Securing certainty: the BVI Commercial Court grants declaratory and injunctive relief in complex cross-border dispute

Two judgments of the BVI Commercial Court handed down in Nabil Abdul-Massih & Ors v Ryan Paul Jarvis & Ors BVIHC(COM) 2023/0243, firstly by Justice Webster [Ag] and subsequently by Justice Mithani [Ag] at trial, address complex multi-jurisdictional issues of general application in the BVI. 

The issues addressed within these judgments were:  

• the suitability and effectiveness of claims for negative declaratory and injunctive relief, including the application of such relief as against liquidators

• the principles governing forum non conveniens applications

• arguments as to "abuse of process" in an insolvency context, and 

• an analysis of the "necessary and proper party" gateway, as applied for the first time in the BVI under the self-certification route for service out of the jurisdiction under the revised 2023 Civil Procedure Rules (CPR)  

Partners Brian Lacy and Jeremy Snead, counsel Anna Snead and senior associate Emily Rivett, from Ogier's BVI Dispute Resolution team, acted for the Claimants, with successful outcomes at both the interlocutory stage and at trial.

Background: Abdul-Massih v Jarvis 

The BVIHC(COM) 2023/0243 proceedings form part of a broader, multi-jurisdictional dispute involving parties and litigation in the BVI, the Cayman Islands, the Netherlands, Ukraine and Switzerland.

The claimants in the BVI, being Mr Abdul-Massih, Ancile Investment Company and Ancile Securities Company (the Ancile Companies), had a long-standing lending relationship with the Phoenix Group, including Phoenix Commodities PVT Ltd (Phoenix BVI) and Phoenix Global DMCC (Phoenix Dubai).  

Following the entry of Phoenix BVI and Phoenix Dubai into liquidation in April and June 2020 respectively, the liquidators of those companies, from 2021, began to threaten proceedings in "all relevant jurisdictions", including the BVI, Cayman Islands, and the Netherlands. The threatened BVI and Cayman-based litigation, intended to be brought by the liquidators and / or by Phoenix BVI or Phoenix Dubai, were defined in Justice Mithani’s judgment (the Mithani Judgment) as the Intended Claims.  

The Intended Claims centred on allegations that Mr Abdul-Massih was a director of Phoenix BVI and Phoenix Dubai and that, with Mr Abdul-Massih purportedly acting in such a capacity, various share transfers effected prior to Phoenix Dubai's entry into liquidation were: 

• conducted in breach of fiduciary duty and / or  

• were indicative of insolvent trading, and / or  

• were liable to be set aside as, in summary, voidable transactions  

Despite the litigation first being threatened in 2021, and undertakings having been granted by the Ancile Companies to address such threats, the Intended Claims had not been commenced in the BVI or in the Cayman Islands by November 2023. In light of the continued commercial uncertainty and significant negative consequences being suffered by Mr Abdul-Massih and the Ancile Companies as a result of the Intended Claims, the claimants considered that they had no option but to bring proceedings themselves, seeking negative declaratory relief against Phoenix BVI, Phoenix Dubai and the liquidators of both entities (the defendants).  

The relief sought by the claimants inversely mirrored the Intended Claims, with the claimants now seeking declarations that Mr Abdul-Massih had never been a de jure, de facto, or shadow director of Phoenix BVI or Phoenix Dubai, owed no fiduciary duties, and that the liquidators had no valid claims under BVI or Cayman law against the claimants from the facts underlying the proceedings. 

Interlocutory applications 

In February and May 2024, the defendants brought interlocutory applications seeking to strike-out or stay the proceedings as an abuse of process; alternatively, to set-aside service or stay the proceedings on the grounds of forum non conveniens. All these interlocutory applications were dismissed by Justice Webster in his judgment (the Webster Judgment), which also granted the claimants' application to join Phoenix BVI as a defendant to the existing proceedings.  

The Webster Judgment confirms the "usefulness" of negative declarations, finding that they are "now a part of English and BVI law and the power to grant them has been recognised by the Courts" where their use would ensure the aims of justice are achieved. The Webster Judgment therefore builds on the principles outlined in Messier Dowty Ltd v Sabena SA [2000] 1 WLR 2040 and approved in Mossack Fonesca v Registrar of Corporate Affairs (BVI Civil Appeal No. 13 of 2005).  

The judgment is clear that negative declarations should not be granted where they are being used for strategic reasons, but the Court did not consider this to be the case in this instance.  

In addition, the Webster Judgment: 

• provides a helpful reminder on several points of BVI law, including in the context of forum non conveniens applications 

• confirms, for the first time in the BVI, how the Court will exercise its discretion in the context of joinder applications under section 175 of the Insolvency Act 2003 (the Insolvency Act)

Joinder  

As Phoenix BVI was in liquidation, leave of the Court had to be sought under section 175(1)(c)(i) of the Insolvency Act to join it as a defendant to existing proceedings. While section 175 grants the Court the discretion to order that an action can proceed or continue against an insolvent company, the Insolvency Act is silent on the factors which feature in the exercise of that discretion. English common law provides broad guidance that it is necessary to consider what is "right and fair" in all the circumstances.  

In application of the principles outlined in Fennell v Halliwells [2013] EWHC 2837, Justice Webster granted the claimants permission to join Phoenix BVI, on the basis that:  

• the issues in the proceedings were complex, involving negative declaratory and injunctive final relief 

• the issues could not be more conveniently determined in the liquidation of Phoenix BVI, and 

• joinder would not add significant complexity to the proceedings 

Strike-out application 

One of the BVI-based liquidators of Phoenix BVI applied to strike-out the entirety of the proceedings as either an abuse of process or for not disclosing a reasonable cause. The Court dismissed this application, finding that factual and legal issues at play were unsuitable for summary disposal, in particular the allegations of de facto, de jure and shadow directorship which were "the kind of factual issue that should be determined at trial".

Justice Webster also rejected the liquidator's argument that it was not open to the claimants to bring claims for negative declaratory relief against a liquidator. Justice Webster found that status as a liquidator does not automatically confer an immunity to claims for declaratory relief, particularly where the claimants were responding to threats of litigation made by or on behalf of liquidators.  

Forum non conveniens applications  

In the alternative to the strike-out application, the BVI-based liquidator applied for a stay of the proceedings on forum non conveniens grounds, in favour of the courts of Switzerland. The Dubai-based liquidator and Phoenix Dubai applied for a stay of the proceedings on the grounds of forum non conveniens, raising the courts of the Cayman Islands as an alternative forum in their skeleton argument. Both applications were contested by the claimants.  

The Webster Judgment provides a helpful overview of the Spiliada principles governing forum non conveniens applications as applied in the Eastern Caribbean Court in IPOC International Growth Fund Limited v LV Finance Group Limited (Civil Appeals Nos 20 of 2003 and 1 of 2004) and condensed into a three-stage analysis in Livingstone v Eurochem and Others (BVIHCMAP 2016/0042-0046).

It noted that reliance on modern technology lessens documentary and witness-location concerns but rejected any suggestion to fragment the trial across jurisdictions. The Webster Judgment found, in particular, that the status of Mr Abdul Massih as a purported director of Phoenix BVI and any purported breach of duty arising from such a role is "determined by the internal management rules of the company. In the case of Phoenix BVI that is the BVI law". This was noted as a "strong connecting factor in favour of the BVI". 

Negative declaratory and injunctive relief 

Following the dismissal of the interlocutory applications in the Webster Judgment, the matter proceeded to a trial in absentia, as heard by Justice Mithani in July 2025. The defendants remained represented by BVI Legal Practitioners with full visibility over the proceedings, but elected not to participate in the trial barring the periodic circulation of correspondence which, upon the defendants' request, was specifically drawn to attention of the Court, albeit the Court held that there was "nothing in the material that supported anything [the defendants] had or may have had to say". 

The Mithani Judgment reaffirmed the BVI Court's broad discretionary powers to grant negative declarations "where the circumstances of the case make it appropriate for the Court to do so".  

The Mithani Judgment granted the claimants each negative declaration sought against the defendants finding that:  

• Mr Abdul-Massih was not a de jure, de facto and / or shadow director of Phoenix BVI or Phoenix Dubai and that "there is no realistic prospect of the defendants being able to establish that Mr Abdul-Massih acted in that capacity", with the judgment noting that "the basis for seeking to establish that Mr Abdul-Massih was a director of one or both entities is little more than a bare assertion unsupported by any evidence" 

• as a consequence, "there is no other basis for holding that he owed any fiduciary or other duty to those entities", such that the negative declaratory relief relating to constructive trusts, knowing receipt, enrichment and similar remedies did not require further consideration; and 

• any intended claim by the defendants for insolvent trading in the BVI has "no realistic prospect of success" and, in the context of any intended claim for fraudulent trading, the Court could not see how the requirement of dishonesty could be made out  

The Mithani Judgment also granted the claimants injunctive relief, requiring the defendants to obtain the permission of a BVI Commercial Court judge prior to commencing further proceedings against the claimants which arise from the facts and matters contained in the claimants' Amended Statement of Claim.  

The injunctive relief granted was aimed at protecting the claimants from the risk of further abusive or duplicative proceedings in circumstances where:  

• based on the defendants' past conduct, there was a strong possibility that they would pursue claims in other jurisdictions based on the same facts 

• the defendants had failed to withdraw their threats of further litigation 

• two of the defendants, as officers of the BVI Court, had acted in such a way that sought to mislead a foreign Court, and  

• the grant of the injunction was considered "just and convenient" as it did not prevent the defendants from commencing proceedings altogether but only required them to obtain permission from the BVI Court before doing so, thus protecting the integrity of the Court's process 

The Mithani Judgment considered, among other factors, the risk of irreparable harm to the claimants – including ongoing costs, business disruption, and potential for inconsistent findings – and confirmed such factors justified the grant of an injunction.   

Conclusion 

The Mithani Judgment builds on the Webster Judgment’s commentary on the usefulness of negative declaratory relief. It is a robust endorsement of the BVI Commercial Court’s willingness to grant negative declarations and injunctive relief where necessary to provide certainty in the context of threatened but unissued proceedings, and to stamp out jurisdictional gamesmanship. As a result, the Mithani Judgment further reinforces the Webster Judgment's findings that – where disputes have arisen regarding the management and control of BVI companies, particularly those managed by BVI-based liquidators appointed by the BVI Court – the BVI is the forum conveniens for such disputes.  

Both judgments will be instructive both within and beyond the jurisdiction for parties faced with pre-emptive threats and for those seeking clarity in cross-border disputes on the resolution of complex litigation involving BVI companies. 

Find out more 

For further insights on the Webster and Mithani Judgments, download South Square’s December 2025 Digest. In their article “Negative Declarations: A Shield to a $500 million Sword of Damocles", Ogier’s BVI experts and South Square analysed the usefulness of negative declaratory relief to bring about an end to protracted legal disputes.  

How Ogier can help 

Ogier has one of the largest Dispute Resolution teams in our jurisdictions, advising on technical, strategic and procedural aspects across the spectrum of contentious commercial issues and disputes. Our restructuring and insolvency experts bring their creativity, knowledge and experience to provide a practical perspective on rapidly evolving cross-border assignments.   

For tailored legal advice on declaratory and injunctive relief, contact Ogier’s Dispute Resolution team. 

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