Walkers triumphs in Privy Council "Black Swan" Appeal

Convoy Collateral Ltd v Broad Idea and Cho Kwai Chee [2021] UKPC 24

The Privy Council has today handed down its judgment in Convoy Collateral Ltd v Broad Idea International Limited and Cho Kwai Chee, the so-called "Black Swan" Appeal and a related appeal, dismissing both appeals from the Eastern Caribbean Court of Appeal.

The appeals, which were heard by a seven-member Board in February of this year, concerned two principle issues: (i) the "Service Out" issue: whether the BVI Court has jurisdiction to permit service out of the jurisdiction under r 7.3(2)(b) of the Civil Procedure Rules of the Eastern Caribbean Supreme Court ("CPR") of an application claiming only freestanding freezing relief; and (ii) the "Power" issue: whether the BVI Court had jurisdiction or power to grant a freezing injunction against Broad Idea, a party within the jurisdiction of the court, to assist enforcement through the court’s process of a prospective (or existing) foreign judgment, the so-called "Black Swan" order named after the original case in which such relief was granted, Black Swan Investment ISA v Harvest View Ltd (BVIHCV 2009/399 (unreported) 23 March 2010).

On the Service Out issue, the appellant, Convoy Collateral Ltd ("Convoy") unsuccessfully sought to persuade the Privy Council to overrule the decision in both Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA (“The Siskina”) [1979] AC 210 and Mercedes Benz AG v Leiduck [1996] AC 284 and to hold that the BVI court has power to authorise service on a defendant outside the jurisdiction of a claim form in which a freezing injunction is the only relief sought. Citing the importance of the stare decisis doctrine, the Board confirmed that deviating from the established position of both common law and statute would lead to confusion and uncertainty not only in the BVI, but across all common law jurisdictions over which the Privy Council has authority. The Board accordingly dismissed Convoy's appeal on this point and affirmed the decision of both courts below that Dr Cho could not be brought within the jurisdiction of the BVI court by serving him with a claim form abroad.

With respect to the Power issue, the majority (Lords Leggatt, Briggs, Sales and Hamblen) held that Black Swan was correctly decided and that the Eastern Caribbean Court of Appeal in the present case was wrong to conclude that it should be overruled. The minority (Sir Geoffrey Vos, Lords Reed and Hodge) considered that the issue did not arise for decision on the appeal since all seven members of the Privy Council agreed that (a) there was, on the facts, no sufficient basis for the conclusion that Broad Idea was merely holding assets to which Dr Cho was beneficially entitled, (b) Broad Idea’s assets were not amenable to any process of execution to satisfy any judgment that might be obtained against Dr Cho in Hong Kong, and (c) that there was therefore no basis for a finding of a risk of dissipation.

Rosalind Nicholson, led by Richard Morgan QC (Maitland Chambers) with Andrew McLeod (One Essex Court), appeared before the Board on behalf of Broad Idea International Limited, supported by Murray Laing, Renell Benjamin and Eleanor Browne.

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