Subpoena Duces Tecum – Please bring your things
In an interesting development to the Nord Anglia litigation, the next appraisal case to be heard by the Grand Court of the Cayman Islands, Justice Kawaley was asked to rule on subpoenas issued by a group of dissenting shareholders.
Previously, in September this year (previously blogged here), the Court refused an application by the same group of dissenting shareholders to order a Letter of Request to the High Court of Hong Kong. That application sought to obtain documents said by the dissenters to be relevant to assertions made by a non-party to the valuation proceeding.
The dissenters issued the subpoenas in parallel to the Letter of Request application and thus both the company and non-party sought to set them aside. The Grand Court approached its determination in a pragmatic manner as the documents sought by way of subpoena were, for the most part, very similar to those sought in the Letter of Request and had been dealt with the in the Letter of Request ruling.
In keeping with its previous position, the Grand Court held that the non-parties to the action should provide some of the information sought by the subpoenas. Anticipating this, the overarching concern of the non-parties was the confidentiality of the information sought in the categories of documents which the Grand Court had already indicated met the test for disclosure. That information was adjudged to be relevant to the issue of fair value in the substantive proceeding. The Court was also mindful of the Highly Sensitive Document (HSD) regime, which was and remains in place between the company and the dissenting shareholders generally. In an attempt to cut through the issues, the Grand Court ruled that the parties should seek to agree a bespoke arrangement dealing with issues of confidentiality with recourse to a ruling of the Court in the event agreement could not be reached.
The Ruling provides a helpful vignette of the Grand Court’s commercially-focused approach when dealing with large scale litigation.
Harneys appeared on behalf of a number of the non-parties respect of the subpoenas.