Abraaj General Partner VIII Ltd, in its capacity as the General Partner of Neoma Private Equity Fund IV L.P. v Abraaj Abof IV Spv Ltd; Neoma Manager (Mauritus) Ltd, in its capacity as the Manager of Neoma Private Equity Fund IV L.P. and Abraaj General Partner VIII Ltd, in its capacity as the General Partner of Neoma Private Equity Fund IV L.P. v Abraaj ABO F IV Spv Ltd

• Jurisdiction: Cayman Islands
• Court: Court of Appeal (Cayman Islands)
• Judge: Martin, J.A.,Sir Michael Birt, J.A.,Sir John Goldring
• Judgment Date: 08 April 2025
• Year: 2025
• Docket Number: CICA (Civil) Appeal No. 21 of 2023; CICA (Civil) Appeal No. 23 of 2023

Abraaj General Partner VIII Limited, in its capacity as the General Partner of Neoma Private Equity Fund IV L.P.

and

Abraaj Abof IV Spv Limited

Neoma Manager (Mauritus) Limited, in its capacity as the Manager of Neoma Private Equity Fund IV L.P. and Abraaj General Partner VIII Limited, in its capacity as the General Partner of Neoma Private Equity Fund IV L.P.

and

Abraaj ABO F IV Spv Limited

Goldring, P.; Martin, J.A.; Birt, J.A.

CICA (Civil) Appeal No. 21 of 2023; CICA (Civil) Appeal No. 23 of 2023

Court of Appeal

Appearances:

Susan Prevezer KC, Leading Counsel, James Kennedy, Partner, KSG Attorneys at Law Matthew Harders, Associate, KSG Attorneys at Law for the Applicant.

Clare Stanley KC, Leading Counsel, Nick Dunne, Partner, Walkers (Cayman) LLP Jamie Brislane, Associate, Walkers (Cayman) LLP Lauren Vernon, Associate, Walkers (Cayman) LLP for the Respondent

INTRODUCTION

Martin, J.A.

1 These are applications for leave to appeal against an order of Parker, J. dated 27th June 2023. By that order the judge gave summary judgment against the general partner and the manager of an exempted limited partnership requiring production of documents and information pursuant to section 22 of the Exempted Limited Partnership Act (“the ELPA”) and the provisions of the limited partnership agreement.

2 The judge refused leave to appeal; but by order of the President dated 18th December 2023 the applications were referred to the full court for consideration, with the substantive hearing immediately to follow should leave be granted. Early in the hearing we required to be satisfied that the applications raised a live issue between the parties, given the applicants' acceptance that most if not all of the documents they had been ordered to produce would have to be disclosed on discovery in parallel proceedings between the same parties; but having been persuaded that there was an issue at least in relation to costs (which the judge had ordered the applicants to pay), and a real point of principle (of particular general importance to the manager as a professional manager of limited partnerships) as to the scope and extent of the section 22 disclosure obligation, we gave leave to appeal and proceeded to hear the appeal itself. Where necessary, I refer hereafter to the applicants as the appellants.

FACTUAL AND PROCEDURAL BACKGROUND

3 The partnership, now known as Neoma Private Equity Fund IV L.P. (“the ELP”), was established on 23rd July 2008 pursuant to the ELPA under the name Abraaj Buyout Fund IV L.P. It was subsequently renamed Abraaj Private Equity Fund IV L.P. Its purpose is to carry on the business of investing, in particular by making and monitoring investments in buy-outs, growth capital opportunities, greenfield projects and privatisations.

4 The general partner of the ELP has throughout been the second appellant Abraaj General Partner VIII Limited (“the GP”); the initial manager was Abraaj Investment Management Limited (“AIML”). As the names suggest, the GP and AIML were members of the Abraaj group, which also included Abraaj Holdings Limited (“AH”). AIML and AH are Cayman companies but were based in Dubai. In 2018 and 2019 allegations of serious financial mismanagement within the Abraaj group were made, resulting in the appointment by the Grand Court of provisional liquidators in relation to AIML and AH on 18th June 2018, the imposition of a fine of US $299,300,000 on AIML by the Dubai Financial Services Authority on 29th July 2019, and the compulsory winding up of AIML and AH by the Grand Court on 11th September 2019.

5 In his judgment, the judge recorded that the Joint Official Liquidators of AH had concluded that the Abraaj group was effectively operated as a single entity with little regard for the separate corporate personality of the various companies within the Abraaj group, including the ELP.

6 Against this background, on 14th July 2019 an Amended and Restated Limited Partnership Deed (“the LPA”) was executed between the GP, the first appellant Neoma Manager (Mauritius) Limited (“the Manager”) and the limited partners in the ELP, one of which is the respondent, Abraaj ABOF IV SPV Limited. Among other things, the LPA recorded the renaming of the ELP to its current name; the appointment of the Manager in place of AIML; the appointment of an independent director to the board of the GP; and the delegation by the GP of its functions to the Manager, so that (subject to limited exceptions) the Manager should have full power and authority to do all things necessary to carry out the purposes of the ELP.

7 A limited partner in the ELP was obliged to commit to provide an identified sum for investment. The respondent's commitment was ultimately US$45 million. By clause 11.1(h)(iii) of the LPA the Manager undertook to provide or procure the provision to each limited partner as soon as reasonably practicable after the date of the LPA “the capital account balances that the Manager considers reasonably and in good faith to be the [limited partner's] capital account balance as at 31st March 2019”. Subsequent provisions of clause 11.1 provided that a limited partner who determined that its opening capital account balance (“CAB”) was incorrect should promptly serve on the Manager an adjustment notice stating what it believed to be the correct amount; that the Manager and the limited partner thereafter for a period of 45 days should cooperate in good faith in an attempt to agree the CAB; and that if there were no agreement at the end of that period the dispute should be referred to arbitration or, at the option of either party, to the Grand Court.

8 On 27th May 2020 the Manager provided a statement to the respondent specifying its CAB as minus US$11,900,468. On 21st October 2020 the respondent issued an adjustment notice contending that its true CAB was (plus) US$41,999,987. No agreement was reached as to the correct figure. On 23rd December 2020 the Manager elected to have the dispute resolved by the Grand Court, and on the same day it issued proceedings (FSD 322 of 2020: “the CAB proceedings”) seeking a declaration that the CABs of the respondent (as first defendant) and other limited partners were as determined by the Manager, or such other amount as the Court determined.

9 On 6th August 2021 the respondent served a Defence and Counterclaim in the CAB proceedings. It joined the GP as an additional defendant to the counterclaim. The essence of the respondent's defence was expressed in paragraphs 3–5 as follows:

• “3. The premise of the Plaintiff's case is that the First Defendant has paid none of its capital commitments to the Partnership. The First Defendant's primary case is that such premise of the Plaintiff's case is false, and that in fact the First Defendant discharged all of the capital commitments that were due. The Plaintiff would know this if the Plaintiff had adequately conducted an investigation into the affairs of the Partnership and obtained and reviewed all of the books and records of the Partnership. However, (a) the Plaintiff has not obtained all of the books and records of the Partnership, and (b) to the extent that it has, it has not (or not adequately) interrogated them.

• 4. These proceedings have accordingly been issued prematurely. The First Defendant's investigations into the relevant affairs of the Partnership (in particular its gathering and review of information from the joint official liquidators of… AIML, the former investment manager of the Partnership, and other third parties) remain ongoing. The Plaintiff was invited to extend time for the First Defendant to file and serve its Defence to afford the First Defendant sufficient time to gather and review such information to enable it to interrogate the accuracy of the Plaintiff's purported calculation of the First Defendant's [CAB] — a task which should have been conducted by the Plaintiff itself ñ but the Plaintiff unreasonably declined that invitation. Accordingly, it may prove necessary to amend this Defence and Counterclaim once further information is made available. The First Defendant will seek the costs of that exercise from the Plaintiff personally and will contend that the Plaintiff has no entitlement to be indemnified out of the Partnership in respect of those costs, or indeed any of the costs of these precipitate proceedings.

• 5. The First Defendant sent its objections to the Plaintiff regarding its calculation of the [CAB] prior to the commencement of these proceedings, but inexplicably and in breach of the Plaintiff's fiduciary obligations both under the terms of the LPA and under section 19 of the [ELPA], its obligation as the delegate of the General Partner to keep or cause to be kept proper books of account pursuant to section 21 of the [ELPA], and/or its obligation to provide true and full information regarding the state of the business and financial condition of the Partnership pursuant to section 22 of the [ELPA], the Plaintiff has failed substantively to respond to such objections both in pre-action correspondence and in its Statement of Claim”.

10 The counterclaim claimed an order for production by the Manager of eleven categories of documents; an order for the production by the GP of “true and full information regarding the state of the business and financial condition of the Partnership”, including a further eight categories of documents; a declaration that the respondent's CAB was as it contended; and other alternative and ancillary relief. The nature of the documents claimed appears from the terms of the schedule to the order made by the judge, summarised at paragraph 15 below.

11 On 3rd September 2021 the Manager and the GP served a Reply and Joint Defence to Counterclaim in the CAB proceedings. The essence of the defence to the counterclaim for documents and information was set out in paragraph 47, which so far as relevant said this:

• “47.1...