British Virgin Islands: Accessory Civil Liability

Last Updated: 11 November 2008
Article by Martin Kenney

Civil Conspiracy.

Under English law, an actionable conspiracy consists of a combination or confederacy between two or more persons, formed for the purpose of (a) committing an unlawful or criminal act, (b) the commission of an act which is not in itself unlawful, but where the means used to commit such act are unlawful in themselves, or (c) the commission of an act – the dominant purpose of which is to cause injury to a plaintiff. Under Florida law, by way of contrast, the elements of conspiracy are: (a) an agreement between two or more parties; (2) to do an unlawful act or to do a lawful act by unlawful means; (3) the doing of some overt act in pursuance of the conspiracy; and (4) damage to the plaintiff as a result of the acts done under the conspiracy.1

How do we frame an action against secondary facilitators of a fraud – such as those who provide an obligor with knowing assistance to hide his assets? The conspiracy which can be alleged against facilitators in an asset concealment case is their combination or confederacy with the main protagonist for the purpose of 'concealing illicit profits.' For a claim in conspiracy to stand, it must be alleged and proven that the conspirators were combining for the purpose of committing an illegal act (i.e. concealing funds which rightfully belonged to another). Where the predominant purpose of the act is not to harm the plaintiff, it is necessary to show that the co-conspirators employed illegal means in achieving the objective. The crime of money laundering or violations of a fraudulent transfer statute spring to mind as potential predicates.

In respect of framing a statement of claim or complaint based on actionable conspiracy:

"The statement of claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly it must allege the injury and damage occasioned to the plaintiff thereby."

If assets have been taken by virtue of a fraudulent joint design of conspirators and remain traceable, then constructive trust and equitable tracing remedies can be sought. Under modern English law, many cases which used to be pleaded in conspiracy may now be pleaded in joint design and constructive trust.2 In pleading a case for damage suffered as a result of a conspiracy, the following aspects must be included:

  1. An allegation that the individual defendants unlawfully conspired to injure the plaintiff by unlawful means, namely by [set out a precise description of the methods];

  2. That in pursuance of the said conspiracy, the defendants did [name the overt acts including dates and names]; and

  3. A separate statement of particulars, giving the fullest details possible with respect to the separate elements of the conspiracy, being specific as to dates, transactions, means used, statements made and amounts involved.

A party to a conspiracy need not understand the legal effect of it. However, he must know the facts which give rise to a legal conclusion that the combination, or confederacy, is unlawful.3 It must be shown that the facilitators were aware that there were some suspicions surrounding the provenance of the funds provided by the main wrongdoer.

The question is how far the defendant was aware of the plan and then "joined in the execution" of it.4 Restated, the question is whether a particular defendant, having regard to his knowledge, utterances and actions, was sufficiently a party to the combination and the common design.5

There is some confusion in the law in relation to the need to show that the defendant's "dominant purpose" was to damage another. In some cases,6 this purpose has been required of both conspiracy to injure and conspiracy to use unlawful means.7 The case of Canada Cement La Farge v. British Columbia Lightweight Aggregate Limited8 laid down an "in the alternative" test in considering whether the tort of conspiracy is present. The tort of conspiracy was said to be present where:

  1. the predominant purpose of the defendant's conduct is to cause injury to the plaintiff (even where the means used were lawful); or

  2. where the conduct of the defendant is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendant should, given the circumstances, know that injury to the plaintiff is likely to and does result.

With respect to the second alternative, it is not necessary that the predominant purpose of the defendant's conduct be to cause injury to the plaintiff. However, this element of the second way to formulate the wrong represents a constructive form of intent which derives from the fact that the defendant ought to have known that injury to the plaintiff would result.

In many situations it will not be clear whether the co-conspirators were actually aware of a dishonest design, assuming that their purpose is not to injure the plainitff. The Canadian case of Clairborne Industries Limited v. National Bank of Canada et al9 provides an interesting consideration of this problem. One of the defences put forward in this action was that the defendant was not aware that certain transactions were unauthorised or constituted illegal acts. The Court analysed the transaction and found that the Bank had sufficient information to put it on a duty to inquire.

Although the trial judge in the case of Clairborne found that the relief was based upon a finding of constructive trust, the Ontario Court of Appeal found that the cause of action sounded not only in constructive trust but also in conspiracy. The facts of the case clearly showed that the defendants were in possession of sufficient information to put them under a duty to inquire and to impose upon them the duty of a trustee de son tort (or a constructive trustee). In other words they were willfully blind, which does not provide a defence to a charge of civil conspiracy.

The Court found that it had to be determined whether the co-conspirators joined forces in a common design to commit unlawful acts and whether damage to the plaintiffs was foreseeable and occurred. If this was in fact the case, the co-conspirators would each be responsible for those unlawful acts of the others that were the probable consequences of the original design.

One of the defences put forward in Clairborne was that the defendant bank was not aware that certain public company cheques were unauthorised and constituted thefts. The trial judge analysed the transactions first within the context of an allegation of conspiracy and then within the context of breach of a constructive trust. Although the Judge did not find that the bank was party to a conspiracy, he did however find that the bank had sufficient information to put it under a duty to inquire and to impose upon it the duties of a trustee of the public company's accounts and securities.

On appeal, the appeal Court found that the factual findings dealing with breach of trust were all supportable on the evidence, and were also equally supportive of a finding of conspiracy (which was not found by the trial Judge), or of a continuation of the conspiracy and failure to withdraw.

The following is an interesting quote from the judgment in Clairborne:

"My conclusion is that this was a situation in which the bank closed its eyes and facilitated the happening of an event which experience indicated would likely occur. In the end result, there is no real difference between this finding of continuing conspiracy and that of the trial judge who imposed a constructive trust upon these shares. The bank argues that the transaction was authorised in writing and should not be questioned but this ignores contemporaneous knowledge of the bank of how the proceeds were to be used; the red flag - - public to private - - was written on the ledger statement on January 16, 1975 and implicates the bank in the outcome."

Above all, it is important to note that the conspiracy in this case was based upon "a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue."

There are, however, later English cases which appear to cling to the 'predominant purpose' test. A difficulty arises with respect to the proposition that a plaintiff who frames his action as an 'unlawful means to achieve an objective' conspiracy, must not only demonstrate that unlawful means were used, but he must also show that he thereby suffered damage. The case of Lonrho Limited v. Shell Petroleum Co10 supported this proposition. This decision was subsequently interpreted by Lord Diplock in Metall und Rohstuff, AG v. Donaldson Lufkin and Genrette as meaning that liability for the tort of conspiracy could arise only where the defendants acted "for the purpose not of protecting their own interests but of injuring the interests of the plaintiff." In other words, a plaintiff must establish that the conspiracy was designed "for the sole or predominant purpose of injuring" the plaintiffs. However, this part of the decision was overruled in Lonrho Plc v. Fayed11, which clarified that the reason for the 'predominant purpose' test expounded in Lonrho v. Shell was the absence of any intention to damage Lonrho.

The question still arises, however, as to whether and to what extent there must be an "intent to injure the plaintiff," even in cases where the acts agreed to be done by the co-conspirators amount to criminal offences under a penal statute (consider in this context the application of money laundering statutes). The question which flows from this is whether all co-conspirators must have that same purpose. It can be inferred that a wrongdoer's "purpose" is to injure the party from whom he has stolen value by concealing money which, pursuant to the principles of constructive trust, rightly belonged to him. However, can the same be said of facilitators of plans of asset concealment such as accountants or bankers?

The following is a definition of conspiracy from Black's Law Dictionary, (5th ed.):

Civil Conspiracy: "(1) The essence of a 'civil conspiracy' is a concert or combination to defraud or cause other injury to person or property, which results in damage to the person or property of plaintiff. (2) A combination of two or more persons who, by concerted action, seek to accomplish an unlawful purpose or to accomplish some purpose, not in itself unlawful, by unlawful means. Lake Mortgage Co. Inc. v. Federal Nat. Mortgage Association, 159 Ind. App. 605, 308 N.E. 2d. See also Wooded Storage Property Owners Association Inc. v. Matthews 37 Illinois Appeals 3d 334, 345 N.E. 2d 186, 192."

The "proof of intention" issue was considered in the Kuwait Oil Tanker case (18 May 2000), where the court rejected the submission that intention cannot be inferred from the acts themselves. In certain circumstances, it will be possible to infer that the actor 'intended' the consequences of his actions.

Owing to the uncertainty which prevails in the law of conspiracy depending upon which jurisdiction is chosen as a forum for litigation, it is best advanced as a claim in the alternative. As noted above, many cases which in the past would have been framed in 'conspiracy' are now framed in 'constructive trust' language.

Conspiracy to Defraud Creditors.

The concept of civil conspiracy can be malleable. It can be over-laid on top of different factual settings. Arguably, one such setting occurs when two or more people agree to carry-out a fraudulent transfer or preference to avoid the claims of genuine creditors. This conduct is sometimes called creditor fraud.

Another is where two or more persons agree to defraud someone else – and who carry-out acts in furtherance of such an end. This would be a classic conspiracy to defraud.

What follows is a summary of Florida case law showing how to frame a suit based on allegations of a conspiracy to defraud.

In Florida, the rule governing conspiracies to defraud is that the conspiracy must be clear, positive, and specific. Kutner v. Kalish,12 at 765. In Kutner, investors failed to allege a clear conspiracy in their grounding pleading. Thus, the dismissal of their complaint was upheld on appeal. A similar case dismissed a conspiracy to defraud complaint because the plaintiff failed to allege the existence of an agreement between the defendants, an essential element of conspiracy to defraud. Magner v. Merrill Lynch Realty.13

A Florida case that has found a conspiracy to defraud is Nicholson v. Kellin.14 There, the directors of a corporation were sued for conspiracy to defraud. The complaint alleged that the directors orchestrated false representations made to the plaintiffs, and that the directors conspired with each other to defraud the plaintiffs. An intermediate State appellate court, the Fifth District, held that the complaint stated a valid cause of action because the directors held out the corporation to be viable and profitable when it was not.

Similarly, in Segal v. Thumbline International, Inc.15 the defendant corporate officer made representations that the company would be able to make payments on a lease of a yacht, when in fact the company was in financial trouble. The complaint alleged that one officer conspired with the corporate staff and other officers to defraud the plaintiffs. The court reversed the motion for summary judgment, finding that the complaint stated a cause of action for conspiracy to defraud.

Knowing Receipt.

In Baden, Delvaux and Lecuit v. Societe General pour Favoriser le Developement du Commerce et de l'industrie en France S.A.16 at page 403, Peter Gibson J. said:

"It is clear that a stranger to a trust may make himself accountable to the beneficiaries under the trust in certain circumstances. The two main categories of circumstances have been given the convenient labels in Snell's Principles of Equity (28th ed.) pp. 194, 195, 'knowing receipt or dealing' and 'knowing assistance'. The first category of 'knowing receipt or dealing' is described in Snell, op cit. at p. 194 as follows: 'A person receiving property which is subject to a trust ... becomes a constructive trustee if he falls within either of two heads, namely: (i) that he received trust property with actual or constructive notice that it was trust property and that the transfer to him was a breach of trust; or (ii) that although he received it without notice of the trust, he was not a bona fide purchaser for value without notice of the trust, and yet, after he had subsequently acquired notice of the trust, he dealt with the property in a manner inconsistent with the trust.' I admit to doubt as to whether the bounds of this category might not be drawn too narrowly in Snell. For example, why should a person who, having received trust property knowing it to be such but without notice of a breach of trust because there was none, subsequently deals with the property in a manner inconsistent with the trust not be a constructive trustee within the 'knowing receipt or dealing' category?"

Attempts under English law to categorise such classes of breach of trust too narrowly, or to 'over-define' them, have led to considerable confusion in the area of constructive trust. Knowing receipt encompasses a variety of circumstances where the recipient becomes a 'constructive trustee' of value received.

In Agip v. Jackson,17 Mr. Justice Millett attempted to differentiate between two classes of case falling within the category of knowing receipt as follows:

"The first is concerned with the person who receives for his own benefit trust property transferred to him in breach of trust. He is liable as a constructive trustee if he received it with notice, actual or constructive, that it was trust property and that the transfer to him was in breach of trust; or if he received it without such notice but subsequently discovered the facts. In either case he is liable to account for the property, in the first case as from the time he received the property, and in the second as from the time he acquired notice. The second and, in my judgment, distinct class of case is that of the person, usually an agent of the trustee's, who receives the trust property lawfully and not for his own benefit but who then either misappropriates it or otherwise deals with it in a manner which is inconsistent with the trust. He is liable to account as a constructive trustee if he received the property knowing it to be such, though he will not necessarily be required in all circumstances to have known the exact terms of the trust. ..."

Millett J. went on to explain in Agip Africa that, in either class of case, it is immaterial whether the breach of trust is fraudulent or not. The essential feature of the first class was that the recipient must have received the property for his own use and benefit. Millett J. referred to the example of a paying or collecting bank. In paying or collecting money for a customer, the bank acts only as his agent. However, if the collecting bank uses the money to reduce or discharge the customer's overdraft, in doing so it receives the money for its own benefit. In such a case, knowing receipt liability could be imposed upon the bank in question. Millett J. opined that receipt-based liability should be properly confined to those cases where the receipt is relevant to the loss.

Knowing Assistance.

Under English law, a stranger to a constructive trust will also be liable to account as a constructive trustee if he knowingly assists in the furtherance of a fraudulent and dishonest breach of trust. It is not necessary that the party sought to be made liable as a constructive trustee should have received any part of the trust property, but the breach of trust must have been fraudulent. The basis of the stranger's liability is not receipt of trust property but participation in a fraud: Barnes v. Addy.18

The authorities at first instance are in some disarray on the question of whether constructive notice is sufficient to sustain liability under this head. In the Baden case Peter Gibson J. accepted a concession by counsel that constructive notice is sufficient and that on this point there is no distinction between cases of "knowing receipt" and "knowing assistance." The position was clarified in Agip v. Jackson by Millett J. in the following terms:

"The basis of liability in the two types of cases is quite different; there is no reason why the degree of knowledge required should be the same, and good reason why it should not. Tracing claims and cases of "knowing receipt" are both concerned with rights of priority in relation to property taken by a legal owner for his own benefit; [while] cases of "knowing assistance" are concerned with the furtherance of fraud. In Belmont Finance Corporation Ltd. v. Williams Furniture Ltd. [1979] Ch. 250, the Court of Appeal insisted that, to hold a stranger liable for "knowing assistance," the breach of trust in question must be a fraudulent and dishonest one. In my judgment it necessarily follows that constructive notice of the fraud is not enough to make him liable. There is no sense in requiring dishonesty on the part of the principal while accepting negligence as sufficient for his assistant. Dishonest furtherance of the dishonest scheme of another is an understandable basis for liability; negligent but honest failure to appreciate that someone else's scheme is dishonest is not."

In In re Montagu's Settlement Trusts,19 at page 285, Sir Robert Megarry, V.C. doubted whether constructive notice was sufficient even in cases of "knowing receipt." In most cases, knowledge may be provided affirmatively or inferred from objectively established circumstances. The various mental states which may be involved were analysed by Peter Gibson J. in Baden's case as comprising: (a) actual knowledge; (b) wilfully shutting one's eyes to the obvious; (c) wilfully and recklessly failing to make such inquiries as an honest and reasonable man would make; (d) knowledge of circumstances which would indicate the facts to an honest and reasonable man; and (e) knowledge of circumstances which would put an honest and reasonable man on inquiry.

According to Peter Gibson J. in the Baden case, a person in category (b) or (c) will be taken to have actual knowledge, while a person in categories (d) or (e) has constructive notice only.

The true distinction in such cases is between honesty and dishonesty. If one does not draw the obvious inferences or make the obvious inquiries, the question is – why not? While undoubtedly the 'subjective' element is a crucial factor in determining intent, objective considerations can illuminate the consideration of whether such intent was present.

In the Agip case, the question arose as to who participated in the fraud and the level of knowledge they possessed regarding it. Mr. Bowers, a partner in the Isle of Man company formation and administration firm of Jackson & Co. (the Defendant), did not participate in the furtherance of the fraud and therefore could not have been held directly liable on this ground. Mr. Jackson and Mr. Griffin, however, did. Mr. Jackson set up the arrangements and employed Mr. Griffin to carry them out. The money was under their control from the time it was paid into Baker Oil's bank account until the time it left Jackson & Co.'s clients' account in the Isle of Man Bank. One of them gave the actual instructions to the banks directing how to dispose of the money. They plainly assisted in the fraud. The sole remaining question was whether they did so with the requisite degree of knowledge. Mr. Bowers, while a partner in Jackson & Co., played no active part in the movement of the funds. He did not deal with the money or give instructions in regard to it. He did not take money for his own benefit. He neither misapplied nor misappropriated it. A liability based upon the imposition of a constructive trust could not be imposed simply on the basis that the funds had passed through his firm's bank account. Mr. Griffin did not receive the money at all, and Mr. Jackson and Mr. Bowers did not receive or apply it for their own use and benefit. None of them were held liable to account as constructive trustees on the basis of knowing receipt. Such a recipient must have received the property for his own use and benefit. This is why neither the paying nor the collecting bank can normally be brought within the circle of responsibility at equity. In paying or collecting money for a customer, a bank acts only as his agent. It is otherwise, however, if the collecting bank uses the money to reduce or discharge money for its own benefit.

Accessory and Recipient Liability.

Insofar as constructive trust property is concerned, the categories of accessory civil liability may be roughly described as "recipient liability" and "accessory liability". With recipient liability, the defendant receives property with notice that it is trust property, or if not aware of the fact that it is trust property at the time of receipt, subsequently becomes so aware and deals with the property nonetheless, in a manner inconsistent with the trust.

In cases of both recipient and accessory liability, a common denominator is that there has generally been what is called a breach of fiduciary duty.

Once breach of fiduciary duty is established, the claimant should then be able to show that the recipient had the claimant's assets, or a derivative thereof in his or her possession. Finally, the claimant must establish knowledge of breach on the part of the recipient. As pointed out above, the degree of knowledge required is somewhat unclear; however, the trend of English precedent appears to support the requirement for proof of actual dishonesty.20

With accessory liability, we are concerned with persons who have assisted in the breach of duty. In the case of Barnes v. Addy 21 , Selbourne LC had the following to say:

"Strangers are not to be made constructive trustees...unless [they] receive and become chargeable with some part of a trust property, or unless they assist with knowledge in a dishonest and fraudulent design on the part of the trustees".

The most recent leading decision in relation to the degree of knowledge required to found accessory liability is that of the Privy Council in the case of Royal Brunei Airline v. Tan. 22 Royal Brunei made it clear that dishonesty, as opposed to knowledge, must be established in order to found a claim in accessory liability. The court found the ingredients of accessory liability to be as follows:

  1. breach of fiduciary duty;

  2. assistance by the defendant;

  3. dishonesty on the part of the defendant; and

  4. resulting loss.

While Lord Nicholls in Royal Brunei explained that dishonesty meant failing to act as an honest person would in the circumstances, he then went on to say:

"...it has a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated."

In Agip v. Jackson, 23 Millet, J said:

"It is not necessary that he should have been aware of the precise nature of the fraud, or even of the identity of the victim. A man who constantly assists others by making arrangements which he knows are calculated to conceal what is happening from a third party, takes the risk that they are part of a fraud practised on that party."

While the above appears to adopt a broad interpretation of what is involved in accessory civil liability, more recent English cases suggest that more detailed knowledge is required. In the case of Brinks Limited v. Abu Saleh and Others (No. 3)24, the court considered the position of a wife who travelled with her husband to Switzerland with Stg£3 million in cash, believing that they were assisting in a tax evasion scheme. In fact, they were assisting one of the robbers in the Brinks Mat robbery which occurred in 1983. The wife had no knowledge of that. Rimer, J found on the facts that she had not actually provided assistance, but had simply accompanied her husband. However, this finding must be taken in the context of the wife having actually believed in a different set of facts, as opposed to being ignorant of the truth or not asking questions.

In the case of Groupo Torras S.A. v. Al Sabah, 25 Mance, J said the following:

"The problem with which Rimer, J was concerned was concerned was the not unusual problem that, if she had assisted at all, the defendant would plainly have been dishonest in a general sense, since it was clear that the whole purpose of the trip was dishonest tax evasion. But the answer to this problem seems to lie in recognising that, for dishonest assistance, the defendant's dishonesty must have been towards the plaintiff in relation to property held or potentially held on trust or constructive trust, rather than in the introduction of any separate criterion of knowledge of any such trust".

The English Court of Appeal has recently held, in the case of Bank of Credit & Commerce International (Overseas) Ltd & Anor v Akindele,26 that to establish liability, it had to be proved that the recipient's state of knowledge was such as to make it unconscionable for him to retain the benefit of the receipt. In the context of a restitutionary claim based upon 'knowing receipt', the court was entitled to pierce the corporate veil and recognise receipt by a company as that of the individual in control of it, if the company was used as a device or facade to conceal the true facts, thereby avoiding or concealing any liability on the part of such an individual.27

When tracing assets, these remedies can be used to notify reputable defendants, such as a bank or a firm of lawyers, immediately that the funds which they are holding belong to the defrauded party and can be traced on the basis of a proprietary claim. This can provide speedy results and also can ensure, in appropriate circumstances, that the funds are not transferred again whilst an application for a pre-emptive freezing order is being made to the court. It would be a brave bank or firm of lawyers who, if properly given notice supported by adequate information from a reputable firm of solicitors, still transferred money on their client's instructions. It is more likely that those holding the money would pause – at least for a short time – to seek advice and consider what to do. This then allows time to apply for a freezing order.

Footnotes

1. See, Lipsig v. Zahid, 760 So. 2d 170, (2000).

2. See, DSQ Property Company Limited v. Lotus Cars, Financial Times December 6th, 1989 (Peter Gibson J); the Times, June 28, 1990 English Court of Appeal.

3. See, Belmont Finance Corporation v. Williams Furniture Limited (1979) Chancery 250, and Pritchard v. Briggs [1980] Chancery 338. See also, McGuire v. City of Calgary (1983) 146 DLR (3d) 350.

4. See, Metall und Rohstuff v. Donaldson, Lufkin and Genrette Inc. [1988] 3 WLR 548.

5. See, Torquay Hotel Co. Limited v. Cousins [1969] 2 CH 106.

6. See, Midland Bank Trust Co. Limited v. Green [1982] Chancery 529.

7. See also, Allied Arab Bank Limited v. Hajjar (#2) [1988] 3 WLR 533.

8. (1983) 145 DLR (3d) 385

9. (Ontario Court of Appeal) 1989 Lexis 76 (June 27, 1989)

10. [1982] AC 173 (HL)

11. [1992] 1 AC 448

12. 173 So. 2d 763, (Fla.App. 1965).

13. 585 So. 2d 1040, (1991).

14. 481 So. 2d 931, (1985).

15. 688 So. 2d 397, (1997).

16. [1983] BCLC 325

17. [1990] 1 Ch. 265

18. (1874) 9 Ch. App. 244.

19. [1987] Ch. 264.

20. See, Dubai Aluminum v. Salaam [1999] 1 Lloyds Reports 415; and Torras v. Al Sabah [1999] CLC 1469.

21. (1874) LR 9 Ch. App 244.

22. [1995] 2 AC 378.

23. [1990] 1 Ch. 265.

24. [1996] CLT 133.

25. Unreported 24th June 1999.

26. (C.A.) (Civ. Div.) 14 June 2000.

27. See Trustor AB v Smallbone & Ors [The Times, 30 March 2001]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

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