Pacific Wire & Cable Company Ltd Appellant/Respondent v [1] Texan Management Ltd [2] All Dragon International Ltd [3] Blinco Enterprises Ltd [4] Patagonia Ltd Respondents/Applicants [5] Shareholders of All Dragon International Ltd
| Jurisdiction | British Virgin Islands |
| Judge | CARRINGTON J.A. (AG.) |
| Judgment Date | 06 October 2008 |
| Judgment citation (vLex) | [2008] ECSC J1006-4 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | HCVAP 2006/019 |
| Date | 06 October 2008 |
IN THE COURT OF APPEAL
The Hon. Mr. Hugh A. Rawlins Chief Justice [Ag.]
The Hon. Mr. Dane Hamilton, QC Justice of Appeal [Ag.]
The Hon. Mr. John Carrington Justice of Appeal [Ag.]
HCVAP 2006/019
Mr. Samuel J. Husbands for the 1 st and 2 nd Respondents/Applicants
Mr. Paul Webster, QC and Mr. Kerry Anderson for the 3 rd and 4 th Respondents/Applicants
Mr. Gerard Farara QC and Mrs. Tana'ania Davis for the Appellant/Respondent
Civil Appeal - Civil Procedure - Leave to Appeal to the Privy Council - relevant considerations - Stay of Execution pending appeal - Part 9.7 of the Civil Procedure Rules 2000 - Virgin Islands (Appeal to Privy Council) Order No. 234 of 1967
The appellant/respondent ("Pacific") claimed, in the court below, to be the beneficial owner of shares in the respondents/applicants ("the applicants"). The applicants applied to stay the proceedings in relation to this claim on the ground that the British Virgin Islands was not the appropriate forum for the determination of Pacific's claim. The High Court granted the application. Pacific appealed arguing on appeal, as they did in the court below, that:
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(i) the application of the first and second applicants should not be upheld on account of non-compliance with mandatory requirements of Part 9.7 of the Civil Procedure(CPR 2000), notably, that the application, when filed, was not accompanied by the affidavit in support; and
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(ii) the application of the third and fourth applicants should not be upheld as they had failed to apply for a stay prior to the time for filing their defence and further, that they were estopped from challenging the court's jurisdiction having taken a step in the proceedings by applying to the court for an extension of time to file their defence.
Pacific's challenge was upheld in the Court of Appeal. The applicants now seek leave to appeal to the Privy Council against this decision and a stay of proceedings pending determination of the appeal by the Privy Council.
Held: granting conditional leave to appeal to Her Majesty in Council and staying proceedings:
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(1) An applicant may obtain leave to appeal where the appeal does not lie as of right, when the question arising on the proposed appeal raises an issue of great general or public importance, or that there is some other good reason why leave should be granted.
Martinus Francois v Attorney General Saint Lucia Civil Appeal No. 37 of 2003 followed. Attorney General of Trinidad and Tobago v Lennox Phillip et al Civil Appeal No. 155 of 2006 approving dictum of Wolfe JA in Olasemo v Barnett Ltd. 51 WIR 191 applied.
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(2) The court's discretion to grant leave must be exercised judicially which requires, as a general rule, that it act consistently in applying the test to grant leave so that it is in accordance with its own current practice, that of other courts of appeal whose discretion is exercised under equivalent rules and the practice adopted by the Privy Council in considering petitions for special leave.
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(3) As a general rule, having regard to all relevant practice, where the proposed appeal raises questions which are imminently procedural, these are not suitable for review by the Privy Council, but are matters best left to the courts of the jurisdiction to decide.
Attorney General of Trinidad and Tobago v Lennox Phillip et al Civil Appeal No. 155 of 2006, Mutual Life Ltd. v Evatt [1971] AC 793 and Isaacs v Robertson 43 WIR 126, Lewis v St. Hillaire 48 WIR 134 applied.
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(4) Where however a proposed appeal involves a procedural question of great general legal importance, leave may be granted to appeal to the Privy Council where the court considers that the guidance of the Privy Council would be appropriate in relation to the interpretation or application of the procedural rule, the local interpretation or application of which has a draconian effect, or, where there are some special circumstances that would render such guidance useful to the court.
Barbuda Enterprises Ltd. v Attorney General of Antigua and Barbuda 42 WIR 183 , Benoy Krishna Mukherjee et al v Satish Chandra Giri (1927) LR Col LV 131, Al-Sabah v Grupo Torras S.A. (2000) (unreported) applied.
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(5) The procedural issues raised by this appeal are of great general legal importance and the local interpretation accorded to these procedural rules has a draconian effect. In Addari v Addari British Virgin Islands Civil Appeal No. 21 of 2005, Montrose Investments Ltd. v Orion Nominees and Another [2001] CP Rep 109 considered.
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(6) An appeal to the Privy Council is considered to be pending from the date of grant of conditional leave. For the purpose of determining whether proceedings should be stayed, the test was whether the appeal would be rendered nugatory if the decision of the court is not stayed pending appeal. In the circumstances of this case, even without a trial of the claim, the time and resources expended in preparing for a trial would themselves render the appeal nugatory, if successful.
Reid v Charles 39 WIR 313 applied.
On 15 th October 2007, this court upheld the appeal by Pacific Electric Wire & Cable Company Limited ("Pacific") against the order of the High Court which stayed the proceedings in the British Virgin Islands and ordered that the first four named respondents/applicants, respectively Texan Management Limited ("Texan"), All Dragon International Limited ("All Dragon), Blinco Enterprises Limited ("Blinco") and Patagonia Limited ("Patagonia") pay the costs of Pacific before this court and in the court below, to be assessed if not agreed. These four respondents/applicants ("the applicants") have applied to this court under the Virgin Islands (Appeals to Privy Council) Order 19671 ( "the 1967 Order") for leave to appeal the decision of this court to the Privy Council. The applicants also seek orders staying the order of this court pending determination of the proposed appeal while the first and second applicants additionally seek a stay of the order of this court pending the determination of any application for special leave to appeal to the Privy Council. As the common ground of the applications is that the matter is one of sufficient great and general public importance or should otherwise be considered by the Privy Council, it would be useful to set out briefly the background to this matter.
The amended claim form filed on 7 th October 2005 discloses that Pacific claims that it is the beneficial owner of the shares in the respondents, which are companies incorporated in the British Virgin Islands, and also in companies whose shares are held by these respondents. Pacific therefore brought its claim in the High Court in the British Virgin Islands seeking various declarations and ancillary orders in support of its claim to these shares.
Texan and All Dragon, represented by Mr. Husbands before us, applied to the High Court on 12 th July 2005 for a declaration that the court should not exercise its jurisdiction to try the claim and to stay the claim on the ground that the British Virgin Islands was not the appropriate forum for the determination of Pacific's claim and for an order for security for costs. The application for the stay was made under Civil Procedure Rules 2000 ( CPR 2000) Part 9.7. The application was supported by the affidavit of Lewis Shang Chu Man that was filed on 23 rd September 2005. For convenience we shall refer to this application as the Texan Application.
Blinco and Patagonia, represented by Mr. Webster QC and Mrs. Tavernier, in their amended application dated 4 th October 2005, applied for a stay of Pacific's claim under the inherent jurisdiction of the court and alternatively a declaration under CPR 2000 Part 9.7 that the court should not exercise its jurisdiction in the matter. The alternative ground was expressly abandoned at the commencement of the hearing before the High Court. It appears that these applicants had written to Pacific on 12 th July 2005 seeking its agreement to an extension of time for them to file their defence and then applied to the High Court successfully for such an extension of time. For convenience we shall refer to this as the Blinco Application.
In the letter of 12 th July 2005, these applicants sought the agreement for the extension of time in the following terms: "Our retainer has only been formalised within the last few days. As such we are still taking instructions from our client on the Claim Form and Statement of Claim filed in this matter. We anticipate that we will be in a position to file a defence within 21 days. Please therefore confirm by return whether you will consent to granting us an extension of time of 21 days to file a defence on behalf of our clients." There is no evidence that Pacific had agreed to the extension of time.
The application for the extension of time was supported by the affidavit of Kerry Anderson who deposed as follows:
"5. As a result of the foregoing, the various parties involved and the difference in time zones, we have been unable to take instructions from our clients to enable us to file a defence.
6. We estimate that we will, however, be in a position to do so within the next 21 days and seek an Order of this Honourable Court to extend the time for filing a defence on behalf of the Companies by 21 days."
The bases of both the Texan and Blinco Applications were in summary:-
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(i) the claims made against the defendants were similar to those made against them in pre-existing Hong Kong proceedings;
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(ii) the claims are connected to Hong Kong which is the natural...
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