Stichting Shell Pensioenfonds v Krys and another

Stichting Shell Pensioenfonds v Krys and another

A creditor who submits to the jurisdiction of the court supervising a company's liquidation, by proving in the liquidation or participating in proceedings, may be restrained by anti-suit injunction from pursuing foreign proceedings or attachments calculated to give it priority over other creditors, as such actions are inconsistent with the statutory trust and pari passu distribution mandated by the law of the company's incorporation.

Parties
Appellant: Stichting Shell Pensioenfonds; Respondents: Kenneth Krys and Joanna Lau (joint liquidators of Fairfield Sentry Ltd)
Jurisdiction
England and Wales
Judgment Date
26 November 2014
Procedural Posture
Civil Appeal (insolvency/company Law) / Final Appeal to Privy Council From Court of Appeal of the British Virgin Islands
Outcome
Appeal dismissed
Legal Topics
Anti Suit Injunctions, Statutory Trusts in Insolvency, Jurisdiction Over Foreign Creditors, Priority of Claims in Liquidation, Comity and Cross Border Insolvency
Insolvency Law Private International Law Company Law Anti Suit Injunctions Statutory Trusts in Insolvency Jurisdiction Over Foreign Creditors Priority of Claims in Liquidation Comity and Cross Border Insolvency

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Parties

Stichting Shell Pensioenfonds

Appellant

Kenneth Krys and Joanna Lau (joint liquidators of Fairfield Sentry Ltd)

Respondents

Procedural Posture

Civil Appeal (insolvency/company Law) / Final Appeal to Privy Council From Court of Appeal of the British Virgin Islands

Legal Issues

  1. 1 Whether a court in the jurisdiction of incorporation can restrain a creditor from pursuing foreign proceedings to obtain priority over other creditors in insolvency
  2. 2 Whether submission to the jurisdiction by proving in the liquidation or participating in proceedings makes a foreign creditor amenable to an anti-suit injunction
  3. 3 Whether the court should exercise its discretion to grant an anti-suit injunction in the circumstances

Ratio Decidendi

A creditor who submits to the jurisdiction of the court supervising a company's liquidation, by proving in the liquidation or participating in proceedings, may be restrained by anti-suit injunction from pursuing foreign proceedings or attachments calculated to give it priority over other creditors, as such actions are inconsistent with the statutory trust and pari passu distribution mandated by the law of the company's incorporation.

Court Disposition

Appeal dismissed

Orders

  • Order of the Court of Appeal restraining Shell from taking further steps in the Dutch proceedings or commencing new ones is affirmed.