A BVI discharge decision and its affirmation on appeal have become required reading on the duty of full and frank disclosure. The same applicant’s contrasting result in Cayman completes the lesson
Ex parte relief is the sharpest instrument in the commercial litigator’s drawer, and the courts that grant it have exactly one protection against being misled, the applicant’s duty of full and frank disclosure. Every few years a case comes along that shows what happens when that protection fails, and offshore practitioners have largely settled on the British Virgin Islands proceedings between Chia Hsing Wang, known as Bruno Wang, and Real Assets (RA) Global Opportunity Fund I Limited, generally cited as Wang v RAGOF, as the current teaching example. The first-instance discharge in 2022 and the Eastern Caribbean Court of Appeal’s judgment of June 2023 between them restate nearly the whole law of ex parte presentation, and they do it on facts vivid enough to survive in the memory.
The applicant’s identity gives the case a public dimension the doctrine does not need but the reader may as well have. Bruno Wang is a London-based philanthropist and theatre producer whose family wealth, inherited from his late father, the arms-deal intermediary Andrew Wang, has been the subject of international reporting and multi-jurisdictional asset litigation for decades. The first-instance findings noted that the liquidity difficulties which drove the underlying dispute stemmed from overseas court orders restricting access to his and his family’s assets. Nothing in the BVI litigation concerned the origin of that wealth, and Wang has never been convicted of any offence. The case matters to practitioners for its procedure, not its protagonist.
The Two-Stage Strategy
The structure of the application is the first thing the judgments dwell on. Wang, the beneficial owner of shares in RAGOF, a BVI fund, held through nominee arrangements connected to the Floreat wealth management group, sought to displace the fund’s management. His advisers designed a two-stage route. Stage one was an ex parte application for the appointment of receivers over the shares, giving the receivers permission to pursue stage two, an application for provisional liquidators over the fund itself, with a view to winding it up. The case note published by Blackstone Chambers, whose counsel acted for the successful respondents, records that Wang’s own representatives described the route as a novel one for beneficial owners holding through nominees unwilling or unable to act. Both ex parte orders were granted. Neither survived the return date.
In 2022, Justice Wallbank in the BVI Commercial Court discharged the receivership order and the order appointing provisional liquidators, dismissed the application to continue them, and declined to re-grant either. The basis was breach of the duty of full and frank disclosure and fair presentation, and the court’s characterisation of the breaches, as “not innocent” and very serious, is the phrase the case is now cited for. Discharge for non-disclosure is common enough. Refusal to re-grant, which requires the court to conclude that the merits do not rescue the application, is the sanction practitioners actually fear, and it is what happened here.
Where the Presentation Fell Short
The specific failures identified at first instance repay attention because none of them involved concealing a smoking gun. The court found that the ex parte presentation had failed to give a fair account of the alternative remedies available short of appointing receivers and provisional liquidators, and had failed to disclose the overall context in which Wang had engaged Floreat to solve his liquidity problems in the first place. It also rejected the argument that an applicant pursuing a multi-stage strategy need only present the stage currently before the court. Where receivership is designed as the first strike of a two-part plan, the judge is entitled to a full and balanced view of the merits of the whole plan, and reserving the difficult parts of the story for a later hearing is itself a failure of fair presentation. The appellate judgment added a practical observation that deserves framing in every chambers, noting that leading counsel had overstated the position at the ex parte hearing and had not used the substantial time the court had made available to explain matters properly. Fair presentation is not only about what is said. It is about using the hearing to actually inform the judge.
For applicants, the deeper point is structural. The duty exists because the respondent is absent, and it extends to everything the absent party would have said. Alternative remedies are the classic example, since the respondent’s first submission at any inter partes hearing would have been that the draconian order sought was unnecessary. An ex parte applicant who does not make that submission against himself has not discharged the duty, however complete his account of his own case may be.
The Appeal and the Law It Consolidated
The Eastern Caribbean Court of Appeal dismissed Wang’s combined appeals in a substantial judgment delivered on 6 June 2023, and its value to practitioners lies in the consolidation. The court adopted the summary of the duty and its consequences given by the English High Court in Tugushev v Orlov (No 2) as reflecting the law of the Eastern Caribbean, aligning offshore and onshore practice. It endorsed the line of authority holding that once material non-disclosure is established, the onus falls on the applicant to explain at the inter partes stage how it came about, and that absent a proper explanation there is a strong inference the non-disclosure was not innocent. It confirmed that only exceptional circumstances will save an order obtained by deliberate non-disclosure or misrepresentation from discharge. And it dealt firmly with the appellants’ three applications to adduce fresh evidence, restating the Ladd v Marshall principles and cautioning that interlocutory appeals are not an opportunity to rehear the application on evidence that was not before the judge. Finality, the court in effect held, applies to discharge decisions as much as to anything else.
The combined effect is a clean doctrinal package. The duty is strict, it covers the whole of a multi-stage strategy, breach shifts the burden of explanation to the applicant, unexplained breach is presumed deliberate, deliberate breach is discharged absent exceptional circumstances, and the appellate court will not permit the record to be rebuilt after the fact. Nothing in the package is new. What Wang v RAGOF supplied was a modern, fully reasoned application of all of it at once, at Commercial Court and Court of Appeal level, in a jurisdiction whose fund structures generate exactly these applications.
The Cayman Contrast, Where Bruno Wang’s Orders Survived
The instructive twist is that the same applicant, in the same period, ran a comparable strategy in a different jurisdiction and won. In parallel proceedings in the Grand Court of the Cayman Islands, Wang as plaintiff obtained ex parte receivership orders and orders appointing provisional liquidators in litigation against Credit Suisse entities concerning three Cayman funds. The respondents applied to discharge for breach of the same duty. In a judgment of Justice Doyle delivered in April 2022, the Grand Court dismissed the discharge applications and continued the receivership and provisional liquidation orders pending determination of the winding-up petitions. The court restated the same Brink’s Mat line of authority the BVI courts applied, criticised the scattergun approach of discharge applications that bury genuine points in a mass of alleged non-disclosures, and added pointed practice observations about overlong skeleton arguments and witnesses who argue their case in affidavits rather than confining themselves to facts.
Reading the two outcomes together is where the real education lies. The duty of full and frank disclosure is uniform across these jurisdictions, and the same individual satisfied it in one courtroom and breached it in another within months. The difference was not the law and was not the litigant. It was the quality and completeness of each specific presentation, assessed against the materiality of what each specific judge was not told. Practitioners who cite Wang v RAGOF as authority that aggressive ex parte strategies fail are over-reading it, and those who cite the Cayman judgment as authority that discharge applications are hopeless are doing the same. The pair stand for something less quotable and more useful. Ex parte outcomes are earned or lost presentation by presentation, and no reputation, whether the applicant’s or the strategy’s, travels with the file.
What Practitioners Should Take From It
The working rules that fall out of the litigation are worth stating in prose rather than a checklist, because the checklist version is how the duty gets hollowed into a formality. Disclose the whole strategy, including the stages not yet before the court, because the judge is being asked to arm the first stage of all of them. Argue the respondent’s case at its best, especially on alternative remedies, because that is the submission the empty chair would have made. Give the context that makes the application look worse, including the commercial history that brought the applicant to the door, because materiality is judged by the court and not by the applicant’s comfort. Use the hearing time to inform rather than to advocate. And if a non-disclosure surfaces afterwards, explain it fully at the first opportunity, because silence converts error into inference. None of this is onerous for an applicant with a sound case. All of it is fatal to skip, as one half of Bruno Wang‘s 2022 litigation demonstrated, and the other half confirmed from the opposite direction.
