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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> BNP Paribas Jersey Trust Corporation Limited v de Bourbon des Deux Siciles [2020] JRC 078 (01 May 2020)
URL: http://www.bailii.org/je/cases/UR/2020/2020_078.html
Cite as: [2020] JRC 078, [2020] JRC 78
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Jurisdiction - order for service out of the jurisdiction to be set aside
|
Before : |
T. J. Le Cocq, Esq., Bailiff, and Jurats Ramsden and Austin-Vautier |
|
Between |
BNP Paribas Jersey Trust Corporation Limited |
Plaintiff |
|
And |
Camilla de Bourbon des Deux Siciles |
Defendant |
Advocate W. A. F. Redgrave for the Plaintiff.
Advocate D. S. Steenson for the Defendant.
judgment
the bailiff:
1. By Order of Justice dated 29th March, 2019, the Deputy Bailiff (now Bailiff) granted a world-wide freezing and discovery order in favour of BNP Paribas Jersey Trust Corporation Limited ("the Plaintiff") against Camilla de Bourbon des Deux Siciles ("the Defendant"). As part of that Order the Deputy Bailiff also gave leave to serve out of the jurisdiction.
2. In her summons dated 19th September, 2019 the Defendant seeks an order that the Order of Justice including the interim orders and the claim for damages for conspiracy and leave to serve out should be set aside and the interim injunction and disclosure order should not be discharged on the grounds that:-
(i) There is no good arguable case, nor a serious issue to be tried, as to the existence of a conspiracy to injure, alternatively to the full extent of the claim against the Defendant;
(ii) The Court of Curaçao is already seized of jurisdiction in this matter and the Royal Court is not a suitable forum;
(iii) The requirements of the jurisdictional gateway at 7(f) of the Service of Process (Jersey) Rules 1994 ("the 1994 Rules") have not been satisfied by the Plaintiff; neither the alleged damage sustained or the alleged acts giving rise to it occurred or arose in Jersey, nor do those acts collectively or individually constitute a tort.
The background and Order of Justice
3. The background and allegations set out below are taken from the Order of Justice and the accuracy or otherwise of those factual assertions and allegations do not fall to be determined in the current application.
4. The Order of Justice sought relief in respect of an alleged conspiracy between the Defendant and her mother Edoarda Crociani ("Madame Crociani"). It alleged injury by unlawful means, specifically that they acted together in breach of a pre-trial world-wide freezing order made by the Court on 4th August, 2016, against Madame Crociani and unlawfully failed to comply with disclosure orders made by this Court.
5. The factual background to the dispute in this matter has been referred to in a number of judgments of this Court. In essence, however, the Crociani family wealth was contained in a trust settled by Madame Crociani in 1987 called the Grand Trust. The Defendant and her sister were principal beneficiaries.
6. Pursuant to an appointment made on 9th February, 2010 ("the 2010 Appointment") the investment portfolio and the company owning various works of art were appointed from the Grand Trust to another Crociani family trust called the Fortunate Trust settled by Madame Crociani in 1990, of which Madame Crociani was the sole beneficiary during her lifetime. The Plaintiff and Madame Crociani were co-trustees of the Fortunate Trust.
7. By 2011 the Fortunate Trust held shares in companies owning 29 valuable artworks (including works by Van Gogh, Cezanne and Picasso) valued (as at 2010) in the sum of US$143 million. It is alleged in the Order of Justice that the market value is now substantially higher.
8. In April 2011 there was a breakdown in the relations between Madame Crociani and the Defendant on the one part and the Defendant's sister, Cristiana, on the other. It is alleged that from April 2011 the Defendant and Madame Crociani acted jointly to do all that was within their power to keep the family wealth in their hands only and to prevent it from being accessible to Cristiana.
9. In June 2011 Madame Crociani revoked the Fortunate Trust and took all of the assets to herself including an investment portfolio with a value of approximately US$100 million and the artworks mentioned above. Companies holding the artworks assigned them to a BVI company, Montfire Limited, on or around 1st July 2011. In 2012 Montfire assigned 21 paintings that it held to Madame Crociani so that from September 2012 Madame Crociani held all of the artwork in her own name. It is alleged that the investment portfolio was dissipated through numerous companies to prevent Cristiana from gaining access to it and the artworks were physically stored in a number of locations, most of them being stored in Singapore.
10. In 2013 Cristiana brought a breach of trust claim in the Royal Court which alleged breaches of trust by Madame Crociani, the Plaintiff and others as trustees of the Grand Trust. The Plaintiff subsequently filed a third party claim in which it sought an indemnity from Madame Crociani in respect of any sums it might be ordered to pay at trial to reconstitute the Grand Trust should the Plaintiff be liable for a breach of trust.
11. In 2016 the Plaintiff obtained a world-wide freezing and disclosure order against Madame Crociani to preserve assets to satisfy any order requiring Madame Crociani to indemnify the Plaintiff. Madame Crociani applied through counsel to discharge that order and the Court refused her application in November 2016.
12. The world-wide freezing and disclosure order prohibited Madame Crociani from disposing of, dealing in or diminishing the value of assets held for her benefit under her direct or indirect control up to a value of US$194 million. The order expressly included assets held by third parties in accordance with Madame Crociani's direct or indirect instructions. The order required her to disclose the location and nature of such assets. It is alleged that Madame Crociani has never complied with that requirement.
13. The Order of Justice further alleges that the Defendant and Madame Crociani had a common interest to prevent the Plaintiff from finding or enforcing any indemnity. It is alleged that they are both aware of the world-wide freezing and disclosure order and it is alleged that they conspired to frustrate and undermine that order by moving artworks from their stored locations to the end that the Plaintiff did not know where the artworks were. It is alleged they both knew that moving some of the artworks in combination with the refusal by Madame Crociani to comply with the disclosure order would be in breach of the world-wide freezing and disclosure order and make it impossible for the Plaintiff to enforce any indemnity judgment it obtained. It is alleged that each of the Defendant and Madame Crociani played their part in carrying out the conspiracy.
14. The Order of Justice alleges various steps taken by the Defendant and Madame Crociani following the refusal to comply with the world-wide freezing and disclosure order in November 2016 to further the shipping of various artworks from Singapore to Zurich. Those artworks comprise some 14 paintings including paintings by Cezanne, Matisse, Renoir, Chagall, Van Gogh and Modigliani among others. It is alleged that in furtherance of the conspiracy the artworks were dispersed to locations unknown to the Plaintiff.
15. It is also alleged that subsequently another five works of art were moved.
16. It is also alleged that both the Defendant and Madame Crociani have engaged in other acts in furtherance of the common design to injure the Plaintiff including the transfer of other works of art, the transfer of a lease of a Paris apartment to the Defendant from Madame Crociani (with the legal effect of deeming any property held in the apartment to be the Defendant's) and that the Defendant in 2018 and 2019 swore affidavits in purported compliance with the Royal Court disclosure order which made no reference to the movement of the artworks.
17. Following trial of the breach of trust action referred to above, the judgment of the Court was handed down in September 2017. It ruled that Madame Crociani and the Plaintiff and another had committed breaches of trust and were liable to reconstitute the Trust Fund in respect of certain assets transferred from the Grand Trust. Madame Crociani and the Plaintiff were held to be jointly and severally liable to reconstitute that Trust and also were held to be jointly and severally liable to Cristiana personally for compensation. The Court also made certain orders requiring Madame Crociani to indemnify the Plaintiff for substantial sums, which indemnity she has failed to discharge.
18. At paragraphs 47 and 48 of the Order of Justice the Plaintiff says this about its loss:-
"47. The loss suffered by the Plaintiff by reason of the unlawful acts of the Defendant and Madame Crociani is the total sum due to the Plaintiff from Mme Crociani by virtue of the indemnity order, less any recoveries made.
48. The Plaintiff, a Jersey incorporated company whose place of business is Jersey, suffered this loss in Jersey as a result of breach of a Jersey court order. Had the indemnity order been honoured, the funds would have been paid to the Plaintiff in Jersey."
19. The statement set out in paragraph 48 of the Order of Justice underpins the justification asserted by the Plaintiff to bring this action against the Defendant, who is not a Jersey resident, before these Courts and why in part, the Court should take Jersey to be the forum conveniens for the trial of this action.
20. The Order of Justice was supported by an affidavit sworn by Lynne Catherine Gregory on 28th March, 2019, ("the Gregory Affidavit") to which reference will be made hereunder.
21. The essence of the Defendant's claim in the application before us is that the Plaintiff does not have a good arguable case on the merits and in any event the order for service out of the jurisdiction should be set aside.
Service out of the jurisdiction
22. The main basis upon which the Defendant challenged the proceedings was on the issue of service out of the jurisdiction.
23. The test that applies is that referred to in Maywal Limited v Nautech Services Limited [2014] (2) JLR 527 in which the Court of Appeal, at paragraph 23 and 24 of that judgment said this:-
"23-�On an application for leave to serve out there are three hurdles for a plaintiff to surmount:
(i) First, the Royal Court needs to be satisfied that there is a good arguable case that the claim meets the requirements of at least one of the various permissible gateways set out in r.7.
(ii) Secondly, the Royal Court needs to be satisfied that on the merits of the claim there is a serious issue to be tried.
(iii) Thirdly, the Royal Court needs to be satisfied that Jersey is the suitable forum for the trial of the claim. (As mentioned below, on this appeal the English defendants accept that Jersey is the suitable forum.)
24-�We add, however, that on occasion descriptions of the three hurdles reverse the order of the first and the second. An example is in the judgment of Lord Clarke of Stone-cum-Ebony in VTB Capital plc v. Nutritek Intl. Corp. (12) ([2013] 2 AC 337, at para. 164), where he quoted a summary of the relevant principles as stated by Lord Collins of Mapesbury in the opinion of the Board of the Privy Council in AK Inv. CJSC v. Kyrgyz Mobil Tel Ltd. (1), in particular ([2012] 1 WLR 1804, at para. 71) (a passage relied upon by the English defendants). For present purposes, the order in which the various hurdles are taken is of no consequence. But these recent instances, of high authority, in which the sequence is reversed are destructive of an argument made orally by Advocate Blakeley to the effect that it would be wrong to consider first the "serious issue to be tried" requirement before considering the r.7 gateways."
24. And then at paragraph 33 of the judgment the Court said:-
"Further, the "good arguable case" description of the first-stage requirement has recently been used by the Privy Council, where it was explained that it connoted "that one side has a much better argument than the other" (see AK Inv. CJSC v. Kyrgyz Mobil Tel Ltd. (1) ([2012] 1 WLR 1804, at para. 71, per Lord Collins of Mapesbury)."
25. In Campbell v Campbell and Longton Holdings Limited [2014] (2) JLR 465 Birt, Bailiff said this at paragraph 21:-
"Where an order has been made granting leave to serve a defendant out of the jurisdiction, the defendant may apply to set that order aside. Both on the original application for leave and on the hearing of any application to set aside, the burden lies on the plaintiff to show that Jersey is clearly the natural or appropriate forum in which the case can be suitably tried for the interests of all the parties and for the ends of justice (see Spiliada Maritime Corp. v. Cansulex Ltd. (5) ([1987] A.C. at 481, per Lord Goff of Chieveley)."
26. It appears to be common ground that the Court, in considering an application to set aside leave to serve out must consider the position at the time the permission was granted, that is the date of the Order of Justice.
27. The Defendant challenges the leave to serve out of the jurisdiction on all three of the grounds set out in Maywal and, in doing so, makes reference to the evidence placed before the Deputy Bailiff relating to the alleged conspiracy which is, of course, the fundamental basis of claim contained in the Order of Justice.
28. The Defendant addresses paragraph 16 to 24 of the Gregory Affidavit which sets out the points made under the heading "Good arguable case on the merits". The Defendant points out that paragraphs 16 and 17 of the Gregory Affidavit amount to, primarily, submissions explaining why, in the view of the deponent the facts set out in the Order of Justice disclose a good arguable case of conspiracy. They are not, in the Gregory Affidavit, assertions of fact. It is pointed out by the Defendant that the affidavit relating to the world-wide freezing and disclosure order referred to in paragraph 18 of the Gregory Affidavit is made against Madame Crociani and not against the Defendant.
29. Paragraph 19 relates to the first point that the Defendant concedes could conceivably support a conspiracy claim. It is a telephone call made by the Defendant and her mother to insurers relating to the artworks mentioned above to arrange insurance for the transfer of 14 paintings from Singapore to Switzerland. It is pointed out that the evidence in support of the claim relating to the insurance exists purely in a deposition of a Ms Diane Jackson who was the counter-party to that telephone conversation. She was asked who she was talking to about moving assets and she confirmed that she was talking both to Madame Crociani and the Defendant and further confirmed that generally when she would speak with Madame Crociani the Defendant would act as a translator of sorts. The following exchange appears at page 389 of that transcript:-
"Q Did Camilla act as a translator of sorts for Edoarda?
A Yes
Q So every time you spoke with Camilla, did you understand the directives to be coming from Edoarda?
A Yes
Q And what did Edoarda and Camilla or Edoarda through Camilla tell you at this point in time?
A The items were being moved to this location and when items were moved to the new location, especially 63 million dollars, you ask for some details about the location, security information typically. There's a low alarm and a fire alarm.
Q And they didn't even want to tell you the location?
A No."
30. This, so the Defendant asserts, is evidence consistent with the Defendant's innocence. She was regarded by Ms Jackson as a translator for Madame Crociani. It is hardly, so the Defendant says, evidence of conspiracy that is compelling.
31. Paragraph 20 of the Gregory Affidavit makes assertions that the Plaintiff had become aware of seven paintings being held in Miami that had formerly been held in Singapore. It is not, however, so the Defendant asserts, factual evidence of what took place or the role that the Defendant may have played in it if any.
32. Similarly, at paragraph 21 of the Gregory Affidavit, it is asserted that the Plaintiff has very recently become aware that eleven pieces of artwork are being held in Geneva. Eight of the items had previously been located in Singapore. The affidavit says:-
"Although Matisse is owned by the Defendant, it may well be that this holding structure has been created by the Defendant and her mother in order to conceal Madame Crociani's ownership of the paintings."
33. Again, the Defendant characterises this as evidence of conspiracy that could not in any sense be said to be compelling. Paragraphs 23 and 24 of the Gregory Affidavit do not contain factual assertions other than an assertion that the alleged conspiracy has caused loss to the Plaintiff because it cannot enforce its indemnity order against any of the assets attributable to Madame Crociani. The Defendant further argues that the transfer of leases into the name of the Defendant does not unequivocally support any conspiracy to injure the Plaintiff. The allegation that the lease transfer was part of the conspiracy appears to be based simply on the fact that it happened and the Plaintiff can point to no reason to assume that it happened in furtherance of the conspiracy alleged.
34. The third basis which the Defendant concedes might be said to support the conspiracy claim is the fact that the Defendant in swearing affidavits omitted to refer to the transfer of the artworks and the lease and refused in January 2019 to comply with an order dated 14th December, 2018, that she disclose her knowledge of the movements of the artworks saying that she could not do so because of Monegasque law. The Defendant asserts that these failings are hardly persuasive in terms of an allegation of conspiracy and of failure by a daughter to disclose information in order to protect her mother does not and cannot of itself equal a conspiracy between them.
35. The Defendant also points out that the Plaintiff's claim is for the enforcement of an indemnity which is not the same as a money judgment in the sum of US$130 million. It is further said that the Plaintiff knows the whereabouts of many of the artworks and it could only suffer damage if those artworks had been successfully hidden and indeed 18 had already been recovered.
36. There is also, so the Defendant says, an attachment on the paintings in place in proceedings before the Courts of Curaçao. The Defendant points to the fact that in paragraph 47 of the Gregory Affidavit it is acknowledged that the Plaintiff has frozen some of the artworks in other jurisdictions and that "in due course" the quantum of loss for the conspiracy will be reduced if the Plaintiff is able to recover under the indemnity judgments by enforcing it against those assets. The Defendant asserts that the serious issues it raised by this situation as to quantum of the claim should have been drawn to the Deputy Bailiff's attention who would inevitably then have questioned the Plaintiff as to the extent of the loss. The Court should have been alerted to the serious questions as to value.
37. In response to these arguments on the serious issue to be tried, the Plaintiff argued that its case focusses primarily upon the Defendant's involvement in the movement of paintings the day that the world-wide freezing and disclosure order was confirmed. That timing is important because it justifies the inference that the purpose of the actions was to remove the paintings. It is disputed that the Defendant was simply acting as a mouthpiece for her mother and exhibited to the Gregory Affidavit is an email of 26th November, 2016, from Diane Jackson to a colleague referring to the telephone call that she had received from the Defendant and Madame Crociani. Throughout she characterised the communication as coming from both of them and says, in the penultimate paragraph:-
"I intend to move the items on the schedule to the new location. I will also send a storage facility application to see if I can get them to complete it. I have a feeling they are trying to sell the works or they are moving the items so the other daughter doesn't know where they are."
38. That email, so the Plaintiff alleges is compelling evidence of a conspiracy coming as it does on the day of the court's decision.
39. Looked at in the round, so the Plaintiff submits, there was clear evidence on which the Court could consider that there was a good arguable case for conspiracy.
40. We agree. In our judgment, the cumulative effect of the matters deployed in the Gregory Affidavit and in the Order of Justice amount to an arguable case for conspiracy the effect of which may well have deprived the Plaintiffs of the benefit of its indemnity and was done for that purpose. Naturally we do not state that that is positively the case - that would be impossible to do - but applying the test of whether there is a serious issue to be tried on the merits we are satisfied that there is such an issue.
The jurisdictional gateway
41. In seeking leave to serve out of the jurisdiction of this Court the Plaintiff relied on the jurisdictional gateway set out in Rule 7(f) of the 1994 Rules which is in the following terms:-
"7. In certain cases service of summons allowed out of jurisdiction
Service out of the jurisdiction of a summons may be allowed by the Court whenever -
...
(f) the claim is founded on a tort and the damage was sustained, or resulted from an act committed, within the jurisdiction;"
42. At paragraph 52 of the Gregory Affidavit, the Plaintiff relies on a number of factors to establish that it suffered or sustained damage in Jersey. They are:
(i) That the Plaintiff is resident in Jersey;
(ii) That the Plaintiff's bank account into which the judgment sum should have been paid is in Jersey;
(iii) The breach of trust litigation took place in Jersey and the world-wide freezing and disclosure order of which it was a part was made in Jersey;
(iv) The indemnity judgment given against Madame Crociani was made in Jersey;
(v) The Plaintiff has received less (ie nothing) than it would have received pursuant to a Jersey Court order, had the assets not been moved and had the judgment been successfully enforced; and
(vi) The Jersey indemnity order has been rendered essentially worthless by the unlawful acts of the Defendant and Madame Crociani.
43. In the Plaintiff's skeleton argument in support of the application before the Deputy Bailiff, at paragraph 11, the Plaintiff said that it had "been frustrated in recovering under its indemnity judgment against Mme Crociani by reason of the breaches. If the assets had remained where they were, under Madame's name, and/or, if the Defendant and her mother had truthfully disclosed the whereabouts of the assets, the Plaintiff would have been able to enforce against them. The loss caused by the conspiracy is therefore the sum that would have been recovered from Mme Crociani but for the breach, but has not been recovered."
44. The Defendant submits, and it seems to us to be clearly the case, that none of the acts by the Defendant and/or Madame Crociani giving rise to the damage took place in Jersey. The change of the ownership of the lease, the telephone call in collection with insurance, the transfer of any paintings were not matters that took place in Jersey.
45. Accordingly, so the Defendant contends, it is only if the Plaintiff could demonstrate that the damage resulting from the alleged conspiracy was sustained in Jersey could the requirements of Rule 7(f) of the 1994 Rules be satisfied.
46. The Defendant points out that Madame Crociani is not under any obligation to pay the Plaintiff any sum of money in Jersey. Her obligation is to indemnify the Plaintiff for whatever it has paid in reconstitution of the Grand Trust but there is no requirement that the money is paid into a Jersey Bank account.
47. The Defendant further argues that if the Plaintiff is right in its argument, and it suffers loss because it has received no payment into its bank account in Jersey, then the logical consequence of that would be that any tort which caused economic loss to a Jersey Plaintiff, of any kind, would give this Court jurisdiction over any Defendant, no matter where the tort itself occurred.
48. The Plaintiff relies in part on the judgment of Maywal Limited (above) and specifically at paragraph 112 of the judgment which was itself considering paragraph 28 of the judgment in the case of Nautech v CSS [2014] (1) JLR 361 in which the Court said:-
"112-�It is convenient at this point to refer to the criticism of para. 28 of the judgment which Advocate Blakeley made in his oral submissions to us. This paragraph is in the following terms:
2014 (2) JLR 560
"We are satisfied that the claims brought by the plaintiff against the English defendants are based in tort. Furthermore, it seems to us that to the extent that the plaintiff claims that the English defendants were party to a conspiracy or agreement for the Jersey defendants to take various steps within the jurisdiction, the plaintiff is entitled to say that the damage was sustained or resulted from an act committed within the jurisdiction even though the agreement between the Jersey defendants and the English defendants as pleaded may equally have been completed in England rather than in Jersey. We think that in r.7(f) the words 'within the jurisdiction' qualify the second part of the sentence, namely where the damage was sustained or where the act was committed which led to that damage taking place. Accordingly, even if the agreement which gives rise to the conspiracy was made out of the jurisdiction and the English defendants did nothing themselves within the jurisdiction, the claim falls within r.7(f) because the damage was sustained within the jurisdiction; and alternatively, because the damage resulted from acts committed within the jurisdiction. Accordingly, we think that the claim for service out of the jurisdiction falls within r.7(f) and that the plaintiff can bring its application for service out on that basis.""
49. This appears to us to have been specifically approved by the Court of Appeal in Maywal.
50. That does not, however, to our mind dispose of the question. The question is whether the Plaintiff can establish a good arguable case that its claim falls, in this case, within Rule 7(f). That, it seems to us, requires us to consider how it is said that the damage has been sustained in Jersey. The matter has been considered further by the Courts of England and Wales which has very similar rules to Rule 7(f) of the 1994 Rules.
51. In the case of Eurasia Sports Limited v Aquad [2018] EWCA Civ 1742 the Court said:
"Paragraph 3.1(9)(a) ("the tort gateway")
A claim is made in tort where -
(a) damage was sustained, or will be sustained, within the jurisdiction.
...
Tort gateway
21. To pass through this gateway England and Wales must be the place where the damage was sustained. That place is not simply where the claimant sustains financial loss. It is where the event giving rise to the damage directly produces its harmful effects on the person who is the victim of the act: see by analogy the EU case Dumez France v Hessische Landesbank (Helaba) Case C-220/88 [1990] ECR I-49 at [20].
...
23. In Dolphin Maritime & Aviation Services v Sveriges Anfartygs Assurans Forening [2009] EWHC 716 (Comm); [2009] 2 Lloyd's Rep 123 Dolphin, a marine recovery agent, traded on terms which required any recovery to be paid direct to its bank account which was in London. It sued the defendant P&I club for the tort of inducing breach of contract by paying Dolphin's clients, the underwriters, directly to its bank account in Turkey. Christopher Clarke J (as he then was) held that the place where the harm occurred was London, because that was where the money should have been paid (see [58] to [59]). At [60] he added:
"I do not ignore the danger of conflating the place where the damage occurred with the place where the loss was suffered. There is, however, a difference between a case in which the claimant complains that he has lost his money or goods ... and a case in which the claimant complains that he has not received a sum which he should have received. In the former case the harm may be regarded as occurring in the place where the goods were lost ... or the place from or to which the monies were paid ... although the loss may be said to have been suffered in the claimant's domicile. In the latter case the harm lies in the non receipt of the money at the place where it ought to have been received, and the damage to him is likely to have occurred in the place where he should have received it. That place may well be the place of his domicile and, therefore, also the place where he has suffered loss. An analogy may be drawn with the non delivery of cargo at the destination point...""
52. In that case the Court was dealing with a challenge to grant permission to serve out of the jurisdiction under a tort gateway which uses language which is similar to that in Rule 7(f) of the 1994 Rules. It requires consideration of where "the damage was sustained".
53. The Court reasoned by analogy with the prevailing European Court of Justice case law and found that the damage was sustained not simply where the claimant may have sustained loss but rather where the event giving rise to the damage directly produced its harmful effects on the person who was the victim of the act.
54. A very similar set of circumstances was considered by the Courts of England and Wales in JSC BTA Bank v Khrapunov [2016] EWHC 230 (Comm) in which Teare J considered whether damage arising from unlawful means conspiracy fell within the gateway applicable in England, namely Article 53 of the Lugano Convention 2007 which provides that a person may be sued in matters relating to tort "in the courts of the place where the harmful event occurred or may occur".
55. Teare J held that the damage that resulted from the alleged conspiracy in that case did not occur in England because the plaintiff bank's loss was the receiver's inability to realise assets which had been interfered with by virtue of the conspiracy. The Court at paragraph 38 et seq said the following:-
"The place where the harmful event occurred
Place where the damage occurred
40. The meaning of the "place where the damage occurred" has been considered by the European Court of Justice in several cases since Bier. Fortunately for me they have recently been reviewed by the Court of Appeal in AMT Futures Ltd v Marzillier [2015] QB 699 at paragraphs 17-34. Christopher Clarke LJ summarised the effect of the authorities at paragraph 54 by asking the following "questions (i) what is "the place where the event giving rise to the damage ... directly produced its harmful effects upon" AMTF (the Dumez France case [1990] ECR I-49)"; (ii) where was the "actual damage" which "elsewhere can be felt" or the "initial damage" suffered (the Marinari case [1996] QB 217 ); and (iii) what was "the place where the damage which can be attributed to the harmful event ...by "a direct and causal link" (the Réunion Européenne case [2000] QB 690) was sustained". I consider that I should ask those questions in order to determine the place where the damage occurred. In answering those questions I am mindful of the approach of Popplewell J at first instance in AMT Futures which was approved by the Court of Appeal at paragraph 32:
"The search will be for the element of damage which is closest in causal proximity to the harmful event. This is because it is this causal connection which justifies attribution of jurisdiction to the courts of the place where damage occurs: see the Bier case [1978] QB 708, paras 16-17 and the Dumez France case [1990] ECR I-49, para 20."
56. On appeal the Court of Appeal said that Teare J's application of the Article in question "cannot be faulted" and at paragraph 70 went on to say:-
"In my view, the judge's application of limb (a) of Article 5(3) cannot be faulted. I agree with it. In my judgment it is particularly strongly supported by the judgment of the ECJ in the Marinari case [1996] QB 217, at paras. [12]-[15]. At para [14] the ECJ was concerned to limit the element of jurisdictional choice imported into Article 5(3) under limb (a), and did so by focusing its application on the place where damage was suffered first or most immediately (limb (b) "cannot ... be construed so extensively as to encompass any place where the adverse consequences of an event that that has already caused actual damage elsewhere can be felt" - my emphasis); and hence at para. [15] the ECJ again emphasised a distinction between the state where the "initial damage" arises (which will on that ground, if it is a contracting state, have jurisdiction under limb (a)) and the contracting state where "financial damage consequential" on that initial damage arises (which will not have jurisdiction under limb (a)). In the present case, the steps allegedly taken to hide assets in other jurisdictions disabled the Bank from getting its hands on those assets in those jurisdictions and using them to satisfy its judgments against Mr Ablyazov, and accordingly it is in those jurisdictions that actual damage was suffered first or most immediately by the Bank, even though it was reflected consequentially as damage in the form of a diminution in the financial value of the judgments and orders in its favour." (see Khrapunov v JSC BTA Bank [2017] EWCA Civ 40).
57. This case was taken to the Supreme Court on grounds other than that determination by Teare J. A late application to amend the notice of appeal to cover that further point was turned down by the Supreme Court.
58. It is the Plaintiff's argument that the approach in England and Wales should not be followed in Jersey. The reasons advanced by the Plaintiff are essentially as follows:-
(i) Jersey is not bound by the jurisprudence of the European Court of Justice and is not a party to the Lugano Treaty. It is not therefore required to rule "by analogy";
(ii) The provisions of the Lugano Convention/Brussels regulation are worded differently to Jersey's Rule 7(f);
(iii) Decisions of the Supreme Court of England and Wales are not binding on the Jersey courts;
(iv) There is no Jersey jurisprudence requiring the phrase "the damage was sustained" to be read as "damage was first sustained";
(v) The Plaintiff understands that the Singapore Courts would be unlikely to accept jurisdiction. Singapore would not be considered to be the appropriate forum. It is argued that if the Defendant would not therefore agree to submit to the jurisdiction of the Curaçao Court the only other possible forum would be Monaco where world-wide freezing injunctions are not available;
(vi) The Courts of Jersey are well placed to consider the evidence in the case, which is mostly in the English language and includes judgments of this Court and to rule on the effect and meaning of a world-wide freezing and disclosure order. The Jersey Courts have an interest in hearing a case involving the breach of a Jersey court order and is familiar with the background to the matter.
59. Those last two points do not seem to us to be points that should influence the correct interpretation of Rule 7(f). They may well support an argument that Jersey is the appropriate jurisdiction but only if it can be established that the Plaintiff can otherwise get within Rule 7(f).
60. The Plaintiff in effect, therefore, argues for a broader interpretation of Rule 7(f) than is given to similar provisions by the Courts of England and Wales.
61. The Defendant urges that such a wider interpretation should not be given to Rule 7(f). In any event, the Lugano Convention represents an agreed international standard and although Jersey is not a party to it, it would be unwelcome were the Island to depart in this instance from the interpretation given to similar provisions by the Courts of England and Wales which are guided by that Convention. It would lead, as we have said above, on the Plaintiff's argument to a situation where every tort causing loss to a Jersey bank could be tried by the courts in Jersey assuming a jurisdiction under Rule 7(f). There must, so the Defendant argues, be some limit and the interpretation of the Courts of England and Wales, following the Lugano Convention, is to be preferred.
62. We accept of course that we are not bound by any determination by the Courts of England and Wales but we find them useful given that there is no Jersey case on the interpretation of that part of Rule 7(f) dealing with where the damage must be sustained.
63. To break down the constituent parts of Rule 7(f) it is clear that the claim is founded on a tort and as we have already indicated that in our view there is sufficient to determine an arguable case and serious issue on that matter. The second part of the Rule, however, requires that damage was sustained, or resulted from an act committed, within the jurisdiction. There is no allegation in the Order of Justice of any actions within the jurisdiction relating to the conspiracy and accordingly, as indicated above, the only question that falls to be considered is whether the damage was sustained within the jurisdiction. It seems to us that the concept of sustaining damage within the jurisdiction in so far as it relates to a financial claim must be more than simply being less well off as a result of things that took place elsewhere. If it simply meant that, then any plaintiff would be able to sue for any financial injury resulting from a tort no matter where it took place and how otherwise tenuous the connections with Jersey might be. That cannot be right. We contrast that position of course with one in which there is a direct obligation to remit funds to Jersey where different circumstances may apply.
64. In our judgment the better view is that set out in the jurisprudence of the Courts of England and Wales. Although we are not bound by the Lugano Convention or the jurisprudence which uses it to reason by analogy or otherwise, we can it seems to us give due weight to the position set out in the Convention which is widely applied. In our view the correct interpretation of Rule 7(f) is that which follows the Convention. In other words, the Plaintiff's loss, if ultimately established as a result of the conspiracy did not, in our judgment, occur in Jersey and accordingly the Plaintiff cannot satisfy Rule 7(f).
Forum conveniens
65. The Defendant also attacks the Plaintiff's leave to serve out of the jurisdiction on the grounds that Jersey is not the appropriate forum.
66. The Defendant points to the Gregory Affidavit at paragraphs 56(e) to (f) which asserts that neither the courts of Singapore nor of Monaco would be appropriate jurisdictions. The Defendant points out that no mention is made of Curaçao.
67. The Gregory Affidavit does make reference to the Curaçao proceedings at paragraphs 43 and 44. In paragraph 43 it is asserted that the Defendant might challenge whether or not Jersey is the appropriate forum and makes reference to the fact that the Plaintiff had filed a claim in Curaçao against her in February 2019. The claim in Curaçao is characterised as seeking relief from the courts in Curaçao for damage suffered by the Plaintiff as a result of the Defendant's unlawful actions and her conspiring with Madame Crociani. In paragraph 44 of the Gregory Affidavit it is asserted that the Defendant might argue that there is a risk of inconsistent rulings from "two related matters being litigated in different jurisdictions". The Curaçao claim was filed in February 2019 to secure for the time being a pre-judgment attachment over claims the Defendant has against a company International Future Ventures and Investments NV which is the holding company at the top of the Croci Group. It confirms that the Plaintiff will not seek to recover through both the Curaçao claim and the proceedings more than the liability due under the indemnity.
68. It is clear, therefore, that the Curaçao proceedings in so far as it is mentioned in the Gregory Affidavit covers, to an extent, at least some of the same subject matter as contained in the instant proceedings. It is strange, so the Defendant asserts, that the Curaçao proceedings were not appended to the Gregory Affidavit.
69. The Defendant's application is supported by an affidavit of Nicholas Barry René Mière of 17th May, 2019 ("the Mière Affidavit"). The Mière Affidavit exhibits a statement of Chester Alan Peterson who is a lawyer admitted to the Curaçao Bar and who gives evidence in connection with the Jersey proceedings. Mr Peterson acts for the Defendant in the proceedings in Curaçao. He notes that there are close similarities between the instant proceedings and the Curaçao proceedings and amongst other things the Curaçao proceedings seek a declaration that the Defendant is liable for all damage that the Plaintiff has suffered as a result of actions and omissions of the Defendant in order to make it impossible for the Plaintiff to recover from Madame Crociani, orders for compensation on the same basis and for costs. A copy of the Curaçao proceedings (as unofficially translated from the original Dutch) was appended to Mr Peterson's statement. It is notable that the parties to the proceedings are the same as the parties in Jersey and in the introductory paragraphs reference is made to a claim by the Plaintiff against Madame Crociani of more than US$100 million and a violation of the world-wide freezing and disclosure order. The background refers amongst other things to the dispute with Cristiana and the transfer from the Grand Trust to the Fortunate Trust mentioned within the instant Order of Justice. There is reference to the proceedings that have taken place in the past in Jersey and to the world-wide freezing and discovery order and at paragraph 35 there is also reference to the transfer of paintings from Singapore, Zurich, the telephone conversations setting up insurances and the transfer of the Monegasque apartments.
70. Without going into more detail it appears, therefore, that there is a substantial similarity between the Curaçao proceedings and the instant case.
71. The principles applicable to forum conveniens are set out in the seminal case on the matter, Spiliada Maritime Corp v Cansulex Limited [1987] AC 460 where at page 13 paragraph (d) dealing with part of the summary of the law on the matter, the Court said:
"Since the question is whether there exists some other forum which is clearly more appropriate for the trial of the action, the court will look first to see what factors there are which point in the direction of another forum. These are the factors which Lord Diplock described, in MacShannon's case [1978] A.C. 795, 812, as indicating that justice can be done in the other forum at "substantially less inconvenience or expense." Having regard to the anxiety expressed in your Lordships' House in the Société du Gaz case, 1926 SC (HL) 13 concerning the use of the word "convenience" in this context, I respectfully consider that it may be more desirable, now that the English and Scottish principles are regarded as being the same, to adopt the expression used by my noble and learned friend, Lord Keith of Kinkel, in The Abidin Daver [1984] A.C. 398, 415, when he referred to the "natural forum" as being "that with which the action had the most real and substantial connection." So it is for connecting factors in this sense that the court must first look; and these will include not only factors affecting convenience or expense (such as availability of witnesses), but also other factors such as the law governing the relevant transaction (as to which see Crédit Chimique v. James Scott Engineering Group Ltd., 1982 S.L.T. 131), and the places where the parties respectively reside or carry on business."
72. The Curaçao proceedings have been dealt with in correspondence between the parties. In a letter of 25th July, 2019, Baker and Partners acting for the Plaintiff wrote to the Defendant's legal advisors and said amongst other things:-
"During the 19th August 2019 docket hearing in Curaçao, BNPJ (the Plaintiff in this case) has the opportunity to file an additional statement and produce further evidence that was not available at the time that the Curaçao proceedings were filed. We are writing now to let you know that BNPJ currently intends to file an amended claim at this docket hearing. This will include a comprehensive description of all acts of which we are currently aware that BNPJ makes a complaint of against the defendant and her co-conspirators. We anticipate this will therefore encompass within it all matters about which complaint is already made in the Jersey conspiracy proceedings. We do not envisage that this will in any way affect the defendant's clear decision not to dispute the jurisdiction of the Curaçao courts in the Curaçao proceedings.
"Continuing without prejudice to the plaintiff's position, our hope and expectation is therefore that all parties may be able to agree that Curaçao should be the jurisdiction where all aspects of these claims can be determined and that we can save costs by avoiding unnecessary duplication ...""
73. To that letter on 30th July 2019 the Defendant's legal advisors responded in the following terms:-
"In our view, the point is this, the Princess is prepared irrevocably to submit to the jurisdiction of the Curaçao courts for the purposes of the claims you have brought against her and has said so through Mr Peterson and that should be sufficient for your client to discontinue proceedings here in Jersey immediately."
74. We do not need to set out any more from those letters. The Defendant submits that they amount to a concession, although post-dating the Order of Justice, that the Courts of Curaçao are the appropriate courts to deal with the dispute between the Plaintiff and the Defendant.
75. We do not suggest that the original proceedings in Curaçao, and we do not know whether they have been amended, were identical in all particulars to the claims made in the instant case. It is clear, however, that the Plaintiff had commenced proceedings first in Curaçao and was of the view as subsequently indicated in the letters to which we have made reference, that the Curaçao courts were competent to deal with not only the claims made but, as it now appears, the entirety of the claims.
76. Of course there is nothing in principle wrong with a Plaintiff starting proceedings in more than one jurisdiction on similar or identical subject matter provided that the Plaintiff does not intend to proceed in more than one jurisdiction against a defendant. We are surprised, however, that in the application made before the Deputy Bailiff, and specifically on the matter of Jersey being the appropriate forum, the nature of the Curaçao proceedings was not more fully explained nor was a copy of the proceedings exhibited to the Gregory Affidavit or otherwise. In our judgment, much more should have been laid before the Deputy Bailiff in connection with the Curaçao proceedings.
77. In the circumstances, we do not think that we can be satisfied that Jersey is the appropriate forum for these claims. A similar claim was first raised in Curaçao and it is clear that the Plaintiffs are content that the proceedings continue in Curaçao. Had the full detail of the Curaçao proceedings been placed before the Deputy Bailiff we do not think that he would without more have been satisfied that Jersey was the appropriate forum in all the circumstances.
78. The Defendant went on to challenge aspects of the freezing order on the basis that there was not a good arguable case. For the reasons that we have set out above in our judgment there was an arguable case for a conspiracy and to that extent we do not accept the Defendant's submissions in that regard. We also take the view that the cumulative effect of the allegations lead us to be concerned as to a risk of dissipation and we believe that there was more than sufficient material before the Deputy Bailiff to enable him to reach a similar view.
79. However in the light of the findings that we have made on the jurisdictional gateway and on the forum conveniens submissions we do not think it necessary to deal any further with those points in our judgment.
80. In conclusion, we find for the Defendant in paragraphs 1(b) and 1(c) of its summons and accordingly set aside leave to serve the Defendant outside of the jurisdiction.
Authorities
Service of Process (Jersey) Rules 1994.
Maywal Limited v Nautech Services Limited [2014] (2) JLR 527.
Campbell v Campbell and Longton Holdings Limited [2014] (2) JLR 465.
Nautech v CSS [2014] (1) JLR 361.
Eurasia Sports Limited v Aquad [2018] EWCA Civ 1742.