We previously reported on the
BVI Commercial Court judgment back in January 2016. Last week
the Eastern Caribbean Court of Appeal dismissed an appeal brought
by Olive Group in a welcome underlining of when a Court can
interfere in the appraisal mechanism and its role in determining
minority discount. Conyers' BVI litigation team acted for the
Having been forcibly redeemed, Olive Group wanted the Court to
intervene in the appraisal process and declare that a minority
discount should be applied. The Court below refused, citing the
appraisers as akin to an expert adjudication and that it was not
for the Court to interfere in such process. The Court of Appeal
agreed. Webster JA delivering judgment held in three main
once any dispute falls within the
expert's mandate, then the Court should not intervene. If the
dispute is jurisdictional, such as an interpretation of the
mandate, then the Court will determine that either before or after
the expert completes the work, whichever is more convenient;
the Court has jurisdiction to
determine if a minority discount can apply, but not whether it
should apply in any one case and
Section 179(9) of the British
Virgin Islands Business Companies Act, 2004 (the
"Act") is silent on the application of minority discount.
Thus, the appraisers need to decide whether one should be applied,
and if so how. Further, it is for the parties, when agreeing the
mandate of the expert to agree to mechanisms for how determination
of value, under which the expert is to operate. Absent that, the
expert is free to conduct the process as they see fit, save only
for allegations of fraud or collusion.
The Court further clarified the use of Section 246 and its
attempted use to create jurisdiction in allowing directors to bring
matters of the Act before the Court, as subsidiary only to
jurisdiction being established elsewhere in the statute. Section
246 is a procedure, not a cause of action imposing jurisdiction
where the statute does not already so provide.
Partner, Mark Forte, who appeared along with Tameka Davis,
Counsel, was led by Richard Millett QC on the appeal.
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