Fund and seek: EC CoA confirms that sharing information with a funder is within the permitted use of disclosed documents
On 21 October 2022, the EC Court of Appeal handed down judgment in Fang Ankong v Green Elite Ltd (In Liquidation) (BVIHCMAP 2022/0048) refusing an appeal of a BVI Commercial Court decision which authorised liquidators to share, with their third-party funder, asset disclosure information that had been produced by a defendant under compulsion pursuant to a post-judgment freezing injunction.
The post-judgment freezing injunction required certain defendants to disclose their assets, which they did in the form of a letter, witness statement, and affirmation. The liquidators successfully obtained permission to share the disclosure with the funder in order for it to consider the proportionality and appropriateness of further litigation expenses.
In upholding the lower court’s decision, the Court of Appeal found that sharing the disclosure with the funder was for the purpose of the proceedings in which the disclosure was given and was therefore a permitted, and not collateral, use pursuant to EC CPR 28.17 and 29.12. Additionally, to the extent the implied undertaking applied to any of the forms of disclosure given, sharing such information with the funder was also for purposes ancillary to those which the disclosure had been made (ie to police the freezing injunction) because the funder should be entitled to assess the value of frozen assets which may be amenable to enforcement.
This decision further demonstrates that the BVI is a funder-friendly jurisdiction, which adopts a pragmatic view as to the commercial needs and rights of third party litigation funders.
More will follow on this important judgment.
Harneys acted for the successful respondent, Green Elite (In liquidation).
