Offshore Litigation

Blog

Offshore Litigation

Contributors

Jonathan Addo
Jonathan Addo
  • Jonathan Addo

  • Partner
  • British Virgin Islands
Jeremy Child
Jeremy Child
  • Jeremy Child

  • Partner
  • London
Stuart Cullen
Stuart Cullen
  • Stuart Cullen

  • Partner
  • British Virgin Islands
Julie Engwirda
Julie Engwirda
  • Julie Engwirda

  • Partner
  • Hong Kong
Peter Ferrer
Peter Ferrer
  • Peter Ferrer

  • Partner
  • British Virgin Islands
Claire Goldstein
Claire Goldstein
  • Claire Goldstein

  • Partner
  • British Virgin Islands
Hazel-Ann Hannaway
Hazel-Ann Hannaway
  • Hazel-Ann Hannaway

  • Partner
  • British Virgin Islands
Nick Hoffman
Nick Hoffman
  • Nick Hoffman

  • Partner
  • Cayman Islands
Andrew Johnstone
Andrew Johnstone
  • Andrew Johnstone

  • Partner
  • Hong Kong
Paula Kay
Paula Kay
  • Paula Kay

  • Partner
  • Hong Kong
Phillip Kite
Phillip Kite
  • Phillip Kite

  • Partner
  • London
Vicky Lord
Vicky Lord
  • Vicky Lord

  • Partner
  • Shanghai
Paul Madden
Paul Madden
  • Paul Madden

  • Partner
  • Cayman Islands
Henry Mander
Henry Mander
  • Henry Mander

  • Partner
  • Cayman Islands
Ian Mann
Ian Mann
  • Ian Mann

  • Partner
  • Hong Kong
William Peake
William Peake
  • William Peake

  • Partner
  • London
Lorinda Peasland
Lorinda Peasland
  • Lorinda Peasland

  • Consultant
  • Hong Kong
Chai Ridgers
Chai Ridgers
  • Chai Ridgers

  • Partner
  • Hong Kong
Nicola Roberts
Nicola Roberts
  • Nicola Roberts

  • Partner
  • Hong Kong
  • Singapore
Paul Smith
Paul Smith
  • Paul Smith

  • Partner
  • Cayman Islands
Andrew Thorp
Andrew Thorp
  • Andrew Thorp

  • Partner
  • British Virgin Islands
Jessica Williams
Jessica Williams
  • Jessica Williams

  • Partner
  • Cayman Islands
Jayson Wood
Jayson Wood
  • Jayson Wood

  • Partner
  • Cayman Islands

Grand Court gives directions for dissenter discovery in appraisal action

In In the matter of Qunar Cayman Islands Limited (FSD 2017/76 – RPJ), the Grand Court has handed down written reasons for its further directions for dissenters’ discovery in a section 238 appraisal action. 

Parker J began by acknowledging that the Court’s approach to discovery had changed as a result of the Court of Appeal decision, such that a “general requirement for automatic mutual disclosure” now applies. Although the exact approach in a given case would be fact-specific, in general both the company and the dissenters are to give mutual disclosure of all material relevant to the issue of fair value. The judge then turned to the three issues where the parties were in disagreement as to what further directions should be ordered in relation to dissenters’ discovery.

The first issue was whether the directions for dissenter discovery should contain special protections for alleged “proprietary rights” asserted by the dissenters over certain documents. The dissenters had not filed any evidence, however, which undermined their position. In refusing the dissenters’ request, Parker J cited the implied undertaking of every party to litigation not to use discovered material for an ulterior or collateral purpose, as well as the Court’s inherent jurisdiction to protect litigants inter alia by requiring undertakings. The judge did, however, leave open the possibility of a future application for additional protections supported by evidence.

The second issue related to the dissenters’ trading history in Qunar’s shares, which the Court of Appeal had ordered to be provided by way of a schedule to be confirmed by documents “if the schedule is challenged“. The dissenters argued that any challenge to a schedule must be “on bona fide grounds“. The judge rejected the dissenters’ proposed precondition but noted that, if necessary, the Court could deal with an alleged unreasonable or bad faith request in due course based on evidence.

Finally, the dissenters sought to limit their discovery to documents produced after the announcement of the merger, as opposed to the longer, five-year period that applied to the company. Parker J rejected this request also. He held that there was “no good reason advanced as to why the [dissenters] should not give discovery in the same way and over the same period as the [company]“.

The Court’s decision is potentially relevant for several other ongoing section 238 appraisal actions, where directions for discovery by the dissenters are yet to be ordered. It also underlines the extent of the recent changes to discovery in section 238 proceedings.

 

Leave A Comment