Parker J
250307 In the matter of Sina Corporation – FSD 128 of 2021 (RPJ) - Ruling
IN THE COURT OF THE CAYMAN ISLANDS
FINANCIAL SERVICES DIVISION
NEUTRAL CITATION NUMBER: [2025] CIGC (FSD) 21
CAUSE NO. FSD 128 of 2021 (RPJ)
IN THE MATTER OF THE COMPANIES ACT (2021 REVISION)
AND IN THE MATTER OF SINA CORPORATION
Before:
The Hon. Justice Raj Parker
Appearances:
Stephen Atherton KC instructed by Harneys on behalf of the
Petitioner
Jonathan Adkin KC instructed by Campbells, Carey Olsen and Collas
Crill on behalf of all of the 58.com Dissenters
Ewan McQuater KC instructed by Collas Crill, Mourant and Ogier
on behalf of certain of the Dissenters
Tom Lowe KC instructed by Carey Olsen on behalf of certain of the
Dissenters
Heard:
7 March 2025
Ex tempore ruling delivered: 7 March 2025
Draft transcript of ex tempore
Ruling circulated:
10 March 2025
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Digitally signed by Advance Performance Exponents
Inc
Date: 2025.03.14 10:23:50 -05:00
Reason: Apex Certified
Location: Apex
250307 In the matter of Sina Corporation – FSD 128 of 2021 (RPJ) - Ruling
Transcript of ex tempore
Ruling delivered:
14 March 2025
Use of transcripts in unrelated s.238 proceedings for purposes of cross examination of the same expert
witness in both proceedings-lateness-fairness-utility-risk of inconsistent findings
Ex tempore
Introduction
1.
The Dissenters in these proceedings together with certain of the dissenters in the 58.com
proceedings object to the use by the Company of part of the transcript of trial in 58.com in these
proceedings for the purpose of cross examining an expert witness common to both cases.
2.
The Chief Justice heard the 58.com proceedings in open court during July and August 2024 and
has not yet given judgment. The Company was, and is not, a party to that case.
3.
Professor Yilmaz, the expert instructed by the Dissenters in these Proceedings, was also the
expert instructed by the dissenters in the 58.com proceedings. Certain of the expert evidence in
the 58.com proceedings is said by the Company to traverse the same issues that arise in these
Proceedings.
4.
The Company recently requested copies of the transcript of the testimony of the valuation
expert witnesses in the 58.com proceedings from the dissenters in the 58.com proceedings, but
its request was denied.
5.
Subsequently, copies of the transcript of the 58.com proceedings were provided to Harneys who
act for the Company in these proceedings by 58.com itself (apparently a client of Harneys' but
who did not appear on the court record for the purposes of the trial in the 58.com proceedings).
Purpose
6.
The Company says that it may wish to use and/or rely on certain parts of the transcript in the
58.com proceedings (namely the cross-examination of Professor Yilmaz in the 58.com
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proceedings) which it says may need to be put to Professor Yilmaz in circumstances where, for
example, it may show previous inconsistent statements/opinions and where the making of such
statements by Professor Yilmaz is denied at trial.
7.
Such matters, the Company says, do not go to credit alone, but go to certain assumptions and
opinions given by Professor Yilmaz which are directly relevant to matters in issue in this case
and the identification of which may be of assistance to the Court.
8.
Professor Yilmaz is due to start his evidence in these proceedings on Monday, 10 March 2025.
9.
Mr Atherton KC for the Company submitted that the scope of the Application is limited. As
matters currently stand, and prior to hearing Professor Yilmaz’s evidence in cross-examination,
he currently proposes to use (only if considered to be necessary) certain passages of Professor
Yilmaz’s testimony in the 58.com proceedings that relate to, for example: (i) post-covid market
recoverability; (ii) the composition of a special committee in fair value appraisal matters in
relation to process generally; (iii) the use of market trading prices and in particular
methodology; and (iv) the use of a company’s projections in fair value appraisal matters. He
does however, reserve the right to use and/or rely on further passages of the transcript in the
58.com proceedings should the need arise during the course of Professor Yilmaz’s cross-
examination.
10.
He further submitted that upon review of the 58.com transcript, certain of the testimony of
Professor Yilmaz is of direct relevance to the points at issue in these proceedings. Depending
on Professor Yilmaz’s answers in cross-examination it might be necessary to put the transcripts
of his evidence in the 58.com proceedings to Professor Yilmaz, to test the reliability of his
evidence and allow the Court to assess the weight that may be given to certain opinions that he
has expressed in these Proceedings.
Objections
11.
Mr Jonathan Adkin KC appeared at short notice via video link to make submissions for the
dissenters in 58.com.
12.
He pointed to principles of fairness and appropriateness in the court being asked to exercise its
case management powers in circumstances where judgment is awaited in 58.com.
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13.
He submitted
a)
that the Company is inviting comment by this Court on Professor Yilmaz’ evidence given
in 58.com;
b) that risks those comments being deployed by 58.com to influence the Chief Justice before
she has handed down judgment; and
c)
that the 58.com dissenters have been and are prejudiced by the inexcusable lateness of this
application.
14.
He submitted that the 58.com dissenters' interests are obviously engaged. It has been difficult
for them to deal with the application as it has arisen in this trial. There is no prospect of them
being represented next week, when Professor Yilmaz gives evidence, to protect their interests.
15.
He stressed that the context is vitally important in relation to 58.com in relation to the matters
sought to be raised by the Company in this case.
16.
Mr McQuater KC for certain of the Dissenters in these proceedings objected to the Company's
proposed use of the transcripts from the 58.com case because the application was made too late,
was tactical in order to cause difficulty to the Dissenters and to Professor Yilmaz, was unfair,
lacked utility and posed a risk of inconsistent findings with the 58.com proceedings.
17.
Mr Lowe KC for certain of Dissenters in this case additionally referred the Court to the rules
of evidence in the Evidence Act (2021 Revision) relating to hearsay and admissibility and the
timetable which applies by virtue of Order 38 of the Grand Court Rules. He submitted that the
case management decision on this application is affected by those provisions which set out a
fair procedure.
Decision
18.
There is no issue which arises as to the admissibility or nature of the transcripts of evidence
provided in open court in the 58.com proceedings which would ordinarily justify their exclusion
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or limitations on their use. Any required purpose and interest have been made out by the
Company in this case.
19.
The real question then becomes a case management one of fairness and utility in deploying the
transcripts from 58.com for the purposes of cross-examination of Professor Yilmaz next week
as set out by Mr Atherton KC.
20.
Expert reports in this case were exchanged on 16 October 2024 and 6 January 2025.
21.
We are at day 15 of a 20-day trial.
22.
Professor Yilmaz has been seriously unwell and we are therefore not starting his evidence until
Monday. His cross-examination by the Company is set to last for the most part of next week.
23.
The 58.com trial took place last summer between July and September 2024.
24.
The Court has been told (from Harneys' letter of 25 February 2025) that representatives of the
Company's legal team were in attendance for parts of the trial and particularly for the
examination of the valuation experts. They were perfectly entitled to attend as the proceedings
were in open court.
25.
However, the Company first intimated that it may wish to rely on transcripts from the 58.com
case only on 11 February 2025, almost 6 months after the conclusion of the 58.com trial and
just six days before the start of these proceedings, having recently obtained them from 58.com.
26.
This is very late in the day. Mr Atherton KC did not seek to persuade the Court otherwise.
27.
The Court has concluded that if the Company wanted to make use of the evidence Professor
Yilmaz gave in 58.com it should have taken steps to do so much earlier, and well before the
Pre- Trial Review on 24 January 2025, so that the matter could have been considered when
directions were made for this trial and all relevant parties could be heard.
28.
It does not seem to the Court fair to the Dissenters or indeed to Professor Yilmaz in the middle
of a heavy trial and in all the circumstances to burden them with getting to grips with transcripts
of previous testimony given by Professor Yilmaz in different section 238 proceedings.
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29.
Neither is it fair to the 58.com dissenters for the cogent reasons set out by Mr Adkin KC.
30.
In addition, whilst these fair value appraisal cases have certain similarities of which the Court
is well aware, the commercial context and facts are specific to each case and sometimes unique.
31.
The experts have an overriding duty to assist the Court, to be independent and neutral of the
party instructing them. They are not beholden to the interests of the parties which instruct them.
32.
The Court has not been persuaded of the quality of assistance that will be derived by it from
the cross-examination of Professor Yilmaz that Mr Atherton KC proposes on the issues he has
identified. This is to be balanced against the clear prejudice that will be caused to the Dissenters
and Professor Yilmaz by the proposed course of action.
33.
Any evidence that Professor Yilmaz provides in relation to the transcript of his evidence in
58.com will have to be explained from the 58.com perspective, which the Dissenters and their
legal teams as well as the Court are unfamiliar with.
34.
That is unlikely in the Court’s view to be a productive process. This Court has no knowledge
of the detail of the issues or evidence given in the 58.com proceedings and no access to any of
the materials, including expert reports, which are likely to be needed to properly evaluate any
suggestion of inconsistency or reliability on Professor Yilmaz’ part.
35.
The Court would also be loath to make any such findings in circumstances where the Chief
Justice has not yet handed down her own judgment in 58.com.
36.
It follows that the application is dismissed.
THE HON. JUSTICE RAJ PARKER
JUDGE OF THE GRAND COURT
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