In the recent decision of Donna Union Foundation v Svoboda Corporation, the BVI Court considered a contempt application seeking further disclosure by way of an unless order and whether cross-examination of the Respondents should be ordered to determine the issue of contempt.
Between 7 February and 19 July 2018, the Claimant obtained freezing and receivership orders which included the usual ancillary disclosure orders to police those orders. No disclosure was made by the Respondents until 4 February 2019; almost a year after the first injunction requiring disclosure and the day before the contempt application hearing.
First, the Court declined to order cross-examination. Justice Green noted the exceptional nature of such an order and the pointlessness of cross-examination without an order for further disclosure (which he was not going to make) against which the truth could be tested. The Court was alive to the fact that the affiants here were foreign-based and not themselves parties, and the difficulties in respect of ordering cross-examination in such circumstances.
Second, the Court was not satisfied beyond reasonable doubt that the Respondents remained in contempt. Instead, it declared they were in contempt prior to the filing the affidavits on 4 February 2019.
Lastly, the Court declined to grant the further disclosure sought. The Claimant had sought further disclosure as either part of its contempt application to test compliance with the existing orders, or as a self-standing application to police the freezing orders.
As to the first basis, following the Court’s decision not to order cross-examination or find that the Respondents remained in contempt, it could not order the further disclosure to test compliance with the ancillary disclosure orders.
Regarding the second basis, the Court distinguished between an ordinary freezing order – designed to prevent dissipation of assets which would otherwise be available to meet a judgment – and a proprietary freezing order – designed to protect the applicant’s property and would generally include orders to allow tracing. This case involved an ordinary freezing order meaning disclosure of the Respondents’ dealings with their assets prior to 7 February 2018 was not necessary to police the freezing order. Notably, the Court did however express its displeasure at the conduct of the Respondents by penalising them in costs.
This decision highlights the exceptional nature of cross-examination orders and the high standard of proof required for contempt orders. It is also a good reminder of the Court’s unwillingness to make orders that that will be difficult to enforce, especially against respondents who are out of the jurisdiction.