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Chief Justice holds law firm liable for costs after trial no show

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Chief Justice Ian Kawaley has taken Conyers Dill & Pearman and one of its attorneys to task after neither the firm nor its client turned up for a trial involving a company caught in the Madoff fraud.

In a stern ex tempore costs ruling, Chief Justice Kawaley held Conyers liable for costs in the legal action, in which Bermuda Investment Advisory Services Limited was suing a company called Aurelia Research (Bermuda) for alleged unpaid rent of $77,235.

In the case, Tim Marshall of Marshall Diel & Myers appeared for the plaintiff, while the defendant failed to appear. Conyers and associate Raymond DeSilva represented Aurelia.

Chief Justice Kawaley said that two weeks after being sued by BIAS on October 1, 2010, Aurelia changed its name to Lydertyl (Bermuda) Limited, then later entered voluntary liquidation under its new name "on the premise that it owed no debts and was solvent", and was dissolved on January 25, 2013 — all without the company or its counsel, Mr DeSilva, informing the court or the plaintiff.

Aurelia continued to make court filings under its former name even after its name change and, "just over a month after the Company had been dissolved", Mr DeSilva appeared on a pretrial matter, added Chief Justice Kawaley.

Mr DeSilva appeared and indicated that he had no instructions.

“That signified to the Court that, perhaps, he was having difficulty in getting instructions from a company which still existed,” the Chief Justice wrote.

“In fact the true position was, it now appears based on all the material before the Court, that the Defendant had not only changed its name shortly after the commencement of the proceedings but had entered voluntary liquidation on the premise that it owed no debts and was solvent and had in fact (now) been dissolved.”

He continued: "It is difficult to comprehend how counsel could properly form the view that it was not necessary to advise the Court or the Plaintiff’s attorneys of the true position.

“It is entirely possible that there was some breakdown in communication.

“But from a legal standpoint, when a company enters voluntary liquidation with a liquidator being appointed from within the same 'firm' of attorneys who are the attorneys of record in the litigation, the Court is bound to impute the knowledge of those handling the liquidation to those handling the litigation.

"And so, quite unreasonably, the Plaintiff was led to believe that the Company still existed; that it made sense to prepare the present matter to trial. And the Plaintiff did in fact prepare for trial. Witness Statements were taken and filed. The matter was listed for hearing this week. Today, on the original trial date, the Plaintiff has appeared through counsel and the Defendant has not appeared in circumstances where the attorneys of record have remained on the record rather than, as one might have expected, applying to come off the record on the basis that they had no instructions. And that is something that one would have expected to have happened long before the directions were ordered by this Court on February 28, 2013."

The Chief Justice added: "It seems to me that this is a classic case where the individual attorney and the attorneys of record have been given notice of today’s hearing and have simply failed to attend. And so the scope for them to complain about an Order being made in their absence has got to be very limited indeed although as a matter of law it cannot be excluded altogether."

He ordered in the May 27 ruling for Mr DeSilva and/or Conyers Dill & Pearman to "pay all of the costs thrown away from February 28, 2013 to date, including the costs of today's hearing, on an indemnity basis".

OffshoreAlert has reported that its research showed that Aurelia Research (Bermuda) Ltd and Aurelia Fund Management Limited were part of a group whose parent is Aurelia Finance SA, a Swiss private bank and fund manager that lost approximately $800 million of clients' funds in Bernard Madoff's Ponzi scheme.

Five of Aurelia's directors, Vladimir Stepczynski, Pascal Cattaneo, Olivier Ador, Lauren Mathysen-Gerst, and Jean-Marc Wenger, were charged with criminal mismanagement in Switzerland in 2009, with Stepczynski also charged with money laundering, according to news reports at the time.

Chief Justice Ian Kawaley
Conyers Dill & Pearman associate Raymond De Silva

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Published June 19, 2013 at 9:00 am (Updated June 18, 2013 at 8:21 pm)

Chief Justice holds law firm liable for costs after trial no show

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