THE TURKS & CAICOS ISLANDS Law and Practice Contributed by: Stephen Wilson KC, Dominique Gardiner and Lovelie Luxama, Wilson Wells
and orders that may be sought, depending on the nature of the dispute and the issues between the par- ties. The most common relief sought before the Turks and Caicos Islands courts is payment of money, whether it be repayment of a debt, damages or restitution. Equi- table remedies are also available, such as injunctions, specific performance, declaratory relief, rectification, rescission, accounts and enquiries. In actions relating to companies, the Companies Act 2017 and the Insolvency Act provide statutory relief to aid directors, prejudiced members, unpaid creditors and the company itself in the form of: • the appointment of an interim supervisor; • the appointment of a receiver; • the appointment of an administrator; • the appointment of a liquidator; and • an order for the sale of a party’s shares in the company. 9.2 Rules Regarding Damages The general rule regarding damages is that they should be compensatory only – that is, awarded to compensate a party for its loss and put the party in the same position (or as near to it as possible) that it would be in if: • in the case of a contract, there had not been a breach; or • in the case of a tort, the wrongful act had not been committed or the proper act had not been omitted. Subject to the compensatory principle, there is no limit on the amount of damages that may be awarded, unless the parties have – by way of contract – agreed a maximum amount that can be claimed. However, it should be noted that a party claiming damages is under an obligation to mitigate their loss and to take reasonable steps to do so. Punitive damages are not available under Turks and Caicos Islands law, which – like English law – has always rejected the notion that any damages payable should be paid as a penalty.
In very limited circumstances, exemplary or aggra- vated damages can be claimed, so long as these are specifically pleaded together with the facts relied upon. Such awards are only made in three categories of cases, as set out by the House of Lords (as it then was) in the case of Rookes v Barnard (1964) AC 1129. The three categories are: • oppressive, arbitrary or unconstitutional actions by the servants of government; • where the defendant’s conduct was calculated to make a profit for themselves; and • where a statute expressly authorises the same. 9.3 Pre-Judgment and Post-Judgment Interest By Section 19 (2) of the CPA, in proceedings before the Supreme Court for the recovery of a debt or dam- ages, the court may include in any sum for which judg- ment is given simple interest (at such rate as the court thinks fit or as rules of court may provide) on all or any part of the debt or damages – in respect of which either judgment is given or payment is made before judgment – for all or any part of the period between the date when the cause of action arose and: • in the case of any sum paid before judgment, the date of the payment; and • in the case of the sum for which judgment is given, the date of the judgment. In certain cases, the court may award equitable inter- est, which is compounded at such rates as the court thinks fit. By Section 20 of the CPA, subject to any contract between the parties providing for a higher rate of inter- est on a debt, all judgments for the payment of money shall carry interest from the date when the judgment is entered until it is satisfied – or so much of it as is outstanding from time to time – at such rate as may be prescribed by the rules of court or, in default of such prescription, at the rate of 6% per annum. The default rate of 6% per annum currently applies.
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