Wahr-Hansen v Bridge Trust Company Ltd

• Jurisdiction: Cayman Islands
• Judge: (Smellie, J.)
• Judgment Date: 19 June 1995
• Court: Court of Appeal (Cayman Islands)
• Date: 19 June 1995

Court of Appeal

(Smellie, J.)

WAHR-HANSEN

and

BRIDGE TRUST COMPANY LIMITED, SLATTER, ATTORNEY GENERAL and COMPASS TRUST COMPANY LIMITED

R.D. Alberga, Q.C. and G. Ritchie for the appellant;

T.M.E.B. Etherton, Q.C. and A.J.E. Foster for the first and second respondents;

W. Helfrecht, Crown Counsel, for the third respondent;

N.R.L. Clifford for the fourth respondent.

Cases cited:

(1) Ashmore v. Corporation of Lloyd”s, [1992] 1 W.L.R. 446; [1992] 2 All E.R. 486, considered.

(2) Becker v. Bank of Nova Scotia, 1986–87 CILR 389, applied.

(3) Carl-Zeiss-Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853; [1966] 2 All E.R. 536.

(4) Imbar Maritima S.A. v. Republic of Gabon, 1988–89 CILR 286, considered.

(5) S Ltd. v. A Ltd., 1988–89 CILR N–4, considered.

(6) Spiliada Maritime Corp. v. Cansulex Ltd., The Spiliada, [1987] A.C. 460; [1986] 3 All E.R. 843.

(7) Wilson v. Church (No. 2)ELR(1879), 12 Ch. D. 454; 41 L.T. 296, distinguished.

Civil Procedure-stay of proceedings-stay pending appeal-stay only granted pending appeal if refusal would interfere with substantive right and render appeal nugatory-issue of forum conveniens essentially procedural not substantive-party seeking stay not prejudiced by refusal since still open to Court of Appeal to reverse or stay proceedings-court to have regard to desirability of not wasting costs

Civil Procedure-stay of proceedings-stay pending appeal-application for stay to single Judge of Court of Appeal not appeal from refusal of stay by Grand Court-separate application to be considered by court, although Grand Court”s reasons to be given considerable weight

The appellant sought a stay of proceedings pending his appeal against an order of the Grand Court.

The appellant was the plaintiff in proceedings in England claiming declarations that two Cayman Islands trusts were invalid and that their assets were actually held on trust for the estate of which he was the administrator. The respondents were amongst the defendants in those proceedings and they sought directions from the Grand Court as to how best to proceed in the interests of the trusts. The appellant, who was joined as a defendant in the Cayman proceedings, sought to stay them on the ground of forum non conveniens. The Grand Court (Harre, C.J.) refused to grant a stay and ordered the trial of two preliminary issues relating to the validity of the trusts. He granted leave to appeal but refused the appellant”s application for a stay pending his appeal. He also refused the appellant”s subsequent request for directions that the trial of the preliminary issues be postponed until after the disposal of his appeal on the ground of forum non conveniens.

The appellant appealed against the refusal of a stay pending appeal, submitting that (a) the refusal would operate to the detriment of his substantive rights and render the appeal nugatory; (b) it would prejudice his cause because (i) if the preliminary issues were resolved against him, his appeal against the trial of those issues as such might be regarded by the Court of Appeal as having been overtaken by events; (ii) the Court of Appeal might also take the view that the Cayman courts should be regarded as the forum conveniens because matters had progressed sufficiently far there; (iii) the Court of Appeal might uphold his appeal as to forum non conveniens but not deal with his appeal as to the trial of the

preliminary issues, in which case he might be prevented from raising those issues again in England under the doctrine of res judicata; and (iv) should the substantive preliminary issues be decided in favour of the respondents and upheld on appeal, the English court would be likely to conclude that the Cayman Islands should be regarded as the forum conveniens; and (b) the costs to the appellant of the trial of the preliminary issues would be wasted were his appeal on forum non conveniens to succeed.

The respondents, in reply, submitted that they were entitled to the benefit of the judgment in their favour unless and until it was overturned on appeal and that the appellant had shown no good cause for the imposition of a stay pending that appeal.

Held, dismissing the appeal:

(1) An application to a single Judge of the Court of Appeal for a stay of proceedings pending appeal was not an appeal from the refusal of a stay by the Grand Court. It was a separate application to be considered by the court, although the Grand Court”s reasons were important matters to be considered as it had heard extensive argument and was better placed to assess the issues involved (page 438, lines 22–34).

(2) A stay of proceedings pending appeal should only be granted if to refuse to do so would interfere with some substantive right of the party seeking the stay and thus render the appeal nugatory. The advantages to the appellant of having the issue of forum conveniens decided in his favour could not amount to such a right as it was essentially a procedural issue and neither party could claim a legitimate expectation to have it resolved in his favour. Further, the refusal of a stay could not prejudice the appellant”s case since the Court of Appeal itself had the power to set aside a decision on the validity of the trusts when the appeal on forum conveniens was heard if it believed that that decision was wrong and the Court of Appeal would undoubtedly stay the proceedings at a later stage if the appellant could establish that England was the proper forum. Moreover, since the validity of the trust was a pivotal issue which would have to be tried at some stage, and treating it as a preliminary issue was probably the most cost-effective approach, the costs to be expended on the trial of that issue could not be said to be wasted. It followed that the appellant had not shown good cause for granting a stay and his appeal would therefore be dismissed (page 440, lines 3–17;page 441, lines 26–41;page 443, lines 13–16;page 444, lines 12–22).

15	SMELLIE, J.: The background circumstances, for the purposes of the
present application, may be briefly stated.
The appellant is the plaintiff in English proceedings which he is said to
have instituted on behalf of the estate of a Norwegian gentleman named
Anders Jahre and in his capacity as the appointed administrator of Jahre”s
20	estate. Among other things, the claim there is for declarations that the
assets said to be settled in two Cayman Islands trusts are assets which at all
material times have been held on trust for Mr. Jahre”s estate, absolutely.
The Cayman Islands trusts in dispute are the trusts of the Continental
Foundation and the Aall Foundation, and the claim attacks their very
25	validity.
As the trusts are declared in the respective deeds of settlement to be
charitable in nature, the interests of charity generally are involved and thus
the Attorney General assumes the role of parens patriae.
The other present respondents are all named, together with some 80
30	others, as defendants to the appellant”s writ and statement of claim in the
English proceedings.
Given the allegation that the trusts are void and that the underlying
assets belong to the Jahre estate, it is not surprising that the trustees and
Compass Trust Co. (the latter in its capacity as the administrator of the
35	estate of the settlor, Thorlief Monsen) sought the directions and guidance
of the Grand Court as to how best to proceed in the interests of the trusts.
As a result, the appellant was joined as a defendant to the trustees”
originating summons on the directions of the Grand Court.
Given the pendency of the English proceedings, an early issue to be
40	resolved, which came up on a separate summons brought by the appellant
and dated November 9th, 1994, was whether the Cayman Islands are the
appropriate forum for the trial of the issues common to the parties. His
summons sought a stay of the trustees” Cayman proceedings on the ground
of forum non conveniens. The hearing of that summons lasted nine days
45	before the learned Chief Justice and in the end the application for the stay

was dismissed. Instead, the learned Chief Justice ordered the trial of two

preliminary issues relating to the validity of the trusts. He granted the

applicant leave to appeal, but refused his simultaneous application for a

stay pending the appeal. That was all by an order made on April 11th,

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