Between: Maarit Ovaskainen Plaintiff v Jari Ovaskainen Defendant

• Jurisdiction: Cayman Islands
• Judge: Margaret Ramsay-Hale
• Judgment Date: 21 June 2023
• Docket Number: CAUSE NO. FSD 138 of 2023 (MRHCJ)
• Court: Grand Court (Cayman Islands)

Between:

Maarit Ovaskainen

Plaintiff

and

Jari Ovaskainen

Defendant

Before:

Hon Margaret Ramsay-Hale, Chief Justice

CAUSE NO. FSD 138 of 2023 (MRHCJ)

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FINANCIAL SERVICES DIVISION

HEADNOTE

Civil Procedure — Writ issued seeking to enforce foreign judgment at common law — Ex parte application for freezing injunction — principles on which freezing orders granted — disclosure orders in support of freezing injunction — Grand Court Act section 11 Civil Procedure — Substituted service — whether service impracticable — GCR O.65, r.4(3) .

Appearances:

Mr. Nicholas Yates KC, and with him, Ms Yvonne Mullen instructed by Hampson & Company, for the Plaintiff, ex parte

IN CHAMBERS

REASONS FOR DECISION

Introduction

1 On the 15 June 2023, I granted an Injunction on the application of the Plaintiff, Maarit Ovaskainen, freezing the assets of the Defendant, Jari Ovaskainen, in the Cayman Islands for reasons which I now put in writing.

Background

2 The application arises out of ancillary relief proceedings on divorce in Switzerland between the Plaintiff and the Defendant to whom I shall refer in the judgment as wife (W) and husband (H) notwithstanding they are divorced. I do so for convenience and intend no disrespect to either of the parties.

3 After their marriage, the parties relocated with their children first to London and then to Switzerland. In 2011, W asked H for a divorce. They subsequently entered into an agreement, known as a “ Convention de Divorce,” in November 2012. They then filed jointly for divorce in Switzerland in April 2013.

4 W subsequently discovered that H had not made full disclosure of his assets but had understated them by some USD240 million. Following on from that discovery, W applied to the Swiss court to set aside the agreement on the basis of fraud and fundamental error. The parties became thereafter embroiled in litigation which lasted 10 years and culminated in a judgment of the Swiss Federal Supreme Court dated 10 January 2023 in awarding W the sum of CHF 115,871,422 plus interest at 5% per annum from 31 August 2021 as her share of the matrimonial property.

5 W, thereafter, attempted to enforce the judgment in Switzerland. W's attorneys in Switzerland seized two properties in Switzerland which together are worth CHF12 million more or less. It was later discovered that the properties were very heavily mortgaged, deliberately, it was suggested, to defeat W's efforts to enforce the judgment.

6 A debt collection process commenced by W to enforce the judgment had to be abandoned when H changed his domicile from Switzerland to the Cayman Islands as by the time it was served, H had changed his domicile to the Cayman Islands. Under Swiss law, debt collection proceedings can no longer be continued if the debtor changes his domicile before the seizure notice is issued.

7 Disclosures made by H in the Swiss Court and inquiries undertaken by W reveal that a Certificate of Permanent Residency was issued to H under section 42 of the Immigration (Transition) Act on 20 July 2022 and that a 4-bedroom condominium at the Kimpton Seafire Resort and a luxury motor vehicle are registered in H's name.

8 W now seeks to enforce the judgment of the Swiss Court in the Islands. The judgment cannot be recognised and enforced pursuant to the Foreign Judgment (Reciprocal Enforcement) Act (1995 Revision) as the Governor has not by order extended the provisions of the law to Switzerland. The judgment may, however, be enforced at common law, the Court treating the foreign judgment as a debt due from the judgment debtor to the judgment creditor.

9 Such judgments are enforceable where the judgment is made by a competent foreign court, is for a definite sum of money and is final and conclusive.

10 In that regard, I note the decision of Levers J in Banco Mercantil Del Norte S.A (Grupo Financiero Banorte) v. Cabal Penich 2003 CILR 343, and to [8] of the judgment where she said this:

“ At common law the court will enforce the judgment of a foreign court in a claim in personam provided that the foreign court had jurisdiction over the judgment debtor in accordance with the rules of private international law…

(a) if the judgment debtor was, at the time the proceedings were instituted, present in the foreign country; or…

…

(c) if the judgment debtor was the defendant and submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings and contesting them on the merits;…”

11 H was present in Switzerland when the proceedings were instituted and has participated fully in them, contesting the judgments of the Courts below all the way to the Federal Supreme Court on two occasions until the judgment handed down on 10 January 2023 brought the proceedings to a conclusion. The judgment of the Federal Court is a final judgment making an order making an order dealing capital arising from the “liquidation of the matrimonial property regime” as distinct from a maintenance order which may be subject to variation by the foreign court.

12 On 29 May 2023, W duly issued a Writ of Summons seeking to enforce the judgment of the Swiss Federal Supreme Court at common law to recover a debt now due to her which stands at CHF 125,490. 337 including interest up to 9 May 2023 and interest accruing thereafter at the daily rate of CHF15,872.79 as a debt.

This Application

The Freezing Order

13 In this ex parte application, W seeks a freezing order in the following terms to preserve H's assets until her claim on the debt can be determined by this Court:

• 13.1 An injunction prohibiting the disposal of assets in the draft terms enclosed, including removal of assets up to the value of CHF125,664.938;

• 13.2 An injunction preventing the disposal charging or diminishing in value of s. 801 Seafire Residence, 45 Tanager Way, more particularly known as WBBN Block 11B Parcels 88H70 and 88H53; and

• 13.3 The...