TSJ Engineering Consulting Ltd Appellant/Respondent v (1) Al-Rushaid Petroleum Investment Company (2) Al-Rushaid Parker Drilling Ltd (Both Companies Incorporated under the Laws of Saudi Arabia) Respondents/Applicants
| Jurisdiction | British Virgin Islands |
| Judge | RAWLINS, C.J. |
| Judgment Date | 27 July 2010 |
| Neutral Citation | VG 2010 CA 5,[2010] ECSC J0727-3 |
| Court | Court of Appeal (British Virgin Islands) |
| Docket Number | HCVAP 2010/013 |
| Date | 27 July 2010 |
IN THE COURT OF APPEAL
Before:
The Hon. Mr. Hugh A. Rawlins Chief Justice
The Hon. Mde. Ola Mae Edwards Justice of Appeal
The Hon. Mde. Janice George-Creque Justice of Appeal
HCVAP 2010/013
Mr. John Carrington for the Appellant/Respondent
Mr. Mark Forte, with him Ms. Tameka Davis for the Respondents/Applicants
Notice of appeal - Norwich Pharmacal order - Whether order final or interlocutory - Whether leave to appeal required - Application to strike out notice of appeal - The Eastern Caribbean Supreme Court (Virgin Islands) Act, Cap. 80 of the Revised Laws of the Virgin Islands, 1990, s. 30(4) - Whether court should depart from its own previous decision -Application to stay the execution of the Norwich Pharmacal order
A judge in the Virgin Islands issued a Norwich Pharmacal order against TSJ Engineering Consulting Limited directing it ("TSJ Engineering") to provide copies of all legal documents in its custody, possession or control relating to any payment received by a Chinese company, Shandong Kerui Petroleum Equipment Co. Limited, whether in its own name or on its own behalf wherever so held. The order was issued in aid of English proceedings between the claimant, Al-Rushaid Parker Drilling Limited, a company registered in Saudi Arabia, and defendants, Shekhar Shelly, Tom Caplis and James Wight, who are directors/shareholders of TSJ Engineering, a company registered in the Virgin Islands. The claim in the English proceedings alleges that Shandong Kerui Petroleum Equipment Co. Limited entered into a contract with TSJ Engineering and that TSJ Engineering was incorporated in order to receive secret commissions, on the basis of that contract, in breach of the fiduciary duties which the defendants in the English proceedings owed to the English claimant. The discovery claimants in the Virgin Islands proceedings are the Al-Rushaid companies, the strike out applicants in the present proceedings. The Al-Rushaid companies applicants are of the same group as Al-Rushaid Parker Drilling Limited and are also registered in Saudi Arabia.
The discovery defendant, TSJ Engineering, filed an appeal against the Norwich Pharmacal order. In addition, TSJ Engineering applied for an order staying the execution of the Norwich Pharmacal order. The Al-Rushaid companies applied to strike out the appeal, and, consequentially, to dismiss the application for the stay. Their application was made on the ground that the notice of appeal is a nullity because the Norwich Pharmacal order was not a final order but interlocutory, which required TSJ Engineering to first seek leave to appeal.
Held: granting the application to strike out the notice of appeal; dismissing the application to stay the execution; lifting the stay and awarding costs to the Al-Rushaid companies:
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1. The Norwich Pharmacal order issued against TSJ Engineering on 14 th April 2010 and the related judgment that was delivered on 21 st April 2010 are not final or in the nature of a mandatory injunction. They are interlocutory and leave was required to appeal therefrom. The notice of appeal is a nullity since no application was made for leave to appeal.
Morgan & Morgan Trust Corporation Limited v Fiona Trust & Holding Corporation and Others Virgin Islands Civil Appeal No. 24 of 2005 (3 rd April 2006.), followed; Maclaine Watson & Co. Ltd. v International Tin Council (No. 2) [1989] Ch. 286 and Gidrxslme Shipping Co. v Tantomar-Transportes Lda [1995] 1 W.L.R. 299 distinguished.
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2. Since the notice of appeal is struck out the application for stay of execution of the Norwich Pharmacal order is rendered redundant. It is consequentially dismissed and the stay which was granted until the determination of the application herein is discharged.
The application, which is the subject of this judgment, was filed by the applicants, the Al-Rushaid companies herein, on 3 rd May 2010. The applicants seek an order to strike out a notice of appeal, which was filed by TSJ Engineering on 26 th April 2010. The notice purports to appeal from a Norwich Pharmacal order that a High Court Judge in the Virgin Islands issued against TSJ Engineering on 14 th April 2010. The judge delivered the actual judgment on 21 st April 2010. On 26 th April 2010, TSJ Engineering also applied for an order staying the execution of the Norwich Pharmacal order. Counsel for the Al-Rushaid companies contends that the Norwich Pharmacal order, which TSJ Engineering seeks to appeal, was not final but interlocutory, so that TSJ Engineering required leave to appeal from it. Counsel contend that the failure to first seek leave renders the notice of appeal a nullity, which should accordingly be struck out and the application for stay must consequentially fail.
On the other hand, counsel for TSJ Engineering contends that the notice of appeal is not a nullity because the order was a final order, which required no leave in order to appeal. Alternatively, counsel contends that if it is an interlocutory order, it falls within an exception to the leave requirement. The critical question whether leave to appeal was required, and, if necessary, the determination of the stay application will be determined after a brief background.
The Al-Rushaid companies are the discovery claimants in proceedings in the High Court in the Virgin Islands. They are registered in Saudi Arabia and operate within a group of companies that supply equipment and services to the oil industry there. TSJ Engineering is the discovery defendant in those proceedings. It was registered in the Virgin Islands in February 2006. The Virgin Islands proceedings are in aid of English proceedings between Al-Rushaid Parker Drilling Limited, claimant, and defendants Shekhar Shelly, Tom Caplis and James Wight. The defendants are directors/shareholders of TSJ Engineering. The claim in the Virgin Islands proceedings allege that there is a strong suspicion that these defendants in the English proceedings were involved in diverting profits and opportunities otherwise due to the Al-Rushaid companies to TSJ Engineering, but that it was unclear what funds were routed to TSJ Engineering and what became of those funds. The discovery claim states that its object is to obtain disclosure to aid in the determination of these issues in the English proceedings.
The discovery claimants, the Al-Rushaid companies, sought the disclosure of copies of all documents in the custody, possession or control of TSJ Engineering, relating to any bank account or other source of funding in the name of or relating to TSJ Engineering. They also sought the disclosure of all documents that TSJ Engineering holds relating to any bank account, funds, or source of funding held by it.
The judge in the Virgin Islands proceedings directed TSJ Engineering to provide copies of all legal documents in its custody possession or control relating to any payment received by TSJ Engineering from Shandong Kerui only, whether in its own name or on its own behalf wherever so held. The latter is a Chinese company, Shandong Kerui Petroleum Equipment Co. Limited, which the English claim alleges entered into a contract with TSJ Engineering. In the English proceedings, the court is being asked to infer that TSJ Engineering was incorporated in order to receive secret commissions, on the basis of that contract, in breach of the fiduciary duties which the defendants in the English proceedings owed to the English claimant.
The Norwich Pharmacal order of the Virgin Islands court further provides, in paragraph 2 and 3, that the information disclosed may be used for 2 purposes only. One is for tracing or otherwise recovering money or property belonging to the Al-Rushaid companies. The other is for instituting such proceedings or pleading such facts as the documents disclosed reveal may be available to the Al-Rushaid companies "unless the Court otherwise orders".
Against this background I now consider the principles which inform the determination of the question whether the Norwich Pharmacal order in this case was final or interlocutory.
A person who appeals from a final order or judgment does not require leave to appeal. Where, however, an intended appellant files a notice of appeal from an interlocutory order or judgment, without first obtaining the leave of the court, the appeal is rendered a nullity, which would be struck out. A determination whether an order is final or interlocutory is made by our courts on the "application test". An order or judgment is final if it would be determinative of the issues that arise on a claim, whichever way the application is decided. If the issues of liability on the claim are finally determined whether the outcome on an application is in favour of either party to the claim, the order would be final. The order would however be interlocutory, for example, if a ruling on the application in favour of the claimant would determine the issues of liability in favour of the claimant whereas a ruling in favour of the defendant would re-open the issue of liability for continued litigation. In determining whether an order is final or interlocutory, the court should consider the nature of the application and order and the circumstances that gave rise to them.
The statements in the foregoing paragraph are trite principles. They have been very often repeated by this court, for example, in Othniel Sylvester v Satrohan Singh 1; Pirate Cove Resorts Limited and Another v Euphemia Stephens and Others 2; Maria Hughes v The Attorney General of Antigua and Barbuda, 3 and Astian Group Limited and Another v TNK Industrial Holdings...
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AB Bank Ltd, Off-Shore Banking Unit (OBU) v Abu Dhabi Commercial Bank PJSC
...made "until further order". That decision was challenged in a later case in the British Virgin Islands, TSJ Engineering Consulting Limited v Al-Rushaid Petroleum Investment Company (2010), but was followed by the Court of Appeal. An argument very similar to that advanced before me by Ms. Jo......