Murray Laing
Partner
Dubai
The facts of this case are unusual. Malta Co brought proceedings against BVI Co in the BVI Commercial Court in March 2023 (the "BVI Proceedings"). Malta Co relied upon a number of documents in support of its claim in the BVI Proceedings, the originals of which the BVI Co, as Defendant, had an automatic right to inspect under the Civil Procedure Rule 28.16. Malta Co did not, however, voluntarily make such documents available for inspection, such that BVI Co applied to the Court for an order that Malta Co make the original documents available for inspection.
Malta Co initially agreed to make those documents available for inspection, in Malta, but approximately two weeks before the inspection was due to occur it filed (what purported to be) a Notice of Acting in Person, and subsequently filed a Notice of Discontinuance. Shortly thereafter, Malta Co notified BVI Co (by email to its registered agent) that it had terminated the BVI proceedings and had instituted "fresh" proceedings in the Courts of Malta (the "Malta Proceedings"). Malta Co refused to provide BVI Co with a copy of the claim in the Malta Proceedings and offered no explanation for its abandonment of the BVI Proceedings.
BVI Co approached the BVI Court ex parte on an urgent basis for anti-suit relief to restrain Malta Co from taking any further steps in the Malta Proceedings or initiating any other litigation in relation to the issues raised by the BVI Proceedings. The relief was sought on a temporary basis pending an expedited inter partes return date. The BVI Court accepted BVI Co's submission that the relief sought was governed by American Cyanamid principles, granted an anti-suit injunction and directed the listing of a return date prior to the scheduled document inspection.
At the return date, BVI Co invited the Court to grant the following relief:
- An order that the Notice of Discontinuance purportedly filed by Malta Co be set aside on the basis that it contained certain procedural defects and a misrepresentation that the parties had each agreed to bear their own costs of the BVI Proceedings;
- An order that the BVI proceedings had not been brought to an end;
- Until further order, that Malta Co was to be prohibited from taking any steps or otherwise participating in the Malta Proceedings; and
- Malta Co was to make the documents (upon which its claim in the BVI proceedings relied) available for inspection on the date previously agreed between the parties.
BVI Co argued that the purported discontinuance of the BVI Proceedings was an abuse of process aimed at avoiding the inspection of the original documents (as to which BVI Co had an automatic right in the BVI Proceedings and which the Court had ordered Malta Co to make available several months prior) and avoiding the costs consequences that follow a discontinuance.
The Court, finding that there was no explanation for the breach of its Order to make the original documents available for inspection and no rational basis for BVI Co to have to approach the Courts of Malta to allow inspection of the original documents, made a further order requiring Malta Co make the original documents available for inspection. The Court also ordered that the purported Notice of Discontinuance be set aside, declared the BVI Proceedings to be ongoing, and prohibited Malta Co from pursuing the Malta Proceedings or initiating any other proceedings in relation to the issues raised by the BVI Proceedings.
Murray Laing, partner at Walkers, commented: "The BVI Court has once again shown its willingness to act quickly and pragmatically to prevent an abuse of its processes. This Order confirms that the BVI Court has jurisdiction to order a temporary anti-suit injunction pursuant to the American Cyanamid principles, and that it will do so in appropriate circumstances."
Walkers instructed Andrew McLeod of One Essex Court.
