Dec 2025
On 24 November 2025 the Privy Council handed down a judgment in a Bermudian claim for breach of contractual and fiduciary duties and fraudulent misrepresentation, issued by a high-net-worth individual Bidzina Ivanishvili against Credit Suisse Life (Bermuda) Ltd (CS Life), the insurer and issuer of the life insurance policies1. The fraud was committed by the former senior employee of the Credit Suisse AG (the Bank) who, acting as a relationship manager to Mr Ivanishvili, dealt in a fraudulent manner with the policy assets deposited with the Bank and held on trust by CS Life for the benefit of Mr Ivanishvili and his family. When the fraud came to light, Mr Ivanishvili initiated litigation proceedings against various Credit Suisse entities across the world: in Switzerland (criminal proceedings against the banker and civil proceedings against the Bank), in Singapore (a claim against the trustee for breach of fiduciary duties) and in Bermuda. In February 2018 the banker was convicted of fraud, forgery and other related offences, and sentenced to five years’ imprisonment.
This article will discuss whether a requirement of “awareness” is a legal requirement to succeed in the tort of deceit; whether the double actionability rule is still good law in (at last) Bermuda, and the role of the private international law doctrine of renvoi in the context of limitation periods. The two main questions before the Privy Council Board were as follows: (i) whether the Court of Appeal rightly dismissed the fraud claim because the plaintiffs did not plead and did not prove that Mr Ivanishvili had any conscious awareness or understanding of the implied representations made to him; and/or (ii) the claim failed due to a three year limitation period under Georgian law. The relevant facts, as found by the first instance judge, were that the banker by recommending to invest in the life policies impliedly represented to Mr Ivanishvili that the Bank was not and did not intend to manage the policy assets fraudulently. The representations were made in Georgia and were acted upon in Georgia.
Is “Awareness” a Legal Requirement of the Tort of Deceit?
Upon extensive analysis of the case law, the Board concluded that a requirement of “awareness” was never amongst the legal requirements of the tort of deceit and any past attempts to introduce such requirement were misconceived.
The Board discussed a string of authorities2 where representation was implied and considered the role of “awareness” of the claimant. The question would often arise when a customer would make an implied representation to pay by ordering a meal at the restaurant, by waving at the taxi or by raising a hand at the auction. For example, in Director of Public Prosecutions v Ray [1974] AC 370 a court found that by ordering a meal at the restaurant and leaving without paying for the order it was “trite law and common sense” that this was a straightforward example of a fraudulent misrepresentation. The Board concluded that in such scenarios it was unrealistic to suggest that there was any conscious awareness of representation by the claimant/victim, and it was plain from the authorities that the claimant was not aware of the representation made. Instead, there was an assumption by the claimant that the payment would follow. Similarly, Mr Ivanishvili assumed that the banking services will not be provided in a fraudulent manner. He was not required to show or prove that he was aware of the implied representation made. The Board considered authorities3 that introduced and discussed a requirement of “awareness” in depth and critiqued each of the authorities.
The Board was critical of a suggestion that there was a “quasi-automatic” or “quasi-reflexive” understanding or awareness of the implied representation. Although in the above discussed examples the claimant was aware of the conduct, he had not consciously applied his mind so that one could say the claimant was aware of the representation. Instead, the conduct led the claimant to an assumption. It was also wrong to suggest that somehow such assumption required an element of awareness to qualify as representation. The Board then considered two cases where the claimant was not even aware of the conduct: Gordon v Selico Ltd4 and Spice Girls Ltd v Aprilia World Service BV5. In Gordon v Selico the seller of the flat deliberately covered up the dry rot. It would be even more difficult to reconcile such cases with a requirement to show “awareness” since in such cases it is clear that the claimant was acting upon an assumption that there was no defective conduct. Similarly, Mr Ivanishvili assumed that the conduct of the banker would not be fraudulent.
The Board was not convinced that a distinction should be drawn between simple cases and complex cases, so that the requirement to show awareness is not a necessary element if the representation is simple. They went on to point to three misconceptions that seemed to have led to a suggestion that “awareness” was a legal requirement of the tort of deceit.
- The first was that without awareness the claimant allegedly would not be able to show reliance on the representation. The Board did not agree with a proposition that to prove causation the claimant must show that he gave conscious thought to the representation made. What matters is that the misrepresentation had in fact caused the claimant to act as he did and it does not have to be the sole operative cause.
- The second misconception relates to a particular type of case which concerns an ambiguous representation. The Board accepted that in such cases to show reliance the claimant must show his understanding of the representation. However, these cases are fact specific and should not be construed to require establishing awareness in all instances.
- The third and final misconception is that requiring awareness of representation is necessary to preserve the distinction between misrepresentation and non-disclosure, the latter not giving rise to liability. The key distinction here is that a non-disclosure occurs where a material fact was not disclosed to a claimant that had already held a false belief independently, while a misrepresentation gravitates in what the defendant has or has not done and not in the awareness of the claimant.
What we can take from this re-visit of fairly fundamental principles toward establishing actionable deceit, is the relaxation of the basis upon which a victim can seek redress in a world of increasingly complex and sophisticated fraudulent conduct. Knowing or being aware of a fraud is an unrealistic hurdle and barrier to justice. The analogy is crass but effective; restaurateurs should not have to rely on their instinct of their customer’s ability to pay before they serve the meal.
Is Double Actionability Rule Still a Good Law in some remaining Common Law Jurisdictions?
The Board considered obiter whether the “double actionability” rule continued to be good law in Bermuda, as per leading authority in Boys v Chaplin6, given that the rule has long been abolished in most leading common law jurisdictions due to its unfair effect on claimants. The Board noted that a more flexible approach could be adopted relaxing the requirement to prove that the tort is both actionable under the law of the forum and the law of the foreign country where the tort was done. The Board concluded that it was open for the parties to invite the Board not to follow Boys v Chaplin and to argue that the Board should apply the law where the tort was committed. Although in this particular case neither party had chosen to advance such an argument and the Board overturned the finding of the Court of Appeal that the Bermudian law should apply as a matter of exception, the Board made a clear indication that it is highly questionable whether Bermuda should continue to apply the double actionability rule in tort claims. Indeed, such observation may be an indication that the same approach would be adopted by the Board in relation to any other common law jurisdiction that continues to apply the archaic law. This would be a welcome eradication of another long-departed approach in most sophisticated jurisdictions.
Does the Doctrine of Renvoi Apply in Tort Claims?
Under Georgian law the limitation period for a tortious claim is three years. The claimant attempted to avoid the limitation period by suggesting that a doctrine of private international law known as “renvoi” should apply, the gist of which is that if the issue is governed by the law of a foreign country, the court should decide that issue by looking at the private international law rules of the foreign country and apply the law accordingly. The attempt did not succeed. The Board observed that Bermudian law was not different in this respect to the laws of England and Wales, where renvoi had no applicability to tort claims. There are practical reasons for ruling out the application of renvoi: application of renvoi makes it much harder to identify which country’s laws apply and by referring to the law of yet another foreign country the doctrine of renvoi requires looking at yet different rules of private international law, potentially resulting in a circular and/or endless renvoi (i.e. referral) to foreign law. Although the Board found against the application of renvoi in the context of Bermudian tort law, the same reasoning would be equally relevant in the context of the tort law of any other common law jurisdiction.
1Bidzina Ivanishvili & Ors v Credit Suisse Life (Bermuda) Ltd [2025] UKPC 53
2The Board at paragraph 130 of the Judgment provided the following summary of the relevant cases: “Pledging goods as security for a loan knowing that one has no title to the goods or authority from the owner to pledge them (Advanced Industrial Technology Corpn Ltd v Bond Street Jewellers Ltd [2006] EWCA Civ 923); ordering goods on credit on behalf of a company known to be insolvent (Contex Drouzhba Ltd v Wiseman [2007] EWCA Civ 1201; [2008] BCC 301); presenting company accounts to a buyer knowing that they had been dishonestly prepared (MAN Nutzfahrzeuge AG v Freightliner Ltd [2005] EWHC 2347 (Comm), para 78); and inviting someone to invest in a company known to be insolvent (Sinha v Taylor [2022] EWHC 1096 (Comm), para 57)”.
3Marme Inversiones 2007 SL v Natwest Markets plc [2019] EWHC 366 (Comm), paras 278-286; Leeds City Council v Barclays Bank plc [2021] EWHC 363 (Comm); [2021] QB 1027, paras 34-153; and Loreley Financing (Jersey) No 30 Ltd v Credit Suisse Securities (Europe) Ltd [2023] EWHC 2759 (Comm), paras 374-425
4(1986) 18 HLR 219
5[2002] EWCA Civ 15; [2002] EMLR 27
6[1] [1971] AC 356