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In re Tantular [2020] JCA013

Jeremy Cousins KC instructed by Hanson Advocates in Jersey, and in conjunction with Acies Law in Singapore, successfully worked together on the important and interesting Jersey Court of Appeal case of In re Tantular [2020] JCA013. It arose under the Proceeds of Crime (Jersey) Law 1999. The first point was whether a Jersey saisie judiciaire (akin to an injunction) prevented a mortgagee of a property in Singapore from assigning its own interest to a third party. The property was an ultimate asset of a Jersey Trust (for whose beneficiaries Hanson Advocates were instructed), which it was alleged had been funded with the proceeds of crime. The Attorney-General of Jersey, on behalf of the Government of Indonesia (which was not formally a party to proceedings), objected to the transfer of the mortgage security from a Swiss Bank to a private citizen allegedly connected to the person who had transferred money into the Trust. The Court of Appeal found for the beneficiaries, and held that the saisie could not prevent a mortgagee from assigning its mortgage asset, because the mortgage was an asset of the Bank.

Secondly, the consequential costs decision was every bit as important and interesting. When the beneficiaries sought their costs, the A-G maintained that they could not be recovered from him because he was protected by The International Co-operation (Protection From Liability)(Jersey) Law 2018 which came into force in June 2019. That would normally prevent a costs order being made against the A-G unless the court was satisfied that he was acting in bad faith. However, the CA accepted the argument for the beneficiaries that the 2018 Law should not be treated as retrospective, and that since the proceedings were in existence when the 2018 Law came into effect, the A-G was liable in costs.

The beneficiaries also argued that in any event the Indonesian Government should be liable for costs as a “vicarious plaintiff”, being the “real party” that had encouraged the proceedings, and had an interest in the outcome. In doing so it applied Jersey statute and case law equivalent to principles in England and Scotland which enable costs to be ordered against third parties. The CA accepted the beneficiaries’ case on this as well, and, because the Indonesian Government had initiated the proceedings, it rejected the A-G’s submissions that the Indonesian Government was protected by sovereign immunity. In light of the fact that in future cases the 2018 Law will protect the A-G from a costs liability, this second finding as to the liability of overseas governments for costs is an important protection for parties who may be entirely innocent of any wrongdoing, but who have to spend large sums in order to be vindicated.