A3/2009/1565 & 1643
CAO No. 13091
IN THE COURT OF APPEAL
(Civil Division)
ON APPEAL FROM THE HIGH COURT OF JUSTICE CHANCERY DIVISION
(COMPANIES COURT)
Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE CHANCELLOR
(SIR ANDREW MORRITT)
THE HONOURABLE LADY JUSTICE ARDEN
THE HONOURABLE LORD JUSTICE HUGHES
IN THE MATTER OF STANFORD INTERNATIONAL BANK LTD
AND
IN THE MATTER OF THE CROSS BORDER INSOLVENCY REGULATIONS 2006
BETWEEN:
RALPH STEVEN JANVEY
(AS RECEIVER OF STANFORD INTERNATIONAL BANK LTD)
Appellant
-and-
PETER NICHOLAS WASTELL AND NIGEL JOHN HAMILTON-SMITH
(AS LIQUIDATORS OF STANFORD INTERNATIONAL
BANK, LTD)
Respondents
AND
BETWEEN:
THE SERIOUS FRAUD OFFICE
Appellant
-and-
PETER NICHOLAS WASTELL AND NIGEL JOHN HAMILTON-SMITH
(AS LIQUIDATORS OF STANFORD INTERNATIONAL
BANK, LTD)
Respondents
IN THE COURT OF APPEAL
(Criminal Division)
IN THE MATTER OF THE PROCEEDS OF CRIME ACT 2002 (EXTERNAL REQUESTS AND ORDERS) ORDER 2005
STANFORD INTERNATIONAL BANK (SIB) BY ITS LIQUIDATORS
Appellant
-and-
THE DIRECTOR OF THE SERIOUS FRAUD OFFICE
Respondent
-and-
ROBERT ALLEN STANDFORD
JAMES DAVIS
LAURA PENDERGEST-HOLT
Other affected parties
(Digital transcript by WordWave International Limited
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Official Shorthand Writers to the Court)
MR W TROWER QC & MR D BAYFIELD (instructed by CMS Cameron McKenna) for the Antiguan Liquidators on the Civil Appeal
MR R KOVALEVSKY QC & MR D BAYFIELD (instructed by CMS Cameron McKenna) for the Antiguan Liquidators on the Criminal Appeal
MR S ISAACS QC & MR J GOLDRING (instructed by Baker Botts) for the US Receivers
MR A MITCHELL QC & MR C CONVEY for the Serious Fraud Office
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(Official Shorthand Writers to the Court)
Judgment
THE CHANCELLOR:
Having considered the submissions made both on paper and orally, we are satisfied that we should make an order that the US receiver pay the costs of the Antiguan liquidators of and relating to the appeal from the order of Lewison J, such costs to be assessed on a standard basis. The question then arises as to the time for payment which we would defer for the moment.
The next question is whether we should order an interim payment and, if so, how much. It was not suggested if we were making an order for costs we should not also make an order for an interim payment subject to a possible stay. Having considered the figures, we think that the appropriate figure for an interim payment is £130,000 which is somewhat less than the Antiguan liquidators were seeking, but somewhat more than the US Receiver was offering.
So far as permission to appeal is concerned, we refuse permission. It is, of course, open to the US Receivers to apply to the Supreme Court for permission and therefore I come back to the question of when the costs order should be, as it were, enforceable.
On the one hand it was suggested that the US Receivers could not be made liable for costs because of the terms of their appointment by the United States Court. On the other side, it was suggested that they came here and submitted to the jurisdiction of the court and must, therefore, accept the consequences, whether or not he can satisfy his liability out of the assets of the company under his control.
We do not think it appropriate to extract an undertaking, such as was offered, to apply to the US court by 4pm on Monday and proceed with due diligence to seek the approval of the US court for the payment of the costs that we have ordered. We think, on the other hand, it would be appropriate to stay our order for a period to enable an application for permission to appeal to be made to the Supreme Court. We will therefore stay the costs order until 14 days after the time for making such an application has expired, or, if the application is made and is successful, until the appeal is disposed of or if the application is made but is not successful, from the date of the judgment of the Supreme Court refusing it.
We do so on the basis that that gives ample time for the US Receiver to seek the approval of the United States Court. If it is not sufficient time, it will be open to the US Receivers to make an application for a renewal of the stay on the basis of the evidence as it then is.
On that footing, the draft of the order with which we have been provided can be completed by amending paragraph 2 so as to read "shall entitle the liquidators to take…". Paragraph 3 stands, paragraph 4 stands, in paragraph 5 the figure is £130,000, paragraph 6, permission to appeal is refused. We invite counsel to agree the form of the stay which I have indicated to be added in as paragraph 7.