PricewaterhouseCoopers (PwC) v Saad Investments Company Limited (SICL) and Singularis Holdings Ltd (SHL)involved an application by PwC for the setting aside of orders made by the Supreme Court of Bermuda in favour of the liquidators that required the production of documents relating to SICL and SHL.  Included among the grounds on which PwC relied to set aside the order were that:

  • The Supreme Court erred by issuing a winding up order in respect of SICL
  • The Supreme Court had no jurisdiction at common law to make a production order in the absence of statutory jurisdiction.  This was argued in an attempt to have the SHL order set aside
  • Foreign liquidators in Bermuda cannot be granted powers broader than those possessed in their home jurisdiction.  This was relevant to whether the liquidators could have access to PwC's audit working papers.

The Court was split 2-1 in favour of the liquidators. 

On the first ground, PwC contended that the Court of Appeal's previous decision in PwC Bermuda v Kingate Global Fund Ltd (Ct of Appl) [2011] Bda LR 32, which held that a winding-up order cannot be impeached in the context of an application made under it, was distinguishable on two grounds.  First, that SICL was not a company that the relevant legislation applied to.  The Court rejected this contention due to the complexity of argument from both sides which meant that SICL did not fall within the "patent irregularity" exception.  Secondly, PwC alleged they were a stranger to the liquidation.  The Court rejected this argument owing to PwC's status as the company's auditor.

PwC then argued that there is no inherent jurisdiction of the Court to make production orders in circumstances that do not fall within the terms of the relevant legislation.  The Court accepted this argument on the basis that there is no binding authority to afford judicial assistance to a foreign liquidator outside the terms of the statute and therefore allowed the appeal against the SHL order.

On the third ground, PwC alleged that a balancing exercise must be conducted prior to a production order being issued.  Moreover, that the joint liquidators had not demonstrated a need for any non-company documents.  The Court rejected this argument, holding that all documents (including PwC's working papers) were both necessary and relevant to the affairs of SICL and SHL.

Justice Auld dissented and found in favour of PwC on the question of production of the documents. 

It is understood that leave to appeal to the Privy Council will be sought. 

See Court decision here.