Further to our first blog on the decision in Great Panorama (see here), we now turn to consider the Court’s treatment of certain pieces of evidence that were relied upon at the recent hearing in that case.
One of the grounds on which the respondents sought to discharge the injunction was that the Hong Kong default judgment was liable to be set aside such that there was no good arguable claim on which to found the injunction. The respondents argued that agreements pursuant to which the liability underpinning the default judgment arose were forged. However, the applicant sought to rely on a 2010 Hong Kong judgment from a case in which the defendant/respondent had raised a similar defence of forgery and where the Hong Kong court had concluded that the defendant had been dishonest in alleging forgery.
In finding that the BVI Evidence Act did not preclude the court from taking into account the Hong Kong judgment, Justice Jack took the following view:
- The findings of another court may be relied on at the interlocutory stage for the limited purpose of demonstrating whether there is a serious issue to be tried;
- Even if the Hong Kong Court’s findings were inadmissible, the factual evidence on which those findings were based could be admissible as hearsay evidence;
- The judgment could be relied upon as evidence of the defendant’s dishonesty, even if it could not be relied upon as evidence of the defendant’s credibility as a witness.
As such the BVI court satisfied itself that the Hong Kong judgment could be taken into account notwithstanding the provisions of the BVI Evidence Act. This finding assisted the Court in arriving at its decision to continue the freezing order over the BVI companies as it was unlikely that the defendant’s prospective application to set aside the Hong Kong default judgment would be successful.
A further point of contention arose following the circulation of the draft judgment to the parties for the correction of typos. At this stage, the Court was presented with fresh evidence that had been filed on behalf of certain of the respondents.
Even though the Court expressly acknowledged that it could, where appropriate, amend an order or judgment prior to the order being sealed, it also made clear to the Respondents that such evidence could only be considered where a formal application had been made which would have allowed all the parties to respond. The Court refused to admit the fresh evidence in the absence of an application and sternly held that if an application was made, the evidence would still have been refused, stating that "There must be some finality to interlocutory applications".
This decision demonstrates, on the one hand, the BVI court’s reluctance to exclude evidence if it is considered useful and if there is justification for admitting it. On the other hand, it also demonstrates the need for finality and how this may override the desire to consider all evidence, particularly once a decision has already been rendered (albeit before it was too late for the Judge to change his mind).