Siddiqui and Ors v Athene Holding Ltd
| Jurisdiction | Bermuda |
| Judge | Clarke P,Bell JA,Smellie JA |
| Judgment Date | 22 November 2019 |
| Docket Number | Civil Appeal 2019 No 1 |
| Court | Court of Appeal (Bermuda) |
In the Matter of section 2 of the Appeals Act 1911
And in the Matter of an Application to Appeal to Her Majestin-in-Council
[2019] Bda LR 96
Clarke P; Bell JA; Smellie JA
Civil Appeal 2019 No 1
In The Court of Appeal for Bermuda
Application for leave to appeal to Privy Council — Forum conveniens — Settled principles of law — Requirements for leave to appeal
The following cases were referred to in the judgment:
Altimo v Kyrgyz Mobil Tel Ltd [2012] 1 WLR 1804
Spiliada Maritime Corp v Cansulex [1987] 1 AC 460
National Iranian Oil Co v Ashland Overseas Trading Ltd [1988] Bda LR 13
Sino JP Fund Co Ltd v Pacific Electric Wire & Cable Co [2006] Bda LR 51
Arabian American Insurance Co (Bahrain) EC v Al Amana Insurance and Reinsurance Co Ltd [1994] Bda LR 27
Banco Atlantico v BBME [1990] 2 Lloyd's Rep 504
Resolution Chemicals Ltd v H Lundbeck A/S [2013] EWCA Civ 924
Boru Hatlari IIe Petrol Tasima AS v Tepe Insaat Sanayii AS [2016] JCA 199
Renaissance Ventures Ltd v Comodo Holdings [2018] ECSC J1008-3
Martinus Francois v Attorney General of St Lucia Civil Appeal No 37 of 2003
Pacific Wire and Cable Co v Texan Management and Ors Civil Appeal No 19 of 2006 (BVI)
Nilon Ltd v Royal Westminster Investments SA [2015] UKPC 2
Donohue v Armco [2001] UKHL 64
Nana Ofori v Nana Aba [1958] AC 58
Gleeson v J Wippel & Co [1977] 1 WLR 510
Ocular Sciences Ltd v Aspect Vision Care [1997] RPC 289
Mr A Potts QC for the Applicants
Mr K Taylor and Mr B McCosker for the Respondent
JUDGMENT of Smellie JA
1. The Appellants, by their notice of motion for leave to appeal to the Judicial Committee of the Privy Council, seek leave to appeal against the Judgment and Order of this Court given on 20 September 2019, (“the Judgment”) whereby this Court dismissed (i) the Appellants' application for leave to appeal against the ruling of Justice Hellman dated 28 June 2018 (the “Hellman J Ruling”) and (ii) the Appellants' appeal against the ruling of Chief Justice Hargun, dated 14 January 2019 (the “Hargun CJ Ruling”).
2. The Appellants also seek a stay of the proceedings, the subject of the Hellman J and Hargun CJ Rulings, pending final determination by the Judicial Committee of the Privy Council of their proposed appeal.
3. Described in broad terms, both the Hellman J Ruling and the Hargun CJ Ruling dealt primarily with the question whether Bermuda, rather than New York, is the appropriate forum for the trial of claims which have been brought in Bermuda by the Respondent (“Athene”), a Bermudian exempt company, against the Appellants.
4. As explained at [4] of the Judgment, Athene was formed in 2009. It has what is said to be a “strategic relationship” with Apollo Global Management LLC (“Apollo”), a Delaware corporation, which is a publicly traded corporation holding a myriad of subsidiaries and which offers pensions and annuities insurance products (together “the Apollo Group”). The Apollo Group is a huge entity with many billions of dollars of assets under its control and management. Athene Asset Management LP (“AAM”), an indirect subsidiary of Apollo, is Athene's investment manager. The Apollo Group holds about 10% of the shares of Athene and controls 45% of the voting power. As at 31 December 2017, five out of twelve of Athene's Directors were employees or consultants of Apollo. These presently include (since 2009) Mr James Belardi who is Athene's Chairman, Chief Executive Officer and Chief Investment Officer, and a dual employee of both Athene and AAM. Athene is publicly listed on the New York Stock Exchange.
5. In dismissing the consolidated appeals against the Hellman J Ruling and the Hargun CJ Ruling, this Court upheld and affirmed the conclusions reached respectively in them, that, contrary to the contentions of the Appellants, Athene's claims were not susceptible to being struck out on forum non conveniens grounds, that there was no basis for a stay of the action on case management grounds, that there is “a serious issue to be tried” and ‘a good arguable case’ within the meaning of the case law and rules of court, and that Bermuda is clearly or distinctly the appropriate forum for the trial of the dispute raised by Athene's claims.
6. The background to the action and to the appeals, and the reasons for dismissing the appeals, are set out fully in the Judgment which must be read for it full meaning and effect. It will therefore suffice for present purposes to give a brief summary.
7. On 3 May 2018, Athene issued a Specially Indorsed Writ in the present action. In the Statement of Claim Athene claims that the first and second Appellants (Mr Siddiqui and Mr Cernich respectively) have, unlawfully and in breach of (a) their fiduciary duties; (b) their duties of confidence and (c) their contractual duties owed to Athene, used Athene's trade secrets and its confidential and proprietary information relating or relevant to the acquisition of another company, anonymously called “Company A”, for the benefit of the third Appellant Caldera, and themselves. The Writ seeks permanent injunctive relief and damages.
8. Caldera is a Bermudian company established in 2017 by Mr Cernich and in which Mr Siddiqui is also a shareholder. While Caldera contests the forum issue in common with Mr Siddiqui and Mr Cernich, it is sued by Athene as of right in Bermuda. On 8 May 2018, Caldera was served with Athene's writ at its registered office in Bermuda.
9. By summons dated 17 May 2018, Caldera sought leave to enter a conditional appearance and this was granted by order dated 22 May 2018.
10. Caldera also sought by its summons, an order pursuant to RSC Order 12, rule 8 and/or the Court's inherent jurisdiction setting aside, staying or striking out the Writ on grounds of forum non conveniens, or alternatively an order staying the Writ on case management grounds, asserting that the State Court of New York, in which it had by then filed a competing claim against Athene, Apollo and other members of the Apollo Group, is the proper forum.
11. This is the aspect of Caldera's summons which was dismissed and relief which was refused Caldera, by the Hellman J Ruling.
12. Neither Mr Siddiqui nor Mr Cernich resides or is domiciled in Bermuda. Although both travelled to Bermuda on regular occasions to attend Athene Board meetings, they live in different States of the United States and whilst employed by Athene, worked mainly from New York in offices from which the business not only of Athene but also of Apollo and other members of the Apollo Group, was conducted. And so, notwithstanding also that Mr Siddiqui was a former director of Athene and Mr Cernich a former employee / officer of Athene, Athene was required to obtain leave for service of its Writ out of the jurisdiction upon them in the United States and, on 17 May 2018, was granted leave on the ex parte basis.
13. As recorded in the Hellman J Ruling at [3]:
“When granting leave, the Court was satisfied that (i) in relation to Mr Siddiqui and Mr Cernich there was a good cause of action; ie a serious issue to be tried on the merits; (ii) there was a good arguable case that pursuant to Order 11, rule l(l)(c) the claim was brought against a person duly served within the jurisdiction, ie Caldera; that Mr Siddiqui and Mr Cernich were necessary or proper parties thereto; and that as between Athene and Caldera there was a real issue which Athene could reasonably ask the Court to try: and (Hi) that in all the circumstances Bermuda was clearly and distinctly the appropriate forum for the trial of Athene's claim against Mr Siddiqui and Mr Cernich. These requirements for leave to serve out of the jurisdiction were stated by Lord Collins in Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd[2012] 1 WLR 1804 PC at para 71”
14. Despite the apparent correctness of those settled statements of principle, as leave to serve out was granted against them on an ex parte basis, Mr Siddiqui and Mr Cernich were both entitled to challenge the grant of leave on an inter partes basis and both did so before Hargun CJ.
15. Caldera also challenged the conclusions of the Hellman J Ruling on the grounds of forum non conveniens above mentioned and sought from Hargun CJ, leave to appeal to this Court against the Hellman J Ruling.
16. In the Hargun CJ Ruling these challenges were each carefully considered and dismissed. Hargun CJ began his judgment on the topic of leave to serve out by reference to the same general principles from Altimo Holdings v Kyrgyz (above) and agreed with Hellman J except in relation to one factor regarded by Hargun CJ as potentially pointing to Bermuda as the proper forum which Hellman J did not so regard. This was as to the applicability of Athene's Byelaws, Bye-law 84 of which contains an exclusive jurisdiction clause which Hargun CJ regarded as potentially requiring both Mr Siddiqui and Mr Cernich respectively as director or officer (the latter as Chief Actuary) of Athene, to submit to the jurisdiction of Bermuda as the proper forum, for the trial of any dispute between them and Athene arising from the terms of their respective contracts of engagement.
17. It will be readily apparent from the foregoing, that the consolidated appeals which came before this Court against the Hellman J Ruling and the Hargun CJ Ruling related essentially to issues of forum conveniens. Those issues, as they related to service out against Mr Siddiqui and Mr Cernich, therefore came to be dealt with by this Court as explained in the Judgment, according to settled principles of law1.
18. This Court, per Sir Christopher Clarke P., found that both Hellman J and Hargun CJ were correct in finding that Mr Siddiqui and Mr Cernich are “necessary or proper parties” to the Athene action against Caldera:
“In my judgment the Chief Justice was right in this...
To continue reading
Request your trial