WWRT Ltd (Appellant) v Carosan Trading Ltd and another (Respondents) (British Virgin Islands)

Hearing listed

Case summary
Appeal

Case summary

Case ID

JCPC/2023/0092

Jurisdiction

British Virgin Islands

Parties

Appellant(s)

WWRT Ltd

Respondent(s)

Carosan Trading Ltd

Boris Kaufman

Issue

(1) Under Ukrainian law, was the Appellant validly assigned a Ukrainian bank’s tortious claims against the Respondents? (2) Under Ladd v Marshall [1954] 1 WLR 1489, can new evidence be introduced on appeal if it did not exist at the time of the first-instance hearing? (3) Is the forum conveniens only assessed against circumstances existing at the first-instance hearing/return date or can it be reevaluated on appeal in light of subsequent events? (4) If a court holds that a country is the forum conveniens, is that decision affected by the outbreak of armed conflict in that country? (5) In this case, did the High Court correctly assess the forum conveniens?

Facts

The Appellant, an English company, claims to be the indirect assignee, under Ukrainian law, of various tortious claims of a Ukrainian bank against the First Respondent, a BVI company, and Second Respondent, a Ukrainian businessman. The claims allege that the Respondents defrauded the bank by means of a scheme involving Ukrainian borrowers executing illegitimate commercial loan agreements with the bank, transferring the loaned amounts to, and recycling the funds through, offshore companies, including the First Respondent. Most capital sums were, allegedly, never repaid but taken for the Respondents’ benefit. The Appellant commenced proceedings in the BVI, claiming compensation under both BVI and Ukrainian law, being granted permission to serve the Second Respondent out of the jurisdiction in June 2021. In September 2021, however, the High Court: (1) Set aside the service-out order and held that it lacked jurisdiction to decide the claim against the Second Respondent (brought under BVI civil procedure rules) because the Appellant had not been validly assigned the bank’s claims. (2) Refused to exercise jurisdiction in the claim against the First Respondent (brought as of right) because, in its view, Ukraine was the forum conveniens. The Easter Caribbean Court of Appeal dismissed the Appellant’s appeal. The Appellant now appeals to the Privy Council.