Renaissance Ventures Ltd v Comodo Holdings Ltd

• Jurisdiction: British Virgin Islands
• Judge: Mendes JA
• Judgment Date: 08 October 2018
• Judgment citation (vLex): [2018] ECSC J1008-3
• Court: Court of Appeal (British Virgin Islands)
• Docket Number: BVIHCMAP2018/0005
• Date: 08 October 2018

[2018] ECSC J1008-3

EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Paul Webster Justice of Appeal [Ag.]

The Hon. Mr. Rolston Nelson, SC Justice of Appeal [Ag.]

The Hon. Mr. Douglas Mendes, SC Justice of Appeal [Ag.]

BVIHCMAP2018/0005

BVIHCMAP2018/0008

Between:

[1] Renaissance Ventures Ltd

[2] Joseph Katz

Appellants/Respondents

and

Comodo Holdings Ltd.

Respondent/Applicant

Appearances:

Mr. Paul Chaisty, QC with him, Ms. Lauren Peaty and Dr Alecia Johns for the Appellants/Respondents

Mr. Vernon Flynn, QC with him, Mr. Adrian Francis and Mr. Carl Moran for the Respondent/Applicant

Civil appeal — Application for conditional leave to appeal to the Judicial Committee of the Privy Council — Whether questions involved in proposed appeal are of great general or public importance — Whether notice should be given to a respondent to a permission to appeal application

Renaissance Ventures Ltd. and Joseph Katz applied in the court below for specific disclosure of the unredacted list of Comodo Holdings Ltd.'s shareholders and certain financial records. The learned judge refused the application. The appellants then applied to this Court for leave to appeal against the learned judge's order without notice to the respondent. Before the hearing of that application, the appellants applied to the learned judge for leave to appeal, without notice to the respondent. The learned judge denied the application. The first application for leave to appeal was heard ex parte and granted by the Full Court on 2 ^nd March 2018.

The trial of the claim in respect of which specific disclosure was requested had been previously listed for 13 ^th March 2018. On 6 ^th March 2018, the appellants applied to the learned judge for an adjournment of the trial on the ground that leave to appeal had been granted and if successful on the appeal, the appellants intended to rely on any documents disclosed by the respondent. The learned judge adjourned the trial on the condition that the appellants pay the costs thrown away by the adjournment. The appellants were granted leave to appeal the costs order and both appeals were heard by the Full Court on 11 ^th July 2018.

On the appeal, the respondent invited the Court to set aside the leave granted ex parte on the ground that the respondent was not notified of the application for leave. Had the respondent been given the opportunity to participate, it would have been in a position to impress upon the Court that the effect of granting leave would be to precipitate an adjournment of the trial, in circumstances where a freezing order against the respondent's assets had previously been granted and the adjournment would prolong the period during which the respondent's assets would remain frozen. The respondent complained further that the appellants did not disclose the existence of the freezing order to the Court and leave should be set aside on that basis as well.

The Court declined the respondent's invitation to depart from the Court's established practice as exemplified by the Court's decision in Cage St. Lucia Limited v Treasure Bay (Saint Lucia) Limited that an application for leave to appeal is heard ex parte and without notice to the proposed respondent. The Court also found that although the existence of the freezing order was not disclosed at the hearing of the substantive appeal, it was not material and provided no basis to set aside leave.

The Court allowed the appeal holding that the documents requested were directly relevant to the issues in the claim.

Comodo Holdings Ltd. then applied for conditional leave to appeal to the Privy Council on the ground that questions involved in the appeal ought, by reason of their great general or public importance or otherwise, to be submitted to Her Majesty in Council.

The questions which the respondent claimed were involved in the appeal and which were said to be of great general or public importance were: (i) whether notice should be given to a respondent to a permission to appeal application in order to allow the respondent to address issues which go to the threshold question of whether permission should be granted; (ii) whether the test of materiality on an ex parte application for permission to appeal is the same as for a freezing order and if different, what is the test; (iii) whether and in what circumstances a party should be deprived of an order for permission to appeal obtained ex parte in breach of the obligations of full and frank disclosure; (iv) whether reference to a document in evidence or a pleading: (a) has the consequence, without more, that it has to be disclosed in un-redacted form; (b) where only part of that document is relevant and other parts are both irrelevant and confidential and sensitive to third parties —has the consequence that the document has to be disclosed in un-redacted form; and (c) in order to explain that it does not exist or is in the possession or control of another has the consequences that it should be disclosed; (vii) is the Lonrho test applicable in the Territory of the Virgin Islands and, if not, what test is applicable in relation to the disclosure of subsidiaries' documents; (viii) whether the Court of Appeal ought to have held that the decision of the learned judge below fell within the generous ambit afforded to him and whether or not the documents would otherwise satisfy the test for specific disclosure; and (ix) whether, in exercising a fresh discretion, the Court ought to have taken into account factors which went beyond the narrow issue of whether the documents satisfied the test for specific disclosure.

Held: dismissing the application; awarding costs of the application to the appellants to be assessed, if not agreed within 28 days; ordering that an interim payment of US$50,000.00 be made towards those costs on or before the expiry of 28 days; and ordering that the stay granted by this Court in paragraph 2 of its order dated 25 ^th July 2018 be continued until 12 ^th November 2018, that:

• 1. Where there is no genuine dispute on the applicable principles of law underlying the question which the applicant wishes to pursue on his proposed appeal, a question of great general or public importance does not ordinarily arise, especially where the principle of law is settled either by the highest appellate court or by longevity of application. Where the principle is one established by the Court of Appeal but is either unsettled, in the sense that there are differing views, or conflicting dicta, or some genuine uncertainty surrounding the principle itself, or is considered to be far-reaching in its effect, or given to harsh consequences, or for some other reason would benefit from consideration at the final appellate level, this Court would be minded to seek the guidance of the Board. Where the real question on the proposed appeal is the way this Court has applied settled and clear law to the facts of the case or whether a judicial discretion was properly exercised, leave will ordinarily not be granted. However, where an applicant fails to establish that the question which he wishes to pursue is of great general or public importance, this Court may yet grant leave if satisfied that there are good grounds which would otherwise justify referral to the Board. Further, the question of law which is said to be of great general or public importance must genuinely arise from the way the case was decided in the Court of Appeal. The question must be ‘involved’ in the appeal. Such a question cannot arise if it was not raised on the appeal, or if the principle of law which the applicant wishes to have settled by the highest court has not been put in doubt. Where the question said to arise was “eminently procedural” in nature, it would be appropriate to grant leave where the interpretation or application advanced by the local courts has a draconian effect or there are some other special circumstances that would render such guidance useful to the local courts. Leave would be more readily granted where the procedural rule has an equivalent in England.

  Section 3(2)(a) of the Virgin Islands (Appeals to Privy Council) Order 1967 SI 1967/234 applied; Martinus Francois v The Attorney General SLUHCVAP2003/0037 (delivered 7th June 2004, unreported) followed; Pacific Wire & Cable Company Ltd. v Texan Management Ltd. BVIHCVAP2006/0019 (delivered 15th October 2007, unreported) followed.

• 2. Rule 62.2(4) of the Civil Procedure Rules 2000 (“CPR”) is clear. If a single judge may give leave to appeal without hearing the applicant, it is implicit that he may do so without hearing the proposed respondent either. The fact that the draftsman disposed of the need to hear the applicant is a clear indication that it is only the applicant who is engaged in the process at that time and the proposed respondent is not yet involved, by notice or otherwise. It is therefore clear that CPR 62.2 by necessary implication excludes the audi alteram partem rule. Further there is nothing in context which suggests that CPR 11.8, which requires notice of all applications for court orders to be given to each respondent, is intended to deal with applications to the Court of Appeal.

  Rules 62.2 and 11.8 of the Civil Procedure Rules 2000 applied; Cage (St. Lucia) Limited v Treasure Bay (St. Lucia) Limited SLUHCVAP2011/0045 (delivered 23rd January 2012, unreported) followed.

• 3. This Court's long-standing practice enunciated in Cage (St. Lucia) Limited v Treasure Bay (St. Lucia) Limited that applications for leave to appeal are to be heard ex parte and without notice to the proposed respondent, except where the court otherwise directs, is in no way unclear, uncertain, unsettled, unfair or draconian so as to justify submission to the Privy Council for guidance. While the question of whether a proposed respondent is entitled to be heard on an application for leave to appeal may be of great importance to...