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Delroy B Duncan QC Delroy B Duncan QC Year of Silk/Call: 2020/1984 Call Clerk on 020 7827 4000 PRACTICE AREAS Arbitration & Mediation | Commercial Law OVERVIEW Delroy Duncan was called to the English and Welsh Bar in 1984. He was a pupil annd tenant at Cloisters where he is now an associate member. Delroy was called to the Bermuda Bar in 1989 and is a founding partner and director of the law firm, Trott & Duncan. In recent years Delroy has been extensively involved in litigation arising out of company and commercial disputes, constitutional and human rights issues. His work in the field of commercial and company law has included giving advice to clients throughout the Caribbean, the United States, the United Kingdom and the Far East. Delroy has given advice on constitutional and judicial review cases both for and against the Bermuda Government as well as governments in the Caribbean including BVI, Turks and Caicos Islands and Antigua. He has acted for the Human Rights Commission of Bermuda in various cases. As a qualified arbitrator, Delroy has appeared in a number of arbitrations in Bermuda. He is certified as a trained mediator by the Notre Dame Law School (Indiana, USA) and is a certified Human Rights mediator. In 2013 he became certified as a Social Justice mediator by the Social Justice Mediation Institute. Delroy has been appointed as a mediator and appeared in mediations in Bermuda. Delroy was appointed as a part-time Assistant Justice of the Supreme Court of Bermuda in January 2016. APPOINTMENTS AND MEMBERSHIPS Past President of the Bermuda Bar Association Member of the Honourable Society of Grays Inn Fellow of the Chartered Institute of Arbitrators Associate member of Cloisters Chambers in the Temple, London, England PUBLICATIONS AND TRAINING Getting the Deal Through Contributor of the Bermuda Chapter on The Reciprocal Enforcement of Foreign Judgments 2015 Edition. Bermuda Commercial Litigation Contributor of the Bermuda Chapter on The Reciprocal Enforcement of Judgments 2012. Commercial Imperative in Bermuda Principles Insurance Day article 13 October 2011. A Place in the Sun When a house is not a home -Trust or sham? Explains the Bermuda Immigration and Protection Act of 1956. Reproduced from “in brief” April 2004. Public Wrong, Private Remedy Comments on the arbitration process in the EMLICO case. Reproduced from “in brief” April 2002. Bermuda: 400 Years of Commerce Resolving Commercial Disputes with Kyle Masters. Workers Voice Bermuda Contributor of monthly articles highlighting topical issues in industrial relations and employment law. HIGHLIGHT CASES Cases of Interest Recent Cases Trusts: In the matter of the W Trust [Confidential] Trust proceedings involving several international litigants and counsel spanning the United States, Switzerland, the United Kingdom and Bermuda. Counsel for minor and unborn beneficiaries in relation to a successful application to the Supreme Court by the Bermuda based Trustee for the blessing of a billion dollar transaction involving the sale of Trust assets and the subsequent division of the Trust. The main issues included whether the transaction was in the best interests of the minor and unborn beneficiaries and in particular, the appropriateness of the sale price and the new administration of the new Trust. Winding Up: Acting for the Director of Gerova Financial Group Limited in relation to an appeal of a winding up order involving issues of agency, standing to present a winding up petition, real and substantial cross claims, the validity of an assignment of interest, abuse of process, and champerty. Acting for Fletcher International Limited, subject to Chapter 11 proceedings in the United States Bankruptcy Court for Southern District of New York, against proceedings commenced by a purported shareholder in Bermuda in violation of the automatic stay under the Chapter 11 proceedings. Issues involved the validity of a purported transfer of shares, legal and beneficial interests, and a potential injunction to restrain the requisition of a special general meeting to replace the Board. The following are examples of reported cases, in which Mr Duncan has appeared: Bermuda Commercial Litigation Arbitration: LAEP Investments Ltd. v.Emerging Markets Special Solutions 3 Ltd. [2015] Bda LR 38. Court of Appeal judgment - Stay of Enforcement Order – Arbitration - Winding Up - Terms of the Stay Order – Basis of application – Bias towards enforcement - Discretion Company Law: Lee Gai Poo v Asia Pacific Wire & Cable Corporation Limited [2006] Bda LR 73. Leading Supreme Court case on power of court to order meeting/AGM. MFP - 2000, LP v Viking Capital Limited & Misa Investments Limited [2014] Bda LR 6. The only Bermuda case interpreting the date upon which a notice to compulsory acquire the shares of a minority share holder becomes effective - Preliminary issue - Section 103 notice - Statutory interpretation. Directors Duties: Focus Insurance Company Ltd (In Liquidation) v Hardy and others 1991 Civil Jur. No. 235 [1992] Bda LR 47. One of the leading cases in Bermuda on fiduciary duties of a director - bye laws of the Company and strike out applications. Guarantee: Fifth Street Finance Corporation v David Dobbin [2013] Bda LR 56. Guarantee - exclusion clauses - Canadian law - material alteration of terms - lenders duty to act fairly and reasonably - leave to amend defence - preliminary issue. Hedge Funds: Tensor Endowment Limited, UBS Fund Services (Cayman) Ltd v New Stream Capital Fund Limited [2010] Bda L.R. 64. Summary judgment - writ of fieri facias - segregated accounts - insolvency - assets linked to share classes - stay application. Injunctions: The Majuro Investment Corporation v Timis, Coughlan and Others [2015] SC (Bda) Com. Injunction to freeze assets held on constructive trust in support of enforcement proceedings – must be a good arguable case on the merits of the substantive claim – court must have jurisdiction over defendants to the substantive claim – whether court possession inherent jurisdiction and/or case management powers to postpone discharging injunction. Insurance: Bermuda Fire & Marine Insurance Co. Ltd (in Liquidation) v BF&M Limited and others 1995 Civil Jur. No. 7 Asbestos Claims Management Corp. and others v BF&M Limited and others 1995 [1995] Bda LR 69. Leading case on conveyance of shares with intent to defraud overseas creditors. ACE Bermuda Insurance Ltd v Pedersen and others (as Plan Trustee for Estates of Boston Chicken Inc) [2005] Bda LR 44. Supreme Court case on insurance coverage - arbitration agreement – foreign bankruptcy proceedings – judicial cooperation – cross-border insolvency – comity – Barton doctrine – forum – strict jurisdiction. Procedure: Consolidated Contractors International Company SAL v Munib Masri WIR 74 p235. Leading Court of Appeal decision on whether a judgment or order is final or interlocutory for purposes of appeal pursuant to the Court of Appeal Act 1964 – inapplicability of the English Civil Procedure Rules and their predecessor – inapplicability of the Rules of the Supreme Court. Consolidated Contractors International Co. SAL v Munib Masri [2010] Bda LR15: Leading Bermuda case on the authority of the Court of Appeal to impose conditions on an appeal as of right to the Privy Council. Interinvest (Bermuda) Ltd. v Dobie (Civil Appeal No. 3 of 2010): Landmark case altering the 55-year application of the Ladd v Marshall test for the introduction of fresh evidence on appeal. In the matter of Lehman Re Ltd [2011] SC (Bda) Com. Application for examination of witnesses out of the jurisdiction – fishing - acting for the Provisional Liquidators in a dispute between creditors over the allocation of company assets pursuant to the Insurance Act involving issues of tracing and constructive trust - assets owned by a related entity of Lehman Brothers which collapsed in 2008. In the matter of Lehman Re Ltd [2011] SC (Bda) 44 Com. Release from implied duty of confidentiality for the use of documents obtained during discovery, in foreign proceedings - intervention by a third party owner of data and defendant in foreign proceedings - confidential information - principles applicable to release from implied undertaking in a winding-up leave to appear. The Majuro Investment Corporation v Timis, Coughlan and Others [2015] SC (Bda) Com. Court must have jurisdiction over defendants to the substantive claim - application to set aside service out of the jurisdiction – Order 11 – necessary and proper party – must be a substantive claim against anchor defendant – Plaintiff must have standing to pursue a derivative claim. LAEP Investments Ltd v Emerging Markets Special Situations 3 Ltd, Civil Appeal No 6 of 2014. Application for leave to appeal to the Privy Council – whether Court of Appeal required to give reasons for its decision before time begins to run within which to file an appeal – constitutional right to a fair trial. Reciprocal Enforcement of Judgments: Crossborder Capital Limited v. Overseas Partner Re Limited, [2004] Bda LR 17. Reciprocal Enforcement of Judgment obtained in the United Kingdom – county court judgment transferred to superior court. Masri v. CCIC Bda., Civil Jurisdiction Commercial List [2008] No. 142. Enforcement of Judgments in various jurisdictions including Greece, Lebanon, United States of America, the United Kingdom, Palestine, Nigeria and Cayman Islands - the enforceability of a United Kingdom judgment registered in Bermuda - registration of the judgment was challenged by allegations of fraud and pending applications to the European Court of Human
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