Birds fly across the wall: insufficient evidence to justify substituted service
In an earlier case of In the Matter of Orient TM Parent Ltd (Unrep, Grand Court, 27 July 2022), the Grand Court of Cayman Islands dismissed the application of the petitioners for substituted service of the winding up petition in the PRC, and was critical of the evidence filed in support, noting a distinct lack of it
The petitioners, who are two minority shareholders of a Cayman Islands company, relied on alleged difficulties with service in the PRC under the Hague Service Convention (the Convention).
Justice Doyle held that the evidence in support of the application was unsatisfactory. The necessary formal request for service under the Convention was not made until five months after the petition was issued, and there was no formal evidence as to how long it may take to effect service. The Judge held that five months could not be described as a delay of exceptional length of time incompatible with the due administration of justice, and mere delay or a desire for speed is not sufficient to justify substituted service.
Additionally, there was no expert evidence confirming that substituted service by the means suggested did not contravene PRC law, or any up-to-date expert evidence in respect of the PRC and the Convention service, or in respect of the potential impact of the Covid pandemic.
He was also critical of the evidence of asserted “litigation prejudice”, which amounts to no more than an assertion.
Harneys acted for one of the successful majority shareholders.
