privy council guidance on rectification of bvi share ... · pdf fileprivy council guidance on...
TRANSCRIPT
BERMUDA BRITISH VIRGIN ISLANDS CAYMAN ISLANDS DUBAI HONG KONG LONDON MAURITIUS SINGAPORE / conyersdill.com
February 2015
Privy Council Guidance on Rectification of BVI Share Registers and
Service Out
Decision offers clarity, but at what price?
In a recent opinion, the Privy Council has given definitive guidance on the operation of the statutory scheme in
the British Virgin Islands (“BVI”) for the rectification of share registers, particularly in the context of applications
to serve parties out of the jurisdiction. Although this guidance is welcomed, not least since it has been an
unclear area for several years in the BVI and is of important practical effect, the result of the Privy Council’s
analysis may well be unwelcomed in many quarters.
Nilon Limited
Nilon Limited and another -v- Royal Westminster Investments S.A and others [2015] UKPC Privy Council
Appeal No 0043 of 2012 (decided on 21 January 2015) was an appeal from the BVI Court of Appeal and
concerned a claim brought for breach of a contract to procure the issue of shares in the first Defendant, Nilon
Limited (“Nilon”) and rectification of Nilon’s share register under Section 43 of the BVI Business Companies Act
(“the Act”). Nilon was a BVI incorporated company.
The second Defendant, (“MV”), was the sole registered shareholder in Nilon. The Claimants alleged that: (i) he
had orally agreed to enter into a joint venture involving the importation and sale of rice in Nigeria; (ii) they had
funded Nilon and (iii) they had received dividend payments pursuant to the arrangement between the parties.
As a result, they claimed to be the legal and/or beneficial owners in Nilon. MV denied that the Claimants were
legally or beneficially entitled to shares in Nilon or indeed that it was intended that they would be. While he
accepted that there had been a joint venture agreement, he claimed that the monies paid by the Claimants to
Nilon were loans and not paid in exchange for a shareholding interest in Nilon. MV also denied that the sums
paid by Nilon to the Claimants were dividends.
First Instance Decision
Since MV was resident in London the Claimants applied for permission to serve the Claim out of the jurisdiction
on him relying on Rule 7.3(2) (a) of the Eastern Caribbean Supreme Court, Civil Procedure Rules, 2000. This
is a “necessary or proper gateway”, and requires that there be a real issue which is reasonable for the court to
try as between the Claimant and the “anchor” or domestic Defendant and that the foreign Defendant be a
necessary and/or proper person to the Claim. There was no serious suggestion that, on its own, the breach of
contract Claim had any connection with the BVI or that any other gateway would be available to the Claimants.
It was therefore imperative that the rectification Claim against Nilon should survive scrutiny if the Claimants
were to have any chance of serving the Claim on MV.
BERMUDA BRITISH VIRGIN ISLANDS CAYMAN ISLANDS DUBAI HONG KONG LONDON MAURITIUS SINGAPORE / conyersdill.com
2
February 2015
At first instance, it did not.
The relevant terms of Section 43 of the Act provides as follows:
“43. (1) If
(a) information that is required to be entered in the register of members under Section 41 is
omitted from the register or inaccurately entered in the register, or
(b) there is unreasonable delay in entering the information in the register,
a member of the company, or any person who is aggrieved by the omission, inaccuracy or delay, may
apply to the Court for an order that the register be rectified, and the Court may either refuse the
application, with or without costs to be paid by the applicant, or order the rectification of the register,
and may direct the company to pay all costs of the application and any damages the applicant may
have sustained.
(2) The Court may, in any proceedings under subsection (1), determine any question relating to the
right of a person who is a party to the proceedings to have his name entered in or omitted from the
register of members, whether the question arises between
(a) two or more members or alleged members, or
(b) between members or alleged members and the company,
and generally the Court may, in the proceedings, determine any question that may be necessary or
expedient to be determined for the rectification of the register of members”.
The BVI Commercial Court (per Bannister J) refused permission to serve the Claim out of the jurisdiction on
MV and struck out the Claim against Nilon on the basis that there was no evidence that the information
required under Section 41 had been omitted from Nilon’s register of members and, even if the Claims against
MV were successful, it would only result in an, in personam, order against MV to procure the issuance of the
new shares to the Claimant and would not give the Claimants an interest (whether equitable or legal) to the
shares themselves. The Commercial Court concluded that Section 43 could not be used to determine whether
a Defendant was in breach of a contract to procure that a company would issue shares.
Court of Appeal
The Court of Appeal allowed the Claimants’ appeal. In coming to a different conclusion, the Court accepted
that ordinarily Section 43(1) would be used to summarily settle plain issues of omissions, delays or
inaccuracies in the register of members but that since Section 43(2) expressly gave the Court the discretion to
“determine any question relating to the right of a party to the proceedings” to have his name entered on the
register, the Court was compelled to have regard to both equitable and legal rights. The Court of Appeal
determined that while the Court could not order rectification where the Claimants were not in a position to
assert legal title, it could decide the dispute as to their entitlement, presumably as a preliminary issue, prior to a
trial on rectification. In coming to this decision the Court of Appeal relied heavily on the English Court of Appeal
decision in Re Hoicrest Ltd [2001] 1 WLR.
In Hoicrest, the Applicant sought rectification of Hoicrest’s register of members on the grounds that the shares
issued in Hoicrest were being held by the Respondent on trust for him pending the repayment of a loan by her
to fund the acquisition of a lease by the Company. The Court of Appeal held that the rectification provisions
enabled the Court to direct a trial of the Applicant’s Claim to a beneficial interest in the shares held by the
BERMUDA BRITISH VIRGIN ISLANDS CAYMAN ISLANDS DUBAI HONG KONG LONDON MAURITIUS SINGAPORE / conyersdill.com
3
February 2015
Respondents. This was a case with analogous facts to Nilon: the Claimants’ assertion that its entitlement to the
shares was a matter that could be determined within the remit of the Court’s rectification jurisdiction. Nilon
appealed to the Privy Council.
Privy Council
While the principles on service out were examined in some detail (and the exceptional nature of that
mechanism was emphasised), it was the scope of the discretion under Section 43(2) of the Act which was the
most significant aspect of the Privy Council’s judgment. The main issue was whether that discretion conferred
on the Court, in the present case, the power to determine the right of the Claimants to have their name
registered as members. The Privy Council said it did not.
The Court conducted a compendious review of reported decisions on the rectification of the share register
going back to the Joint Stock Companies Act, 1856 and the Joint Stock Companies Act, 1875. In so doing, it
concluded that the Courts had made it clear that the summary nature of the rectification jurisdiction was
unsuitable for a substantial factual dispute and that Hoiscrest stood on its own in deciding that it was sufficient
for an application to engage the rectification jurisdiction to have a prospective (as opposed to immediate) right
against the Company. The Privy Council opined that the overwhelming majority of cases turned on legal title
and expressed “no doubt that the legislation was concerned with legal title.”
The Privy Council was of the view that in reality Hoicrest was (merely) a case management decision and stood
alone in representing a decision where rectification was considered a permissible avenue by which to resolve a
dispute concerning beneficial ownership. It was perhaps inevitable following those observations that the Board
concluded that Hoicrest was wrongly decided as a matter of principle and found that rectification proceedings
would only be appropriate where an applicant had an existing right to registration by virtue of a valid transfer of
legal title and in contrast would not be appropriate where the Claim against the Company was prospective
based on the conversion of an equitable right to legal title by virtue of an Order for specific performance.
Commentary
The ability to use the rectification mechanism in the manner endorsed by the Court of Appeal offered an
obvious and real juridical advantage to an Applicant who, inter alia, would otherwise have had an uncertain
connection with the BVI. It also presented the Applicant with a summary process by which title to shares would
be determined.
The Nilon decision is consistent with the great majority of cases on rectification. It is the only decision in the
Eastern Caribbean on this issue and would no doubt be relied on by other territories and states with similar
provisions in the years to come.
The effect of this decision may well however be to make rectification and related Claim less easy to pursue for
a number of reasons. First, it seems clear that a two stage process is now certainly required. An entitlement to
the shares in question must first be determined. This may, or may not, be by way of proceedings for which the
BVI is the natural forum. If the BVI is not the natural forum, consideration will need to be given in the foreign
proceedings as to whether the BVI company should be joined to those proceedings. Following the first stage
determination, it would then be necessary to commence the rectification stage of the proceedings, against the
BVI company, most naturally, in the BVI. Query, however, whether it would be necessary to join the parties
against whom the adjudication at the first stage was obtained. This will depend upon the precise form of relief
sought and obtained in those proceedings. If it is necessary that they be joined at this stage, it will then be
necessary to seek service out.
BERMUDA BRITISH VIRGIN ISLANDS CAYMAN ISLANDS DUBAI HONG KONG LONDON MAURITIUS SINGAPORE / conyersdill.com
4
February 2015
Conclusion
It can be seen that the effect of Nilon is likely to create a far less “straight-line” route to achieving rectification in
many cases. While undoubtedly this is legally correct, on a practical level, it may be far from welcome.
Authors
Richard Evans
Partner
+1 284 852 1115
Tameka Davis
Associate
+1 284 852 1120
This article is not intended to be a substitute for legal advice or a legal opinion. It deals in broad terms only and is intended to merely provide a
brief overview and give general information.
ABOUT CONYERS DILL & PEARMAN
Founded in 1928, Conyers Dill & Pearman is an international law firm advising on the laws of Bermuda, the British Virgin Islands, the
Cayman Islands and Mauritius. With a global network that includes 140 lawyers spanning eight offices worldwide, Conyers provides
responsive, sophisticated, solution-driven legal advice to clients seeking specialised expertise on corporate and commercial, litigation,
restructuring and insolvency, and trust and private client matters. Conyers is affiliated with the Codan group of companies, which
provide a range of trust, corporate secretarial, accounting and management services.
For further information please contact: [email protected]