In a recent Privy Council decision IGCF SPV 21 Limited v Al Jomiah Power Limited and another, the Board ruled on when a party is held to have submitted to the jurisdiction of a foreign Court as a matter of Cayman law.
The parties' positions
It was common ground between the parties that an applicant will forfeit its right to an injunction if it submits to the Court of a foreign jurisdiction.
The Appellant was pursuing proceedings against the Respondent in Pakistan. The Respondent had sought to appear in Pakistan in order to contest jurisdiction.
The Respondents applied for an anti-suit injunction in the Cayman Courts, seeking to restrain the Appellant from pursuing the proceedings in Pakistan.
The Appellant's argument was that the Respondent had submitted to the jurisdiction of Pakistan.
The Rule in Geoprosco
The Appellant relied on what they called the "Rule in Geoprosco" - a 1975 English Court of Appeal case that held that appearing before a foreign Court (Pakistan) simply to contest jurisdiction counted as submission. Since Geoprosco was decided, it had in fact been reversed in England and Wales by a 1982 statute.
Without an equivalent Cayman statute, the question arose: what was the Cayman position?
The Board concluded at [52] that Geoprosco "should form no part of Cayman law". Put simply, appearing in a foreign Court to contest jurisdiction did not count as submission.
What counts as submission?
In deciding what counts as submission, the Board held that Cayman law should reflect the current law in England and Wales, namely the seminal case of Rubin v Eurofinance.
Key takeaways
The Board's approach to a legislative lacuna in Cayman is noteworthy. The Board analysed academic texts and English Hansard Debates, and compared the solutions of other common law jurisdictions. It was also emphasised that the "Cayman courts may decline to follow English court decisions where there is good reason to do so" [47].
Interestingly, the Board noted that some common law jurisdictions had adopted legislation similar to the English statute, and that others without a legislative equivalent had declined to follow Geoprosco. The Board highlighted a first instance case from Bannister J in the BVI to that effect. The Appellants had not been able to point to a single common law jurisdiction which followed the Rule in Geoprosco.
Although a Cayman judgment, the case may well have extra territorial influence in years to come in those jurisdictions where common law solutions have so far been found, but only at the first instance level.
Finally, and as a mark of the jurisprudential significance of the BVI, this judgment is one of a number of important decisions in which the Board was assisted by the BVI's the Honourable Dame Janice Pereira, who heard the appeal together with four permanent members.