The High Court recognised the British Virgin Islands winding-up order for Fairfield Sentry Limited and the appointment of Kenneth Krys as its liquidator. In a judgment delivered on 25 June 2012, Ms Justice Finlay Geoghegan settled the declarations to be included in the order and apportioned the costs of the proceedings.
The declarations followed a judgment delivered on 28 February 2012. The court also declared that Fairfield Sentry’s account with Citco Bank Nederland NV at its Dublin Branch was governed by Citco’s General Conditions, was not governed by a Custodian Agreement dated 3 July 2006, and had Irish law as the proper law of its contract.
On payment, the court declared that Dublin was the place where Citco was obliged to pay money in the account when demanded by or on behalf of Fairfield Sentry. It declined to make the broader declarations sought by the plaintiffs that the balance was repayable to the liquidator in Dublin and nowhere else unless the liquidator consented, finding those proposals were not fully consistent with its earlier conclusions.
The plaintiffs had also sought declarations that Dutch conservatory garnishment orders were not entitled to recognition in Ireland and that Citco held the account money to the liquidator’s order. Those declarations had been refused in the earlier judgment. The court said the further declarations clarified that judgment and did not add to or vary it. Issues decided in that judgment remained res judicata, subject to any appeal to the Supreme Court.
On costs, the judge treated defendants Stichting Shell Pensioenfonds and Atlanta Business Inc. as successful because they prevailed on the central issue of recognition of the Dutch garnishment orders. But the plaintiffs had succeeded on disputed contractual and proper-law issues that added to the litigation’s complexity and length. The five-day trial also required additional preparation on those matters.
The court ordered the plaintiffs to pay Shell and Atlanta 75% of their costs, and Shell and Atlanta to pay the plaintiffs 25% of their costs. The costs were to be taxed if the parties could not agree. Citco sought no costs order. The judge said the costs orders did not vary or interfere with any prior costs order.