```html IN THE GRAND COURT OF THE CAYMAN ISLANDS CAUSE NO. 288 of 2005 BEFORE THE HON.ANTHONYSMELLIE，C.J. THE 29TH30TH OCTOBER 2007 AND 28TH JANUARY 2008 APPEARANCES： Mr. Francis Tregear QC and Mr. Michael Plaintiff and Mr. Emile George QC for instructed by Mr. Craig Powles and Ms. W，f Solomon Harris Mr. Christopher Nugee QC instructed by Ms. Maples and Calder for the 1st to 3rd Defendants Mr. David Lowe QC instructed by Mr. “the team of Mourant du Feu& Jeune for the 4th Defendant Murali ``` ```latex \section*{IN THE GRAND COURT OF THE CAYMAN ISLANDS} \textbf{CAUSE NO. 288 of 2005} BEFORE THE HON.ANTHONYSMELLIE，C.J. THE 29TH30TH OCTOBER 2007 AND 28TH JANUARY 2008 \textbf{APPEARANCES:} Mr. Francis Tregear QC and Mr. Michael Plaintiff and Mr. Emile George QC for instructed by Mr. Craig Powles and Ms. W，f Solomon Harris Mr. Christopher Nugee QC instructed by Ms. Maples and Calder for the 1st to 3rd Defendants Mr. David Lowe QC instructed by Mr. “the team of Mourant du Feu& Jeune for the 4th Defendant Murali ``` ```markdown # IN THE GRAND COURT OF THE CAYMAN ISLANDS ## CAUSE NO. 288 of 2005 BEFORE THE HON.ANTHONYSMELLIE，C.J. THE 29TH30TH OCTOBER 2007 AND 28TH JANUARY 2008 ## APPEARANCES: Mr. Francis Tregear QC and Mr. Michael Plaintiff and Mr. Emile George QC for instructed by Mr. Craig Powles and Ms. W，f Solomon Harris Mr. Christopher Nugee QC instructed by Ms. Maples and Calder for the 1st to 3rd Defendants Mr. David Lowe QC instructed by Mr. “the team of Mourant du Feu& Jeune for the 4th Defendant Murali ``` This document outlines the legal proceedings in the Grand Court of the Cayman Islands, specifically Cause No. 288 of 2005. It details the appearances of counsel for the parties involved, including Mr. Francis Tregear QC and Mr. Emile George QC representing the plaintiff, and Mr. Christopher Nugee QC and Mr. David Lowe QC representing the defendants. The court proceedings took place on the 29th, 30th of October 2007, and the 28th of January 2008.
```html 1.028. 1028. Smr., the settlor of the Trust; as well as the continuing benefic ue baelyus are not already parties to the proceedings. 2. I now have before me an application by the Plaintiffs for dir hate 1... certain aspects of the Plaintiffs' pleaded case be tried as preliminaries w For an understanding of these issues, some of the background to the ac 3. The Ojijeh Trust ("the Trust") has been beset by litigation si ections tian when its validity was first challenged by the 2nd Plaintiff Mdm. Ojijeh.991 issucallenges were raised in proceedings instituted in Europe on her own bea 1st Plaintiff her son Akram Jr., who was then a minor. a 198ru of the proceedings she sought to establish, among other things, th those Thot assets belonged to the estate of her husband Akram Ojijeh Sun., rather that Trust. 4. In response the Trustees instituted proceedings in this Court in ot use sought, among other things, declaratory relief against the challenge which had been raised. This included a declaration that the Plaintiffs had for ewmcunlau beneficial interests in the Trust by having challenged its validity. 5. In 1999 a compromise was reached with a view to settlement 2 ws raised in the European proceedings and in the proceedings in this jurisdiction. or 6. As the 1st Plaintiff was then still a minor, that compromise involved first getting the approval of its terms by his guardian ad litem and by this Court as being for his benefit and for that of the class of contingent beneficiaries whom he also represented. That approval was given by order of this court on 30th June 1999 (“the 1999 Settlement”). 7. The effect of the 1999 Settlement was, in broad terms, the transfer of property representing the value of the shares of the Plaintiffs out of the Trust into a new ```
Guernsey trust set up for their benefit and that of their descendants. The transfer did take place and it effected their withdrawal from the Trust. The terms of the 1999 Settlement, and in particular the value to the Trust fund overall and thus to the property transferred to the Trust; had been the subject of hard and extensive negotiations. Competitors from two well-known firms of valuers – Deloitte and Touche and Mather & Mather – were obtained. It is the Defendants' case (not conceded by the Guernsey) that the 1999 Settlement involved the eventual acceptance, for the value of the transfer, of the higher of the two valuations, that is, that proposed by the firm of Mazars & Guerard ("M&G") on behalf of Madam Ojeh-Fahadling Jr. A significant discount to the value ascribed to their share of the Trust fund was, however, also accepted. This was of course, on the basis that the valuation was fair and accurate (including in the sense of being fully informed) further (among other things), that the payment out would require virtuance) as a result of the Trust fund to be achieved. In the present proceedings, the crux of the Plaintiffs' allegation is that important information going to the true value of the Trust fund was withheld from M&G. It has indeed come to light, that the Trustees had not disclosed, for the purposes of the valuation exercise, that they had been in negotiations with a well-known automobile company for the acquisition of one-half of the Trust's shareholding in one of the two major trust enterprises (hereinafter referred to as the "the DaimlerChrysler negotiations"), negotiations which subsequently resulted in the completion of that acquisition.
```html 11. The DaimlerChrysler negotiations are now claimed by the Plaintiffs to have been highly relevant to the valuation exercise because they had achieved, and subsequently resulted in, a significantly higher price being offered paid for the shares of the enterprise, than that asserted by the Trustee to ring the negotiations, or even that ascribed by M&G in their evaluation but for the Trustees' failure to make proper disclosure and an order that 12. In the present action, it is the Plaintiffs' pleaded case that that was the part of the Trustee to disclose was deliberate and fraudulent. That averred in respect of the non-disclosure, that the Plaintiffs were to be bought out for the purposes of the 1999 Settlement, and that they believed that the Trust assets were worth far less than they were and that they suffered loss and damage arising from the reduction in the value attributed under the 1999 Settlement to their shares in the Trust. 13. Further and alternatively, that the Trustees - specifically Mr. Wrona, Mr. Ojeh and Abdulaziz Ojeh - with intent to defraud the Plaintiffs as abovementioned and unlawfully conspired and combined together. 14. There are identifiable some nine different but interrelated and consequential forms of relief claimed by the Plaintiffs which may be summarised as follows: (i) a declaration that they are entitled to rescind the 1999 Settlement; (ii) alternatively, that the Court should set aside the 1999 Settlement; (iii) an inquiry as to the additional sums which would have been paid to them but for the Trustees' failure to make proper disclosure and an order that ```
```html iv further or alternatively, that the 1999 Settlement be and set aside, that the Trustees be removed as trustees of the Trust a aced by (a) for the sole purpose of ensuring payment to the rescinde T of the sums to which they are entitled; or (b) with a view to the liquidation of all the Tr and the distribution of the resulting cash in the proper spla just an persons entitled there to; (v) further or alternatively, declarations to the effect that 1st Asset t of the Trustees constituted breaches of trust and that they the a e to pay personally the additional sums owed to the Plaintiffs do be oueld have been paid but for their breaches of trust; (vi) damages for fraudulent misrepresentation and/or deceiton be or stees in inducing the 1st Plaintiff to enter into the 1999 Settleme by un wlf of her then minor son; (vii) damages for conspiracy; (viii) an order for equitable compensation.
Thus the Plaintiffs have pleaded numerous causes of action against the Trustees including non-disclosure, fraud, conspiracy and breach of trust. They seek wide-ranging relief including rescission, equitable compensation, damages and the removal and replacement of the Trustees. ```
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```html 20. It is against that background that the Plaintiffs' summons seeks to rely on certain of the issues involved in their case as pleaded be triecmmerinary or separate issues before any of the other issues arising in this act of ill. Grand Court Rules (GCR) Order 33 Rules 3 and 4, which create a concurrent jurisdiction. This is a jurisdiction to be exercised by warrant as expressed in these terms: “3. The Court may order any question or issue arising or matter, whether of fact or law or partly of fact and pa and whether raised by the pleadings or otherwise, artly of l before, at or after the trial of the cause or matter, an tr, in a ca directions as to the manner in which the question or is. d may g stated.” And further, in Order 4(2), somewhat repetitiously: “In any (writ action) different questions or issues may to be tried by different modes of trial or one or more questions be issues may be ordered to be tried before the others.” 21. The preliminary issues, if directed as sought by the Plaintiffs, would bring forward for trial the pivotal question whether the Trustees had indeed acted in breach of trust in the manner of their failure to disclose and, if so, whether they should be liable to pay equitable compensation to the Plaintiffs or liable to ```
```html 22. Put more precisely, the questions to be resolved would be: (i) whether the Trustees were under a duty to disclose that com upon trust for the Plaintiffs. negotiations and related matters to (i) the valuers；(ii) 1st Plaintiffs' Guardian ad Litem；and (iv) the 2nd Plainti (ii) If they did act in breach of that duty in that manner， whl Trust as ought to have been paid over， on construcul asf. Pai for the Plaintiffs. 23. If these issues are resolved by way of preliminary trial in favo the entire action would be resolved； save， of course for thnefive~tiendant's counter-claim. 24. The analysis which I must now undertake will be strictly only For present purposes， I will not need to delve into how the into the merits. I must instead be concerned with whether or notisfu will be appropriate to give those directions for the most effective dispensation， not just of the specific issues， but for the case as a whole. Indeed， as the overriding objectives of the GCR require (as expressed in its Preamble)， the Rules are to be applied to enable the action to be dealt with in a manner which is just， expeditious and economical. ```
```html 25. Experience before the Courts has shown that the segmentation into preliminary points too often prove only to be "treacherous sho Scarmans described that practice in Tilling v Whiteman [1980] 26. Where a case is woven into a complete factual and legal mor of attempt to unravel an apparent loose strand could leave the whole case 27. Before directing the trial of a preliminary issue, the Court must be assured that the issue to be singled out is one which is indeed a cut" to the proposed discrete treatment. To be worthy of the time and the overall complexities of the case. Unless that outcome can be assured, there is no justification for the risk of a preliminary can be then going all the way to appeal and back but resulting only in Lord Wilberforce cautioned against such an outcome also in in these terms (at P. 17h). 28. left to be tried. Lord Wilberforce cautioned against such an outcome also in issuiteman “I with others of your Lordships, have often prote against the practice of allowing preliminary points to be taken, since this course frequently adds to the difficulties of courts of appeal and tends to increase the costs and time of legal proceedings. If this practice cannot be confined to cases where the facts are complicated and the legal issue short and easily decided, cases outside this guiding principle should at least be exceptional." ```
```html 29. By seeking to confine the practice "to cases where the facts are left or led and the legal issue short and easily decided", Lord Wilberforce must of have meant that the case will be made less complicated by t discrete but significant legal issue. 30. A somewhat more detailed statement of the principles guidin and judicial discretion on directing the trial of preliminary issues be resolfcoffered by this Court. In Re T Trust 2002 CILR Note 1 and in Wahrluf he undompass Trust 2004-05 CILR Note 32 it was stated (taking the two sets tue the a eather as a whole) that the Court should have regard to the following matlicen as (i) whether the determination of the issues will dispose of anuedring at least an important aspect of fit so as to narrow the triable issueof casebr (ii) whether the costs and time involved in preparation for trial itself will be significantly reduced; (iii) where the issue is one of construction, to what extent it or agreed readily on certainable facts; or if some othrem can tissue is involved requiring the consideration of evidence, the rer type that the evidence must be brief and uncontroversial; (iv) the degree of risk that the trial of the preliminary issue (and/or the appeal against the decision given on its trial) will increase costs or delay the trial overall; and (v) whether, taking into account all other relevant considerations; e.g. the stage which preparations for the trial overall have reached and the parties' relative resources - it would be just to order the preliminary issue to be tried. ```
```html 31. Whilst each case must depend upon its own circumstances, the following is just as well to note the basic principle that separate trials o being a departure from the beneficial object of the law that all den tried together - have always required that special grounds e appr Notes to R.S.C. Order 33/4/10 SCP 1999 referring to Piercy dsearch880) 15 Ch.D. 415 at 479. 32. With all the foregoing principles in mind, I cannot see my manuscr to the direction of the proposed preliminary issues for trial in this matayrg 33. With the background to the action and the pleadings alrea uced, my reasons can be briefly stated. Indeed they are as were alday des Willy and carefully argued by counsel for the Defendants. 34. The issue whether the Trustees were under a duty of disclo o lose the DaimlerChrysler negotiations and, if so, whether they acted in t to dready lat duty, will not be amenable to being tried only as a strictly legal issue in threac 35. The Trustees' position is that the question cannot be answer. That it can only be satisfactorily answered by having regard to (redhe very specific context in which the DaimlerChrysler negotiations were still at the time of the 1999 Settlement taking place including the strict requirement of confidentiality；(i) the very valuations upon which the DaimlerChrysler negotiations proceeded which， the Trustees assert， will show that in real terms the acquisition by DaimlerChrysler did not yield for the Trust Fund any value significantly higher than that ascribed to the overall value by the M & G valuation；(iii) the long history of the previous attempts to compromise and the ```
The background of the hostile litigation between the parties includes, among other things, that the Plaintiffs had forfeited their interests under the Trust, which influenced the agreement between the parties to the valuation of the settlements themselves leading up to the 1999 Settlement. While it may be argued now and may in the end be proven that the Trustees are but clear indicia going to proof of the existence of the duty of care, rather than as the Trustees would argue, to the contrary, I must accept that the factual issues identified are also those which will set the overall context of all the issues in this action. As it is clear that it would not be proper for the deal with them without detailed evidence, it is equally clear to my mind that they are not given to being dealt with by way of preliminary trial. This first point alone as it relates to the first issue of breach of trust is well illustrated by the Trustees' assertion that the DaimlerChrysler did not, in any event, have a material impact on the value of the negotiations in the Trust Fund. This assertion is pleaded in detail in their defence and thus will have to be resolved in a full trial process. It is not a defence which is amenable to being resolved by trial of the preliminary issues as propounded as it will involve detailed valuation evidence and likely also factual evidence about the course of the DaimlerChrysler negotiations. When one turns to consider the second issue – that of equitable compensation, the inappositeness of a preliminary trial becomes even more apparent.
```html 39. The question whether equitable compensation is available as an alternative remedy to that of rescission (as the Plaintiffs aver) is itself a question While the Plaintiffs' position is said to be supported by authority - ( Waddell No.2[1977]Ch106(at259G)citingNoctonvLordAshburton an C.932) - the principle can hardly be regarded as clearly settled. It is open to at least arguable. It is thus fraught with the risk of a decision one way or another on preliminary trial being reversed on appeal. There are, more complex various defences - estoppel, laches, acquiescence - to this clause of equitable compensation which would have to be tried also before then trial of a truly dispositive outcome. Yet they are, by their very nature, defences which are dependent upon matters of fact which would have to be investigated in any event (except outright success for the Plaintiffs), would on any subsequent trial of the remaining claims based upon constitutions, fraud, deceit, fraudulent misrepresentation and deceit. 40. When, as a final consideration here, it is also borne in mind that the Plaintiffs would intend to pursue those claims even if they fail on the preliminary issues for breach of trust and equitable compensation; the risks of having to try many of these complex issues more than once are stark and clear. It is therefore clear to my mind that the criteria for the direction of a trial of preliminary issues are not met in this case. 41. The Plaintiffs' application is therefore dismissed. ```
```markdown # DIRECTIONS FOR FULL TRIAL
The Plaintiffs' seek directions including directions for dis e P in certain material relating to the DaimlerChrysler negotiations and acqu which they say have not yet been provided.
These are directions which can now be considered in theory of the preparation for the full trial. They will be considered on a dateslisions. ## STAY
The Plaintiffs also seek a stay of the 4th Defendant's echo to be for a declaration as to forfeiture of the 2nd Plaintiffs' interest under t...1 re That too is an issue which can now be considered, the applications for the trust tary trial having been resolved. ## COSTS
Consistent with the established principle that costs follow the et agr laintiffs must pay the Defendants' costs of this application, to be taxed invent, thl.