RTI Ltd v Mykolayiv Customs Office of the State Fiscal Service of Ukraine

JurisdictionJersey
CourtRoyal Court
JudgeBailiff
Judgment Date21 September 2018
Neutral Citation[2018] JRC 176
Date21 September 2018

[2018] JRC 176

ROYAL COURT

(Samedi)

Before:

Sir William Bailhache, Bailiff, and Jurats Blampied and Christensen

In the Matter of a Letter of Request for Judicial Assistance

And in the Matter of the Service of Process and Taking of Evidence (Jersey) Law 1960 (“The 1960 Law”)

Between
RTI Limited
Appellant
and
Mykolayiv Customs Office of the State Fiscal Service of Ukraine
First Respondent

and

Mykolayiv Alumina Plant
Second Respondent

and

Mykolayiv District Administrative Court
Third Respondent

Advocate N. M. Sanders for the Appellant.

The Respondents did not appear.

Authorities

Service of Process and Taking of Evidence (Jersey) Law 1960.

J v K and Others [2016] JRC 110.

Rules of the Supreme Court 1999.

Service of Process (Jersey) Rules 1994.

Wadman and Another v Dick [1993] JLR 52.

AD v The C Trust and PW [2010] JRC 001.

Montrow v Tacon [2007] JCA 144.

Convention on Mutual Administrative Assistance in Tax Matters 1988.

Rio Tinto Zinc Corp v Westinghouse Elec Corp [1978] 1 All ER 434.

Letters of Request — reasons for setting aside the order of the Judicial Greffier.

Bailiff

THE

1

On 6 th January, 2017, the Judicial Greffier made an order pursuant to the Service of Process and Taking of Evidence (Jersey) Law 1960 (“the 1960 Law”) that an authorised officer of the Appellant produce to the Viscount or Deputy Viscount an affidavit with supporting exhibits regarding certain information and documentation referred to in paragraphs 1 to 4 of the Act of Court which he then issued. The information concerned the full names of the shareholders and beneficial owner or owners of the Appellant, information regarding any connection between the Appellant and a Mr Almedia, copies of contracts apparently entered into in April and September 2011 between Retkin Petro Imya Holding AS Company and the Appellant relating to the sale and purchase of liquid caustic soda, and finally information in relation to the resale of liquid caustic soda by the Appellant under further contracts in April and September 2011. The Appellant appealed that order. The appeal was heard on 31 st May, 2018, when none of the Respondents appeared. The Court allowed the appeal and set aside the order of the Judicial Greffier with reasons reserved. This judgment contains those reasons.

Chronology
2

The Third Respondent issued a Letter of Request for assistance on 2 nd December, 2015. Unfortunately the Letter of Request was not issued through the correct diplomatic channels and accordingly it was not forwarded to the Judicial Greffier until over a year later on 30 th December, 2016. The Greffier having made the order now appealed, the Act of Court was served in January at the Registered Office of the Appellant, giving the Appellant twenty-one days for the evidence sought by the Letter of Request to be provided.

3

On 27 th January, 2017, the Judicial Greffier provided Advocate Sanders of Messrs Ogier with electronic copies of the documents on the court file and redacted copies of filings made in the appeal of J v K and Others [2016] JRC 110, a case in which an appeal was brought against a Letter of Request that had been acted upon pursuant to the 1960 Law. The deadline for compliance with the January Act of Court was extended to 23 rd February, 2017 to enable the Appellant and its advisors to consider the issues and whether there was any scope to suggest a variation to the order and / or a need to appeal. On 23 rd February Messrs Ogier issued a summons with the grounds of appeal annexed, but were advised by the Master that he considered the appeal was too late and that an application for leave to appeal out of time would need to be made to the Royal Court. Accordingly the proceedings were commenced by representation seeking to appeal the January order of the Greffier, seeking leave to serve the summons and the representation out of the jurisdiction and convene the Respondents to a date fix appointment and seeking a stay of execution on the orders set out in the January order pending determination of the representation and / or the appeal.

4

On 15 th March, 2017, the Court granted leave to the Appellant to serve the summons out of the jurisdiction on the Respondents and adjourned the matter until 21 st April at which point the representation would be tabled and adjourned for a date to be fixed. The amended summons and affidavit in support were also served on the Attorney General as partie publique and the Court ordered a stay on the January Act of Court pending determination of the appeal.

5

Copies of the amended summons with Ukrainian translations were served on the Respondents in accordance with the Act of the Court by letters dated 27 th March, 2017, and also on the Attorney General as partie publique by a letter of the same day. Neither the Respondents or the Attorney General responded to the service of these documents.

6

The representation having been tabled with a return date of 21 st April in accordance with the Court's directions, the Court considered the matter further on that day and adjourned the appeal for a directions hearing on a date to be fixed by the Appellant and notified to the Respondents. By letters dated 10 th May, 2017, to the Respondents, the Appellant notified them of the appointment to fix a date for a directions hearing. No one attended that appointment on behalf of the Respondents and on 19 th May the directions hearing was fixed for 19 th September, 2017. The Appellant notified the Respondents of this hearing date by letters couriered to them with Ukrainian translated copies, on 12 th July, 2017, inviting the Respondents to agree directions in accordance with the Royal Court's Practice Directions. No response was received from any Respondent.

7

On 19 th September, 2017, the Royal Court made further orders at the directions hearing which had been fixed. These required affidavit evidence upon which each party intended to rely at the hearing of the appeal to be served on the other parties, and in the case of the Respondents, that evidence was required to address the particular questions set out in the September Act of Court. These included details of the nature and current status of the proceedings before the Third Respondent, an overview of the issues raised in those proceedings, confirmation of the process by which the Letter of Request of 2 nd December, 2015, had been issued, an explanation of the basis upon which it was asserted that the documents of information sought in the Letter of Request were relevant to and necessary for the fair determination of the matters in issue in the Ukraine proceedings, and the Court also ordered that any evidence in support of or by way of objection to the grounds relied on by the Appellant under the amended summons and Notice of Grounds of Appeal should be served. The parties were ordered to attend a further appointment to fix a date for the appeal hearing. This Act of Court was provided to the Respondents by the Appellant by way of couriered letters, including a Ukrainian translated copy of both the letter and the September Act of Court, on 28 th September, 2017.

8

The Appellant served its affidavit evidence upon the Respondents in accordance with the September Act of Court by letters dated 30 th November, 2017. None of them responded. The Respondents did not serve any affidavit in accordance with the September Act of Court.

9

The Appellant's letter dated 28 th September, 2017, notified the Respondents that an appointment with the Bailiff's Judicial Secretary to fix a date for the hearing of the appeal had been scheduled to take place at 10.15am on 5 th December, 2017. The Respondents did not reply to this letter, nor did they attend the appointment with the Bailiff's Judicial Secretary. The appeal hearing was fixed to take place on 20 th March, 2018, with a time allocation of one day.

10

During the course of preparations for that appeal, it became apparent that the Respondents had not been notified of the appeal hearing date. Accordingly by an Act of Court dated 20 th March, 2018 the Court adjourned further consideration until 20 th April, 2018, and directed the Appellant to convene the Respondents to that Court hearing by letter enclosing the March Act together with copies translated into the Ukrainian language. The Court also directed the Appellant to attend upon the Bailiff's Judicial Secretary to identify and provisionally reserve a potential date for the hearing of the appeal. The Representor complied with that order by way of a letter dated 6 th April. However, the Appellant received no response.

11

On 20 th April, the matter was called again before the Royal Court, but the Respondents did not attend and were not represented. The Court then made orders that the hearing date of the appeal would take place on 31 st May, 2018 and that the Respondents should be notified of that hearing date by a couriered letter enclosing a copy of the Act of Court of 20 th April, 2018, with translated Ukrainian copies. The Appellant duly complied with the notification orders made by the Royal Court.

12

The chronology which we have just described shows therefore that other than the receipt, belatedly, of the Letter of Request through diplomatic channels on 30 th December, 2016, the Respondents have between them taken no steps at all to engage in the process of the Royal Court. The interlocutory orders of the Court have not been complied with, and indeed this Court does not know whether the requesting court still wants the assistance which it has requested.

Discussion
13

We now turn to the merits of the appeal. Advocate Sanders contends that the Respondents have not made an application for the purposes of Article 3 of the 1960 Law, which, as amended in 1985, provides as follows:-

“Article 3

Application to Royal Court for assistance in obtaining evidence for civil proceedings in a court or tribunal outside the island

...

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