EGE & HLM v Nerine

EASTERN CARIBBEAN SUPREME COURT BRITISH VIRGIN ISLANDS IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) CLAIM No: BVIHC (COM) 2021/68 BETWEEN: (1) EGE (2) HLM Claimants and (1) NERINE TRUST CO LTD (2) TRIDENT TRUST CO LTD Defendants Determined on paper with written submissions: Ms. Claire Goldstein and Ms. Paula Gibbs of Harney, Westwood & Riegels LP for the Claimants __________________________________ 2021 April 15 __________________________________ JUDGMENT

[1]JACK, J [Ag.]: This is an ex parte application for a seal and gag order as a precursor to an application for Norwich Pharmacal relief.1 The claimants say they have been the victims of a substantial fraud and that the two registered agents, who are defendants to the action, have been innocently mixed up in the fraud. This judgment concerns a procedural issue.

[2]An applicant for Norwich Pharmacal relief has a choice. They can either make a “wrap-up” application, where they seek both a seal and gag order and the Norwich Pharmacal relief in one application. Or they can apply for a seal and gag order with the intention of subsequently issuing an application for the Norwich Pharmacal order to be heard on the return date of the seal and gag order.

[3]In the current case the claimants have pursued the latter route. In a recent case where the claimant also took this approach, I refused to make the seal and gag order on the basis that the case was not a suitable one for the grant of Norwich Pharmacal relief. The claimant appealed and the Court of Appeal allowed the appeal. On at least one reading of the Court of Appeal’s judgment the error I made was that I determined an application which was not before me, namely the Norwich Pharmacal application, when deciding the application which was before me, namely the seal and gag application. I should have decided the seal and gag application solely on its own merits.

[4]The Court of Appeal’s judgment is subject to an indefinite seal and gag order made by the Court of Appeal, although the indefinite length of the order may be under review. It is thus not currently available.

[5]I bring the gist of the judgment’s attention to the profession, because it is not the case that making a seal and gag order means that the Court necessarily considers that the case is an appropriate one for Norwich Pharmacal relief. That will be a matter for determination when the application for that relief comes before the Court. I should not want the defendants in the current case to assume that the Court will necessarily grant Norwich Pharmacal relief: it may do or it may not do. The Norwich Pharmacal is simply not before me.

[6]In the current case, it is appropriate in my judgment to grant the seal and gag order in order that, in the event it is appropriate to grant Norwich Pharmacal relief, the alleged participants in the fraud are not tipped off.

[7]So far as anonymisation is concerned, the claimants sought to have the case called “A and B v C and D”. This is not a useful form of anonymisation, because it does not adequately differentiate the name from other cases. Further, there is on the facts of this case no need to anonymise the names of the registered agents. There is no risk of tipping off the alleged fraudsters by naming the registered agents. Accordingly, I have anonymised the case in the style of the heading to this judgment.

Adrian Jack

Commercial Court Judge [Ag.]

By the Court

Registrar

EASTERN CARIBBEAN SUPREME COURT BRITISH VIRGIN ISLANDS IN THE HIGH COURT OF JUSTICE (COMMERCIAL DIVISION) CLAIM No: BVIHC (COM) 2021/68 BETWEEN: (1) EGE (2) HLM Claimants and (1) NERINE TRUST CO LTD (2) TRIDENT TRUST CO LTD Defendants Determined on paper with written submissions: Ms. Claire Goldstein and Ms. Paula Gibbs of Harney, Westwood & Riegels LP for the Claimants __________________________________ 2021 April 15 __________________________________ JUDGMENT

[1]JACK, J [Ag.]: : This is an ex parte application for a seal and gag order as a precursor to an application for Norwich Pharmacal relief.

[2]An applicant for Norwich Pharmacal relief has a choice. They can either make a “wrap-up” application, where they seek both a seal and gag order and the Norwich Pharmacal relief in one application. Or they can apply for a seal and gag order with the intention of subsequently issuing an application for the Norwich Pharmacal order to be heard on the return date of the seal and gag order.

[3]In the current case the claimants have pursued the latter route. In a recent case where the claimant also took this approach, I refused to make the seal and gag order on the basis that the case was not a suitable one for the grant of Norwich Pharmacal relief. The claimant appealed and the Court of Appeal allowed the appeal. On at least one reading of the Court of Appeal’s judgment the error I made was that I determined an application which was not before me, namely the Norwich Pharmacal application, when deciding the application which was before me, namely the seal and gag application. I should have decided the seal and gag application solely on its own merits.

[4]The Court of Appeal’s judgment is subject to an indefinite seal and gag order made by the Court of Appeal, although the indefinite length of the order may be under review. It is thus not currently available.

[5]I bring the gist of the judgment’s attention to the profession, because it is not the case that making a seal and gag order means that the Court necessarily considers that the case is an appropriate one for Norwich Pharmacal relief. That will be a matter for determination when the application for that relief comes before the Court. I should not want the defendants in the current case to assume that the Court will necessarily grant Norwich Pharmacal relief: it may do or it may not do. The Norwich Pharmacal is simply not before me.

[6]In the current case, it is appropriate in my judgment to grant the seal and gag order in order that, in the event it is appropriate to grant Norwich Pharmacal relief, the alleged participants in the fraud are not tipped off.

[7]So far as anonymisation is concerned, the claimants sought to have the case called “A and B v C and D”. This is not a useful form of anonymisation, because it does not adequately differentiate the name from other cases. Further, there is on the facts of this case no need to anonymise the names of the registered agents. There is no risk of tipping off the alleged fraudsters by naming the registered agents. Accordingly, I have anonymised the case in the style of the heading to this judgment. Adrian Jack Commercial Court Judge [Ag.] By the Court Registrar

[1]Norwich Pharmacal Co Ltd v Commissioners for Customs and Excise [1974] AC 133.

[1]The claimants say they have been the victims of a substantial fraud and that the two registered agents, who are defendants to the action, have been innocently mixed up in the fraud. This judgment concerns a procedural issue.