Delroy B Duncan

Year of Call: 1984

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PRACTICE AREAS

Commercial Law

PROFILE

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 Rights.

Schemes of Arrangements:

In the matter of Highland Crusader Fund II Ltd [2011] SC (Bda) 38 Com – Acted for UBS Securities LLC and UBS AG – objection to sanction of Scheme of Arrangement – hedge fund - standing to object.

Shareholder Disputes:

Sino-JP Co Ltd v Pacific Electric Wire & Cable Co Ltd and others [2006] Bda LR 84. Court of Appeal decision concerning shareholders dispute – minority oppression – proceedings in Hong Kong and Bermuda – appropriate forum – injunction for right to appoint directors.

Mehta & MFP – 2000, LPV Viking River Cruises Limited, Viking Capital Limited & MISA Investments Limited [2014] SC COMM (Bda) 86. Service of section 103 notice acquiring preference shares – application to Supreme Court to appraise shares – Declaration of dividend after service of section 103 notice – whether payment of dividend contingent upon registered shareholder in company register of members – first decided case dealing with entitlement to dividend payments under section 103 – summary judgment.

Trusts:

Perinchief v Raynor 1993 Civil App. No. 28 [1995] Bda LR 19. Court of Appeal decision on proprietary estoppel – cohabitation – whether property purchased jointly – whether beneficial interest in property – common intention.

Re Star I (Revised) and Star II (Revised) Trusts, Von Knieriem v Bermuda Trust Company Ltd and Grosvenor Trust Company Ltd 1994 Civil Jur. No. 154 [1994] Bda LR 50. One of the leading commonwealth cases on protectors of trusts and the valid exercise of trustee powers.

Re Herrero and others (as Trustees of the Labrador Trust) and Appleby Spurling & Kempe [2004] Bda LR 9. Leading case in Bermuda on whether owners of property were a front for non-Bermudians – allegation trust was a sham - conspiracy to defraud – validity of search warrant.

Bermuda Commercial Bank Ltd v Horizon Bank International Ltd and others [2005] Bda LR 5. Supreme Court decision on fraud – interim relief for tracing claim – interpleader action – beneficial owner of 1st Defendant – accounts in bank with fluctuating balances – equitable remedy – jurisdiction – burden of proof – constructive trust.

Jennings v Jennings Bda Civil jurisdiction [2009] No 301. One of the leading Commonwealth cases on letters of request from UK Supreme Court - examination of witness - ancillary relief - trust assets owned by the parties - application to set aside - whether letter of request is oppressive - Cayman Islands law - whether the case of Charman v Charman 2005 EWCA required a different approach to be taken in ancillary relief proceedings following divorce.

In the matter of an Application by X Trust Company Limited in relation to the Y Trusts [2012] [Confidential] Acted as counsel for the Institutional Trustee in relation to a successful but contested application for directions by the Trustee arising out of an Originating Summons for a Category 2 blessing - the beneficiaries and protector contended that the proceedings should be dismissed or stayed before the Trustee had the opportunity to obtain a Category 2 blessing from the Court - confidential reasons for the decision were circulated to the parties by the Bermuda Court - the issues involved were whether the Protector had in fact directed the Trustee to discontinue such proceedings, or had the power to do so, and whether the Trustee was entitled to seek a Category 2 blessing given the wide scope of the Trustee Indemnity Clause.

In the matter of I Trust [2012] [Confidential] Acted for beneficiaries under a trust in relation to an application for an injunction to prevent the pursuit of proceedings by another beneficiary against the Trustee, seeking disclosure of information about the underlying trust asset - the issues involved the interpretation of a jurisdiction and governing law clause under the Trust Deed, and alleged breaches of confidentiality orders and settlement terms.

In the matter of I Trust [Confidential] [2013] Contested costs application - costs not apportioned in Bermuda based upon issues - costs following the event - interested adult beneficiaries entitled to costs together with settlor - Indemnity versus standard costs.

Winding-up:

IPC Mutual Holdings Ltd v Friedberg [2004] Bda LR 27. Court of Appeal decision on winding-up – preferred shares – rent-a-captive - payment of debt.

Re Refco Capital Markets Ltd and Refco Global Finance Limited [2006] Bda LR 94. Leading Supreme Court decision on taxation of costs for fees of Joint Provisional Liquidators – companies assets under control of US Court – cooperation between Bermuda and US Courts – cross-border insolvency – avoiding duplication of costs – duties of liquidators.

The Bermuda Monetary Authority v The South of England Protection and Indemnity Association (Bermuda) Limited [2011] Bda LR 370. Contested winding-up proceedings. Winding-up order sought by the JPLs pursuant to a public Interest Petition - winding-up order granted on Public Interest grounds against insurer operating a P&I Club on a mutual basis where the insurer was insolvent with a history of regulatory delinquency.

In the Matter of Kingate Management Limited [2011] No. 301. Winding-up petition presented by the Company acting on behalf of its shareholders – all directors resigned – no winding-up order sought on appointment of the JPLs – locus standi of JPLs to petition for winding-up of the company - independent jurisdiction of the court to make a winding-up order - winding-up petition presented in connection with the collapse of Madoff funds.

In the Matter of an application by Joint Provisional Liquidators to recover their costs [2013] Commercial Court No.52. Insolvent Ruritanian company - principle asset being a bank - confidentiality order to prevent run on the bank - JPL’s work required considering action and approval of a rescue plan within 4-5 weeks - Supreme Court assessing reasonableness of liquidation costs.

In the Matter of LAEP Investments Ltd (“the Company”) [2014] SC Bda 23 Com. Stay of execution of enforcement of Arbitration award - comity - balance of convenience - winding up of a Company as of right - winding up subverting the judicial process.

Kingate Global Fund, Ltd (In Liquidation) v PricewaterhouseCoopers (A firm) [2014] SC (Bda) 83 Com. Winding up of investment companies acting as feeder funds to Bernard L Madoff Investments Securities LLC – allegation of negligence against auditors – application to strike out statement of claim for lack of particularity.

Public Law

Constitutional Law:

Hill v R [2001] Bda LR 83. Court of Appeal decision on whether UK Human Rights Act 1998 can be read with S. 6 of the Bermuda Constitution Order to ensure Burden of Proof doesn't shift to the Defendant in a Criminal trial.

Robinson v Commissioner of Police 1995 Appellate Jur. No. 22 [1995] Bda LR 64. Supreme Court Appellate decision delay and fair trial rights in a criminal trial S. 6 Constitution.

Perinchief v Governor of Bermuda, Public Service Commission, Attorney General and Commissioner of Police 1996 Civil Jur. No. 85 [1996] Bda LR 67. One of the first Supreme Court cases in Bermuda to challenge the Governor's power to terminate the employment of public employees - termination of employment as Assistant Commissioner of Police – whether abolition of post was unlawful.

BAS Serco Limited v The Bermuda Industrial Union [2003] Bda LR 19. Leading Court of Appeal decision on whether European Convention on Human Rights incorporated into Bermuda law and whether S. 30P of the Trade Union Amendment Act 1998 contravenes Constitution and the right to freedom of association.

KFC v Minister of Economy Trade and Industry and the Bermuda Industrial Union Bda Civil Jurisdiction No. 188 [2012]. Leading Supreme Court case concerning objection by a private company to the mandatory statutory reference of a trade dispute to binding arbitration under the Trades Dispute Act 1992 reference interfered with company’s property rights pursuant to section 6 (8) and 13 of the Bermuda Constitution - Trade Union - Terms of Collective Bargaining Agreement incorporated into contracts of employments surviving termination of collective bargaining agreement – allegation of bias against member of the arbitration tribunal.

The Minister of Home Affairs v BIU, BPSU, BUT, Prison Officers Association and Fire Officers Association Bda Supreme Court 2015 : No 120. Industrial relations – constitutional right of trade unions to strike – anticipatory breach of contract by Government threatening to unilaterally reduce salaries of Government workers and cut jobs – statutory interpretation of the Labour Relations Act 1975 and the Labour Disputes Act 1992.

Disciplinary Proceedings:

Miller v The Bermuda Hospitals Board [2005] Bda LR 30. Supreme Court decision on Appeal by doctor against decision of the Hospitals Board to restore privileges – whether stay could be ordered in respect of an executive decision – statutory appeal procedure – whether variations to privileges addressed the nature of the complaints.

Electoral Law:

Grant v Madeiros and others [2007] Bda LR 21. One of the leading cases on election law in Bermuda concerning a mayoral election, procedural irregularities and change of nominees.

Free Speech:

Commissioner of Police and Attorney General v Bermuda Broadcasting Co Ltd and others [2007] Bda LR 40. The leading case in Bermuda on free speech concerning leak of confidential files – whether theft – breach of confidence – freedom of expression – freedom of the press – media right to inform the public about serious allegations – public figures.

Human Rights:

Bank of Bermuda Ltd v Minister of Community Affairs & Sport and Darrell [2005] Bda LR 42. Court of Appeal decision on whether complaint to Human Rights Commission was a valid subsisting complaint – appearance of bias – opportunity to be heard – role of Minister – limitation.

Harris v Thorne and Rice [2006] Bda LR 61. Leading case in Bermuda on sexual harassment and what conduct amounts to sexual harassment – assessment of quantum – special damages – whether interest can be awarded by Board of Inquiry.

Marshall and others v The Deputy Governor, The Governor and The Attorney General. [2007] Bda LR 9. The leading case in Bermuda on mandatory military service (conscription) injunctions – whether "male" included male and female – delay – voluntary enlistment – whether serious question to be tried – discrimination.

Roberts & Hayward v. The Minister of Home Affairs and Public Safety and Chief Fire Officer [2008] Bda LR 47. First decision out of the Courts of Bermuda concerning discrimination on the grounds of disability - compulsory early retirement of fire officers - discrimination for disability - definition of unreasonable hardship - whether physical fitness was a bona fide occupational requirement - damages.

Inquests:

Meredith v Attorney General and Francis (Coroner) [1990] Bda LR 54. Leading inquest case in Bermuda quashing findings of Coroner's jury – application to have findings of Coroner's jury quashed – conduct of inquest – admissibility of transcript taken by attorneys office in absence of official record – bias – standard of proof.

Bishop Palmer and Carberry v HM Coroner, BHB and Hoefert [2009] Bda LR 46. Supreme Court decision - inquest - death by natural causes contributed to by self-neglect - leading case in Bermuda on when a rider of self neglect can be added to a coroners verdict.

Judicial Review:

Woolridge v Minister of Labour Home Affairs & Public Safety [2005] Bda LR 78. Supreme Court decision on termination of employment of Assistant Commissioner following prison review – whether termination unlawful – compulsory retirement – poor performance never proved.

Eve v Deputy Governor, Governor and Attorney General [2008] Bda LR 6. Supreme Court decision on conscription for military service in the Bermuda Regiment – duty of respondents to give full evidence – judicial review – recruitment practices – whether quota should extend to women - discrimination - delegation of authority to publish notice.

Perinchief v. the Public Service Commission, The Governor and The Attorney General [2009] Bda LR 11. Supreme court decision on the statutory compulsory obligation imposed upon the Bermuda Public Service to hire qualified Bermudians - test for leave to seek Judicial review whether the Governor proper party - availability of damages in Judicial Review proceedings - delay.

KFC v Minister of Economy Trade and Industry and the Bermuda Industrial Union Bda Civil Jurisdiction No. 188 [2012]. Leading authority on the award and apportionment of costs in judicial review proceedings - whether costs should be awarded to both successful respondents - costs awarded based upon who succeeded in Common Sense terms not on an issue basis.

Matthie v Minister of Education and Commissioner of Education [2015] Supreme Court No 348. Fairness of consultation process – legitimate expectation withdrawn by subsequent legislation – test for granting a stay pending trial in respect of primary and subordinate legislation – jurisdiction of the court to reconsider its ruling.

Planning:

Minister of the Environment v The Bermuda National Trust, Keith James and Roger Raynor [2003] Bda L.R. 41. Planning– restrictive covenant (s. 34 agreement) - appeal against order of Chief Justice quashing Minister’s decision - whether Minister had power to enter subsequent agreement on land which is already subject to an agreement - construction.

Commercial Properties Limited v Sago Properties Limited [2008] Bda L.R. 49. Easement - right to light - right of way - injunction to stop development of office block in the city of Hamilton - whether serious issue to be tired - balance of convenience - delay.

Police:

Thomas v Commissioner of Police [2006] Bda LR 54. Leading Supreme Court decision concerning representation of Police Officers by legal Counsel before disciplinary tribunal – Constitutional right to fair hearing.

Regulatory

Money Laundering:

Steede v Director of Public Prosecutions and the Attorney General [2005] Bda LR 46. Supreme Court decision concerning confiscation proceedings – convicted drug trafficker – confiscation order made and assessed – increase of assessment order – time to be served in default of confiscation order.

Professional Regulation:

In The Matter of an Application for Special Call to the Bar for Jonathan Edwin Small Q.C. [2012] No. 107. Acted for Bermuda Bar Council – role of Bar Council appearing on applications for Special Call to the Bermuda Bar – Bar Council entitled to appear on such applications to represent the interests of the legal profession in Bermuda - notice of application to Bar Council.

Banking Regulation:

Golden Accumulator Ltd and others v Bermuda Monetary Authority [2004] Bda LR 67. One of the leading cases in Bermuda on powers of the Bermuda Monetary Authority and disclosure to overseas regulatory authority – right to confidentiality.

United Kingdom - Appellate Courts

Free Speech:

Commissioner of Police of Bermuda and Another v Bermuda Broadcasting Co Ltd and Others – Times Law Reports 24th January 2008. Privy Council case on whether the public interest in the freedom of the media to disseminate information relating to those who submitted themselves for election as legislators overrode the public interest in maintaining the confidentiality of documents relating to a police investigation into allegations of corruption.

Human Rights:

Thompson v Bermuda Dental Board (Human Rights Commissioners interviewing) [2008 UK PC 33]. Privy Council decision equality-discrimination on grounds of race, place of origin, colour, or ethnic or national origins - Appellant UK citizen having to register with respondent in order to practise as dentist in Bermuda - respondent having policy of limited registration to Bermudians or spouses of Bermudians - consequent upon policy, respondent refusing to register appellant's application - whether appellant having been subjected to discrimination on grounds of race, place of origin, colour, or ethnic or national origins- Human Rights Act 1981, s 2(2)(a)(i).

Marshall and others v Deputy Governor of Bermuda and others [2010] UKPC 9; [2010] WLR (D) 133. Leading Privy Council decision on conscription and the human rights of conscripts – public authority - duty of candor - claimants challenging compulsory military service in Bermuda - challenge raising issue as to whether Governor had addressed size of regiment in reasonable manner and taken all reasonable steps to recruit volunteers - whether Governor complying with duty of candor in response to legal challenge - whether shifting onus of proof.

Judicial Review:

R v Secretary of State for the Home Department, exp Herbage (No.2) [1987] QB 1077 CA. Court of Appeal decision. Application for discovery challenge to original grant of leave. Allegation based upon Prison Rules as well as Bill of Rights.

Trade Union Law and Injunctions:

Burgess v Stevedoring Services Limited [2002] UKPC 39. Leading Privy Council case on ban on voluntary overtime – ban not a breach of contract of participating employees limiting the effect of the ASLEF decision - irregular Industrial - action short of a strike.

Turks and Caicos

Property and Contract dispute against Government of Turks and Caicos:

Harrison Egan Isaac and Hegni Architectural Design Services Limited v The Governor of the Turks and Caicos Islands by The Attorney General and The Chief Minister of the Turks and Caicos Islands Action No. CL 14/05 [2006]. Property and contract dispute against Government of Turks and Caicos.

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