms who want to drum up business. They find parties who are named as defendants and offer to represent them.
It seems that, due to some software glitch, the type of search carried out by Kobre & Kim throws up the real names of the parties, even where the Court has anonymised a case. Kobre & Kim were P&ID's lawyers in the London proceedings. By checking the action number, they were able to identify my judgment of 15 th April 2021 and therefore the nature of the application.
I used 25 th May to give directions both in the Norwich Pharmacal application and on P&ID's inspection application. On that day, Mr. Andrew Stafford QC and Mr. Merrick Watson of Kobre & Kim appeared for P&ID. Mr. Riches QC and Ms. Goldstein appeared as before for the claimants. The Solicitor-General, Ms. Jo-Ann Williams-Roberts, and Ms. Colette Corea of the Attorney-General's Chambers, appeared as amicae curiae. I am very grateful to the Solicitor-General and Ms. Corea and to the Attorney-General, Ms. Smith, for their assistance.
Harneys had complained about the means by which Kobre & Kim had acquired knowledge of the Norwich Pharmacal application. They suggested that Kobre & Kim had used illegitimate means to access the Portal and indeed that they were attempting to bilk the Registry of court fees which they would otherwise have to pay to inspect the list of actions brought. These were obviously serious allegations. Kobre & Kim strongly denied them. At the hearing I said that if the claimants wanted to pursue the allegations, then they needed to particularise precisely what it was said Kobre & Kim had done, so that Kobre & Kim could answer them.
Nothing further was done about that. This Court starts with the presumption of innocence. Unless and until a case is made to the contrary, it is to be presumed that Kobre & Kim acted perfectly properly in their clients' interests once they discovered as a result of an innocent error on the part of the e-Litigation Portal the fact of the Norwich Pharmacal being brought.
Notwithstanding that the claimants had declined my invitation to particularise any wrong-doing alleged, so that I could adjudicate on the matter, Mr. Riches QC thought it appropriate on 17 th June 2021 to tell Richard J in the Grand Court of Cayman:
“[A]ll [P&ID] knows what has happened is that somehow it discovered the fact of that Norwich Pharmacal application and we have made extensive submissions in the BVI about this and our firm view is that that was achieved through wrongful use by P&ID's lawyers, Kobre & Kim, of the online filing system in the BVI court and essentially bypassing the route by which a payment must be paid to the BVI court for accessing documents and essentially going in through the back door and discovering the case number and party names and then matching that to the facts that it already knew, namely the name of its registered office provider, and also a judgment of Mr. Justice Jack which was anonymised but which of course had the case number and, putting a number of things together, it surmised that this application was being made, but it does not know any more than that.”
It will be a matter for the Grand Court as to what view they take of this presentation.
At the hearing before me on 25 th May, the Solicitor-General indicated that there were confidential matters which she thought it her and the Attorney-General's duty to bring to the Court's attention. She requested that I hear what she had to say in camera without any other parties present. This is of course very unusual, but similar situations do sometimes occur. In criminal trials, there is a well-established procedure in relation to police informers. Where it appears that the identity of a police informer may be relevant to the defendant's defence, the prosecution sees the judge in camera in the absence of defence counsel. He or she reveals the relevant information to the judge. The judge then considers whether it is necessary to ensure a fair trial that the identity of the informer be revealed to the defence, a decision which is kept under review during the whole of the trial. (If the judge considers disclosure is necessary, the prosecution will invariably offer no further evidence, so as to protect the informer's identity, and the defendant will be acquitted on the judge's direction.) 4
At any rate, no one objected to my seeing the Solicitor-General in this way. I indicated that in deciding the claimants' application I would ignore any matters which could not be revealed to the parties. I heard the Solicitor-General and Ms. Corea of the Attorney-General's Chambers on 31 st May via Zoom. The Solicitor-General revealed a number of matters from a number of sources, but I only place reliance in the...
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