Jhaveri Darsan Jitendra v Lakshmi Anil Salgaocar and Others
| Jurisdiction | British Virgin Islands |
| Judge | Jack, J |
| Judgment Date | 02 July 2020 |
| Judgment citation (vLex) | [2020] ECSC J0702-3 |
| Docket Number | CLAIM NO. BVIHC (COM) 83 of 2017 |
| Court | High Court (British Virgin Islands) |
| Date | 02 July 2020 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
(COMMERCIAL DIVISION)
CLAIM NO. BVIHC (COM) 83 of 2017
AND CLAIM NO BVIHC (COM) 213 of 2017
Mr. Stuart Cullen of Harney, Westwood and Riegel LP as officer of the Court (having earlier represented the claimants)
Mr. Timothy Collingwood QC, with him Mr. Matthew Brown and Dr. Alicia Johns of Conyers Dill and Pearman for the defendants
Jack, J [Ag.]: This is an application for the determination of the incidence of costs after (a) the claimants served notices of discontinuance in respect of two claims brought in this Court and (b) the defendants served a notice of discontinuance in respect of an appeal to the Court of Appeal.
The first claimant (“Mr. Jitendra”) and the deceased (“Mr. Salgaocar”) were once friends and business partners. Both were of Indian heritage. Mr. Jitendra was a businessman living in Hong Kong with a particular interest in the diamond trade. Mr. Salgaocar had mining interests in India. In 2015 Mr. Salgaocar issued proceedings against his erstwhile friend in Singapore claiming that Mr. Jitendra held extensive assets on trust for him and had failed to account to him for them. This has been known in the proceedings as “Suit 821”, from the Singapore action number HC/S821/2015.
Mr. Salgaocar died intestate on 1 st January 2016 before Suit 821 reached trial. There was then a dispute between his widow (“Mrs. Salgaocar”), who is the first defendant in each of the actions before this Court, and his daughter, Chandana, as to who should administer his estate. There was extensive litigation, but ultimately Mrs. Salgaocar was appointed as administratrix. In the meantime no progress was made with Suit 821.
PD Holdings Ltd is a single purpose vehicle held by Mr. Jitendra. It is incorporated in the United Arab Emirates. Million Dragon Wealth Ltd and Winter Meadow Capital Ltd are both BVI companies held on the Salgaocar side.
On 16 th May 2017 Mr. Jitendra issued the first action which is before me (“BVI 83”). Very shortly afterwards on 7 th June 2017, Mrs. Salgaocar issued an application for an anti-suit injunction in Singapore (“OS 627”), the full action number of which is HC/ 0S627/2017. That matter came to a hearing before Ramesh J, who on 1 st December 2017 gave judgment 1 dismissing the application for an anti-suit injunction on the basis that Singapore was not shown to be “the clearly more appropriate forum for the resolution of BVI 83.”
Mrs. Salgaocar sought to appeal to the Singapore Court of Appeal. In the meantime, however, four applications issued by Mrs. Salgaocar and the two defendant companies came before Adderley J. Two of the applications were to set aside the grant of permission to serve the claims out of the jurisdiction on Mrs. Salgaocar. Two were applications by the companies for a stay. In all four applications the essential issue was whether the BVI were the forum conveniens.
Adderley J held 2 that an issue estoppel arose from the judgment of Ramesh J, so that the BVI were the forum conveniens. He refused to set aside the orders for service out of the proceedings and refused to stay the proceedings brought against the Salgaocar BVI companies. That was sufficient to determine the matter, but he then went on to reach the same conclusion on the merits.
The learned judge made orders in accordance with his findings and ordered that the defendants paid the claimants' costs. Importantly, those orders were never sealed. The drafts appear never to have been approved by the judge.
Notwithstanding the absence of any sealed orders, the defendants appealed. On 17 th July 2019 our Court of Appeal granted leave to appeal.
Shortly after that, on 26 th July 2019, the Court of Appeal of Singapore handed down its judgment. 3 The Court allowed the appeal from the judgment of Ramesh J and granted an anti-suit injunction against Mr. Jitendra restraining him from “maintaining continuing and/or taking any steps in [BVI 83].”
On 19 th August 2019 the claimants served notices of discontinuance under CPR Part 37 in respect of both BVI 83 and BVI 213. On 19 th September 2019 the defendants served a notice of discontinuance under CPR 62.25 in respect of the appeal to our Court of Appeal. It is the consequences of these notices of discontinuance which I need to consider.
I can deal with the costs consequences of the discontinuance of the appeal to the Court of Appeal quite simply. CPR 62.26(1) provides:
“Unless the—
(a) parties agree; or
(b) the court orders otherwise;
an appellant who discontinues is liable for the costs incurred by the respondent against whom the claim is discontinued, on or before the date on which notice of discontinuance was served.”
Thus, on its face, the defendants must pay the claimants' costs of the appeal, notwithstanding that (as a result of the Singapore victory on appeal and the claimants' notice of discontinuance of the first instance proceedings) they are the “winners”. In my judgment, I have no jurisdiction to vary this result. The reference to “the court” in CPR 62.26(1)(b) is to the Court of Appeal: see the definition of “court” in CPR 62.1(2). Any relief to which the defendants might be entitled (and there is a body of law about academic appeals) must be sought from the Court of Appeal, not from me.
So far as the costs at first instance are concerned, CPR 37.6 provides:
“(1) Unless the—
(a) parties agree; or
(b) court orders otherwise;
a claimant who discontinues is liable for the costs incurred by the defendant against whom the claim is discontinued, on or before the date on which notice of discontinuance was served.
(2) If a claim is only partly discontinued—
(a) the claimant is only liable for the costs relating to that part of the claim which is discontinued; and
(b) unless the court orders otherwise,
the costs which the claimant is liable to pay are not to be quantified until the conclusion of the rest of the claim.”
Mr. Collingwood QC submitted that the effect of discontinuing the actions was that earlier interlocutory costs orders, such as those made by Adderley J (but never sealed), were automatically reversed. He relied on the judgment of Pill LJ in Safeway Stores Ltd v Twigger. 4 The view of Pill LJ...
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