Jones J
1 IN THE GRAND CO 2 3 FINANCIAL SERVIC 4 5 The Hon Mr Justice 6 In Chambers 4 April 7 8 9 10 11 12 IN THE MATTER OF 13 JURT OF THE CAYMAN ISLANDS ES DIVISION Andrew J. Jones QC 2014 CAUSE NO. F CAUSE NO. P *THE COMPANIES LAW (2012 REVISION) 33 82 OF 2010(AJJ) 34 91 OF 2010(AJJ) 15 16 AND IN THE MATTER 17 18 19 Appearances: 20 Mr Tom Lowe QC in 21 Pearman for the Joint 22 ( 23 The Liquidation Com- 24 DLA Piper LLP was 25 26 27 28 29 30 ER OF ICP STRATEGIC CREDIT INCOME FUND LTD. ER OF ICP STRATEGIC CREDIT INCOME MASTER FUND LTD. Official Liquidators Committee was not represented of represented REASONS D. FUND LTD. ayers Dill & 31 32 33 34 1. On 28 May 2010, 35 Joint Official 36 Offshore Fee Master Fund 37 expressed in 38 respect of 39 Master Fund 40 constitute a 41 these general Reasons: ICP Feeler Fund Ltd (2010(AJJ) ICP Feeler Fund - ISD #82 & 82 & 269 of 2010 (AJJ) Proceedings by the Date Fund Ltd ("the Master Fund Ltd ("the DLA"). The order is proceedings against DLA $36.5 million of the which are alleged to on was presented by Plaintiff
1 counsel for the 2 knowingly aid 3 4 2. It was subsequ- 5 the factual evi- 6 the Funds’ con- 7 (Count I) and 8 declaration th- 9 trading, Count 10 United States 11 liquidation pr- 12 lamentation. 13 I intended my order to authorise the JOLs to act and abetted a dishonest breach of fiduciary duty. ently brought to my attention that the JOLs had come tence against DLA justified the inclusion of an additio-n plant. In addition to aiding and abetting the breaching and abetting fraud (Count 2), the complaint in DLA is liable to contribute to the assets of the Funds pursuant to Section 3 of the Companies Law (Count 3) or the ground that it was as an asset causes of action belonging to the Funds and were capable of being asserted prior to the proceedings. Count 3 asserts a statutory claim arising up to 4 under the Companies Law (Count 2). I, assert that DLA had to the conclusion that al cause of action in h of fiduciary duty cludes a claim for a pursuant to section 3 pursuant fraudulent will and arose under implementation of the Jay Cayman Islands’ lier Cayman islands. 14 Liquidators an- 15 commencemen- 16 Supreme Court 17 for an order to 18 (Count 3) be s- 19 JOLs and Inov- 20 21 3. Section 147 of 22 23 (i) If in the co- 24 person or 25 under this 26 business in 27 (2) The Court, 28 any, to the 29 30 31 The word “Company” as used was not capable of being asserted by the Funds that of their liquidation. Having already commenced a decision to include the fraudulent trading clarificationed retrospectively. On 4 April 2014 I made an order give my reasons for that decision. the Companies Law provides as follows :- use of the winding up of a company it appears that any buried on with intent to defraud creditors of the company or any fraudulent purpose, the liquidator may apply to the court for the dissolution of the company’s assets as the Court thinks proper. but “is defined by section 2(1) of the Companies Law” (see also unless prior to the proceedings in the (on notice to DLA) in the complaint der in favour of the business of the company creditors of any other Court for a declaration that is giving on of the sub-attributions, if to mean “the Grand 32 Court of the C 33 the State of N 34 Islands law) or 35 36 4. I remind myself 37 legislature’s in- 38 guides to legis- 39 grammatical m 40 “Court” as de- 41 it, when put in 42 produces an in- 43 2006). Sections 44 Reasons - ICF Feeder Fund & Cayman Islands” and so the question arises whether the York or any other foreign court has jurisdiction (as exercise this statutory power. If that the basic rule of statutory interpretation is that a statute will be construed in accordance intention that a statute will be construed in accordance intention laid down by law. There is a presumption should be followed. The literal or grammatical need in section 2(1) is clear, but I can nevertheless depa- for its proper context, the literal meaning creates an additional or illogical result. See Bennion’s Statutory Interpretation 285 and 315 at pages 864-9 and 986-999. P. Jay Cayman Fund – FSD #s 82 & 269 of 2010 (JLD) a matter to Cayman It is taken to be the ce with the general meaning of the word on that the literal or t from that meaning nomaly or otherwise pretation (5a Edition, 42 of
1 5. I think that se- 2 introduced by 3 consequences 4 part of a com- 5 146 creates a 6 of at an unden- 7 remedies aim 8 reason why to 9 pursue the se- 10 147 remedy in 11 in section 147. 12 to me that this 13 is a 14 6. Counsel for 15 modelled on 16 Insolvency Ac- 17 defined term 18 was held that 19 expression “a 20 jurisdiction. I 21 this country is 22 intended that 23 foreigners, as 24 25 7. For these rea- 26 prohibited from 27 the claim in a 28 carries on its 29 intended to defend. 30 carries on its 31 JOLs also drew my attention to the fact that this is the current English law. It is actually identical to section 146, except that the word “court” (with a lower case to mean the English High Court. In Billa (UK) v. Nazir), section 213 of the English statute has extraterritorialy person” includes those who are domiciled and I think that section 147 of the Cayman Islands Statute. If the remedy was available only against persons res- would be stripped of much of its utility. If the remedy I think it is, then it is inherently unlikely that the legal tors are not pursuing section 147 claims in foreign courts. The analysis Court is not open to the JOLs in the circumstances and in the United States. The firm does not have action 147 remedy is (2) is not used as a No.2) [2014] Ch. 52 it effect and that the resident out of the list be construed in is available against jurisdiction would have only in foreign courts. I think that defendants are not derivative of pursuing as of this case, DLA any presence in the 31 Cayman Islands 32 York and ad- 33 circumstances 34 Court could 35 for a section I 36 37 8. I also need 38 jurisdiction to 39 remedy. I wo- 40 court if the ev- 41 this regard I’d 42 the form of a . 3 Judge of the Reasons - ICP Feeder Fund &
JOLs filed a Code and on entered an or- constitute the Cyznowski’s proceedings w that it will lik- is that Count
For these reas- ons, do have 10 11 12 JOLs do have 13 be best served 14 15 16 DATED this 15th day of 17 18 19 20 21 22 3 24 The Hon. Mr. Justice 25 JUDGE OF THE GR For the date of New York and that the notice of the by allowing the proceeding to continue. of May 2014 Andrew J. Jones QC AND COURT Reasons - ICP Feeder Fund & CPF0077Fund - FSD #82 & 269 of 2010 (41D) 32 of 4