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INSOLVENCY
Kenneth M Krys (as Liquidator of Fairfield Sentry Ltd (In Liquidation)) (Appellant) v Farnum Place LLC (Respondent) (Virgin Islands)
Case summary
Case ID
JCPC/2024/0006
Jurisdiction
British Virgin Islands
Parties
Appellant(s)
Kenneth M Krys
Respondent(s)
Farnum Place LLC
Issue
When a court considers whether a claimant should be permitted to appeal the decision of a foreign court, must it take into account the fact that the foreign appellate court’s decision has, in fact, already heard and allowed the appeal in question?
Facts
Fairfield Sentry Limited (“Fairfield”), a BVI company, was subject to winding up proceedings in the BVI and New York. The Appellant is the liquidator of Fairfield. Fairfield had a claim in the liquidation of another entity, Bernard L. Madoff Investment Securities LLC (“BLMIS”). In December 2013, Fairfield agreed to sell its BLMIS claim to the Respondent, under a US-law-governed contract. The sale was for a fixed price, and subject to approval from both BVI and US bankruptcy courts. Before the court approvals were secured, the BLMIS claim became much more valuable. Both the US Bankruptcy Court and BVI High Court (“BVIHC”) then approved the sale contract. The Appellant appealed the US approval in the US District Court (“USDC”). The USDC dismissed the appeal. The Appellant then sought to appeal the USDC decision, to the US Court of Appeals for the Second Circuit (“SCCA”). Under an existing BVIHC court order, the BVIHC had to sanction any appeal to the SCCA. In July 2013, the BVIHC refused to grant the Appellant this sanction. The Appellant appealed the BVIHC’s refusal to sanction the appeal to the SCCA, in the Eastern Caribbean Court of Appeal (“ECCA”). The ECCA hearing took place in July 2014. Pending its full judgment, the ECCA granted the Appellant an interim sanction to take necessary steps to protect its position regarding the disputed USDC decision. Under that interim sanction, the Appellant appealed the USDC decision to the SCCA. The SCCA allowed the Appellant’s appeal in September 2014. The Appellant gave the ECCA a copy of the SCCA decision. The ECCA gave judgment in March 2022, dismissing the Appellant’s appeal. The ECCA determined that the BVIHC had been entitled to refuse the Appellant its sanction to appeal to the SCCA, notwithstanding the fact that the ECCA had several years’ notice that the Appellant had already successfully appealed to the SCCA. The 2022 ECCA decision is the subject of this application. In November 2022, the ECCA gave the Appellant final leave to appeal to the Judicial Committee of the Privy Council (“JCPC”), against the ECCA decision.
Date of issue
18 January 2024
Appeal
Justices
Hearing dates
Start date
20 January 2025
End date
20 January 2025
Watch hearings
20 January 2025 - Morning session
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Change log
Last updated 20 December 2024