The Attorney General of Anguilla

• Jurisdiction: Anguilla
• Court: High Court (Saint Christopher, Nevis And Anguilla)
• Judge: Edwards J
• Judgment Date: 13 March 2002
• Neutral Citation: AI 2002 HC 6
• Docket Number: 6 of 1994 and 7 of 1998
• Date: 13 March 2002

High Court

Edwards,, J.

6 of 1994 and 7 of 1998

The Attorney General of Anguilla

and

Hansa Bank and Trust Company Ltd. et al

Appearances:

Mr. Ivor Green for appellant, Attorney General of Anguilla.

Mr. Mark Brantley for 1st respondent, Hansa Bank & Trust Co. Ltd and Span Corp. Ltd.

Mr. Bruce Drummond for 2nd respondent, National Bank of Anguilla.

Mr. Elson Gaskin for 3rd respondent, Barclays Bank PLC.

Equity - Application to extend freezing order — Factors to be considered — Material non — disclosure as there was a failure to present evidence relating to the respondents having assets within the jurisdiction or any real risk that the respondent might dissipate those assets before their costs were satisfied — No new freezing order could be made on existing evidence — Appeal dismissed.

1 Edwards J; There were two applications before the court for hearing. One was the application of the third respondents filed on the 14th January 2002. Barclays Bank PLC to extend the freezing Order which was granted by Madam Justice d'Auvergne on the 26th day of November 2001 until further order of the court.

2 The other was the Application of the first respondents, Hansa Bank and Trust Co. Ltd. and Span Corporation Ltd. filed on the 11th February, 2002 to set aside the Freezing and Disclosure Orders of Madam Justice d'Auvergne dated 26th day of November 2001 and the 14th day of December 2001.

3 It is necessary to set out in chronological order these orders and refer to the supporting affidavits which were relied on by the parties for their application before the Judge in Chambers.

4 On the 26th day of November 2001, Justice D'Auvergne made the following order that:–

• 1. “The first respondents, whether by themselves, their servants and their agents particularly Mr. Lynwood Bell or otherwise howsoever be restrained from removing from the jurisdiction or otherwise dealing with their assets located in the jurisdiction up to Five Hundred Thousand Dollars East Caribbean Currency (EC $500,000.00).

• 2. That any sums standing to the credit of the first respondents in any account in any Commercial Bank in Anguilla up to a cumulative total of Five Hundred Thousand Dollars East Caribbean Currency (EC$500,000.00) be frozen in the hands of that said bank until further order of the court.

• 3. That the first respondent do file with the court an inventory of their assets verified by affidavit within 14 days of the date of this order.

• 4. That the return date for the hearing of an inter-panes Application is the 15th day of January, 2002.

• 5. That the costs of and occasioned by this Application be borne by the first respondents in any event.”

5 The affidavit of Tanya Phillips dated 22nd November 2001, supported the Application for the third respondents which resulted in the Freezing Order of Justice d' Auvergne on the 26' November, 2002.

6 This affidavit stated in paragraph 3:

“Since that date (29th day of May 2000) the applicant has sought both verbally and by correspondence to reach an agreement with the first respondents as to the sum to be paid for the applicant of its costs. The said efforts have borne no fruit. The correspondence, forming the basis of the said discussions was titled “without prejudice” and is not exhibited hereto.”

7 Tanya Phillips affidavit went on to relate the events which took place from the date the first Bill of Costs for the second respondent was filed on the 5th March, 2001 up to the 22nd day of November 2001 and from this the following facts emerge:–

• (a) When the Bill of Costs was filed for second respondents in March 2001 the Taxing Master's view was that all the Bills of Costs should be taxed simultaneously and on varying dates in March, July, September 2001, the Taxation of second respondents Bill of Costs was adjourned to await the filing of the other Bills of Costs for the appellant and the third respondent.

• (b) Following the filing of the Bill of Costs for the second respondent on the 24th of October, 2001 Taxation date was fixed for the 6th November, 2001.

• (c) On the 6th November, 2001 Mr. Lynwood Bell, the individual behind most of the first respondent Companies by letter dated 6t' November 2001, informed the Taxing Master that one of the lawyers, Miss Wallace, of Keithley Lake and Associates, Solicitors who represented first respondents Hansa Bank and Trust Co. Ltd. and Span Corporation Ltd, also was the lawyer of the second respondent National Bank of Anguilla also, and since there was a conflict of interest and he would be traveling to Miami he was requesting an adjournment of the taxation proceedings to January 2002.

• (d) Miss Tanya Phillips asserted that at the Court of Appeal hearing on March 2000, it was known that Keithley Lake and Associates were the generally retained lawyers for second respondents, National Bank of Anguilla and since the first respondents were raising the issue of conflict of interest, only now this was a ploy.

• (e) That Hansa Bank & Trust Co. Ltd. had scaled back if not closed down its operations in Anguilla and some, if not all, of the other first respondents Companies had been struck from the Companies Register.

• (f) In Mr. Bell's letter dated 6th November 2001 to the Taxing Master, which was exhibited as “TP9” he had stated that a convicted felon, Mr. Edwards, had claimed responsibility for the assets of first respondents — Fund International Ltd., Theta Ltd: and Siyang Funds Ltd. to the amount of Eleven Million Dollars ($11,000,000.00) and then assets have been escheated to the Crown. Mr. Bell's letter also stated that Ms. Wallace (Lawyer of Keithley Lake and Associates) had indicated to the Attorney General their willingness “to assist in realizing on those assets” under the Attorney General's current ownership.

• (g) Miss Tanya Phillips asserted her opinion that based on the assertions in Mr. Bell's letter it appeared that the first respondents companies have assets which may yet be reachable and the third respondent's were fearful that the actions of the first respondents:–

  • (i) in allowing certain entities to be struck;

  • (ii) scaling back operations in Anguilla

  • (iii) and changing solicitors at the last minute

  Were a ploy to frustrate the third respondent's attempt to recover costs. She asserted that the third respondents were concerned that once the first respondents Companies were given notice of this Freezing Order Application they may seek to spirit assets away from Anguilla.

• (h) Miss Tanya Phillips spoke to the urgency to have the necessary restraints by way of the Freezing Order put in place to avoid irreparable damages to the third respondent since after the 29th November 2001, it is uncertain when there will be a judge in Anguilla.

8 On the 12th December 2001 a joint Application to vary this Freezing Order of Justice d'Auvergne by increasing the value of the assets to $1 million was made by appellant, Attorney General of Anguilla and second respondent, National Bank of Anguilla.

9 The Supporting affidavits of Solicitor Ivor Greene and Barrister Bruce Drummond in substance merely spoke to their support for the third respondent's Application for the existing Freeze Order; and asserted their belief that the value of the first respondents' assets that were frozen (being EC$500,000.00) was insufficient to provide for the total costs being claimed by the parties entitled to costs.

10 On the 14th December 2000, the Order was varied by Justice d'Auvergne as follows:– “The order of the 26th day of November 2001 is varied by deleting paragraphs 1 and 2 of the said order and substituting the following paragraphs:

• 1. The first respondents, whether by themselves, their servants and their agents particularly Mr. Lynwood Bell or otherwise howsoever be restrained from removing from this jurisdiction or otherwise dealing with their assets located in the jurisdiction up to One Million, East Caribbean Currency (EC$1,000,000.00)

• 2. That any sums to the credit of the first respondents in any account in any commercial bank in Anguilla up to a cumulative total of One Million East Caribbean Currency (EC$1,000,000.00) be frozen in the hands of that said bank until further order of this Court.”

11 On the 18th December 2000, counsel, Mr. Mark Brantley, though not on the record as representing first respondents Hansa Bank and Trust Co. Ltd. and Span Corporation Ltd., filed an application on behalf of these said first respondents for an Order that:–

• 1. Such of the Order of Madam Justice Suzie d'Auvergne dated the 26th day of December 2001 and granted on the application of the third respondent that requires the applicants to file an inventory of assets verified by affidavit within 14 days of the date of the order be stayed pending an application by the applicants set aside the Order.

• 2. That the costs of and occasioned by this Application be borne by the third respondent.”

12 Mr. Mark Brantley by his affidavit dated 18th December 2001 in support of the application referred to the date set by the judge for the inter-panes application (15th January 2002). Paragraphs 6–8 of the affidavits cited the following reasons to stay disclosure of the applicant's assets:–

• (a) The quantum of costs sort to be protected by the Order is yet unknown.

• (b) The Order for disclosure made by the judge was not among the heads of Relief sought by the third respondent.

• (c) There was an urgent need to stay the disclosure of assets as the disclosure there would render the first respondents' right to apply to set aside the order otiose since the information as to their assets would have already been in the hands of the third respondent.

• (d) The uncertainty concerning the availability of a Judge in Anguilla to address the merits or otherwise of the judge's order.

13 It is also necessary to state that the Freezing Order was discharged against Counsel Limited one of the first...