JURISDICTIONS IN PROFILE

is deemed never to have been dissolved in the first place), which plainly supports the continuance of privilege, and (ii) the narrow applicable definition of bona vacantia transfer, which deals with only “any property of a company” (s263(6) Turks & Caicos Islands Companies Ordinance 2017). This focus on property transfer, in contrast to the wider language of equivalent legislation in England & Wales of “all…rights whatsoever vested in…the company” (s1012 Companies Act 2006, England and Wales) weakens any argument that the Crown actually receives the right to privilege as a result of the bona vacantia process.

“Privilege is not lost by the death of the client, but the death of a juridical person”

The primary lesson to be learnt here is the need to act quickly, whether one is acting for or against the company that is awaiting restoration. The sooner a company is restored, the sooner the door is closed to a viable attack on documents that would otherwise be covered by legal professional privilege. In the light of the decisions that the courts have made in this area, a lawyer faced with competing claims to the privileged documents of a dissolved company in the context of proceedings would do well to await directions from the court in question, especially when one considers ‘confidentiality’ legislation such as the Confidential Relationships Ordinance. There is a statutory mechanism for doing so as a direct result of my firm’s advice to the team of draftsmen of the the targeted nature and relevance to the overseas • in English,

Companies (Amendment) Ordinance 2017. The ability of a lawyer in that difficult position to make an application to the court was revived.

ASSISTANCE IN THE TURKS FOR OVERSEAS PROCEEDINGS – JUDICIAL CO-OPERATION MERELY SCRATCHING THE SURFACE

Let us return to the jumping-off point of this article. continents and geographic regions is at a premium.

The offshore world’s place in the world of commerce and cross-border commerce (and the disputes that that inevitably generates) is assured. An important contribution to that place is the way in which the legal regime of the Turks & Caicos Islands can, and does, answer properly formulated requests for assistance in overseas legal proceedings.

of overseas civil proceedings exists, subject to someone making a request in respect of evidence

targeted at specific information of demonstrable relevance to the proceedings in the country from which he is making it. The request happens through a ‘letter of request’ from the requesting jurisdiction. That request may be made either to the Governor for implementation through the Court Registrar or to the Court Registrar directly. In either instance, the Attorney General’s Chambers is likely to become involved. If a requester is suffering from time pressure as a result of (say) an overseas case that is about to be heard, his application to ask the Turks & Caicos Islands for help requires affidavit evidence (setting out proceedings of the underlying evidence he seeks) and is made without notice to the target.

The test and requirements to be applied on the hearing of such an application is as follows.

• It must be a request by a competent court for evidence to be used in ongoing civil proceedings, • for documents that could, in the Turks & Caicos

Islands, be obtained in civil proceedings of the same kind as the overseas proceedings to which the request relates. • The proposed order must not go beyond specified documents (i.e. the exercise ought not to be a

‘fishing expedition’). • There must be reasonable grounds for belief that the intended witness – i.e. the target of the application – might have relevant evidence to give on topics relevant to an issue in the overseas action. • The target of the request will have his, her or its reasonable costs of compliance with any order requiring production paid for by the applicant.

“The primary lesson to be learnt here is the need to act quickly”

A short article of this kind can obviously only scratch the surface when considering litigation relevant to clients operating in the Turks & Caicos Islands or trying to extract information from the jurisdiction that is relevant to proceedings elsewhere. In a world where commerce knows no boundaries, truly joined-up thinking on the part of a legal team that spans several A statutory and procedural set of rules in respect

* Tim Prudhoe can be reached on tim@prudhoecaribbean.com The law firm of Prudhoe Caribbean works on complex and often cross-border representations, frequently concentrating on projects with overseas co-counsel and General Counsel teams. It is most often deployed in the courts of Central America and the Caribbean, but is also used to working as part of time-sensitive projects that encompass many parts of the globe, sometimes organising the recovery of assets in many jurisdictions at once.

It accepts only a limited number of engagements so as to ensure that its clients (whether end-user, via co-counsel or both) enjoy access, responsiveness, and service consistent with onshore providers. It is not a traditional law firm in that it does not normally cater for repeat clients. Its lawyers are tied neither to any particular clientèle nor to any geographic locations.

Prudhoe Caribbean is based in the Turks & Caicos Islands and sometimes does domestic work. The interaction of offshore financial centres with onshore regulators and enforcement agencies is a significant aspect of its work. Its approach to disputes makes it ideally suited to clients whose positions are adverse to domestic and international governments and quasigovernment bodies. It specialises in difficult projects that require creativity in tough operating conditions.

The law firm has people with reliable, responsive and aggressive litigation skills at its disposal. Its lawyers demystify the process of enforcement for the badly-served beneficiaries of offshore structures and the prices it charges for its services contain no hidden costs. Plain-English explanations of necessary steps towards agreed results and milestones are de rigeur.

Courtroom advocacy at both trial and appellate level involves skills that take many years to acquire and frequent use to keep effective. A related skill is the giving of expert evidence on paper and by oral testimony. Prudhoe Caribbean has both types of skill in abundance.

Success at the judgment or arbitral award stage is often by no means the ‘finish line’ for a client. Prudhoe Caribbean is adept at persuading courts to help it enforce judgments and recover assets in many jurisdictions at the same time. It is also used to working in insolvency proceedings, both for the liquidator (trustee-in-bankruptcy) and as the liquidator itself.