Litigation, Cayman Islands, Ogier updates

Court of Appeal finds that Norwich Pharmacal relief is available in aid of foreign proceedings
Ogier
  • Cayman Islands
  • 22 June 2021

The Court of Appeal has found that the Cayman courts have jurisdiction to grant a Norwich Pharmacal order in support of potential proceedings before a foreign court, even where alternative statutory remedies may be available. The decision confirms a departure in Cayman law from the law in England and Wales, which is perhaps surprising in circumstances where the Norwich Pharmacal jurisdiction itself derives from a decision of the UK House of Lords.

Grand Court strikes out creditor's winding-up petition and comments on relationship with arbitration clauses
Ogier
  • Cayman Islands
  • 15 June 2021

The Grand Court recently struck out a winding-up petition presented against Grand State Investments Limited by a shareholder claiming a debt on the ground that the alleged debt was disputed on bona fide and substantial grounds. In addition, the court went on to hold that, had the petition not been struck out, it would have been stayed anyway in favour of arbitration.

Frozen in time: do limitation periods apply to claims against Cayman companies in liquidation?
Ogier
  • Cayman Islands
  • 08 June 2021

Previously, it was generally understood that the Cayman approach to claims against companies in liquidation followed the English position on the issue of limitation – that is, the limitation period ceased to run once the company went into liquidation, with some exceptions. However, the Grand Court recently challenged this assumption and reinterpreted the principles from the English authorities on this important point.

Approach to interest and costs in Section 238 proceedings confirmed
Ogier
  • Cayman Islands
  • 01 June 2021

The Grand Court recently confirmed and clarified how interest on awards in Section 238 proceedings is to be calculated and how the costs of such proceedings are to be determined. The judgment, which will be welcomed by dissenting shareholders, clarifies that the midpoint approach is the correct methodology for determining the fair rate of interest payable in Section 238 proceedings. However, the precise midpoint will always be fact specific and is likely to be the subject of expert evidence in most cases.

Grand Court provides clarity on costs
Ogier
  • Cayman Islands
  • 04 May 2021

A recent costs ruling has provided welcome clarity on the circumstances in which the Grand Court will make a costs award on the indemnity basis. A successful party can expect to recover a higher proportion of its costs when an award is made on the indemnity basis (rather than the standard basis) since only costs that are unreasonably incurred or are of an unreasonable amount will be disallowed on taxation and any doubts as to reasonableness are resolved in favour of the successful party.

Snapshot: notification injunctions
Ogier
  • Cayman Islands
  • 20 April 2021

A notification injunction is an alternative to the conventional freezing order that is available where there is concern that a respondent may deal with their assets so as to frustrate the enforcement of any future judgment. This new breed of quia timet 'notification' injunction is to be welcomed: it represents a further weapon in the Cayman court's arsenal to assist litigants, particularly in fraud and asset tracing cases, to prevent the frustration of judgments.

Short-form mergers: Changyou.com judgment confirms appraisal rights
Ogier
  • Cayman Islands
  • 06 April 2021

The Grand Court has confirmed that shareholders of companies that effect a short-form merger pursuant to Section 233(7) of Part XVI of the Companies Act (2021 Revision) are entitled to be paid the fair value of their shares on dissenting from the merger under Section 238 of the act. The eagerly awaited judgment in Changyou.com clarifies an issue which was previously the subject of extensive debate and provides welcome certainty to minority shareholders of Cayman companies.

Commencing proceedings against a Cayman company in liquidation: having a case worth entertaining
Ogier
  • Cayman Islands
  • 23 March 2021

The Grand Court recently considered the statutory moratorium against commencing proceedings against a Cayman company in liquidation. The court held that a plaintiff which launches originating proceedings against a company in liquidation, seeking adverse orders against that company, requires leave of the court to bring the proceedings. It also held that the plaintiffs in this case did not have "a case worth entertaining" in respect of either basis on which they had brought their applications.

Clarification on scope and meaning of Cayman firewall legislation and forum for administration clauses
Ogier
  • Cayman Islands
  • 16 March 2021

A recent court judgment is the latest in a line of Cayman Islands court decisions which have considered the meaning and scope of the Cayman firewall provisions. The Grand Court has now provided important clarification about the effect of Section 90 of the Trusts Act 2020, confirming that it does not operate to bestow exclusive jurisdiction on the Cayman Islands courts (as previous cases have suggested) and that common law principles of forum non conveniens still have relevance and application.

Third-party litigation funding and Private Funding of Legal Services Act
Ogier
  • Cayman Islands
  • 16 February 2021

Parliament recently passed the landmark Private Funding of Legal Services Act. The act will give litigants greater access to justice and a wider range of funding options enabling parties to enter into agreements with funders and attorneys on negotiated terms that they consider attractive without the need for court approval (other than in cases involving the statutorily prescribed exceptions).

Snapshot: getting your foreign judgment recognised and enforced
Ogier
  • Cayman Islands
  • 19 January 2021

Ensuring the effective enforcement of judgments is a crucial aspect of a successful litigation strategy. The Cayman Islands recognises that valid decisions made elsewhere should be as enforceable as domestic judgments. While the statutory regime for registration and enforcement has been extended to only some of the superior courts of Australia and its external territories, the Cayman courts are willing to consider extending assistance to all judgment creditors through the well-trodden common law route.

Court of Appeal enforces foreign arbitral award in favour of Brazilian airline
Ogier
  • Cayman Islands
  • 13 October 2020

The Court of Appeal has overturned an earlier decision of the Grand Court, thereby allowing the enforcement of an International Chamber of Commerce arbitral award issued in favour of a Brazilian airline. The decision raises important and difficult issues relating to the enforcement of foreign arbitral awards which are the subject of robust challenge before the courts of supervisory jurisdiction.

Cayman injunctions in aid of foreign proceedings
Ogier
  • Cayman Islands
  • 29 September 2020

Where a potential judgment debtor in onshore proceedings threatens to dissipate its assets, the plaintiff may face a pyrrhic victory with no assets against which to enforce its judgment. Where the defendant is a Cayman company or has assets in the Cayman Islands, the Cayman court has statutory jurisdiction to grant a freezing injunction in aid of those foreign proceedings, which can extend to the worldwide assets of the defendant.

Court of Appeal re-examines master-feeder redemption procedures
Ogier
  • Cayman Islands
  • 25 August 2020

The Court of Appeal recently reiterated the importance of following the natural and ordinary meaning of a fund's articles in order to ensure that redemptions are effective. This is particularly important in the context of a master-feeder fund structure. Although the decision is consistent with longstanding authority, it does highlight the importance of ensuring that the redemption procedures set out in a master fund's articles are strictly adhered to as a matter of practice.

Standard directions in Section 238 appraisal proceedings confirmed
Ogier
  • Cayman Islands
  • 23 June 2020

In a decision that provides additional certainty to dissenting shareholders, the Grand Court has rejected a company's efforts to recast the procedural framework for appraisal proceedings brought under Section 238 of the Companies Law (as revised). This decision follows the significant 2019 ruling of Chief Justice Smellie in JA Solar, which has become the touchstone for directions orders in Section 238 proceedings.

Grand Court successfully responds to COVID-19 challenges
Ogier
  • Cayman Islands
  • 09 June 2020

The substantive hearing of a winding-up petition which was successfully conducted via videoconferencing shows that the Grand Court is responding effectively to the challenges of the COVID-19 pandemic. The Grand Court's apparent seamless adaptation to these challenging times is a testament to its well-established technological capabilities, given that judges have frequently presided over interlocutory hearings by video link from abroad in the past.

Privilege in settlement discussions: without prejudice?
Ogier
  • Cayman Islands
  • 05 May 2020

Without prejudice privilege attaches to written or oral communications made for the purpose of a genuine attempt to compromise a dispute between parties. The effect of this rule is that such communications are generally not admissible in evidence. As demonstrated by a recent Grand Court decision, the protection provided by without prejudice privilege is important, but can be a complicated area to navigate.

Cryptoassets as property: litigators' tools to assist in their tracing and recovery
Ogier
  • Cayman Islands
  • 10 March 2020

The UK High Court recently found that cryptoassets such as bitcoin are property and are therefore capable of being the subject of a proprietary injunction or freezing order. Although this is a first-instance decision, there is no reason why the Cayman courts would approach the development of the legal concept of 'property' any less purposefully.

Court of Appeal overturns anti-suit injunction in favour of Argyle Funds SPC Inc
Ogier
  • Cayman Islands
  • 05 February 2019

The Court of Appeal has unanimously allowed every ground of an appeal by the liquidators of Argyle Funds SPC Inc. The key takeaway for the Cayman Islands professional services industry is that where work is delegated to be carried out by related entities outside the Cayman Islands, any attempt to contractually limit clients' rights to bring claims against those entities must be expressly articulated within the contract.

Grand Court examines master-feeder redemption procedures
Ogier
  • Cayman Islands
  • 16 October 2018

A recent Grand Court decision is significant for Cayman master-feeder fund structures. Funds and their advisers should review the redemption provisions in master fund articles of association and partnership agreements to ensure that, operationally, redemptions are being effected in accordance with such documents.

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