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In its recent judgment of In the Matter of Qunar Cayman Islands Limited,(1) the Grand Court 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 helpfully clarifies that the midpoint approach previously taken in Shanda(3) is the correct methodology for determining the fair rate of interest payable in Section 238 proceedings. This will be welcomed by dissenting shareholders, particularly where the company has a relatively high cost of borrowing and/or where the prudent investment rate of return has been high during the period that they have been kept out of their money. However, the precise midpoint will always be fact specific and is likely to be the subject of expert evidence in most cases. ....
In its recent judgment of In the Matter of Qunar Cayman Islands Limited,(1) the Grand Court 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 helpfully clarifies that the midpoint approach previously taken in Shanda(3) is the correct methodology for determining the fair rate of interest payable in Section 238 proceedings. This will be welcomed by dissenting shareholders, particularly where the company has a relatively high cost of borrowing and/or where the prudent investment rate of return has been high during the period that they have been kept out of their money. However, the precise midpoint will always be fact specific and is likely to be the subject of expert evidence in most cases. ....
forum non conveniens applied. Forum for administration clause Kawaley J agreed that the nature or legal character of the dispute is relevant (applying the decision of Crociani v Crociani (7)) in deciding whether a jurisdiction clause in a trust deed applies: The question of whether a forum for administration clause, irrespective of whether it is expressed to be exclusive or not, confers exclusive jurisdiction on the relevant court is an arid debate if the context in which the question arises is not taken into account. The court found that, on the facts of the present case, the trustee would not be entitled to rely on the forum clause given that the claim in question was not brought by someone claiming under the trust, but rather as someone challenging its validity. ....
Introduction The Grand Court recently considered the statutory moratorium against commencing proceedings against a Cayman company which has been placed into liquidation. In BDO Cayman Ltd v Ardent Harmony Fund Inc (in Official Liquidation),(1) the Grand Court held that a plaintiff which launches originating proceedings against a company in liquidation, seeking adverse orders against that company, patently requires leave of the court to bring the proceedings. The Grand Court also held that the plaintiffs in that case did not have a case worth entertaining in respect of either basis on which they had brought the applications in question. Facts Ardent Harmony Fund Inc (in Official Liquidation) is a Cayman fund which invested in receivables financing by way of contractually engaged credit advisers. One of those credit advisers defrauded Ardent of approximately 90% of its assets under management, resulting in Ardent being placed into official liquidation in 2016. ....
forum non conveniens applied. Forum for administration clause Kawaley J agreed that the nature or legal character of the dispute is relevant (applying the decision of Crociani v Crociani (7)) in deciding whether a jurisdiction clause in a trust deed applies: The question of whether a forum for administration clause, irrespective of whether it is expressed to be exclusive or not, confers exclusive jurisdiction on the relevant court is an arid debate if the context in which the question arises is not taken into account. The court found that, on the facts of the present case, the trustee would not be entitled to rely on the forum clause given that the claim in question was not brought by someone claiming under the trust, but rather as someone challenging its validity. ....