Crociani and Others v Crociani and Others Princess Camilla de Bourbon des Deux Siciles (Intervener)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Neuberger |
| Judgment Date | 26 November 2014 |
| Neutral Citation | [2014] UKPC 40 |
| Court | Privy Council |
| Docket Number | Appeal No 0061 of 2014 |
| Date | 26 November 2014 |
and
[2014] UKPC 40
Lord Neuberger
Lord Mance
Lord Reed
Lord Hughes
Lord Hodge
Appeal No 0061 of 2014
Privy Council
From the Court of Appeal of the Bailiwick of Jersey
Appellants
David Brownbill QC John KelleherEdward CummingDaniel Warents
(Instructed by Charles Russell Speechlys LLP)
Respondents
Simon Taube QC Eason Rajah QC Anthony Robinson
(Instructed by Harcus Sinclair)
Intervener
Nicholas Le Poidevin QC Nuno Santos-Costa
(Instructed by Collas Crill)
Heard on 7 and 8 October 2014
The principal issue on this appeal is whether proceedings ("the Proceedings") brought in the Royal Court of Jersey by Cristiana Crociani ("Cristiana") and others ("the respondents") against her mother Edoarda Crociani ("Mme Crociani") and others ("the appellants") should be stayed on the ground that they were brought in breach of an exclusive jurisdiction clause contained in clause 12 of a Trust Deed made on 24 December 1987 ("the 1987 Deed"). The determination of this issue involves resolving the following disputes, namely (i) (a) whether clause 12 of the 1987 Deed ("clause 12") is an exclusive jurisdiction clause, and (b) if so, in the events which have happened, whether it confers exclusive jurisdiction on the courts of Mauritius in respect of the claims made in the Proceedings, and (ii) if so, whether the Proceedings should be stayed. The appellants contend that the answer to these questions is yes, and the respondents argue that it is no.
The Royal Court (Commissioner Clyde-Smith, and Jurats Fisher and Blampied) held that (i) clause 12 did not confer exclusive jurisdiction on the Mauritian courts in this case as most of the claims were based on allegations against Jersey trustees and were governed by Jersey law, but that (ii) if the clause conferred exclusive jurisdiction on the Mauritian courts in respect of the claims, the Proceedings should nonetheless be permitted to proceed in Jersey. The Jersey Court of Appeal (the Hon Michael Beloff QC, Sir John Nutting Bt QC, and Mr John Martin QC) (i) considered that clause 12 was not concerned with jurisdiction, but went on to hold (ii) that, even if the clause did accord exclusive jurisdiction to the Mauritian courts, the Royal Court had reached a conclusion which it was entitled to reach, and with which the Court of Appeal should not interfere. Accordingly, they dismissed the appellants' appeal.
With the permission of the Court of Appeal, the appellants now appeal to Her Majesty. In order for their appeal to succeed, they have to establish each of the following points. First, on issue (i) that (a) contrary to the view of the Court of Appeal, and to the holding of the Royal Court, clause 12 is an exclusive jurisdiction clause, and (b) it confers exclusive jurisdiction in relation to the Proceedings on the Mauritian courts. Secondly, on issue (ii), (a) that the Royal Court erred in holding that the Proceedings could nonetheless proceed in Jersey, and therefore the Court of Appeal erred in holding that they could not interfere with that holding, and (b) that Her Majesty ought therefore to reconsider the issue, and should decide that the Proceedings must be stayed.
The Proceedings have a fairly long substantive and procedural history, and it is only necessary to set out relatively few facts leading up to this appeal for the purpose of resolving it. This judgment will begin by setting out the strictly relevant background, and will then turn to the two main issues, namely, (i) whether the effect of clause 12 is to bestow exclusive jurisdiction on the courts of Mauritius, and (ii) if so, the appropriateness of permitting the Proceedings to continue in Jersey.
The 1987 Deed was entered into by Mme Crociani (therein described as "the Settlor"), for the purpose of creating a trust ("the Grand Trust"). The Deed began by stating that the Settlor settled a Secured Term Note ("the promissory note") on (i) the Settlor herself (who was then residing in Mexico), (ii) Girolamo Cartia (an Italian resident) and (iii) Bankamerica Trust and Banking Corporation ("Bankamerica", a Bahamas Corporation) as trustees ("the original trustees"). The intended beneficiaries included Mme Crociani's two daughters, Princess Camilla de Bourbon des Deux Siciles ("Camilla") and Cristiana, for whose benefit the promissory note was to be held in two equal shares. Thereafter, various other assets accrued to the Grand Trust.
The 1987 Deed conferred various powers on the trustees, including the right to pay income from their respective shares to Camilla and Cristiana, or, in each case, the Camillo Crociani Foundation IBC (Bahamas) Ltd ("the Foundation"), as well as the right to pay capital to Camilla or Cristiana from their respective shares. There were also provisions for each sister's share to pass to their respective issue on their respective deaths. Clause 11 empowered the trustees to pay the whole or any part of the trust funds to another trust.
The principally relevant provisions of the 1987 Deed for present purposes were clauses 12 and 15. Clause 15 provided that:
"Except as herein provided, the validity and construction of this Agreement and each trust thereby created shall be governed by the law of the Commonwealth of The Bahamas which shall be the forum for the administration thereof."
Clause 12 was in these terms (and for convenience it is here divided into numbered sub-clauses, although it is a monolithic provision in the 1987 Deed):
"(1) Notwithstanding any of the trusts, powers and provisions herein contained the Trustees shall have power at any time or times … at the absolute discretion of the Trustees …
(2) to resign as Trustees and to appoint a new trustee or new trustees outside the jurisdiction at that time applicable to the trusts hereunder as Trustees hereof and
(3) to declare that the trusts hereof shall be read and take effect according to the laws of the country of the residence or incorporation of such new Trustee or Trustees and
(4) upon such appointment being made the then Trustee or Trustees shall immediately stand possessed of the Trust Fund upon trust for the new Trustee or Trustees as soon as possible
(5) so that the Trust Fund shall continue to be held upon the trusts hereof but subject to and governed by the law of the country of residence or incorporation of such new Trustee or Trustees and
(6) thereafter the rights of all persons and the construction and effect of each and every provision hereof shall be subject to the exclusive jurisdiction of and construed only according to the law of the said country which shall become the forum for the administration of the trusts hereunder
(7) (but so that nonetheless the then Trustee or Trustees or the new Trustee or Trustees may by deed declare that the trusts hereof shall continue to be read and take effect according to the laws of the …Bahamas as provided by clause [15] hereof)
(8) and clause [15] hereof shall take effect and be subject to the provisions hereinbefore declared by this Clause."
There have been various changes of trustee, but for present purposes it is only necessary to mention that from October 2007, the trustees were Mme Crociani, Paul Foortse and BNP Paribas Jersey Trust Corporation ("BNP") (together, "the Jersey Trustees"), as a result of which it is common ground that the effect of clause 12 was that the proper law became that of Jersey. Between 2007 and 2011, various distributions were made from the Grand Trust. On 9 February 2010, the Jersey Trustees executed a deed ("the 2010 Deed") appointing all the assets of the Grand Trust (except the promissory note) to another trust, the Fortunate Trust, of which Mme Crociani was both a trustee (together with BNP) and a beneficiary (together with Camilla and Cristiana and their respective children). By clause 8, the parties to the 2010 Deed "irrevocably submit[ted] to the non-exclusive jurisdiction of the courts of [Jersey]".
Relations between Mme Crociani and Cristiana deteriorated in early 2011, and Cristiana moved out of her mother's home. In June 2011, Mme Crociani revoked the Fortunate Trust and withdrew all its assets for her benefit. Towards the end of 2011, Cristiana raised allegations that the Jersey Trustees had acted wrongly and threatened to take steps against them. On 10 February 2012, the Jersey Trustees executed a deed ("the 2012 Deed") under which they resigned as trustees, and appointed Appleby Trust (Mauritius) Ltd ("Appleby"), a company incorporated and registered in Mauritius, as sole trustee. Clause 12 of the 2012 Deed was in identical terms to clause 8 of the 2010 Deed. Cristiana's lawyers complained about the appointment of Appleby, following which, on 2 August 2012, the Jersey Trustees and Appleby executed a deed ("the Agate Appointment") appointing the assets the subject of the 2010 appointment into the Agate Trust, a Jersey trust whose terms had been declared the same day by Appleby and Mr Foortse.
On 3 July 2011 Cristiana's lawyers wrote a letter before action to the appellants' solicitors, who replied in detail on 17 August 2012, stating that they wished to make it "clear that if litigation cannot be avoided, they are all willing and able to explain themselves to the Royal Court", and warning that they would subpoena Cristiana to give evidence before the Royal Court if she persisted in her claim.
These Proceedings were then brought by the respondents, Cristiana and her two children (acting through a guardian ad litem), in the Royal Court on 18 January 2013 against the appellants, the Jersey Trustees and Appleby. In the Proceedings, the respondents allege that (i) certain payments, amounting in total to around €6.6m and $1.2m...
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