Offshore: Cases Q1 2012

Highlights include the fallout from Hurricane Ivan and the Carlyle liquidation

Cayman Islands

Embassy Investments Limited v Houston Casualty Company

Financial Services Division of Grand Court of Cayman

Judgment: 26 January 2012

Mr Justice Quin was asked to consider an application to strike out the plaintiff’s insurance claim for policy proceeds in connection with an insurance claim in respect of property and business interruption damage caused by Hurricane Ivan. The plaintiff also applied to set aside a default judgment entered by the defendant in respect of the defendant’s claim for an injunction and damages for defamation.

The defendant contended that the plaintiff had failed to take any active steps in the litigation since February 2008, but had instead employed various other (some extrajudicial) methods of attempting to ­secure a payment under the policy from the defendant, which included attempting to secure punitive damages in Texas. The plaintiff contended that it had not delayed, but had decided that pursuing Cayman litigation was an unnecessary waste of resources.

In granting the strikeout and awarding costs on an indemnity basis, Quin J found the plaintiff guilty of intentional and contumelious action, which together with ­inordinate and inexcusable delay, amounted to an abuse of the court.

Quin J also refused the application to set aside, again awarding costs on an indemnity basis.

For the plaintiff Embassy Investments: Mourant Ozannes senior associate Tim Richards instructing Essex Court Chambers’ Steven Berry QC on the strikeout application and 5RB’s Matthew Nicklin on the set aside application

For the defendant Houston Casualty Company: Appleby partner Jeremy Walton and professional support lawyer Marit Hudson instructing One Brick Court’s Manuel Barca QC on the set aside application


Carlyle Capital Corporation Ltd, Roberts et al & Conway et al

Court of Appeal of Guernsey

Judgment: 5 March 2012

The liquidators of Guernsey-incorporated Carlyle Capital Corporation ­allege that the former “de jure, de facto and shadow directors” of the company, between July 2007 and February 2008, acted in breach of their fiduciary and other duties and so rendered Carlyle’s insolvent liquidation inevitable. Losses are said to exceed $1bn (£620m) and the claim is believed to be the largest piece of ­litigation to have ever been brought in Guernsey.

The most recent judgment in March 2012 saw the Guernsey Court of Appeal decide that the case should be heard in Guernsey rather than in Delaware. The defendants have sought leave to appeal from the Privy Council.

The liquidators have also sought an anti-anti-suit injunction restraining the defendants from seeking anti-suit relief against the Guernsey proceedings in the Delaware Court of Chancery.

For the applicant/plaintiff Carlyle Capital Corporation (in liquidation) and liquidators Alan John Roberts, Neil Mather, Christopher Morris and Adrian John Denis Rabet: Mourant Ozannes partner Jeremy Wessels and associate Charles Moore; Lipman Karas partner Jason Karas; South Square’s Robin Dicker QC

For first to fourth and eighth to tenth respondents/defendants: Ogier partner Simon Davies; Williams & Connolly partner Robert Van Kirk; Simmons & Simmons partner Robert Turner and associate Stephen Moses; XXIV Old Buildings’ Alan Steinfeld QC, Amanda Harrington and Edward Cumming

For fifth to seventh respondents/defendants: Collas Crill partner Gareth Bell and senior associates David O’Hanlon and Michael Adkins instructed by Robbins Russell Englert Orseck Untereiner & Sauber partners Gary Orseck and Alison Barnes

Simon v Helmot

UK Privy Council

Judgment: 7 March 2012

This judgment will have an impact on the calculation of damages in personal injury claims in common law jurisdictions. Cyclist Manny Helmot was knocked off his bicycle by driver Dylan Simon in 1998, suffering severe head injuries. In January 2010 the Royal Court of Guernsey awarded Helmot damages of £9.34m with a 1 per cent discount interest rate. On appeal this was raised to -1.5 per cent for earnings-related losses and 0.5 per cent for other losses, increasing the damages by £4.5m.

In its judgment in March the Privy Council agreed that the first and ­foremost consideration was that a claimant was entitled to full compensation for their injuries. In the ­circumstances it was not open to the Guernsey Court to find that the claimant’s case as to future losses had not been proved. The discount rates argued for by the claimant had been proved, including the negative ­discount rate of -1.5 per cent, and therefore the (very high) multipliers resulting from those rates and the ­appeal failed.

For the appellant Dylan Simon: Alan Taylor & Co instructing 7KBW’s Alastair Schaff QC and 39 Essex Street’s Bernard Doherty

For the respondent Manny Helmot: Mourant Ozannes partner Gordon Dawes instructing 3 Hare Court’s James Dingemans QC


In the Matter of the Bird Charitable Trust and the Bird Purpose Trust Client Equity Trust (Bahamas) Ltd

Royal Court of Jersey

Judgment: 5 January 2012

The Equity Trust Bahamas, the ­current trustee of the Bird Charitable Trust and the Bird Purpose Trust, applied for an order that former trustee Basel Trust Corporation (Channel ­Islands) should disclose certain documents to it. The court was required to consider the nature of a trustee’s obligation to hand over documents and information to an incoming trustee upon retiring as a trustee.

By the time the application was heard, the issue had narrowed to whether Basel could refuse to provide certain legal advice that had been taken by Basel in its capacity as trustee and paid for from trust assets.

The Royal Court of Jersey held that the legal advice in question was not trust property under Article 34 of the Trusts (Jersey) Law 1984, and ­therefore the retiring trustee was not under an absolute statutory ­obligation to hand it over.

For the representor Equity Trust Bahamas: Mourant Ozannes partner Justin Harvey-Hills

For the respondent Basel Trust Corporation (Channel Islands): Ogier partner Matthew Thompson

Mr & Mrs Pitman v JEP & Broadlands

Royal Court of Jersey

Judgment: 4 April 2012

This was the first libel case heard in Jersey for decades. Two local politicians sued the Jersey Evening Post following the publication of a satirical seasonal cartoon commissioned by Broadlands, a firm of estate agents. Following a three-day trial the Royal Court of Jersey dismissed the action, finding the cartoon was not defamatory. The claimants were ordered to pay the defendants’ costs.

For the plaintiffs Trevor and Shona Pitman: Viberts partner Christina Hall

For the defendant Jersey Evening Post: Collas Crill senior associate Danny Le Maistre; Walkers partner David Steenson

Isle of Man

Simpson & Ors v Light House Living & Anor

High Court of Justice of the Isle of Man

Judgment: 31 October 2011

The liquidators of the Manx subsidiary of Icelandic bank Kaupthing Singer & Friedlander were appealing against an earlier judgment of His Honour Deemster Moran QC, deciding that deposits of £2.5m belonging to supermodel Elle Macpherson could be set off against a £7.8m ­mortgage loan owed to the bank by her beneficially owned company Light House Living under section 22 of the Bankruptcy Code 1892.

The appeal judges disagreed with HHD Moran’s conclusions, allowing the liquidators’ appeal and dismissing the cross-appeal. The court ruled that the entirety of the proceeds from the sale of the London property in question should have been accounted for to the bank.

The defendants have applied for leave to appeal to the Privy Council.

For the appellants Michael Simpson and Peter Norman Spratt, liquidators of Kaupthing Singer & Friedlander (Isle of Man): Cains divisional director Robert Colquitt instructing South Square’s Lloyd Tamlyn

For the respondents Light House Living and Elle Macpherson: Old Court Chambers director Louise Byrne instructing 13 Old Square’s John McDonnell QC