Briefings & Articles

briefing 30/06/2020 Sheyko v Consolidated Minerals Limited – Royal Court clarifies its approach to parties seeking to limit their discovery obligations based on foreign law.

In its latest judgment in Sheyko v Consolidated Minerals Limited the Royal Court has provided important guidance to parties seeking to limit their discovery obligations on the basis that to disclose certain material would occasion a risk of prosecution in a foreign jurisdiction (in this case the People’s Republic of China) .

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briefing 29/06/2020 Regulatory financial penalties in Jersey; some reflections by a time-served Regulator

Stephen Baker and Cyril Whelan discuss regulatory financial penalties in Jersey following completion of Advocate Whelan's 10 year tenure as a Commissioner of the Jersey Financial Services Commission.

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briefing 15/06/2020 New problems facing trustee investment decisions

The words “preservation and protection” focus on one of the key features of a trust: that the assets held within are to be meticulously and carefully invested and managed by the trustee in line with the terms of the trust stipulated by the settlor.

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briefing 12/05/2020 Power to freeze assets outside Jersey

In the latest chapter of the long running Tantular litigation, the Royal Court has confirmed that it has the power to freeze foreign assets held through Jersey trust structures.

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briefing 05/05/2020 Administration of justice in a global pandemic

A recent decision of the Technology and Construction Court lays out the approach of the Courts of England and Wales to applications for an extension of time to comply with procedural deadlines where such application is based on the impact of Covid-19.

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briefing 24/04/2020 Are your AML policies and procedures adequate?

The recent conviction of Abu Dhabi Commercial Bank’s Jersey branch (ADCB) is a cautionary tale for financial services institutions, and regulated businesses generally. ADCB’s conviction, for failing to maintain appropriate and consistent policies and procedures relating to customer due diligence measures and risk assessment and management in order to protect money laundering, as required by the Money Laundering (Jersey) Order 2008 (the MLO), shows that not only must financial services have such policies in places, but they must apply them too. If they don’t, a hefty fine awaits: £475,000 in ADCB’s case (after a full one-third guilty discount).

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briefing 06/12/2019 Unfair prejudice applications

The recent judgment of the Royal Court of Jersey in Pender v GHH (Jersey) Ltd & Ors has provided important guidance on the approach to be taken when joining parties to unfair prejudice proceedings. The Court also set out the parameters for awarding costs when parties have been joined unnecessarily.

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briefing 20/11/2019 Post-Judgment Norwich Pharmacal Orders

The decision of the Grand Court of the Cayman Islands earlier this year in ArcelorMittal USA LLC v Essar Global Fund Limited & Anor[1] re-examines Norwich Pharmacal Orders (NPO) as a form of post-judgment relief. It will not be the last word on the subject (not least because it is subject to appeal) but it highlights the difficulties caused by the use of NPOs post-judgment applications and how different the regime which has been developed in Jersey is.

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briefing 09/08/2019 Jersey law of contract

A subjective question: what to do about the Jersey law of contract?

A recent plea by the Jersey Court of Appeal for greater certainty in the Jersey law of contract has highlighted differences of opinion amongst the judiciary and the need for a way forward. Now, a new judgment from the English Court of Appeal could provide support for one side of the debate.

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briefing 11/06/2019 Back Where it Belongs

At the end of 2018, there was much press coverage of the visit of External Relations Minister Ian Gorst to Kenya to sign an asset-sharing agreement for £3 million. The money was confiscated following criminal proceedings in the Royal Court in Jersey in which a Jersey company entered guilty pleas to four counts of money laundering by holding funds derived from criminal conduct.

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briefing 10/06/2019 Back where it belongs: Part II

On 31 May 2019 $267 million was recovered offshore to the benefit of the Federal Republic of Nigeria, which had been the victim of gross corruption under the kleptocrat regime of General Sani Abacha, with further substantial recoveries expected to follow. The $267 million was paid into the Civil Asset Recovery Fund in Jersey and this is rightly being hailed as a success in the Island’s aim to recover assets derived from corruption worldwide. It reflects well on the historic efforts put in to combat money laundering and misuse of Jersey’s financial services sector.

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briefing 30/05/2019 Parents beware: lessons from Vedanta v Lungowe

The UK Supreme Court’s recent judgment in Vedanta Resources Plc & another v Lungowe & others [2019] UKSC 20 sounds a note of caution for multinational parent companies who intervene closely in their subsidiaries’ activities. At its heart, this was a judgment about where the trial of this case ought ultimately to take place: England or Zambia. Judgments of this type – where the key issue is the appropriate forum for a case to be heard – are relatively common in the UK and Jersey. The interesting part, from a company law perspective, was the comments made by the Supreme Court concerning a parent company’s vicarious liability for its subsidiary’s actions.

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briefing 17/05/2019 Dishonesty and accessory liability

In Group Seven Limited & Ors v Notable Services LLP & Ors[2] the English Court of Appeal clarified the law of dishonest assistance and considered the role of dishonesty as an essential ingredient of accessory liability in light of the Supreme Court’s much-discussed ruling in Ivey v Genting Casinos[3] in 2017.

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briefing 07/05/2019 Capital Gains?

The Supreme Court has ruled that Jersey has the status of a ‘third country’ for the purpose of the free movement of capital in Routier & anor v Commissioners for HMRC UKSC 2017/0190.

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briefing 10/04/2019 Guernsey Royal Court: application to terminate trust

The recent Guernsey case of Rusnano Capital AG (in liquidation) v Molard International (PTC) Limited and Pullborough International Corp [2019] GRC011 has, for the first time, addressed the circumstances in which the beneficiaries of a discretionary trust can compel the trustee to make a distribution and terminate the trust.

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briefing 26/03/2019 Onward for the Ombudsman

The Royal Court has recently handed down its judgment in the first judicial review of a decision of the Channel Islands Financial Ombudsman (“CIFO”) Future Finance Limited v Channel Islands Financial Ombudsman [2019] JRC041.

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briefing 06/03/2019 Disclosure in Jersey: What, When and From Whom? (Part 1)

This is the first of two short articles on four aspects of disclosure in civil proceedings in Jersey. The first focuses on the differences between pre-action and post-judgment disclosure and the measure of uncertainty which has developed around these separate jurisdictions. The second will address trustee disclosure and the position of foreign insolvency office-holders following the decision of the Royal Court in Smith v Nedbank Private Wealth Limited [1].

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briefing 05/03/2019 Disclosure in Jersey: What, When and From Whom? (Part 2)

This is the second of two articles on disclosure in civil proceedings in Jersey.  The first can be found here.  This part focuses on two further categories of applicant: foreign insolvency office-holders, and beneficiaries seeking disclosure from their trustees.

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briefing 18/02/2019 Freezing Orders: Another Cautionary Tale

An ex parte application places a weighty burden upon the court hearing it. This is why the applicant has a duty to make full and frank disclosure of material which both assists and/or hinders their case. Courts are understandably more comfortable when all parties are represented and able to put their case forward robustly and fairly. That said, two recent judgments in Sheyko v Consolidated Minerals Limited demonstrate that it is not just ex parte applicants who have a duty to place all relevant material before the court – and that the consequences of failure can be severe.

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briefing 30/01/2019 Litigation privilege and adversaries

The parameters of litigation privilege have been further clarified by the Royal Court of Jersey in a decision handed down on Thursday 17 January 2019 in the ongoing civil dispute CMC Holdings Ltd & Anor v Forster, RBC Trust Company (International) Limited and Regent Trust Company & Ors [2019] JRC 004A.  In this case, the Court was asked to determine whether certain communications that took place between opposing parties were subject to litigation privilege.  In its judgment, the Royal Court has provided a useful insight into the Jersey courts’ approach to claims to litigation privilege and highlighted the implications of allowing adversaries to claim litigation privilege.

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briefing 07/12/2018 Test for rectification clarified

In In the Matter of the C Trust [2018] JCA 219  (the ‘Trust’) the Jersey Court of Appeal has, for the first time, considered and given guidance on the principles governing the remedy of rectification. The case is an unusual example of a contested application for rectification of a trust.

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article 19/10/2018 Disclosure in the Digital Era

Two rape cases were discontinued within days of each other in the UK in December last year. One of them was already three days into the trial, but was undone by the revelation of text messages from the complainant’s phone which wholly undermined the prosecution case.  It was reported earlier this year that over 900 prosecutions were dropped in 2017 due to disclosure failings.  The Criminal Cases Review Commission in an annual report cited disclosure failures as the “continuing biggest single cause of miscarriages of justice”.

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briefing 10/10/2018 Economic torts: pursuing the corporate veil

This case is a welcome further affirmation, following decisions such as that of the Supreme Court in Prest v Petrodel [2013] UKSC 34, that those who seek to abuse the separate legal personality of a company in order to harm others cannot expect sympathy from the courts.

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briefing 12/09/2018 SFO v ENRC: Legal Professional Privilege Restored?

In recent years, legal professional privilege has been the subject of many high profile appeals. Cases such as Bilta v RBS[1]  and Three Rivers (No 5) [2] demonstrate the extent to which the position on what constitutes privileged material has changed over the years. This has brought a lack of clarity and created concerns for both legal professionals and organisations which may find themselves on the receiving end of discovery and disclosure orders.  However, the recent Court of Appeal judgment in ENRC v SFO to some extent restores the common law to a more conventional position, and allows legal advisors to sleep a little better.

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briefing 04/06/2018 Lobster Baron’s Millions Caught in the Net

A recent judgment[1] of the Royal Court casts light on the Island’s conviction-based confiscation regime at a time when the States of Jersey is busy sharpening the claws of Jersey’s investigatory and prosecutorial authorities in relation to its civil, non-conviction based, asset forfeiture framework.

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briefing 15/05/2018 Civil Asset Recovery in Action

The Royal Court of Jersey, Channel Islands has considered a case (The Federal Republic of Nigeria v Doraville Properties Corp and The United States of America) under the Civil Asset Recovery (International Co-operation) (Jersey) Law 2007 (‘2007 Law’). The US wanted to join the party, but because of various legal technicalities, was not allowed to do so.

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briefing 10/05/2018 JSC BTA Bank v Khrapuno & Jersey ripple effect

From a Jersey perspective the two most interesting aspects are that (i) contempt of court can constitute unlawful means for the purpose of the tort of conspiracy and (ii) the UKSC left open the possibility that damages could be available for contempt per se (i.e. without a claimant having to rely on an established cause of action).

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briefing 24/04/2018 The ambit of litigation privilege

A number of recent cases have addressed litigation privilege and its parameters however the exact scope has remained somewhat unclear, particularly in the context of internal investigations. The recent case of Bilta (UK) Limited (in liquidation) v Royal Bank of Scotland PLC [2017] EWHC 3535 (Ch) has helped to clarify some of this uncertainty.

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briefing 14/03/2018 Lawyer forced to reveal multi-million pound art collection

The wide ambit of the privilege and the fact it is an absolute and permanent right once established may lie behind some recent judicial attempts to limit the parameters of privilege. In SFO -v- ENRC, for example (the subject of one of our recent blogs Limits on Legal Professional Privilege),the judge did not accept that litigation privilege extended to documents created to obtain advice on how best to avoid contemplated litigation. 

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briefing 15/02/2018 Un-tainting protected settlements

Important changes were made to the UK’s deemed domicile regime in 2017. These complex new rules pose yet another set of challenges for offshore trustees of trusts with UK resident, deemed UK domicile settlors. While most hope to avoid the new tainting regime for so called ‘protected settlements’, given the ease with which a trust can be tainted, and the potentially calamitous tax consequences of a tainting event, this is an area of high risk for trustees.

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briefing 05/02/2018 The Purgative effect of the Pugachev judgment

In October 2017 the English High Court handed down a significant judgment in which it found that the assets of five discretionary trusts settled by Russian oligarch, Sergei Pugachev could be used to satisfy claims by Mr Pugachev’s creditors.

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briefing 29/01/2018 Round 1: transparency V right to confidentiality

In a series of 3 articles (Rounds 1 to 3), we explore Jersey’s approach to the concept of transparency in respect of beneficial ownership information.  In Round 1, we set out the key ways in which Jersey upholds transparency in order to meet its international obligations. 

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briefing 28/01/2018 Round 2: transparency V right to confidentiality

In Round 2 of our series of 3 articles on Jersey’s approach to the concept of transparency in respect of beneficial ownership information, we discuss the instances in which Jersey keeps matters confidential out of respect for the legitimacy of arrangements such as discretionary trusts. 

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briefing 11/12/2017 Freezing Orders: Be Careful What You Wish For

The recent decision of the English Court of Appeal in SCF Tankers Limited (formerly known as Fiona Trust & Holding Corporation) and Others v Yuri Privalov and Others[3] highlights how a cross-undertaking in damages – a central feature of a freezing order[4] – can return to haunt an applicant if their substantive case subsequently fails.

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article 05/12/2017 Transparency & confidential relationships

The so called “Paradise Papers” data leak has reinvigorated criticism.  Such criticism is in large part misplaced where Jersey is concerned. Properly informed international observers are fully aware that Jersey is a well-regulated jurisdiction with a rigorous legal system.  Its approach to the issue of beneficial ownership information transparency and the exchange of tax information has been applauded on the international stage by the OECD and MONEYVAL.

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