Heritage Cruise Holdings Ltd v Silversea Cruise Holdings Ltd
| Jurisdiction | Bahamas |
| Judge | Constance A. Delancy |
| Judgment Date | 30 August 2022 |
| Court | Supreme Court (Bahamas) |
| Docket Number | 2022 CLE/gen/852 |
(formerly known as Silversea Cruises Group Ltd.)
and
Registrar Constance A. Delancy
2022 CLE/gen/852
Common Law and Equity Division
IN THE SUPREME COURT
Practice — Service of court process outside of the jurisdiction — Action in respect of declarations affecting companies within the jurisdiction — Test for grant of leave — Applications under Order 11(1)(1)(j) RSC
Mrs. Sophia Rolle-Kapousouzoglou
Mr. Ramonne Gardiner
The Applicant commenced an action by an Originating of Summons filed 31 May, 2022 seeking declaratory relief in relation to the acquisition of and transfer of shares of an International Business Company.
The Applicant's application by way of Summons filed 6 July, 2022 seeks leave to issue and serve a Notice of Originating Summons and Concurrent Originating Summons and any further documents outside the jurisdiction on the Second Respondent, or alternatively, to serve the Second Respondent by way of substituted service.
The Applicant's application is supported by an Affidavit and Supplemental Affidavit of McFalloughn Bowleg, Jr. (Bowleg Affidavits) filed herein on 6 July, 2022 and 30 August, 2022 respectively.
The Bowleg Affidavits outlined the historical background and corporate structure of the Applicant and the First Respondent; the ongoing disputes involving the parties in Italy and the United States and the Second Respondent's familial disputes.
Permission to serve out of the jurisdiction is governed by Order 11 r. 1(1) of Rules of the Supreme Court (RSC) which provides:
“1. (1) Subject to rule 3 and provided that the writ does not contain any such claim as is mentioned in Order 67, rule 2(1), service of a writ, or notice of a writ, out of the jurisdiction is permissible with the leave of the Court in the following cases, that is to say —
(j) if in the action begun by the writ being properly brought against a person duly served within the jurisdiction, a person out of the jurisdiction is a necessary or proper party thereto.”
Order 11 r. 4 of RSC provides that:
“(1) An application for the grant of leave under rule 1 or 2 must be supported by an affidavit stating the grounds on which the application is made and that, in the deponent's belief, the plaintiff has a good cause of action and showing in what place or country the defendant is, or probably to be found.
(2) No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.”
Order r. 4 of RSC provides that:
“(1) An application for the grant of leave under rule 1 or 2 must be supported by an affidavit stating the grounds on which the application is made and that, in the deponent's belief, the plaintiff has a good cause of action and showing in what place or country the defendant is, or probably to be found.
(2) No such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this Order.”
Order 11, r. 8 of the RSC
“8. (1) Subject to paragraph 2 and Order 66, rule 4, service out of the jurisdiction of an originating summons is permissible with the leave of the Court.
(2) Where the proceedings begun by an originating summons might have been begun by writ, service out of the jurisdiction of the originating summons is permissible as aforesaid if, but only if, service of the writ, or notice of the writ, out of the jurisdiction would be permissible had the proceedings been begun by writ.
(3) Where any proceedings are authorised by these Rules or (apart from these Rules) by or under any Act to be begun by originating motion or petition, service out of the jurisdiction of the notice of motion or of the petition is permissible with the leave of the Court.
(4) Subject to Order 66, rule 4, service out of the jurisdiction of any summons, notice or order issued, given or made in any proceedings is permissible with the leave of the Court.
(5) Rule 4(1), (2) and (3) shall, so far as applicable, apply in relation to an application for the grant of leave under this rule as they apply in relation to an application for the grant of leave under rule 1 or 2.
(6) An Order granting under this rule leave to serve out of the jurisdiction an originating summons to which an appearance is required to be entered must limit a time within which the defendant to be served with the summons must enter an appearance.
(7) Rules 5, 6 and 7 shall apply in relation to any document for the service of which out of the jurisdiction leave has been granted under this rule as they apply in relation to a writ.”
Applications under Order 11 of RSC are interlocutory and are not determinative of the substantive issues between the parties are questions which should be decided at trial. The Applicant's claim must nonetheless satisfy the criteria set out in Order 11 of the RSC in order for the Court to exercise its discretion to grant leave to allow service outside the jurisdiction. The Applicant has satisfied the three (3) requirements: it must show that it has a good case of action; that its claims are within the ambit of Order 11, r.1(1)(j) and that The Bahamas is the forum conveniens.
Learned Counsel for the Applicant cited...
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