Bermuda: Dispute Resolution Review - Fourth Edition - Cayman Islands

Last Updated: 31 May 2012
Article by Appleby  

Most Read Contributor in Bermuda, September 2018

By Katie Brown1

I INTRODUCTION TO DISPUTE RESOLUTION FRAMEWORK

The Cayman Islands is a British Overseas Territory, and Cayman law is in general based on English common law and certain English statutes that have been applied to the Islands, and local legislation enacted by the Legislative Assembly ('the LA '). The United Kingdom retains the right to extend provisions of UK legislation to the Cayman Islands by way of an express provision in the Act itself or by Order in Council.

A new Cayman Islands Constitution came into force on 6 November 2009 reflecting and further defining the increased scope of local legislative authority and introducing a Bill of Rights.2

Significant litigation takes place in the Grand Court ('the Court'). Most significant commercial disputes are commenced in the Financial Services Division, which was established in 2009.

The Grand Court judiciary consists of the Chief Justice and five other full-time judges (supplemented from time to time by acting judges brought in from overseas or drawn from the ranks of senior Cayman Islands practitioners) who exercise the same jurisdiction as the English High Court. The Grand Court judges, especially in the Financial Services Division, have considerable experience of disputes involving complex offshore transactions and structures, particularly in the context of hedge fund and commercial trust litigation.

Appeals from the Grand Court to the Cayman Islands Court of Appeal are governed by rules set out in the Court of Appeal Law3 and the Court of Appeal Rules.4

The Cayman Islands Court of Appeal is widely regarded as one of the strongest appellate courts in the Caribbean and the offshore world.

In certain circumstances, an appeal from a decision of the Cayman Islands Court of Appeal can be made to Her Majesty's Judicial Committee of the Privy Council. The process is governed by the Cayman Islands (Appeals to Privy Council) Order 1984, a UK statutory instrument that came into operation on 1 September 1984.

Decisions of the Grand Court, the Court of Appeal and the Privy Council on appeals from the Cayman Islands are reported in the Cayman Islands Law Reports, cited as CILR, which are published by Law Reports International.

Since 2006, a right of petition to the European Court of Human Rights following the exhaustion of traditional domestic legal remedies has existed. In 2009, the first case from Cayman using this procedure was heard and ruled admissible by the European Court of Human Rights.

Litigation remains the principal method for resolving disputes, partly because of the accommodating approach shown by the Grand Court to parties requiring confidentiality or flexible timetables (factors that usually attract parties to arbitration). However, awareness and use of alternative dispute resolution ('ADR') mechanisms is growing.

The Law Reform Commission has submitted an Arbitration Bill for enactment by the Legislative Assembly in 2012, following extensive consultation with professional associations such as the Law Society and the Caymanian Bar Association. The Bill will dramatically modernise the arbitration regime in the Cayman Islands, based on the UNCITRAL Model Law with certain variations to suit local conditions. This initiative has strong support from the Cayman judiciary, in particular judges of the Financial Services Division who have substantial arbitration experience, and whose decisions in the course of the last year have demonstrated consistent respect for and enforcement of parties' rights pursuant to arbitration agreements.

II THE YEAR IN REVIEW

Investment fund disputes

i Weavering Macro Fixed Income Fund Limited v. Stefan Peterson and Hans Ekstrom5

In this case, the Grand Court found a fund's independent directors guilty of wilful default in the discharge of their duties, and ordered them to pay damages to the fund's liquidators in the sum of US$111 million, representing the losses suffered by the fund that were caused by their default.

The facts were extreme: the directors in question were the brother-in-law and stepfather of the investment manager, and had been appointed by him to meet minimum legal requirements. During their tenure they failed to exercise any independent supervisory function and failed to spot fraudulent activity by the investment manager. The Court held that, since investment management, administration and accounting functions are delegated to professional service providers, hedge fund directors must exercise a highlevel supervisory role. Because these directors knew that they had a duty to supervise, and had intentionally neglected their duties, the directors were found guilty of wilful default and were therefore not entitled to the benefit of exculpatory provisions contained in the company's articles of association.

The judgment contains the first detailed judicial commentary on the obligations of a fund director during the life cycle of a fund (establishment, ordinary course of business, financial crisis and liquidation). It is, however, subject to appeal, which is scheduled to be heard in April 2012.

ii Re AJW Master Fund II, Ltd 6

This was an application by liquidators of an offshore feeder fund to replace the liquidators of the master fund.

The offshore feeder fund had been put into official liquidation on an investor's petition. Days prior to the hearing of the offshore feeder winding-up petition, management had put the master fund into voluntary liquidation. The master liquidators applied for a Court supervision order, which was granted on paper the day before the hearing of the feeder winding-up petition.

The judge who determined the master liquidators' application for Court supervision, Quin J, was told that the hearing of the offshore feeder winding-up petition had 'no bearing' on the supervision application. Henderson J, the judge who heard the offshore feeder winding-up petition, was not aware of the supervision order that had been made at master level the day before. Henderson J held that the practitioners who had been appointed as liquidators at master level were conflicted, and appointed liquidators from a different firm. This had the unfortunate result that different liquidators were appointed at master and feeder level.

The liquidators of the offshore feeder fund then applied for the removal of the master liquidators on the basis that there should be one set of liquidators appointed to both funds, that the master liquidators were conflicted and that investors had expressed concerns about their relationship with former management (which was under investigation by the SEC), as well as the timing of their appointment.

Jones J removed the master liquidators and made the following observations:

a best practice is for the same liquidators to be appointed at both master fund and feeder fund level where both funds are the subject of insolvency proceedings;

b best practice is to assign the cases to the same judge;

c the process by which a voluntary liquidation can be converted to an official liquidation 'on the papers' is analogous to an ex parte application, which means the applicant has an obligation of full and frank disclosure; and

d in a master-feeder structure, investors in both offshore and onshore feeder funds will be treated as having a direct interest in the master fund, even though they are not directly members of the master fund. These investors will have standing to apply to set aside an improperly obtained supervision order, and also to appear and be heard on the hearing of the petition to wind up the master fund notwithstanding the fact that they are neither creditors nor contributories of the master fund.

Jones J made a costs-capping order that was successfully appealed by the liquidators of the offshore feeder fund.7 Jones J's decision was made on the basis that he thought there was a cheaper route to resolving the issue, namely an application to set aside the supervision order rather than applying to remove the master fund liquidators. The Court of Appeal removed the costs cap and approved English authorities that state that a first instance judge seeking to impose punitive or unusual costs orders as a general rule is required to give reasons for such a departure. They also endorsed Jones J's view that investors' interests are generally served by the appointment of the same liquidators at master and feeder fund level.

iii Re Heriot-African Trade Finance8

In this case Jones J followed his earlier decision in Re Belmont Asset Based Lending,9 holding that it was just and equitable to make a winding up order on the basis of loss of substratum if the fund was no longer viable, in the sense that it was practically impossible to carry on its business in accordance with the reasonable expectations of its participating shareholders, based upon the representations contained in its offering memorandum.

Jones J was referred to the decision of Banister J in the Eastern Caribbean Supreme Court (British Virgin Islands (BVI)) in Aris Multi-Strategy Lending Fund Ltd v. Quantek Opportunity Ltd.10 In that case, Banister J specifically declined to follow the approach that Jones J had taken in Belmont and refused to allow a loss of substratum plea where it was contrary to the wishes of the majority investors unless it could be shown that it was impossible, as opposed to impractical, for the business of the company to be carried on. Jones J observed that, if he had understood Banister J's judgment correctly, the law of the BVI is not the same as the Cayman Islands.

It will be interesting to see what happens when this divergence in views between Cayman and the BVI is tested by the appellate courts, especially since both Cayman and the BVI share the same ultimate appellate authority, the Privy Council.

iv Re Times Property Holdings Ltd11

The petitioners had issued a winding-up petition on grounds of insolvency. The company applied to have the petition dismissed on the grounds that the debt was disputed, and the parties had agreed that disputes should be determined by arbitration in Hong Kong.

Foster J followed two cases from the BVI12 that had held that, where the company is claiming that it has a genuine and substantial dispute with the creditor in relation to the alleged debt, and the parties have agreed that disputes between them should be tried in a different forum, a winding-up order should not be made. He declined to dismiss the winding-up petition, but stayed it in favour of the arbitration proceedings.

Mareva injunctions and other interlocutory relief

v Ahmad Hamad Algosaibi and Brothers Company v. Saad Investments Limited, Maan Al-Sanea and others13

This decision arose from the long-running litigation by the Saudi Arabian Algosaibi family against Mr Maan Al-Sanea and a number of corporate defendants, largely domiciled in Cayman, controlled by him.

Henderson J had made a worldwide Mareva (asset-freezing) order against 42 Cayman Islands companies and Maan Al-Sanea, alleged by the plaintiff to be a fraudster and the ultimate beneficial owner of those companies or the person by whom the companies were controlled.

The plaintiff did not assert causes of action against 22 of the 42 corporate defendants (the 'non-cause of action defendants' ('NCADs')), who applied to set aside the Mareva order. Henderson J heard that application and dismissed it. In his judgment,14 Henderson J affirmed the existence in Cayman Islands law of the Chabra jurisdiction (whereby a Mareva injunction may, in certain circumstances, be granted against an NCAD) and held that the jurisdiction extended to the NCADs as they remained under the substantial control of Mr Al-Sanea.

At the return date of the Mareva order,15 Anderson J (Actg) continued the order against the NCADs on the basis of Henderson J's judgment. He also continued the Mareva against certain defendants (the 'Shell Defendants') against whom the plaintiff had presented no evidence of any assets.

The NCADs and the Shell Defendants appealed.

The Court of Appeal set aside the injunction against several of the defendants and clarified the scope of the Chabra jurisdiction in holding that:

a before granting such an injunction, the Court must be satisfied that there is good reason to suppose that in the event that judgment is obtained against a cause of action defendant ('CAD'), the CAD can be compelled to use the assets held by the NCAD for the purposes of satisfying a judgment, or that there is some other process of enforcement by a court by which the claimant can obtain recourse to those assets (e.g., through the appointment of a liquidator); and

b the applicant seeking the continuation of a Mareva order must adduce some evidence from which the Court can properly conclude that, regarding each respondent to the order, there was either reason to suppose that defendant had some assets that (absent such relief ) were at risk of dissipation, or that there was a real prospect that assets would be transferred to, or otherwise acquired by, that defendant in the future, which would then become available to satisfy a judgment (whether against that, or some other, defendant) and would (absent Mareva relief ) be at risk of dissipation while held by that defendant. The extent to which this had to be established at the initial ex parte application for a Mareva order was left open.

vi Deloitte & Touche v. Felderhof 16

The Court of Appeal dismissed an appeal against the decision of Henderson J17 whereby he had been invited, and declined, to set aside a Mareva injunction on the ground that the Court had no power to grant a free-standing Mareva injunction. The issues in this case were justiciable in Cayman but all parties had agreed that they would be litigated elsewhere and no statement of claim was ever served in the Cayman proceedings. The Court of Appeal confirmed that both Mareva and Chabra relief are available in these circumstances (i.e., where the parties have no intention of litigating the substance of their disputes in Cayman). In relation to the Chabra jurisdiction, the Court of Appeal confirmed the principles set out in the Ahmad Hamad Algosaibi and Brothers litigation (summarised in Section 2, sub-section (v), supra).

vii Gillies-Smith v. Smith18

This case was heralded for a short time as the first instance of the Cayman courts granting a free-standing Mareva injunction in support of overseas proceedings. However, this decision subsequently received negative review by Cresswell J in VTB Capital Plc v. Malofeev19 (see infra).

The Gillies-Smith case involved Canadian divorce proceedings. The plaintiff had obtained an order from the Ontario Court freezing all her husband's assets worldwide, which included a property and two bank accounts in the Cayman Islands. The plaintiff then sought a freezing order in the Cayman Islands in relation to those Cayman assets. Quin J granted a Mareva injunction on the basis that the Canadian freezing order gave the plaintiff a justiciable cause of action in the Cayman Islands, even though there were no substantive proceedings in the Cayman Islands.

Quin J also granted leave to serve the defendant out of the jurisdiction under the Grand Court Rules Order 11 rule 1(1)(b). Order 11 rule 1(1)(b) provides that a claim for an interlocutory injunction shall not be a sufficient ground for service of a writ out of the jurisdiction. To avoid falling foul of the rule, Quin J held that the freezing order sought was a final, rather than an interlocutory, injunction.

viii VTB Capital Plc v. Malofeev20

In this case, the Grand Court was asked to grant a free-standing Mareva order against three defendants in support of an English worldwide freezing order. The first defendant was a non-resident, while the second and third defendants were Cayman companies in which, the plaintiff alleged, the first defendant had an interest.

The plaintiff relied on the Gillies-Smith case, arguing that enforcement of the English freezing order constituted a cause of action against the first defendant in the Cayman Islands. The plaintiff sought a Chabra injunction against the second and third defendants on the basis that they had assets that could be used to satisfy a judgment against the first defendant.

The plaintiff also relied on Gillies-Smith in its application for leave to serve out of jurisdiction on the first defendant, as authority that the order sought was a final injunction and not an interlocutory one.

Cresswell J declined to follow Gillies-Smith, and refused to grant the freezing order against the first defendant and leave to serve out of the jurisdiction. He held that the Court was bound by the decision of the majority in Mercedes-Benz AG v. Leiduck.21 The judge went on to suggest the legislature give urgent consideration to whether legislation equivalent to section 25 of the English Civil Jurisdiction and Judgments Act 1982 (whereby the English court may grant a freezing order in support of foreign proceedings) should be introduced in Cayman.

With regard to the second and third defendants, the question was whether the Court was able to grant a free-standing Chabra order freezing the Cayman assets of the defendants where no substantive cause of action had been asserted against them. The order was hesitatingly granted by Cresswell J on the basis that the parties could put forward their arguments at an inter partes hearing.

The plaintiff appealed the refusal to grant the order and leave to serve out against the first defendant, and Cresswell J's decision was upheld by the Court of Appeal.22

ix TMSF v. Merrill Lynch23

In this case the Privy Council, overturning decisions of the Court of Appeal and the Grand Court, held that it had jurisdiction to appoint receivers over a judgment debtor's powers of revocation of Cayman governed trusts.

The Privy Council applied Masri v. Consolidated Contractors International Company SAL,24 which confirmed that: the demands of justice are the overriding consideration in considering the scope of the jurisdiction to appoint receivers under Section 37(1) of the Senior Courts Act 1981; the Court has power to grant injunctions and appoint receivers in circumstances where no injunction would have been granted or receiver appointed before the enactment of the Judicature Act 1873; a receiver may be appointed over an asset whether or not it is amenable to execution at law; and the jurisdiction to appoint receivers by way of equitable execution can be developed incrementally to apply old principles to new situations.

The Privy Council also held that the judgment debtor in this case could be regarded as having rights 'tantamount to ownership'. Applying the test in Re Triffit's Settlement,25 the powers were therefore capable of being delegated without the debtor's consent. It was right for the jurisdiction to appoint receivers to be developed incrementally to enable the Court to appoint receivers in respect of such powers.

III COURT PROCEDURE

i Overview of court procedure

Proceedings in the Grand Court are governed by the Grand Court Rules (1995 Revision) ('the Rules'). With some limited exceptions, the Rules closely follow the English Rules of the Supreme Court as they stood before the coming into force of the Civil Procedure Rules. The Rules are subject to an overriding objective to deal with every matter in a just, expeditious and economical way. The Court has the power to give directions to achieve this objective, including directions that facilitate ADR, and has shown an increasing willingness to use this power, in particular in cases in the Financial Services Division.

ii Procedures and time frames

Commercial disputes are usually dealt with in the Financial Services Division of the Grand Court ('the FSD'), which was established in 2009. Each case in the FSD has an assigned judge who is well versed in commercial matters and has enhanced case management powers aimed at the speedy resolution of complex litigation. Proceedings relating to the winding up of companies are dealt with in the FSD and governed by the Companies Winding Up Rules.

A writ or other form of originating process (such as an originating summons, notice of motion or petition) is filed and served on the defendant (or its authorised representative or appointed attorneys). Personal service is usually required, which in the case of a corporate defendant means delivery to its registered office.

If the defendant is not in the Cayman Islands, the Court's permission will be required to effect service out of the jurisdiction.

The default stages provided by rules are as follows:

a A cknowledgment of service and notice of intention to defend – for Cayman defendants, this must be filed within 14 days. For overseas defendants, the order giving permission to serve out will specify the deadline.

b S tatement of claim – to be served within 14 days after service of notice of intention to defend (if not served with the writ).

c D efence (and any counterclaim) – to be served within 14 days after the acknowledgment or the statement of claim, whichever is later (but no less than 28 days after service of the writ).

d Reply (and any defence to counterclaim) – to be served within 14 days after the defence.

e L ists of disclosable documents – to be exchanged within 28 days after the reply.

f S ummons for directions – to be issued within 14 days after exchanges of the lists, to deal with future conduct of action towards trial and any other interim matters.

In large commercial disputes, these periods are usually extended by agreement between the parties or by order of the Court, and they can be shortened in cases of exceptional urgency. Non-compliance with deadlines can ultimately result in a plaintiff's claim being struck out or judgment being entered against a defendant (as the case may be), but this normally requires non-compliance with at least two successive Court orders. If the defendant fails to give notice of intention to defend, or fails to defend, it will be open to the plaintiff to apply for judgment in default. This application is processed administratively by the clerk of the Court.

A party can apply to the Grand Court for summary judgment or strike out before a case proceeds to a full trial. The following summary judgment procedures are available:

a a plaintiff can apply any time after the defendant has acknowledged service, on the basis that the defendant has no real or bona fide defence; and

b a defendant can apply any time after serving a defence, on the basis that the plaintiff's claim, or part of the claim, has no prospect of success or prospect of recovering more than nominal damages.

The Grand Court can at any stage be asked to strike out a pleading (and order the action to be stayed, dismissed or judgment to be entered accordingly), on the following grounds:

a it discloses no reasonable cause of action or defence (as the case may be);

b it is scandalous, frivolous or vexatious;

c it may prejudice, embarrass or delay the fair trial of the action;

d it is otherwise an abuse of the process of the Court; or

e there has been a wilfully disobedient breach of a final court order imposing a deadline for filing or serving a required document (such as a pleading, a list of documents or a witness statement).

Most interim remedies (in particular, injunctions to restrain the disposal of assets) can be obtained ex parte, or without notice to the defendant, in urgent cases or where the relief sought would be frustrated if notice were given to the defendant. Applications made without notice impose extra burdens on the applicant and its attorneys, in particular an obligation to make full and frank disclosure. Where an order is obtained without notice, the defendant is entitled to challenge the order at a later hearing.

In exceptionally urgent cases, the Grand Court can hear an application on the same day as or the day after it is filed, although it is rare that the Court is persuaded that the matter is urgent enough to bypass the normal listing requirements.

A plaintiff can apply to the Court for an order to restrain a defendant from dealing with, disposing of or otherwise dissipating its assets to frustrate any judgment obtained against it. Such type of order (Mareva injunction) can relate to assets within the Court's jurisdiction, or in some cases worldwide. No proprietary claim to the assets is required, but the injunction only takes effect as a personal prohibition, not as a physical attachment. To obtain such an injunction, it is necessary to establish a substantive cause of action, which can be determined by the Grand Court. Third parties, such as banks, who are put on notice of an injunction, must not assist the defendant in removing assets from their control.

In exceptional circumstances, a search-and-seizure order or Anton Piller order is available. This requires a person to allow the applicant access to premises and to effect the physical seizure of assets that need to be preserved as the subject matter of the action, and that may otherwise be concealed or destroyed.

An applicant for an interim injunction will almost always be required to give an undertaking to pay any damages that may be caused to the other parties for which they may be held liable. Applicants can also be required to provide security to support their undertaking.

Other interim remedies include other mandatory or prohibitory injunctions, orders for interim payments (whether in relation to debts, damages or accounts to be taken) and discovery orders, including against third parties.

The principal remedies are damages (for breach of contract or tortious duty), which are compensatory rather than punitive, specific performance of contractual obligations, injunctions (prohibitory or mandatory) and declarations (as to rights or as to a particular state of affairs).

Appeals to the Court of Appeal are usually based on error of law, mistaken conclusion of facts, improper exercise of discretion or procedural impropriety. Appeals must be filed within 14 days. Leave of the Court is required to pursue an appeal from some decisions, including consent orders, orders for costs and most interim orders. Some orders cannot be appealed at all, including an order dismissing a summary judgment application or where legislation provides that the Court's decision is final. Once the notice and grounds of appeal have been filed, the Registrar of the Court of Appeal lays down a timetable for the exchange of written arguments and other materials to be lodged with the Court, and fixes a hearing date in consultation with the parties' counsel.

In 2009, the Court of Appeal (Amendment) Rules introduced summary determination, in appropriate cases, of the question whether an appeal is one for which leave is required. Objections to the hearing of appeals for which leave has not been sought and applications for leave to appeal are, in the ordinary course, placed at first instance before a single judge of the Court of Appeal. A party dissatisfied with the upholding of an objection or the application for leave to appeal by a single judge has the unfettered right to renew the objection or application for leave to appeal to the full Court.

In general, the successful party in proceedings can expect to recover from the losing party its reasonable costs incurred in conducting the proceedings in an economical, expeditious and proper manner, unless the Grand Court orders otherwise.

Detailed guidelines govern the recoverability of fees and disbursements and the taxation process (by which the successful party's costs are assessed). The maximum recoverable hourly rates have been increased in relation to work carried out from 1 June 2011 onwards. Under the old rules, a significant proportion of a party's actual costs – as much as 60 per cent or even 70 per cent in some cases – was often irrecoverable, largely because the allowable rates previously in force fell short of realistic commercial fees. The new rates are largely in line with the rates actually charged. Costs may still be disallowed because specific items are deemed excessive or because it would otherwise be unreasonable for them to be paid by the losing party. Costs incurred in relation to work done by foreign lawyers are only recoverable if the lawyer in question has been temporarily admitted as an attorney in the Cayman Islands for the purposes of the proceedings in question, and the work is done after he or she is admitted.

Where a plaintiff rejects an offer to settle and then succeeds at trial, but is awarded less than a settlement offer made by the defendant, it may be ordered to pay the defendant's costs from the date of the offer.

Interest is payable from the date of service of a costs award, according to prescribed rates that are amended from time to time. The present rate of interest, effective from 1 November 2010, is two and three-eighths per cent (for judgments in US or Cayman Island dollars).

Limitation periods for commencing proceedings run from the date of accrual of the cause of action, and different claims are subject to different general limitation periods, although in each case there are exceptions:

a contract claims must be brought within six years of the breach of contract;

b tort claims must be brought within six years of the accrual of the cause of action; in the tort of negligence (the most common tort), this period is six years from the suffering of damages as a result of the conduct in question;

c claims for recovery of land must be brought within 12 years;

d some claims for breach of trust and for equitable relief have no statutory limitation period, although in many cases a six-year limitation period will apply and in all cases delaying claims unfairly may result in the Court refusing to allow a claim to succeed; and

e there are special rules extending the limitation period in certain circumstances where the party did not know immediately that it had suffered damage, or the alleged wrongdoing was deliberately concealed from the proposed plaintiff.

iii Class actions

The Rules do not provide for group litigation. In practice, however, the Grand Court will allow a representative action to be heard where there are a number of like cases. Company winding-up is the only truly collective action provided for in the Cayman Islands.

iv Representation in proceedings

Natural persons may carry on proceedings through an attorney or in person. Companies may not commence or defend proceedings other than by an attorney. In order to appear as an advocate in the Grand Court, visiting counsel must obtain a temporary work permit to allow them to appear in Cayman Court proceedings and be granted a limited admission to the Bar of the Cayman Islands for the purpose of the specific case.

Footnotes

1 Katie Brown is an associate at Appleby (Cayman) Ltd.

2 The Bill of Rights will come into force on 6 November 2012.

3 2011 Revision.

4 2004 Revision, amended in 2009.

5 Unreported, judgment dated 26 August 2011, Jones J.

6 Unreported, judgment dated 30 May 2011, Jones J.

7 Unreported, decision of the Court of Appeal dated 5 August 2011.

8 Unreported, decision of 4 January 2011, Jones J.

9 [2010(1)] CILR 83.

10 Unreported, 15 December 2010.

11 Unreported, decision of 1 April 2011, Foster J.

12 Sparkasse Bregenz Bank AG: Re Associated Capital Corporation (unreported, decision dated 18 June 2003); Pioneer Freight Futures Company Limited v. World Link Shipping Ltd Samoa (unreported, decision dated 1 July 2009).

13 Unreported, decision of the Court of Appeal dated 15 February 2011.

14 Unreported, decision dated 18 November 2009.

15 Unreported, decision dated 18 December 2009.

16 Unreported, decision of the Court of Appeal, 12 July 2011.

17 Unreported, decision dated 10 February 2010. 18 Unreported, decision of 10 May 2011, Quin J.

19 Unreported, decision dated 18 August 2011.

20 Ibid.

21 [1996] AC 284.

22 Unreported, decision dated 30 November 2011.

23 [2011] UKPC 17 (Cayman Islands).

24 [2009] QB 450.

25 [1958] Ch 852.

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however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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