In this article
The Collas Crill perspective
This case suggests that respondents who wish to challenge injunctions that have been obtained without notice in the BVI should do so by seeking to discharge these, rather than pursuing an appeal before the return date hearing, when the Court will have an opportunity to consider the respondent's evidence and submissions.
In the majority of cases any intervening prejudice to the respondent can be avoided by an early application to the Court, or through the cross-undertaking or payment into Court that an applicant normally has to provide to compensate a respondent in the event that the without notice interim injunction should not have been granted.
The case
The pertinent facts of the case are these.
In
Following the court-ordered shareholders' meeting (the "Meeting"), the new board attempted to take control of the assets and affairs of the Nam Tai group of companies, including the Third Respondent,
However, on
As a result, Nam Tai's new officers and managers were unable to take control of its assets and affairs, as well as those of many of its group of companies, including office premises, bank accounts and corporate seals.
On
The Respondents countered that the appeal was an abuse of process as it was against an ex parte order in respect of which there was no application to discharge the same and, that in any event, the appeal had no merit.
The judgment
The Court noted in its judgment that central to the resolution of the issue on appeal is that Greater Sail never applied to the
In dismissing Greater Sail's appeal, the Court applied the
"In terms of jurisdiction, there can be no doubt that this court can hear an appeal from an order made by the
As I have said, ex parte orders are essentially provisional in nature. They are made by the judge on the basis of evidence and submissions emanating from one side only. Despite the fact that the applicant is under a duty to make full disclosure of all relevant information in his possession, whether or not it assists his application, this is no basis for making a definitive order and every judge knows this. He expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order.
This being the case it is difficult, if not impossible, to think of circumstances in which it would be proper to appeal to this court against an ex parte order without first giving the judge who made it or, if he was not available, another
The Court also applied another
The Court determined that it should adopt the approach set out in the English cases referred to above and said that:
"...to do otherwise could seriously undermine the structure for dealing with interim applications and open the floodgates for leapfrogging over inter partes hearings directly to the
In the final analysis, the Court held that it would be improper to allow Greater Sail to appeal to it against an ex parte order, without first giving the learned judge an opportunity of reviewing it in light of full evidence and submissions advanced at an inter partes hearing.
Footnotes
1. BVIHCMAP2022/0009,
2. [1983] 1 WLR 721.
3. [1987] FSR 83.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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