THE TURKS & CAICOS ISLANDS Law and Practice Contributed by: Stephen Wilson KC, Dominique Gardiner and Lovelie Luxama, Wilson Wells
may make representations if it is thought that it will assist in defeating the application. Generally, when an application has been made ex parte, the court will set a return date and require the applicant to issue a summons giving notice of said date to the respondent. At that hearing, the matter will be considered afresh on an inter partes basis, with all sides being heard. 6.4 Liability for Damages for the Applicant An order granting an interlocutory injunction may be made unconditionally or on such terms and condi- tions as the court thinks just. The long-established practice (whether the application is made on notice or ex parte) is to make any interlocutory order subject to a condition in the form of the applicant’s undertaking to pay damages to the respondent (or any other party adversely affected by the order) for any loss sustained by reason of the injunction if it subsequently transpires that it ought not to have been granted. The purpose of such damages is to put the person affected by the injunction in the same position (as best as money can) that they would have been in if the injunction had not been granted. The giving of such an undertaking is usually sufficient security, and generally no fortification thereof is required. 6.5 Respondent’s Worldwide Assets and Injunctive Relief The Supreme Court of the Turks and Caicos Islands can grant an injunction extending to the worldwide assets of the respondent, particularly if the respond- ent is within the jurisdiction and the court is able to deliver a sanction on the defendant should its order be breached. To obtain such an order, an applicant must satisfy the court that: • they have a good, arguable case on a substantive claim over which the court has jurisdiction; • there are no assets, or insufficient assets, within the jurisdiction to satisfy their claim; • there are assets outside the jurisdiction; and
• there is a real risk of dissipation or secretion of those assets so as to render any judgment that the applicant may obtain nugatory. 6.6 Third Parties and Injunctive Relief A third party is bound by the terms of an injunction granted against a party as soon as the third party has notice of it, even though the respondent has not yet been served and does not know the order has been made. Where the third party is the holder of an asset of the respondent (eg, their bankers), in many instanc- es the effectiveness of the injunction will depend as much on the restraining of the actions of the third party as those of the respondent. Where appropriate, and in accordance with the relevant rules, a third party may be joined as a party to the action. It is generally more difficult to obtain such an order against a third party who is outside the jurisdiction, as the court tends to only grant orders that are effective and that can be enforced. 6.7 Consequences of a Respondent’s Non- Compliance Where a person refuses, neglects, disobeys or other- wise fails to comply with the terms of an injunction, subject to the provisions of the Rules of the Supreme Court, the injunction order may be enforced by one or more of the following means: • a writ of sequestration against the property of that person (with the leave of the court); • where that person is a body corporate, a writ of sequestration against the property of any director or other officer of the body (with the leave of the court); and • an order of committal against that person or, where that person is a body corporate, against any such officer (subject to the provisions of the Debtors Act (Chapter 4.02)). Subject to exceptions in certain limited circumstanc- es, it is a necessary prerequisite to enforcement of an injunction that a copy of the order has been served personally on the person required to do (or abstain from doing) the act in question. In the case of an order requiring a person to do an act, copies must have been so served before the expiry of the time
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