Corbiere ’s statement regarding Nevis court decision
To set the record straight, Rusal obtained the injunction ex parte, that is to say without giving any notice to Corbiere or any shareholders of its intentions. Application was made on a false basis and with serious non-disclosures to the court of the true position. It was Rusal's obligation to make those disclosures but it failed to do so.
In addition Rusal failed to draw to the court's attention the potentially damaging impact of its injunction on third parties, such as shareholders who have been precluded from finalising the sale of the shares they have tendered and receiving the payment to which they are entitled. Corbiere estimates that the consideration still due to shareholders who wished to participate in the buyback exceeds $1 billion.
Corbiere applied to have the injunction set aside on the grounds that there were serious breaches of the obligation to make proper disclosure, that the injunction had been obtained on a false basis and with misrepresentations and that Rusal had no claim in any event to stop the buyback transaction or Corbiere voting the shares it was acquiring.
Rusal made every attempt to block that application being heard. They tried to ensure that the application could only be heard on a date that in practice would be too late for Corbiere to complete all transactions and vote its shares at the EGM once the injunction was lifted. In its press release Rusal has suggested that the hearing of that application was scheduled for 2 March. That is untrue. That was a date that Rusal had chosen for the continuation of its injunction. Corbiere was entitled, as the judge of the court rightly held, to apply to discharge the injunction in accordance with the normal procedures at any stage.
Corbiere gave notice of its application, served all its evidence on Rusal a week before the hearing date, and gave notice of the date that it hoped the application would be heard. Rusal obstinately resisted that timetable. In view of the urgency the Chief Justice of the Eastern Caribbean Court took the view that a judge should be made available to hear the case. Rusal had every opportunity to appear at that hearing but chose to attend only by their local counsel, who is in any event a very experienced lawyer, leader of the opposition and senator in the National Assembly. They also employed the services of an English QC but chose not to bring him to Nevis until the weekend no doubt in the hope that the absence of the QC would enable them to persuade the court not to hear the case but to put it off until next week.
Having reviewed the evidence and considered fully all the arguments the court resolved to continue with the case. But Rusal was allowed a short adjournment to Sunday so that its lead counsel from London could attend and argue the case. He did so. He had every opportunity to make all the arguments he wanted. Evidence was filed by Rusal.
The accusations by Rusal are baseless, offensive to the judiciary of the Caribbean and are yet another demonstration of their desperation to obtain their own selfish means by any stratagem.
Finally, Corbiere confirms that despite repeated requests Rusal would not offer to compensate shareholders affected by its injunction even if the injunction turned out not to be properly made. It would be normal for such an offer to be made but they concealed from the judge who granted the injunction that third party shareholders could be affected and therefore escaped having to give such an undertaking.
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