Ben Valentin KC has successfully appeared for five corporate and individual defendants in a challenge to the jurisdiction of the Bermudian Courts, where judgment was handed down on 17 August 2023.
The Plaintiff, a Cayman domiciled litigation trust, sought to bring a claim in Bermuda as purported assignee of African Minerals Ltd, a Bermudian registered company that at the relevant time was operated from the United Kingdom and listed on the London Stock Exchange. The proceedings concerned a share enforcement process that took place in April 2015 and alleged that shares in a mining project in Sierra Leone had been acquired at an undervalue.
The jurisdiction challenge was heard by Chief Justice Hargun over four days in July 2023. The Plaintiff contended that it had title to sue despite the fact that the finance documentation in question contained broadly drafted anti-assignment clauses. The Court accepted the Defendants’ arguments that the anti-assignment clauses were engaged, and held they were to be construed in light of the presumption in Fiona Trust v Privalov  UKHL 40 which applies to arbitration and jurisdiction agreements. The assignment was therefore ineffective.
The judgment also analyses the proper approach to construing jurisdiction agreements in finance documentation. The Court examined the relationship between the English exclusive jurisdiction agreement in the umbrella facility agreement and the jurisdiction agreements in the Share Charges, and held that in any event on their proper construction the Plaintiff would have been obliged to bring its claims in England and Wales. In the circumstances, the Court rejected the Plaintiff’s argument that an undertaking should be required from the Defendants that they would not rely on limitation as a defence to any claim in England and Wales.
Ben and Ian were instructed by Euan Clarke and Chris Stevenson of Linklaters LLP. A copy of the judgment is available here.