IN THE SUPREME COURT OF
THE TURKS AND CAICOS ISLANDS
ACTION NO. CL 86/2019
IN THE SUPREME COURT OF
THE TURKS AND CAICOS ISLANDS
IN THE MATTER OF REGENT GRAND MANAGEMENT LTD. (IN LIQUIDATION) AND IN THE MATTER OF THE INSOLVENCY ORDINANCE 2017
AND IN THE MATTER OF AN APPLICATION BY TIM PRUDHOE AS LIQUIDATOR OF REGENT GRAND MANAGEMENT LTD.
BEFORE RAMSAY-HALE C.J.
MR. WILLIN BELLIARD OF PRUDHOE CARIBBEAN FOR THE APPLICANT
DELIVERED ON 12TH MAY 2020
In the Matter of Regent Grand Management Ltd (In Liquidation) CL 86/2019
- On 16 May 2019, the applicant, Mr. Tim Prudhoe, was appointed liquidator of the Regent Grand Management Ltd. (the “Company”) which, until early 2019, provided condominium management and divers other services to various owners at the Regent Grand condominium resort in Providenciales.
- The company was put into voluntary insolvent liquidation by resolution of its sole member, Freedom Group Management Ltd. (“FGML”). Mr. Tim Prudhoe, an attorney-at-law and Licensed Insolvency Practitioner, was appointed Liquidator.
- Since his appointment, Mr. Prudhoe has investigated the affairs of the Company with the assistance of his law firm, Prudhoe Caribbean. His investigations have disclosed that it is unlikely that there will be any assets from which to make distributions after the costs of the liquidation are met. Mr. Prudhoe states that he has incurred substantial fees and expenses in the course of the liquidation, including expenses incurred for work done by his law firm and that, as a result of only receiving $40,000 in ‘non-recourse loan’ funding from FGML, he is now effectively funding the liquidation of the Company from his own pocket. He seeks recovery of his fees and expenses to date, including profit costs of his law firm, such fees and expenses to be paid from any funds recovered in the liquidation and from the funding provided by FGML. He identifies a debt due to the Company by FGML in the sum of $46,507.16 as an asset which might be recovered and has in hand some $30,000 which stood to the Company’s credit in divers banks on island at the date of his appointment.
4. By Originating Summons dated 9 July 2109, Mr. Prudhoe sought approval for an Interim Payment in the sum of $92,421.65 for the period 13 May to 30 June2019. The first hearing of the Summons was adjourned to 28 August 2019, and at the adjourned hearing, Mr. Prudhoe applied for the interim payment to be enlarged to $165,994.60, to include the further amount of $73,572.95 to cover the liquidation costs and expenses incurred by him from 1 to 21 July. A subset of the costs are his expenses relating to legal work done In the Matter of Regent Grand Management Ltd (In Liquidation) CL 86/2019
by Prudhoe Caribbean in the amount of $82,005.49 for the period 13 May 2019 to 21 July 2019.
5. Mr. Prudhoe describes the application as being made on a “protective basis” as, on the face of the legislation, he considers he does not need the Court’s approval for fees for instructing his own firm. Given what he describes as some uncertainty in the law, he has filed proceedings, in his personal capacity, seeking a declaration “as to the absence of obligation on his part to seek Court approval of fees in the specific context of a route to appointment as liquidator being a qualifying members’ resolution” in a members’ voluntary insolvent liquidation.
6. Mr. Prudhoe also seeks the Court’s sanction to issue proceedings against FMGL for the recovery of a debt in the amount of $46,507.16 to the Company.
7. Three issues arise for resolution in this application. The first is the basis for the Liquidator’s remuneration, the second is whether and to what extent Mr. Prudhoe can claim profit costs for the legal services of his firm which he has engaged to carry out certain work and finally, whether the Court should sanction proceedings against FMGL.
8. In his First Affidavit sworn in support of the application Mr. Prudhoe states, by way of background, that he does not maintain a corporate (or any other type of) legal entity through which to deliver insolvency practitioner services. He states further that neither his bills nor those of Mikhail Charles
“are in the capacity of providing legal advice or representation to the liquidator but are, instead, as liquidator and paralegal support to the liquidator respectively (albeit a liquidator who is also practising attorney in this jurisdiction).”
9. He says further that as a practical matter and, as one of the licensing requirements for insolvency practitioner status is indemnity insurance, there is no viable way for him to obtain that indemnity insurance free-standing of
the Prudhoe law firm, which itself holds indemnity insurance. He states further that,
“In my capacity as liquidator (as opposed to lawyer) I maintain entirely separate billing records to those of lawyers at Prudhoe Caribbean engaged by me to work as legal advisors on this file.”
10. He also says that at the first meeting of creditors he was asked by the creditors for his hourly rate and advised them that it was $750 and no objection was taken. He also asserts that in his practice as an attorney in BVI, he continues to undertake substantial volumes of work for liquidators in the BVI and that $750 is rate the median rate for Court-appointed liquidators.
11. The work done by Mr. Prudhoe and Mr. Charles is set out in his First and Second Affidavits and the Invoices attached thereto. I set out a brief summary of the work done as sufficient for the purposes of this application. Under the heading of Statutory Duties and Administration, time was spent.
- On the day to day running of the liquidation (although there was no business to carry on1)
Advertising his appointment
- Writing to all creditor.
Notifying the Registrar of Companies
- Notifying the Company’s registered agent and requesting copies of the company’s books
- Notifying the Directors of the Company and requesting they complete Statements ofAffairs and considering the Statements submitted and
- Notifying RGML’s Banks that the Company has been put in liquidation and receiving the balances due to RGML, except the balances on account at Scotiabank.Obtaining legal advice,1 Viz TCI Bank (In Liquidation)
12. Under Investigations and Legal, time was spent,
- Obtaining legal advice
- Drafting applications
- Conducting investigations of the bank accounts and obtaining control of the Company’s bank accounts and credit cards, and on
- Follow up communication with Directors with regard to their Statement of Affairs.Supervising liaison with the directors to identify creditors,Communicating with creditors andReceiving creditor claim forms.Mr. Prudhoe’s Third Affidavit and the invoice attached thereto consisted in,
13. Under Creditor Communications time was spent,
- Supervising liaison with the directors to identify creditors,
- Communicating with creditors and
- Receiving creditor claim forms.
14. The work done in the Liquidation between 1 and 27 July 2017, as set out in
Mr. Prudhoe’s Third Affidavit and the invoice attached thereto consisted in,
- Corresponding with Scotiabank in continued pursuit of the balance held by the bank to the order of the Company,
- Finalising the list of Creditors,
- Corresponding with the creditors,
- Preparing the Preliminary Report,
Preparing for this application for interim payment.
15. With respect to the application for interim payment, section 465(3) of the Insolvency Ordinance provides for the Liquidator, in the absence of a creditors committee, to the make an application to the Court for an interim payment. Mr. Belliard submits that, in considering the application, the Court must apply the general principles set out in section 464(4).
16. This is the course adopted course by the BVI Court in Rich Victory Investment Limited v Sino Union (Caribbbean) Holding Limited where Bannister J held that the provisions for setting an interim payment in the BVI Insolvency Act, which are in pari materia with our own, “enjoin the Court (unless remuneration is being awarded on a percentage basis) to use time properly spent (or ‘given’) as the starting point for fixing remuneration expressly in the case of subsection 432(3) and implicitly... in the case of subsection 432(5)(a).”In the Matter of Regent Grand Management Ltd (In Liquidation) CL 86/2019
17. I also accept, as the learned Judge says, that there is nothing in the wording of the law to support the proposition that the Court should act in the role of self-appointed expert and apply some sort of cost/benefit analysis to work done by insolvency practitioners.
18. At section 464(4)(a) the following general principles, as compulsory factors to be taken into account, are set out:
(i) the need for the remuneration to be fair and reasonable
(ii) the time properly spent by the insolvency practitioner and his staff in carrying out his duties
(iiI)the complexity of the insolvency proceeding and whether the insolvency practitioner has been required to take any responsibility of an exceptional kind or degree
(iv) the effectiveness with which the insolvency practitioner is carrying out, or has carried out, his duties
(v) the value and nature of the assets with which the insolvency practitioner has had to deal
(vi) the hourly rates charged by other insolvency practitioners, both within and outside the Islands, in undertaking similar work.
19. The commercial and personal risks accepted by the insolvency practitioner
- the commercial and personal risks accepted by the insolvency practitioner;
- the time spent by the insolvency practitioner and his staff outside the Islands and the amount of travelling required;
- the standards and practice used for assessing remuneration in jurisdictions other than the Islands.
20. In Unicorn Holdings (In liquidation) a decision of Adderley J - a Judge of Appeal in this jurisdiction- the learned Judge observed at para 55, with respect to the applicability of the value criterion employed in England when assessing liquidator’s remuneration 2 that,
2 See Ferris J in Maxwell No 2 198 BCC 324
“Assessment of value to the estate does not require a cost/ benefit analysis per se. After taking into account the matters mandated in sub sections 432(5)(a)(i) to (vii), and if it considers it appropriate, the matters in s.432(5)(b), the court will then take an objective view having regard to all the circumstances, including whether good commercial judgment was used, whether costs are fair and reasonable, and proportionate, as required by section s.432(5)(b)(i). Whether value to the estate was given for services rendered may be seen as another way of asking whether the time was properly spent or given, but this could only be with a view to determining the overarching requirement that costs are fair and reasonable and proportional as required by the Act.”
21. The starting point is the appropriate hourly rate for the Liquidator. Mr. Prudhoe proposes a rate of $750 but he has not advanced any cogent reason why the Court should accept that rate, except to say that it is the median rate for Court-appointed liquidators in the BVI. I note that in the BVI case of Titan Group Investment Limited (in Liquidation) Bannister J stated that when sanctioning an interim payment of liquidators’ remuneration, the Court was not required to take account of rates chargeable by insolvency practitioners elsewhere in fixing the remuneration of resident Liquidator.
22. An hourly rate of $750 is out of line with the usual rate for Liquidators appointed by this Court, which is $450 per hour. Exceptionally, rates as low $350 have been agreed where the liquidation was straightforward.
23. The authorities suggest that the complexity of the insolvency or the commercial risk accepted by the insolvency practitioner, inter alia, are matters that might justify a higher rate, but neither is a factor to be taken into account here. This insolvency is far from complex. The summary of the work done reveals its unexceptional character, the “humdrum of carrying out of routine tasks,” if I may borrow a phrase from Bannister J.
24. There are under 30 creditors and the assets are modest and consist for the most part in the $30,000 or so which stood to the Company’s credit in its bank accounts at the date the Company was put into liquidation and a debt due to the Company by its shareholder in the sum of $46,507.16.
25. There seemed to be a suggestion that the liquidation was complicated by the absence of any forms approved by the Financial Services Commission and the absence of any Practice Directions made pursuant to Rule 316(1) and any Practice Guides under Rule 318. Mr. Prudhoe says, that as a result of the lack of guidance,
“Legal advice was obtained for the interpretation of various sections of the ordinances and the rules which required further research to provide the most up to date information. There are no decided cases of guidance in this area of Turks & Caicos Islands law. That said, the legislation is modelled heavily on the law of the British Virgin Islands (“the BVI”) and in which jurisdiction I am long-admitted to practice and where I have many years of (ongoing) experience resulting in some efficiencies of dealing.
Time was spent on my behalf drafting several documents including the advertisement notice, applications and this affidavit”.
26. The postulated need for legal advice, in the circumstances where Mr. Prudhoe, as a licensed TCI Insolvency Practitioner, would be assumed to know the applicable law and have the requisite legal expertise to deal with the liquidation process, is difficult to digest. One would certainly expect, given his admitted experience in the BVI, that he would be more than able to unravel the peculiarities of the TCI regime, if any, given that it is “heavily modelled” on the BVI legislation with which he is so au fait. Given that he is an attorney, I think it would be expected that Mr. Prudhoe and his paralegal (who is admitted to the BVI Bar) would be able to deal with the preliminaries associated with a member’s voluntary insolvent liquidation, including preparing such forms and Notices as might be required and advertising them, without having to seek legal advice.
27. In any event, though the absence of these forms and Practice Directions may have presented a challenge in putting the Company into liquidation and increased costs of so doing, that absence would not make the conduct of the liquidation itself more complicated and would not justify a fee greater than the usual rate of $450 approved for Court-appointed liquidators.
28. I consider the appropriate rate for a paralegal to be $250. Applying those rates to the invoice for 13 May to 30 June reduces the remuneration claimed from $54,647.48 to $35,802. 50 and the Invoice for 1 to 27 July to $18,446.67, for a total of $55,249.17 for 166 hours of time spent. This sum includes $815 for disbursements.
29. Taking a step back to consider whether the time spent and the cost to the estate was proportionate in light of the routine nature of the liquidation and the modest value of the assets with which Mr. Prudhoe has had to deal, I consider that the sum of $55,249.17 should be discounted by 20% and allow an interim payment of $44,199.34.
Profit Costs for Prudhoe Caribbean
30. Liquidator’s remuneration includes expenses, and this would encompass fees incurred in employing attorneys to assist him in the performance of his duties. Mr. Belliard contends that the legal advice given to Mr. Prudhoe was necessary and properly sought, that specialist legal knowledge and experience was required for those advising Mr. Prudhoe and has been provided to him at reasonable cost.
31. Mr. Belliard submitted further that it would be the wrong for the Court to “second guess” whether legal advice of the necessary specialist nature could have been obtained more cheaply elsewhere and relied on the decision of Bannister J in Rich Victory who stressed the liquidator’s ability to choose the terms on which they engage counsel.
32. In that judgment, Bannister J, on the question of legal expenses stated.
“... the Liquidators are the legal advisors' clients. As such, they (a) negotiated what they considered to be appropriate charging rates and (b) challenged, and declined to pay for, work which they considered not chargeable in the circumstances of this liquidation. Thirdly, liquidators are entitled to recover charges by service providers for work done, provided that the charges have been properly incurred - unless the charge is manifestly excessive. It is not suggested that it was in any way improper for the Liquidators to obtain the services provided to them by their Hong Kong legal advisors, nor that any of the bills which they seek to recover from the estate are manifestly excessive.”
33. Mr. Belliard also drew the Court’s attention to para. 33 of Bannister J’s judgment where the learned judge observed that, in respect of legal expenses, the law requires that the Court,
“...satisfy itself that the instruction by the insolvency practitioners in question of a firm of solicitors or advocates was proper. It is to the incurring of the expense that the Act directs the attention of the Court, not the size of the lawyer’s bill... The Court’s need is to be satisfied that it was proper to engage them.”
34. Rule 309 of the Insolvency Rules 2019 provides that,
“ (5) If the insolvency practitioner is a legal practitioner and he employs his own firm, or any partner in it, to act in or in connection with the insolvency proceeding in respect of which he is appointed, profit costs shall not be paid unless authorised by... the Court.”
35. I consider that where an insolvency Practitioner instructs his own firm to act on his behalf, say for the purpose of engaging in litigation to recover assets or to provide him with legal advice in relation to a matter arising in the liquidation, he would be entitled to be paid profit costs for his firm on the same basis as if he had appointed a third party firm. The Court would consider the matters set out by Bannister J: whether it was proper to engage his firm, were the charging rates appropriate, had the bills submitted to the Court for reimbursement been properly scrutinised by the Liquidator, were the costs which he thought not chargeable challenged by him, as they would have been if they had been charged by a third party provider.
36. The resolution to the issue of whether Mr. Prudhoe is entitled to recover profit costs for his firm in this matter turns on the question of whether it was proper to engage his firm for the purpose they were engaged. In his affidavit, Mr. Prudhoe sets out the legal work in which he instructed Prudhoe Caribbean:
“...staff of the firm continue to provide me as liquidator with the legal advice I require. They conduct legal work such as correspondence with third parties, provide legal opinions on specific issues and also interpretation of the Ordinance and Rules.”
37. I first turn to consider whether it was reasonable or proper for Mr. Prudhoe to engage attorneys, whether it be Prudhoe Caribbean or any other law firm, for the purposes of advising him on the interpretation of the Insolvency Ordinance or the Rules, and I would repeat here, to my observations set out above in paragraph 26 supra. In so saying, I am directing my attention, not to the size of the fees charged by Prudhoe Caribbean, but to the question of whether it was proper to engage them, and I do so bearing the guidance set out in Rich Victory well in mind.
38. Not only do I question the propriety of seeking legal advice which was, in my view, primarily aimed at his duties as Liquidator under the Ordinance, I question the notion that this was specialist legal advice and that his junior associates at Prudhoe Caribbean were equipped to give it. Mr. Belliard’s account of work done 1 July 2019 illustrates my concern. There he noted that he had conducted:
“-targeted research on the law and procedure regarding a liquidator application for fee approval (in the absence of any precedent in TCI). Discussion with Tim Prudhoe(client) in light of his extensive experience in BVI of equivalent applications,”
which suggests to me that the adviser was seeking advice from the advisee. I would also note en passant that applications for interim payments are not uncommon in TCI and I do not consider that the passage of the new Insolvency Ordinance made applications for interim payments into a new creature requiring extensive research.
39. From my perusal of the invoices, it appears that Prudhoe Caribbean was employed, not for the usual purposes of advising on the recovery of assets or conducting litigation with respect thereto by way of example, but for the purpose of advising Mr. Prudhoe on how to conduct the liquidation. 3 By way of illustration, Prudhoe Caribbean conducted research to provide Mr. Prudhoe3 There are multiple references in the fee notes to planning ‘next steps’ in the liquidation with Prudhoe Caribbean. advice on the timing and holding of the first creditors meeting and “necessary steps for holding the first meeting of creditors,” which are surely amongst the most routine of tasks within a liquidation as well as advice on the priority of payment and preferential claims and proofs of claim which any Licensed Insolvency Practitioner should know.
40. The costs incurred by Mr. Belliard and, to a lesser degree, Mr. Harvey, in undertaking over 47 hours of research to advise Mr. Prudhoe on the law, were not properly incurred and are irrecoverable from the liquidation estate, as are the associated costs incurred by Prudhoe Caribbean in preparing research notes, sharing the fruits of that research with Mr. Prudhoe and advising on him on “next steps” in the liquidation.
41. The remainder of the work for which Prudhoe Caribbean has billed, with the exception of work done in preparing this application, is work which would ordinarily be undertaken by the Liquidator and his team and billed at an appropriate rate.
42. The majority of Mr. Belliard’s time, for example, was spent corresponding with third parties, including the Banks where the Company’s deposits were held, the Directors of the Company to make inquires and the creditors. In my experience, this task of corresponding with third parties is routinely performed by Liquidators in this jurisdiction, whether they are attorneys or accountants or otherwise. Of course, Mr. Prudhoe would be entitled to claim for corresponding with third parties as it is an ordinary incident of a liquidation, but he is not, in my judgment, entitled to recover any amount for this correspondence as legal expenses (profit costs) at the rate of $500 an hour.
43. In respect of time spent by Mr. Belliard engaged in drafting correspondence for Mr. Prudhoe to send to third parties or in direct correspondence with third parties (and excluding any time spent corresponding with Mr. Prudhoe and Mr. Charles qua clients) I allow 23 hours. The appropriate rate for such correspondence, assuming it required a higher level of seniority than that possessed by Mr. Charles, would be $350 an hour, for a total of $8,050.00. Given that the invoices disclose an element of duplication of correspondence by Mr. Belliard, Mr. Prudhoe and Mr. Charles, I discount that sum by 20% for a total of $6,440.00.
44. With respect to the work done by Prudhoe Caribbean in preparation for this application (excluding any research undertaken in preparation therefor) time was spent discussing the “fee application strategy” with Mr. Prudhoe, drafting the application and supporting affidavits, discussing “next steps” in the fee approval application, preparing the skeleton argument and doing other preparatory work for the application for interim payment, including preparing a draft of the claim against FMGL for the debt, for the Court’s consideration. By my estimate, Mr. Belliard spent some 22 hours, more or less on various tasks and Mr. Harvey and Mr. Hamilton spent a further 22 hours, more or less, at a cost to the liquidation estate of some $18,750.
45. I consider that sum excessive but would allow the sum of $9,376.00 for legal fees.
46. The total sum fixed for the interim payment is $59,799.34, being $44,199.43 (including disbursements of $815) for Liquidator’s remuneration, a further sum of $6,440.00 for work done by his firm in the liquidation and $9,376.00 for legal expenses related to this application.
47. Before I move to consider the next issue arising for consideration, I would just observe that had the work done in the liquidation been set out in a single invoice as is customary, reflecting the work done by Mr. Prudhoe and his team in the liquidation, itemising the work done by each member, on each day, according to their different levels of responsibility, the Court, and indeed Mr. Prudhoe, would have been much better placed to consider whether the time spent was properly spent, whether tasks had been duplicated and whether the work had been billed at appropriate rates.
48. Mr. Prudhoe’s decision to divide the work between himself and Mr. Charles, on the one hand, and Prudhoe Caribbean on the other, led inevitably to a duplication of tasks and billing of work at unreasonable rates. The most egregious examples are the billing at $500 an hour for Mr. Belliard to spend an hour making “multiple inquiries with the Sun newspaper to confirm costs and necessary steps” to place an advertisement, and over two hours
personally attending at the offices of the TCI Sun newspaper 4 for the purpose of delivering to them the Notice of Mr. Prudhoe’s appointment for publication, neither of which required the attention of an attorney-at-law. The fee charged for scanning documents by an attorney at a rate of $350 an hour, a secretarial service usually part of the firm’s overheads and non-chargeable, is also patently unreasonable and would have been challenged by a prudent liquidator after scrutinising the bill.
Application for Sanction to Commence Legal Proceedings against FMGL
49. Having already incurred some $82,000.00 in purported legal fees without the sanction of the Court - a sum which is greater than the monies held by Mr. Prudhoe qua liquidator and the value of the $46,507.16 debt due to the Company by FMGL - Mr. Prudhoe now seeks the Court’s sanction to pursue that debt though the Courts. Prudhoe Caribbean’s estimate of the costs of recovering that debt through action is between $20,000 or $30,000, less if they succeed in a Summary Judgment application.
50. Under the Insolvency Ordinance, a Liquidator no longer requires the sanction of the Court to commence proceedings, the Legislature perhaps considering that the question of whether or not to bring an action includes both commercial and risk considerations which are best weighed by the Liquidator and not the Court. In principle, then, I think the Court should defer to the Liquidator’s commercial judgment as to what is in the best interest of the insolvent estate. Asked why the proceedings were being contemplated, given that there would be no benefit to the creditors, Mr. Belliard responded that the Liquidator was obliged by law to get in all the Company’s assets. I do not agree; whether to institute proceedings is a matter for his discretion.
51. The evidence before me suggests that there is a good chance of the Company succeeding in its claim. That said, there is no evidence that FMGL will be able to satisfy the judgment or whether any recovery of the debt is likely to exceed the costs. In the circumstances, it seems to me that the risk of commencing such proceedings would be greater than the reward to the liquidation estate. Absent any evidence that the body of creditors, for whose benefit such
4 As well as the Bank and the Treasury
litigation would be undertaken, support the commencement of such proceedings, I decline to sanction the proposed proceedings against FGML.
DATED THE 12TH DAY OF MAY 2020