Mar 2012
BRITISH VIRGIN ISLANDS
COURT OF APPEAL
PROCEDURE – CPR 7.3(3)B – CPR 8.13 – SERVICE OUT – CLAIM “AFFECTING A CONTRACT” – RESTITUTION
The claim was essentially one for repayment of money mistakenly and/or fraudulently paid under a contract. The respondents, Swisstor and Wise Global and others, had invested in funds held by Lancer and Omnifund, which were operated as a Ponzi scheme. Swisstor and Wise Global had benefitted from dishonestly calculated redemptions by several million dollars each. The Receiver began proceedings in the BVI seeking restitution of the moneys paid to Swisstor and Wise Global.
The court below granted the Receiver permission to serve the claim form out of the jurisdiction under Civil Procedure Rules (“CPR”) 7.3(3)(b) on Swisstor and Wise Global Wise. Leave was subsequently set aside by the Commercial Judge. The Receiver appealed. The Court of Appeal made three notable findings. First, that the Learned Commercial Judge construed CPR 7.3(3)(b) too narrowly. The Court followed E.F. Hutton & Co (London) Ltd. -v- Mofarrij which held that a claim sufficiently “affected” a contract if there was a “sufficient direct link” to the contract. Second, the power in CPR 8.13 to extend the validity of the claim form is only to be exercised for “good reason”. Third, that Swisstor and Wise Global had a right to be sued by means of a claim issued within the statutory period of limitation and served within the period of the validity of the claim form.