Brian Lacy
Partner | Legal
British Virgin Islands, Jersey
Partner
British Virgin Islands, Jersey
Big things are happening at Ogier. Change is embedded in everything we do. It is redefining our talent, our ways of working, our platforms of delivery, our culture.
Services
We have the expertise to handle the most demanding transactions. Our commercial understanding and experience of working with leading financial institutions, professional advisers and regulatory bodies means we add real value to clients’ businesses.
Sectors
Our sector approach relies on smart collaboration between teams who have a deep understanding of related businesses and industry dynamics. The specific combination of our highly informed experts helps our clients to see around corners.
We have the expertise to handle the most demanding transactions. Our commercial understanding and experience of working with leading financial institutions, professional advisers and regulatory bodies means we add real value to clients’ businesses.
Legal
Corporate and Fiduciary
Consulting
Banking and Finance
Corporate
Dispute Resolution
Employment law
Intellectual Property
Investment Funds
Listing Services
Local Legal Services
Private Wealth
Property law
Regulatory
Relocation Services
Restructuring and Insolvency
Tax
Banking and Finance overview
Asset Finance
CAYLUX Fund Finance
Debt Capital Markets
Derivatives
Fund Finance
Islamic Finance
Leveraged Finance
Listing services
Real Estate Finance
Regulatory
Restructuring and Insolvency
Structured Finance
Sustainable Finance
Corporate overview
Economic Substance
EIIS Services in Ireland
Equity Capital Markets
Insurance and Reinsurance
Listing services
Mergers and Acquisitions
Private Equity
Real Estate Structuring, Acquisitions and Disposals
Regulatory
Technology and Web3
Dispute Resolution overview
Banking Disputes
Corporate and Financial Services Disputes
Crypto Disputes
Enforcement of Judgments and Awards
Fraud and Asset Tracing
Funds Disputes
Insurance Disputes
International Arbitration
Regulatory
Restructuring and Insolvency
Section 238 Shareholder Appraisal Rights
Shareholder and Valuation Disputes
Trusts Disputes and Applications
Investment Funds overview
Hedge Funds
Managers and Sponsors
Private Equity
Real Estate, Infrastructure and Energy Funds
Regulatory
Sustainable Investing and Impact Funds
Technology and Web3
Local Legal Services overview
Cayman Local Legal Services
Channel Islands Local Legal Services
Employment law
Estate Planning, Wills and Probate
Expat services
Family Office
Intellectual Property
Ireland Local Legal Services
Make your Guernsey will online
Make your Jersey lasting power of attorney online
Make your Jersey will online
Notary public services
Property law
Relocation Services
Private Wealth overview
Employee incentives and pensions
Estate Planning, Wills and Probate
Family Office
Make a Jersey lasting power of attorney online
Make your Guernsey will online
Make your Jersey will online
Private Wealth and ESG
Private Wealth and Jersey Private Funds
Relocation Services
Trust Advisory Group
Accounting and Financial Reporting Services - Ogier Global
Cayman Islands AML/CFT training - Ogier Global
Corporate Services - Ogier Global
Debt Capital Markets - Ogier Global
Fund Services - Ogier Global
Governance Services - Ogier Global
Investor Services - Ogier Global
Ogier Connect - Ogier Global
Private Wealth Services - Ogier Global
Real Estate Services - Ogier Global
Regulatory and Compliance Services - Ogier Global
Our sector approach relies on smart collaboration between teams who have a deep understanding of related businesses and industry dynamics. The specific combination of our highly informed experts helps our clients to see around corners.
Ogier provides practical advice on BVI, Cayman Islands, Guernsey, Irish, Jersey and Luxembourg law through our global network of offices across the Asian, Caribbean and European timezones. Ogier is the only firm to advise on this unique combination of laws.
Keep up to date with industry insights, analysis and reviews. Find out about the work of our expert teams and subscribe to receive our newsletters straight to your inbox.
Fresh thinking, sharper opinion.
We get straight to the point, managing complexity to get to the essentials. Our global network of offices covers every time zone.
No Content Set
Exception:
Website.Models.ViewModels.Components.General.Banners.BannerComponentVm
News
04 October 2021
British Virgin Islands
The Privy Council today (4 October 2021) handed down its much anticipated judgment in Broad Idea. [1] By a majority, the Board:
In confirming the Black Swan jurisdiction, the Board curtailed the power of the decision in The Siskina, although in refusing to permit service out of a claim only for a freezing injunction the Board expressly refused to sink The Siskina, leaving it merely listing:
"It is necessary to dispel the residual uncertainty emanating from The Siskina and to make it clear that the constraints on the power, and the exercise of the power, to grant freezing and other interim injunctions which were articulated in that case are not merely undesirable in modern day international commerce but legally unsound. The shades of The Siskina have haunted this area of the law for far too long and they should now finally be laid to rest." Per Lord Leggatt at paragraph 120.
The decision in Broad Idea contains a useful summary of the jurisdiction to grant freezing orders against non-cause of action respondents to foreign proceedings:
"There is no difference in principle between a case where a freezing injunction is sought in anticipation of (i) a future judgment of a BVI court in substantive proceedings brought in the BVI, (ii) a future judgment of a foreign court enforceable by the BVI court on registration in the BVI, and (iii) a future judgment of a BVI court obtained in an action brought to enforce a foreign judgment. In each case the injunction, if granted, is directed towards the enforcement of obligations to satisfy judgments which do not yet exist. In each case the question is whether there is a sufficient likelihood that a judgment enforceable through the process of the BVI court will be obtained, and a sufficient risk that without a freezing injunction execution of the judgment will be thwarted, to justify the grant of relief." Per Lord Leggatt at paragraph 95.
Dispelling some commonly asserted propositions, Lord Leggatt went on to say (at paragraph 102):
"i) There is no requirement that the judgment should be a judgment of the domestic court - the principle applies equally to a foreign judgment or other award capable of enforcement in the same way as a judgment of the domestic court using the court’s enforcement powers.
"ii) Although it is the usual situation, there is no requirement that the judgment should be a judgment against the respondent.
"iii) There is no requirement that proceedings in which the judgment is sought should yet have been commenced nor that a right to bring such proceedings should yet have arisen: it is enough that the court can be satisfied with a sufficient degree of certainty that a right to bring proceedings will arise and that proceedings will be brought (whether in the domestic court or before another court or tribunal)."
On the principle of "money box" injunctions, freezing the assets held by the BVI company when it is a non-cause of action defendant, Lord Leggatt confirmed that such injunctions can be permissible:
"There seems no reason in principle why the expanded form of the enforcement principle should not be applied in an appropriate case to assets held by a “non-cause of action defendant”, as it was in Gilfanov v Polyakov" at paragraph 111.
Although the substantive law of the BVI has already been amended to provide a statutory basis for free standing injunctive relief (similar to section 25 of the Civil Jurisdiction and Judgments Act 1982 in England), and on the facts of this case the decision in respect of Black Swan was obiter, it is nevertheless a positive endorsement of the practice that had long been established in the BVI.
[1] Broad Idea International Ltd (Respondent) v Convoy Collateral Ltd (Appellant) (British Virgin Islands) Convoy Collateral Ltd (Appellant) v Cho Kwai Chee (also known as Cho Kwai Chee Roy) (Respondent) (British Virgin Islands) [2021] UKPC 24
[2] Black Swan Investment ISA v Harvest View Ltd (BVIHCV 2009/399) (unreported) 23 March 2010
[3] Since the Court of Appeal's decision in Broad Idea BVI legislation has been amended to confer a statutory basis for granting freezing injunctions in aid of foreign proceedings.
Brian Lacy
Partner | Legal
British Virgin Islands, Jersey
Partner
British Virgin Islands, Jersey
Sign up to receive updates and newsletters from us.
Sign up
No Content Set
Exception:
Website.Models.ViewModels.Blocks.SiteBlocks.CookiePolicySiteBlockVm