Foreign liquidators may apply for recognition in Bermuda pursuant to the common law by the application of the principles of comity

The Supreme Court of Bermuda has clarified the rules for granting common law recognition and assistance to foreign officeholders following the landmark privy council decision of Singularis Holdings v Pricewaterhouse Coopers (2015).

Keith Robinson, Partner, Tel- +1 441 542 4502, Email- keith.robinson@careyolsen.com
Keith Robinson
Partner
Tel: +1 441 542 4502
Email: keith.robinson@careyolsen.com

The decision demonstrates that Bermuda’s courts are willing to take a robust approach to foreign officeholders who arrive in the jurisdiction seeking to use common law recognition as an evidence-gathering tool for litigation. There are no statutory mechanisms for the recognition of foreign insolvency proceedings, or cross-border co-operation in insolvency or restructurings. Bermuda has not adopted the UNCITRAL Model Law on Cross-Border Insolvency.

However, there are examples in case law of the court exercising its common law powers to recognise foreign insolvency and restructuring proceedings, and to co-operate with courts of foreign jurisdictions, particularly in circumstances where:

(1) The relevant company is incorporated in Bermuda;

(2) The subject company has assets located in the jurisdiction;

(3) The liquidators seek assistance that would be available to them both under the law of the foreign jurisdiction and under Bermuda law; and

(4) Such recognition and co-operation are not contrary to Bermuda public policy.

The factual history of this case was protracted but pertinent to the judgment of the Supreme Court. On 19 July 2019, the Supreme Court granted an ex parte order recognising the appointment in England and Wales of Stephen John Hunt as liquidator of Transworld Payment Solutions UK pursuant to a compulsory winding up order made in the High Court of England and Wales on 22 September 2014.

The process leading to the appointment of Hunt as liquidator of the company took place, as Chief Justice Hargun described it, “in unusual circumstances”. The company was dissolved in 2010 pursuant to an application for voluntary striking off under section 1003 of the English Companies Act, 2006. Owing to an outstanding judgment debt, of which the directors were unaware, the company was restored to the register of companies and wound up on 22 September 2014. The secretary of state appointed Hunt as liquidator on 17 November 2014. Chief Justice Hargun found that the sole object of the restoration of the company was to pursue potential claims against First Curaçao International Bank (FCIB) and other entities or individuals. In February 2016, Hunt, by way of his solicitors, sent a letter before action to FCIB. Those claims were expanded and set out in a draft particulars of claim on 9 April 2018.

Emma Duffy, Senior Associate, Tel- +1 441 542 4266, Email- emma.duffy@careyolsen.com
Emma Duffy
Senior Associate
Tel: +1 441 542 4266
Email: emma.duffy@careyolsen.com

The Bermuda proceedings

The application for recognition of the appointment of Hunt as liquidator of the company was made ex parte to the Supreme Court of Bermuda in June 2019. In that application, Hunt asserted that recognition in Bermuda might prove necessary to enforce compliance with any orders made in other proceedings and/or would give him the authority to request the relevant documentation in the absence of co-operation in the liquidation. The Supreme Court granted the order on 19 July 2019.

Transworld Payment Solutions (Transworld Bermuda), a company incorporated in Bermuda, applied for an order to discharge the ex parte order on 11 October 2019. The Supreme Court discharged the ex parte order recognising in Bermuda the appointment of Hunt as liquidator of the company by the English High Court and corresponding ex parte orders granting him assistance in that capacity on the basis that:

(1) The company did not have any assets in the jurisdiction of the Bermuda court;

(2) The purpose of the recognition application was to obtain documents and information for use in litigation that Hunt had already determined to bring in England.

Transworld Bermuda argued that recognition of Hunt’s appointment was inappropriate and would serve no legitimate purpose, on the basis that the principal purpose behind the recognition was to use the powers of the Bermuda courts to gather information. The court would be bound to refuse such relief since the information was sought in support of litigation that Hunt had already determined to bring.

The court agreed that the concepts of recognition and assistance are different: “Recognition simply involves recognising, in accordance with principles of private international law, the authority of the foreign office holder to deal with the assets of the debtor located in the foreign jurisdiction. The general rule is that the court will recognise, at common law only, the authority of the liquidator appointed under the law of the place of incorporation of the company.”

The court went on to affirm Lord Mance in Singularis Holdings v Pricewaterhouse Coopers (2015) at paragraph 132: “The essence of the principle consists, as Lord Sumption JSC notes in his para 14(i), in the recognition by one court of the foreign liquidator’s power of disposition over the company’s assets in the domestic jurisdiction. That justified an order (in Re African Farms [1906]) restraining the disposition or seizure inconsistently with the foreign liquidation.”

The court accepted as a matter of private international law that Hunt had authority as liquidator of the company to deal with the assets in Bermuda. However, it was accepted by all parties to the litigation that the company had no assets within the jurisdiction of the court of Bermuda. Accordingly, the court concluded that Hunt could not rely on the existence of assets within the jurisdiction to support his application for recognition. The alternative reason why a foreign officeholder would apply for recognition is that it enables the court to provide active assistance within the limitations on the common law, as contained within the Singularis case.

The court, in the Singularis case, emphasised that the limits to the power of assistance are implicit within the reasons for recognising their existence, while emphasis was placed in the current case on the final sentence of paragraph [25] of the case: “Common law powers of this kind are not a permissible mode of obtaining material for use in actual or anticipated litigation. That field is covered by rules of forensic procedure and statutory provisions for obtaining evidence in foreign jurisdictions which liquidators, like other litigants or potential litigants, must accept with all their limitations.”

The court accepted that there is a specific restriction on using the common law’s power to obtain material for use in actual or anticipated foreign litigation. Transworld Bermuda submitted that the real reason why recognition was sought was to enable Hunt to seek the assistance of the Bermuda court to obtain the information he sought to use in the contemplated proceedings in England.

Chief Justice Hargun agreed that the information requests, made in correspondence to Transworld Bermuda after the grant of the ex parte order, were requests in aid of the contemplated English proceedings. Having regard to all the circumstances, the court found that it was clear that, “the sole purpose of obtaining the recognition order was to clothe Hunt with the authority of this court so that he could obtain information and evidence for use in the contemplated proceedings in England”.

The court recognised that it has a discretion, in the circumstances that an applicant is committing an abuse of process for an illegitimate purpose, to refuse recognition. Chief Justice Hargun found that, as there was no other legitimate reason for the granting of a recognition order, the ex parte order was discharged accordingly. The court provided a detailed analysis of the other grounds advanced in support of the recognition order as simply “makeweights and, on examination, lacking any substance”.

Transworld Bermuda submitted in the alternative that the application for the recognition order fell outside the second restriction in the Singularis case, in so far as the common law power of assistance “is not available to enable them to do something which they could not do even under the law by which they were appointed”. Transworld Bermuda argued that the information requests by Hunt would be considered oppressive under English law as they were clearly for the purpose of gathering information to support litigation that Hunt already decided to commence.

While the court did not consider it necessary to express a final view on this ground, on the basis that the order was discharged as above, Chief Justice Hargun did agree that such a submission in respect of the respondent’s case would be “strongly arguable”.

Comment

The judgment affirms the court’s common law powers to assist foreign office holders in foreign liquidations, as accepted by the privy council in the Singularis case, but only within the described limitations. The decision provides reassurance to Bermuda targets of information requests from foreign liquidators that a robust approach is likely to be taken by the court in circumstances where a liquidator is seeking their assistance to use common law recognition for an illegitimate purpose.


Keith Robinson is the partner of Carey Olsen in Bermuda. You can contact him at +1 441 542 4502 and keith.robinson@careyolsen.com

Emma Duffy is the senior associate of Carey Olsen in Bermuda. You can contact her at +1 441 542 4266 and emma.duffy@careyolsen.com

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Law.asia subscripton ad red 2022