Thursday, 28 June 2012

Law Report, interim injunction where there are parallel foreign proceedings

E.R.G Resources LLC v Nabors Global Holdings II Limited [2012] SC (Bda) 23 Com (5 April 2012)

The Plaintiff had been granted an ex parte interim injunction restraining the Defendant from disposing of certain shares pending the outcome of the action. The Defendant applied to set aside the injunction and the action dismissed on the grounds that the parties had agreed that Texas would be the exclusive jurisdiction; that the Plaintiff could not maintain actions in two jurisdictions on the same matter; and that it was an inappropriate case for an interim injunction as the Texas courts would be very unlikely to order similar interim relief.

It was held by Kawaley CJ that interim injunctive relief may be granted in support of foreign causes of action where the court has jurisdiction over the defendant [23]. The applicant is implicitly requesting the local court to assist the foreign court by making an order the foreign court is unable to make because the property affected is subject to the territorial jurisdiction of the local court. Whether or not the foreign court itself would be minded to grant interlocutory relief if it could thus becomes an important factor to take into account in determining where the balance of convenience lies and in deciding how the discretion to grant injunctive relief should be exercised [15].

The central question to be asked is whether it is consistent with modern notions of judicial cooperation and respect for foreign courts to grant the interim relief sought in support of a claim being pursued before a foreign court. This will usually likely require an assessment of :
(a) whether an application has been made to the foreign court so its position on interim relief can be ascertained;
(b) if an application has been refused by the foreign court whether it was refused on merits grounds or merely because it lacked the jurisdiction to grant such relief; and
(c) in general terms whether the grant of interim relief by the ‘ancillary’ court would be justified with a view to assisting the foreign court in its adjudication of the substantive dispute. [22]

Law Report, basis for ordering Letter of Request in winding up proceedings

In In the Matter of Sea Containers Ltd [2012] SC (Bda) 26 Com (10 May 2012), concerning the winding up of a company, counsel for the liquidators sought an Order for a Letter of Request to the English High Court to determine certain questions of English law of relevance in the matter.

Kawaley CJ held that the basis for making the Order was s.175(1)(a) of the Companies Act 1981, empowering a liquidator to bring any legal proceeding on behalf of or in the name of the company. The court's decision on whether or not a particular issue should be decided by a foreign court will be determined by essentially pragmatic "case management" considerations, taking into account which is the most appropriate or convenient forum.

Law Report, jurisdiction of Family Court

In the case of T.O v Department of Child and Family Services [2012] SC (Bda) 30 App (1 June 2012), the Family Court had made an Order that it was satisfied to release two children, [E] and [A], for adoption. Kawaley CJ held that the Family Court has no jurisdiction to make any recommendation as to adoption while a Care Order is in force.

Law Report - appeal against "manifestly inadequate" sentence

In Raynor v Davis [2012] SC (Bda) 29 App (1 June 2012), the Respondent was sentenced by the Magistrates' Court to one year in prison after pleading guilty to a charge of burglary. He had broken into the hotel room of a couple both in their seventies. When the husband sought to restrain him, the Respondent shouted that he had a gun, before escaping from the scene. The incident had the potential to damage Bermuda's commercial interests, due to the negative publicity from attacks on tourists. At the time of the offence the  Respondent was on probation for Prowling.

The Appellant, a police officer, appealed on the grounds that the sentence was manifestly inadequate.

Kawaley CJ noted that the Respondent's record reads like the resume of a man who has dedicated his life to the diligent pursuit of non-violent property offences. The Supreme Court can be greatly assisted by UK Sentencing Council Guidelines, although they are of limited value to the Magistrates' Court. Drug addiction is not a mitigating factor.

The dictum of L.A Ward J in Osborne v Harvey [1987] Bda LR 78 was followed, where he said:
"The leading authority in Bermuda on the meaning of ‘manifestly inadequate’ is
Plant (R) v Robinson Criminal Appeal No. 1 of 1983 in which the Court of Appeal
held that manifestly inadequate means obviously inadequate, that is to say
obvious to the appellate tribunal that the sentence is much too low and fails to
reflect the feelings of civilized society to the crime in question. It also stated that a
sentence is manifestly inadequate when it is obviously insufficient because the
judge or magistrate has acted on a wrong principle or has clearly overlooked, or
undervalued, or overestimated, or misunderstood some salient features of the
evidence. It is a failure to apply right principles"

In the circumstances the one year sentence was manifestly inadequate. A sentence of 30 months was substituted, taking into account that the Respondent was also serving other sentences.