Texan Management Limited and others v Pacific Electric Wire & Cable Company Limited (British Virgin Islands)

A defendant served within the jurisdiction who already has grounds for seeking a forum non conveniens stay should apply promptly under the applicable jurisdiction rule. A late application is not necessarily barred. The court may extend time and cure formal or service defects.

Evidence supporting the application need not be filed when the application is made. Failure to serve it with the notice does not make the application a nullity. The period for applying includes a defence period extended by the court where the rule defining that period expressly permits extensions.

If grounds for a stay arise later, the court may act under its inherent jurisdiction or its case-management powers. Those powers may supplement procedural rules but cannot be exercised inconsistently with them.

Pacific Electric Wire & Cable Company Limited alleged that former directors had used its funds to acquire investments through a network of companies. It pursued connected proceedings in Hong Kong and the British Virgin Islands. The BVI proceedings sought control of shares in four BVI companies and ultimately concerned interests connected with shares in a Hong Kong-listed company.

Hariprashad-Charles J rejected procedural objections to the defendants’ applications and stayed the BVI proceedings on forum non conveniens grounds. The Eastern Caribbean Court of Appeal reversed that decision. It held that two defendants had not made a valid application because supporting evidence had not accompanied it, and that the other two had applied outside the original defence period.

The central questions were whether the court retained an inherent power to stay proceedings, whether the procedural defects invalidated the applications, whether an extended defence period counted for this purpose, and whether the forum non conveniens stay should stand.

1. Appeal allowed. Lord Collins, delivering the judgment of the Board, held that all four defendants had made valid applications. The order of Hariprashad-Charles J staying the proceedings was restored.

2. The court possesses an inherent jurisdiction to stay proceedings. That fundamental power is not normally displaced merely because procedural rules confer an express power to grant a stay. Nevertheless, inherent jurisdiction may supplement procedural rules but cannot be used to establish a procedure inconsistent with them. A defendant served within the jurisdiction who already has grounds for a forum non conveniens stay should normally proceed promptly under rule 9.7 of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000.

3. Strict non-compliance does not necessarily bar an application. The court may extend time retrospectively and cure formal defects. Where circumstances justifying a stay arise only after service, an application may be made under the inherent jurisdiction or the court’s general case-management power to stay proceedings.

4. Rule 9.7(4) required affidavit evidence but did not require it to be filed when the application was made. Rule 11.11(4) required supporting evidence to accompany the notice when served. Failure to serve the evidence at that time did not make the application a nullity. The judge could treat the notice as sufficient and put the procedural defect right. The deemed acceptance of jurisdiction under rule 9.7(5) was not a sanction engaging the relief-from-sanctions checklist.

5. The period for applying included the time for filing a defence as extended by court order. Rule 10.3 both prescribed the initial period and authorised its extension. Seeking an extension was neither submission to the jurisdiction, because the companies were already subject to BVI jurisdiction, nor unequivocal acceptance that the BVI court should exercise that jurisdiction.

6. The Board determined the forum issue instead of remitting it. The judge had applied the principles in Spiliada Maritime Corp v Cansulex Ltd [1987] AC 460. Hong Kong had strong factual and evidential connections with the dispute, and the proceedings involved many common issues. Although only a BVI court could rectify the companies’ registers, a successful Hong Kong judgment would create issue estoppels enabling necessary BVI relief. No error of principle or plainly wrong evaluation was shown. The stay remained capable of being lifted if circumstances or previously unavailable evidence changed.

1. Privy Council: Allowed the appeal and restored the order of Hariprashad-Charles J staying the BVI proceedings.
2. Eastern Caribbean Court of Appeal: Allowed PEWC’s appeal on the procedural issues, held that the defendants could not pursue their stay applications, and did not determine forum non conveniens. No neutral citation is stated.
3. High Court of the Eastern Caribbean Supreme Court: Hariprashad-Charles J dismissed the procedural objections and stayed the BVI proceedings on forum non conveniens grounds. No neutral citation is stated.