Emmerson International Corporation v Renova Holding Ltd (British Virgin Islands)

For the purposes of section 30(4)(ii) of the Eastern Caribbean Supreme Court (Virgin Islands) Act, a freezing order must be read as a unified protective regime. Its restraining and disclosure provisions, including a confidentiality club governing disclosure, are inherent and necessary parts of the operative injunction where they work together to prevent dissipation of assets. A later order varying those provisions puts a new injunction in different terms in place. An appeal against the variation therefore lies without leave. Procedural appeal provisions should be construed practically and clearly, rather than by requiring litigants to parse each paragraph of an interlocking order.

An applicant obtained an ex parte freezing order against a respondent in the British Virgin Islands. The order restrained dealings with specified assets and required disclosure of information and supporting documents. On the respondent’s application to discharge or vary the order, the judge extended time for compliance and imposed a confidentiality club restricting disclosure to specified lawyers. The Court of Appeal of the Eastern Caribbean Supreme Court held that the variation order was interlocutory and outside section 30(4)(ii) of the Eastern Caribbean Supreme Court (Virgin Islands) Act. It dismissed the appeal because leave had not been obtained. The central issue before the Privy Council was whether the variation formed part of an interlocutory order where an injunction was granted, so that an appeal lay as of right.

Appeal allowed. The Board held that the appeal fell within section 30(4)(ii) of the Eastern Caribbean Supreme Court (Virgin Islands) Act.

1. Freezing order read as a whole. The restraining and disclosure provisions were inherent and necessary ingredients of the operative part of the freezing order. They formed an interlocking protective regime directed to preventing dissipation of assets. Disclosure was necessary to enable the applicant to protect or enforce against assets. The disclosure provisions were therefore part of the injunction, rather than merely procedural requirements. The Board relied on the reasoning in Grupo Torras SA v Al-Sabah [2014] 2 CLC 636 (note) at p 643.
2. Practical statutory construction. Section 30(4) was procedural and required a practical interpretation readily comprehensible to litigants. It would undermine that purpose to require each paragraph of a unified freezing order to be separately characterised as an injunction or otherwise. The Board reserved its opinion on the application of the provision to a separate costs provision.
3. Variation of an injunction. It made no difference that the confidentiality club was imposed later by variation. The variation put a new injunction in different terms in place. The Board applied Atlas Maritime Co SA v Avalon Maritime Ltd (No 2) [1991] 1 WLR 633, a decision concerning the materially identical section 18(1)(h) of the Supreme Court Act 1981 (UK).
4. The Board did not need to decide whether the disclosure provisions alone would constitute an injunction. It added that a respondent would likewise have a right of appeal without leave against relevant confidentiality-club provisions where satisfactory relief could not be obtained through liberty to apply. The Board advised Her Majesty that the appeal should be allowed.

1. Privy Council — In [2019] UKPC 24, allowed the appeal and held that the variation order was appealable without leave under section 30(4)(ii).
2. Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands) — Held that the variation order was interlocutory and outside the statutory exception, and dismissed the appeal for want of leave without considering the merits.