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The CLICO nightmare

High court judge Agnes Actie – handed down the judgment

14 years after the collapse of Clico, issues involving the largest insurance conglomerate in the Caribbean are still the subject of litigation in court hearings in Grenada.

High court judge Agnes Actie has just delivered a judgment in a case involving CLICO INTERNATIONAL LIFE INSURANCE LIMITED (Under Judicial Management) and EASTERN CARIBBEAN HOME MORTGAGE BANK.

The issue at stake is 20, 000 shares that Clico had deposited with the bank.

Thousands of persons in Grenada and the Eastern Caribbean have lost millions of dollars in the Clico debacle which is the worst financial shock experienced in the region for decades.

As a public service, THE NEW TODAY highlighted the Justice Agnes Actie ruling on the matter:-

JUDGMENT
[1] ACTIE, J.: The sole issue arising on this claim is whether the claimant’s court appointed Judicial Manager has standing to bring this claim and to deal with its shares in the defendant company.

Background
[2] Clico International Life Insurance Limited (“Clico Life”), is a company duly incorporated under the laws of Barbados with insurance business in several Eastern Caribbean Countries, including St. Lucia. Clico Life went into receivership and judicial managers were appointed to manage its affairs.

[3] The defendant is a regional bank incorporated in the State of Grenada and is governed by the Companies Act of Grenada, with its principal place of business in the State of Saint Kitts and Nevis.

[4] Clico Life as an insurance company was required to establish insurance funds with the Registrar of Insurance in each jurisdiction where it operated, as security for its obligations under the policies issued in those respective jurisdictions.

[5] Clico Life pledged twenty thousand (20,000) shares in the defendant (hereafter referred to as “the Shares”), to the Registrar of Insurance in St. Lucia on 6th October 2008 as part of its mandatory statutory deposit requirement to conduct insurance business.

[6] By order dated 11th April 2011 in Saint Lucia Claim, The Registrar of Insurance et al v Clico International Life Insurance Limited, the claimant was placed in receivership, and Mr. Richard Surage was appointed as judicial manager with respect to the insurance business carried on in St. Lucia.

[7] The Judicial Manager of the claimant became authorized to deal with all the assets and property owned by the claimant. Wilkinson J. at paragraph 2 of the order, directed that :

“The Judicial Manager shall have the authority as an officer of this Honourable Court to act in Saint Lucia or any foreign jurisdiction where he believes assets and property of the Company may be situated and shall have the right to bring any proceeding or action locally or in any foreign jurisdiction for the purpose of fulfilling his duties and obligations under this Order and the Insurance Act and to seek the assistance of any Court of a foreign jurisdiction in the carrying out of the provisions of this Order or any subsequent order in this proceeding…”

[8] The order further directed that the Judicial Manager in discharging his obligations shall be empowered to carry out the following functions: (a) to ascertain the assets of the Company and their location and take all steps necessary including Court actions where appropriate to obtain possession of such assets, including, without prejudice to the generality of the foregoing, reinsurance receivables, and to bring the same under his control and further, where appropriate, bring the same into the jurisdiction of this Honourable Court and, for this purpose, to seek the assistance of the Courts of the various jurisdictions in which assets of the Company are located.

[9] Further, by way of an order made on 19th November 2018 in the said claim, Smith J. discharged the pledge with the Registrar of Insurance and released the shares to the Judicial Manager in the following terms:

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“The Judicial Manager shall be empowered to take all steps as are necessary to recover dividends due to CLICO from ECHMB for the years 2011-2018, and thereafter to sell the said shares.”

[10] However, despite repeated demands, the defendant has refused to pay over the dividends to the claimant.

[11] Under the authority of the above referenced orders, the claimant brought an action in the jurisdiction of Saint Lucia, in Claim Number SLUHCV2019/0087 Clico International Life Insurance Limited (in Judicial Management) v Eastern Caribbean Home Mortgage Bank (hereafter referred to as “the SLU claim”) to order the defendant to comply with the claimant’s demands with respect to the Shares. St. Rose-Albertini J. in a decision dated 16th October 2020 dismissed the claim on the basis that a court of Saint Lucia had no jurisdiction to make the orders sought and said:

“What it does say however is that the Companies Act of Grenada, applies to ECHMB as if it were a public company registered under that Act, with such modifications as are necessary or expedient. Thus, the Agreement expressly provides that ECHMB is subject to the domestic law of Grenada as contained in its Companies Act. The Companies Act of Grenada does not contain any immunities, protection, or privileges for public companies as against shareholders and would contemplate that an action could be taken against a company by its shareholders.”

[12] In conclusion, the learned judge declared that:

“…whilst an international corporate body is not to be treated as subject to the domestic law of any one participating state, it is to be governed by the treaty which establishes it. It is the case with ECHMB that the Agreement provides that the Companies Act of Grenada applies to it as if it were a company incorporated there. In these circumstances, the Shares would have to be treated as though they were shares in a Grenadian company subject to the Companies Act of Grenada and therefore it is a court in Grenada which would have jurisdiction to try the claim and not this Court.”

[13] The claimant in the present claim filed on 16th March 2021 seeks the following relief:

(1) A declaration that the Claimant acting through its Judicial Manager is entitled to deal with and sell the 20,000 Class FF Shares owned by the Claimant in the Defendant for such sum and on such terms as the Claimant might think fit, subject only to the Bye-Laws of the Defendant and the Eastern Caribbean Home Mortgage Bank Agreement Act Cap. 19.08;

(2) Payment of the sum of $1,550,000.00 due and owing to the Claimant by the Defendant as dividends on 20,000 Class F shares numbered 074563 to 094562, for the financial years 2011, 2012, 2013, 2014, 2015, 2016, 2017, 2018 and 2019 together with interest.

[14] The defendant in its filed defence admits that the pledge was signed between itself and the Registrar of Insurance but states that the Registrar had no statutory authority to accept the pledge as it was not an authorised asset for the purposes of the insurance fund. The defendant however denies that the claimant has jurisdiction to collect the dividends.

[15] The defendant challenges the order of Wilkinson J. dated 11th April 2011, alleging that the order has no effect whatsoever outside of Saint Lucia and cannot bind the defendant in its dealing with its shareholders or give authority to deal with the shares in the defendant company. The defendant alleges that notwithstanding the order the claimant has no rights to deal with the shares.

TO BE CONTINUED

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