Stephen John Hunt V Transworld Payment Solutions U.K. Limited (in Liquidation) [2020] Bda LR 17

• Published date: 01 June 2021
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Insolvency/Bankruptcy/Re-structuring, Corporate and Company Law, Insolvency/Bankruptcy, Trials & Appeals & Compensation
• Law Firm: Carey Olsen
• Author: Mr Keith Robinson and Emma Duffy

The Supreme Court of Bermuda has clarified the rules for granting common law recognition and assistance to foreign office holders following the landmark Privy Council decision of Singularis Holdings Ltd v Pricewaterhouse Coopers [2015] A.C. 1675. The decision demonstrates that the Bermuda Courts are willing to take a robust approach to foreign office holders who arrive in Bermuda seeking to use common law recognition as an evidence gathering tool for litigation.

Issues

Foreign liquidators may apply for recognition in Bermuda pursuant to the common law by the application of the principles of comity. There are no statutory mechanisms in Bermuda for the recognition of foreign insolvency proceedings or for cross-border cooperation in insolvency or restructurings. Bermuda has not adopted the UNCITRAL Model Law on Cross-Border Insolvency.

However, there are examples in case law of the Bermuda Court exercising its common law powers to recognise foreign insolvency and restructuring proceedings and to cooperate with courts of foreign jurisdictions, particularly in circumstances where:

• the relevant company is incorporated in Bermuda;
• the subject company has assets located in the jurisdiction;
• the liquidators seek assistance that would be available to them both under the law of the foreign jurisdiction and under Bermuda law; and
• such recognition and cooperation are not contrary to Bermuda public policy.

The facts

The factual history of this case was protracted but pertinent to the judgment of the Supreme Court. On 19 July 2019 the Supreme Court of Bermuda granted an ex parte order recognising the appointment in England and Wales of Mr Stephen John Hunt ('Mr Hunt') as liquidator of Transworld Payment Solutions U.K. Limited ('the Company') pursuant to a compulsory winding up order made in the High Court of England and Wales on 22 September 2014.

The process leading to the appointment of Mr Hunt as liquidator of the Company took place, as Chief Justice Hargun described it, 'In unusual circumstances.'¹ The Company was dissolved in 2010 pursuant to an application for voluntary striking off under section 1003 of the English Companies Act 2006. Owing to an outstanding judgment debt, of which the directors of the Company were unaware, the Company was restored to the register of companies and wound up on 22 September 2014. The Secretary of State appointed Mr Hunt as liquidator of the Company on 17 November 2014.

Chief Justice Hargun found that the sole object of the restoration of the Company was to pursue potential claims against First Curaçao International Bank NV ('FCIB') and other entities or individuals. In February 2016 Mr Hunt, by way of his solicitors, sent a...