In the matter of the Proceeds of Crime (Jersey) Law 1999 and In the matter of a saisie judiciaire in respect of the realisable property of Kaplan in Jersey [2009] JRC082

Retiring trustee duty v saisie judiciaire

What will tip the balance in favour of discharging a saisie judiciaire?

Briefly, Mr Kaplan, a US businessman had made large sums of money from establishing an online gaming business. The business was established in Aruba and operated in Antigua, Costa Rica and the Dominican Republic, floating on AIM in 2004. In the context of the flotation, the business was, at least in part, illegal under US law but sales of shares had been consented to by the National Crime Intelligence Services. Profits from the flotation found their way into Jersey trusts.

The judgment follows the difficulties faced by the retiring trustee in fulfilling its duties in circumstances where the effect of a saisie judiciaire had been to vest possession of the trust assets in the Viscount. Although the trustee had effectively retired, it had not been able to fulfil its duty and transfer the trust assets, not only because the trust assets had been vested in the Viscount but also because the US Department of Justice had obtained freezing orders in Switzerland so that any cash held in Swiss bank accounts could not be moved and the cash in Jersey had been exhausted to meet the costs and expenses of the Viscount. There was to all intents and purposes, a 'lock-down'.

The judgment deals with Mr Kaplan's application to discharge, failing which, limit, the saisie judiciaire. The Court examined the test applicable to the discharge of a saisie judiciaire stating that the question for the Court is, whether having regard to the objectives of the Proceeds of Crime (Jersey) Law 1999 i.e. to deprive criminals of ill-gotten gains, and balancing all relevant considerations, it is fair, reasonable and proportionate to maintain the order in force.