Wilton Trustees (IOM) Ltd v AFS Trustee Ltd
| Jurisdiction | British Virgin Islands |
| Judge | Green QC J. |
| Judgment Date | 15 April 2019 |
| Judgment citation (vLex) | [2019] ECSC J0415-5 |
| Docket Number | CLAIM NO: BVIHC (COM) 2018/154 |
| Court | High Court (British Virgin Islands) |
| Date | 15 April 2019 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
COMMERCIAL DIVISION
CLAIM NO: BVIHC (COM) 2018/154
Ms Camilla Bingham QC with Mr Mark Forte, Mr Matthew Brown and Ms Allana-J Joseph of Conyers Dill & Pearman for the Claimants
Mr Gerard Clarke with Ms Victoria Thomas of Collas Crill for the First, Second, Twelfth and Thirteenth Defendants
Mr Thomas Plewman QC with Mr Shane Donovan of Mourant Ozannes for the Ninth, Fifteenth, Sixteenth and Seventeenth Defendants
Application for stay of proceedings on the grounds of forum non conveniens — whether the Spiliada principles require “the appropriate forum” to be identified — or whether it is sufficient for an applicant to identify one or more jurisdictions that is “a more appropriate forum” — the relevant connecting factors
Green QC J. (Ag.): These are applications by eight of the twenty-seven Defendants for a stay of the proceedings under CPR 9.7 on the ground of forum non conveniens. They raise the novel point as to whether Lord Goff of Chieveley's classic formulation of the test in the Spiliada 1 by reference to “ the appropriate forum” should be interpreted to mean, in a multi-jurisdictional case, “ any other more appropriate forum”. There appears to be no authority post- Spiliada where that has been decided and Ms Camilla Bingham QC appearing for the Claimants says that such an interpretation would be breaking new ground.
The Defendants who make these applications 2 are unable to point to one jurisdiction that is “ the appropriate forum” for the trial of this action. What they say is that the British Virgin Islands (“ BVI”) is not the appropriate forum but they cannot even agree between themselves as to the other possible contenders for the appropriate forum. Instead they put forward some options and
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(1) The Notice of Application dated 1 November 2018 of the Second, Twelfth and Thirteenth Defendants who are represented by Mr Gerard Clarke says: “ It would be more appropriate for the trial of the dispute to take place in either England or Switzerland”; In the second affirmation of Jean-Noel Pasquier dated 2 November 2018 in support of this application, Mr Pasquier says in paragraph 5: “ I am advised and verily believe that the various allegations made by the Claimants in these proceedings are more suitably dealt with in another jurisdiction, possibly England or Switzerland, or alternatively Jersey. I am advised and verily believe that any of those jurisdictions would be more closely associated with the claim.”
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(2) The Notice of Application of the First Defendant, who is also represented by Mr Clarke says: “ It would be more appropriate for the trial of the dispute to take place in Liechtenstein or in England or in Switzerland”; In the third affirmation of Mr Pasquier dated 28 February 2019 in support of this application, Mr Pasquier says in paragraph 6: “ If the proper law of the trust is the law of Liechtenstein, then Liechtenstein may be the appropriate forum. England or Switzerland may also be suitable venues for the dispute. Any of these jurisdictions would be more closely associated with the claim than the BVI.”
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(3) The Notice of Application dated 1 November 2018 of the Ninth and Fifteenth to Seventeenth Defendants who are represented by Mr Thomas Plewman QC states: “ The forum with which each of these claims, and the dispute as a whole, has their closest and most real connection is either Switzerland or England.”
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(4) At the hearing, while Mr Plewman QC stuck with England or Switzerland, Mr Clarke, in his oral and written submissions, did still suggest Liechtenstein as well.
While England and Switzerland appear on all the lists, the fact that Liechtenstein and Jersey also appear on some is not a very promising start for the Defendants' application, particularly when it is hedged with words such as “ possibly” and “ may be the appropriate forum”. Is it good enough to say the BVI is certainly not the appropriate forum or must the Defendants prove that one other forum is the appropriate forum? That is the legal question to be resolved on these applications.
The Defendants, plus the Eleventh Defendant, have all been served with the proceedings. That is because they are all, save for the First Defendant, BVI companies served as of right in the jurisdiction. The First Defendant is a St Kitts and Nevis company which is also subject to the BVI jurisdiction as of right and has been served under CPR Part 5. In respect of the other Defendants, on 17 January 2019, Adderley J made an order permitting service out of the jurisdiction and the process of serving them is ongoing. Adderley J must have been satisfied in making that order on the Claimants' ex parte application that the BVI is “ clearly and distinctly the appropriate forum for the trial of this dispute.” 3
The Claimants are newly appointed co-trustees of the Erica Settlement which is a discretionary trust established by a Declaration of Trust dated 11 December 1996 (“the Trust”). The Trust is governed by the laws of Liechtenstein. The settlor of the Trust is Israel David Sussman (“ David Sussman”) who is resident in Israel. The potential beneficiaries of the Trust are members of the Sussman family including David Sussman's son, Ryan and his children, all of whom are resident in London, England.
The assets of the Trust comprise:
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(1) Shares in Wellcourt Investments Group S.A., the Eleventh Defendant (“ Wellcourt”) a BVI company that wholly owns the Fifteenth to Twenty Seventh Defendants (“ Wellcourt's subsidiaries”); the Fifteenth to Seventeenth Defendants are BVI companies; the other ten of Wellcourt's subsidiaries are incorporated in Liberia; together they own a total of 106 residential properties in England, valued at approximately US$81 million. (The property business is managed by two English companies called Propfurn Limited, of which Ryan Sussman is the director and beneficial owner, and Cedar Lettings Limited, which is run by Darren Yanover, who is also the Protector of the Trust.)
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(2) Shares in the Twelfth and Thirteenth Defendants, both companies that are incorporated in the BVI; and shares in the Fourteenth Defendant which is incorporated in Liberia; the Twelfth Defendant holds an English bank account; the Thirteenth Defendant owns the
residential family home of Ryan Sussman in London; and the Fourteenth Defendant owns the residential family home of David Sussman in Israel.
The First Defendant, AFS Trustee Limited (“ AFS Trustee”) was until almost a year ago the trustee of the Trust. The Second Defendant, AFS Directors Limited (“ AFS Directors”) was until around 29 April 2018 the sole director of Wellcourt and Wellcourt's subsidiaries. Both companies are ultimately owned and controlled by the Third Defendant, Applegate FS SA (“ Applegate”) a company incorporated and carrying on business as a provider of corporate and fiduciary services in Switzerland.
Applegate is majority owned and controlled by the Fourth Defendant, Mr George Evans. Mr Evans has links with Jersey, the United Kingdom and Switzerland. The Fifth and Sixth Defendants, Mr Davide Romano and Mr Jean-Noel Pasquier are directors and minority shareholders of Applegate. They are based in Switzerland and they managed, on a day to day basis, between 2012 and 2018, Wellcourt and the Wellcourt subsidiaries. (Together the First to Sixth Defendants are referred to as the “ Applegate Parties”.)
The Seventh Defendant, FiHAG Finanz-Und Handels-Aktiengesellschaft (“ FiHAG”) is a company incorporated in Switzerland. It is an investment vehicle that is alleged to be ultimately owned and controlled by the Eighth Defendant, Markus Jooste. Mr Jooste is a South African businessman who was the Chief Executive Officer of Steinhoff International Holdings NV (“ Steinhoff NV”), the holding company of the Steinhoff Group which has a large multi-national retail and furniture business. Steinhoff NV is listed on the Johannesburg and Frankfurt Stock Exchanges. FiHAG is a major shareholder in the Steinhoff Group. In December 2017, Mr Jooste resigned as CEO of Steinhoff NV after an accounting scandal came to light. There have since been allegations of fraud levelled against him and he and Steinhoff NV are the subject of criminal investigations in South Africa, Germany and the Netherlands.
The Ninth Defendant, Formal Holdings Limited (“ FHL”) is a company incorporated in the BVI and carries on business from premises in Jersey. FHL is ultimately owned and controlled by the Tenth Defendant, Mr Malcolm King, who is a Jersey-based British property developer. Until September 2016, FHL had a substantial shareholding in Steinhoff NV.
For many years, Mr Jooste was a close and trusted family...
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