The plaintiff alleges that three defendants conspired to derail its planned IPO. According to the claim, the defendants sought to prevent the listing in order to trigger a put option, from which they expected to derive greater financial benefit than would be the case with the proposed IPO. The three defendants were: (i) an investment company, which was invested in the plaintiff; (ii) a director of the plaintiff; and (iii) a director of the investment company.

The Cayman Islands Grand Court Rules (the GCR) contain a list of the principal cases in which service out of the jurisdiction is permissible. In cases in which the Court’s leave is required, applicants must bring themselves within one of the “gateways” in GCR O11, r1(1) and also show a serious issue to be tried and that the Cayman Islands is the appropriate forum.

In this case, the plaintiff relied on two gateways:

• Gateway (c): permits service on a foreign defendant where there is already (or will be) a properly served anchor defendant in the proceedings, and it is appropriate for the foreign defendant to be joined as a “necessary or proper party”.
• Gateway (ff): which permits service on a person who is, or was, a director or officer of a Cayman company in respect of claims concerning the performance of their duties in that role.

The plaintiff sought leave to serve the two director defendants in Singapore and in Hong Kong under GCR O11, r1(1)(c) as “necessary and proper parties” and under (ff) as “directors of Cayman companies”. Justice Asif KC held that there was a serious issue to be tried and that both gateways were satisfied.

Notably, the Court held that, although unusual, it was at least reasonably arguable that the language of gateway (ff) was drafted sufficiently widely to cover a situation whereby the director defendant was not a director of the plaintiff (and so would not owe any duties directly to the plaintiff), but to another defendant.

On the issue of forum, the Court concluded that the Cayman Islands was clearly the most appropriate jurisdiction, notwithstanding the likelihood that there would be few if any witnesses located physically within the Cayman Islands and the current uncertainty about the whereabouts, globally, of relevant documents. “Considerable weight” was to be given to the fact that the plaintiff and first defendant were both Cayman companies, the issues turn on Cayman law, and no alternative forum was preferable.

The judgment highlights the practical realities of international service. The plaintiff pre-emptively sought an extension of the writ’s validity, anticipating significant delays in serving under the Hague Convention. Justice Asif extended the writ by six months (longer than the four months initially requested) and granted liberty to apply for further extensions if necessary.

This pragmatic approach recognises the complexity of Hague Convention service. In practice, Hague requests involve processing through numerous government bodies: filing through the Clerk of Court (the Cayman “designated authority”), processing through the local Governor’s Office and transmission through the UK Foreign, Commonwealth and Development Office to the foreign state’s central authority (in this case Singapore and Hong Kong). Once received, the request is often scrutinised for technical compliance before being passed down to local courts for execution of service.

Service through the Hague Convention is unpredictable and can take many months. Against that backdrop, the Court’s willingness to extend writ validity ahead of time reflects a realistic understanding of the obstacles to timely service abroad. Indeed, in this case, the Court of its own volition suggested a longer extension than is ordinarily sought under the scheme of the procedural rules (4 months), on the basis that there was a real risk that it may not be possible to serve under the Hague Convention within that period (such that it would be necessary, in due course, for the plaintiff to make a further application for renewal). The Court also granted the plaintiff liberty to apply for a further extension in due course, if needed following the advice of local attorneys.