Order 29 of the Grand Court Rules and IGCF SPV 21 Ltd

• Jurisdiction: Cayman Islands
• Judge: Mr. Justice Segal
• Judgment Date: 01 February 2023
• Docket Number: CAUSE NO: FSD 0269 OF 2022 (NSJ)
• Court: Grand Court (Cayman Islands)

THE GRAND COURT OF THE CAYMAN ISLANDS

FINANCIAL SERVICES DIVISION

Before:

The Hon. Mr. Justice Segal

CAUSE NO: FSD 0269 OF 2022 (NSJ)

In the matter of Order 29 of the Grand Court Rules

And in the matter of IGCF SPV 21 Limited

Appearances:

Graham Chapman KC instructed by Conal Keane of Dillon Eustace Cayman for the Applicant

Peter Arden KC instructed by Laura Hatfield and Richard Parry of Bedell Cristin Cayman Partnership for Al Jomaih Power Limited and Denham Investment Limited

Introduction

1 I have before me an application issued on 24 November 2022 by IGCF SPV 21 Limited (the Applicant) for injunctive and associated relief against Al Jomaih Power Limited ( AJPL) and Denham Investment Limited ( DIL) (together the Other Shareholders). In summary, the Applicant seeks an anti-suit injunction to restrain the pursuit of proceedings brought by the Other Shareholders in Pakistan (the Pakistan Proceedings) in breach (according to the Applicant) of an exclusive jurisdiction clause that binds them.

2 The application was heard on 17 January 2023. Mr. Graham Chapman KC appeared for the Applicant and Mr. Peter Arden KC appeared for the Other Shareholders. At the end of the hearing I reserved judgment but indicated that I intended to hand down my decision rapidly and that I was likely to inform the parties of my decision and the orders I would make in advance of providing full written reasons.

3 On 20 January 2023 I wrote to the parties (in an email sent by my Personal Assistant Ms. David) in the following terms:

“I refer to last Tuesday's hearing in relation to the application, commenced by the ex parte originating summons issued on 24 November 2022 (the Summons), for an interlocutory injunction made by IGCF SPV 21 Limited (the Applicant).

I have decided that, until the expedited trial of the Applicant's application for injunctive relief, Al Jomaih Power Limited ( AJPL) and Denham Investment Limited ( DIL) (AJPL and DIL together the Other Shareholders) should be prohibited from taking further steps in the proceedings (the Pakistan Proceedings) commenced by them in the Sindh High Court in Karachi, Pakistan (the High Court) by the Suit for Declaration and Permanent Injunction (the Suit) issued on 21 October 2022.

I shall be handing down next week a judgment setting out my reasons for this decision. In the meantime, in view of the urgency of the matter and the impending public holiday in Cayman on Monday, I set out below a brief explanation and outline of the orders I propose to make. I shall give the parties a brief opportunity to review and to make suggested amendments to, and I would hope agree, the form of order (I am happy for the parties to propose adjustments to my suggested timetable provided that they will maintain the fast track nature of the process). I would ask counsel to prepare and file with the Court by 4pm next Wednesday (25 January) either a draft order in agreed form or the forms of order sought by the Applicant and the Other Shareholders, with brief submissions. I shall then settle the order no later than Thursday (26 January).

This is an interlocutory injunction to hold the ring for the shortest practicable period, which does not order the termination of the Pakistan Proceedings and seeks to disrupt those proceedings to the minimum extent (having regard to this Court's wish to respect, and minimise any interference albeit indirect with the proceedings before, the High Court). I do not see that it is appropriate to seek to sever the Pakistan Proceedings, which appear in their entirety to arise out of and closely relate to the matters governed by the exclusive jurisdiction clause in the 2008 shareholders agreement, by ordering the Other Shareholders only to take no further steps against or in relation to the Applicant (and it seems to me that the other parties to the Pakistan Proceedings will suffer no material prejudice as a result).

I consider that the most appropriate way forward, having regard to the overriding objective, is to give directions for a rapid trial of the Applicant's application for a permanent injunction and to grant an interlocutory injunction until then rather than order a further inter partes hearing in respect of and to review the interlocutory injunction. It seems to me that adopting the latter approach would not achieve a material saving of time and would produce additional cost and unnecessary procedural complexity.

I therefore propose to make orders and give directions to the following effect:

• 1. the Applicant shall on or before 27 January 2023 issue an originating summons (the New Originating Summons) to which the Other Shareholders are joined as defendants seeking the relief set out in paragraphs 1-3 and 6 — 8 and 10 of the Summons (the Summons contains a typo in relation to paragraph 4, which is in fact not a separate paragraph but a continuation of paragraph 3) and an interlocutory application (by summons or motion) in those proceedings (the Interlocutory Application) seeking the interlocutory (or interim) injunction referred to in paragraph 5 of the Summons (and any relief ancillary thereto).

• 2. the New Originating Summons and the Interlocutory Summons may be served on Bedell Cristin, the attorneys acting for the Other Shareholders.

• 3. the hearing on Tuesday shall be treated as a hearing of the Interlocutory Application and the evidence filed before the hearing by the Applicant and the Other Shareholders shall stand and be treated as evidence filed in support of and opposition to, as the case may be, the Interlocutory Application (and the relief sought in the New Originating Summons).

• 4. the Applicant shall file and serve any evidence in reply by 31 January 2023.

• 5. the Applicant and the Other Shareholders shall have leave to serve one expert report (one for the Applicant and one for the Other Shareholders) in relation to issues of Pakistan law (the issues to be agreed by 31 January 2023 or if not agreed by that date, as ordered by the Court following brief written submissions filed by the parties on or before 3 February 2023).

• 6. the expert reports shall be exchanged by 17 February and the experts shall meet by video conference on or before 24 February and prepare a joint memorandum by 3 March 2023 (or in each case on such later date as may be ordered by the Court).

• 7. If the expert reports cannot be agreed the parties shall be at liberty to call expert witnesses at trial limited to those experts whose reports have been exchanged in accordance with paragraph 6 above.

• 8. the New Originating Summons shall be listed for a two day hearing on dates to be fixed in the week commencing 13 or 20 March 2023 (the parties shall seek to agree and propose to the Court dates for the hearing).

• 9. save as varied above or by further order, the practice and procedure set out in the FSD Users Guide shall apply [I am unsure whether the parties will wish to cross-examine the factual witnesses].

• 10. until the hearing of the New Originating Summons (or further order), the Other Shareholders (whether by themselves or their agents) must not take any further steps in the Pakistan Proceedings (whether by applying for or seeking further orders or relief, or for amendments to or the enforcement of orders already made, or for the purpose of pursuing the claims made and relief sought in the Pakistan Proceedings) save for the purpose of informing the High Court (and the other parties to the Pakistan Proceedings) of this order and to seek consequential temporary stays in respect of, or adjournments of hearings in, the Pakistan Proceedings.

• 11. costs reserved.

• 12. liberty to apply.”

4 I now set out my reasons for this decision.

Background

5 The Applicant and the Other Shareholders are shareholders (holding Class O Shares) in a Cayman company, KES Power Limited ( KESP). The Applicant holds 53.8%, AJPL holds 27.7% and DIL holds 18.5% of the shares in KESP. KESP in turn holds a majority (66.4%) interest in K-Electric Limited ( KEL). KEL is a Pakistani-incorporated utility company whose shares are listed on the Pakistan Stock Exchange ( PSX).

6 KEL was formerly in public ownership but was partially privatised in 2005. KESP acquired its shares in KEL from the Government of Pakistan pursuant to a share purchase and subscription agreement dated 14 November 2005 (the SPA 2005).

7 The Applicant and the Other Shareholders are parties to a shareholders agreement dated 15 October 2008 (the SHA) which, as subsequently amended, governs the relations between them as shareholders in KESP. The SHA was amended by the First Deed of Amendment dated 30 April 2009 and the Second Deed of Amendment dated 5 January 2021 (the Second Deed). The SHA (as amended by the Second Deed) contains an exclusive jurisdiction clause providing for any dispute arising out of, or in connection with, the SHA to be determined by the courts of England or by this Court.

8 The Other Shareholders commenced proceedings in Pakistan before the High Court of Sindh on 21 October 2022 against the Applicant and other parties. The Applicant claims that those proceedings were commenced in breach of the exclusive jurisdiction clause in the SHA. On the same date, the Other Shareholders sought and obtained interlocutory injunctive relief (the Pakistan Interim Injunction) from the High Court of Sindh prohibiting any changes to the board of KEL.

9 The Applicant was incorporated by members of the ABRAAJ group for the purpose of acquiring shares in KESP. The sole voting share in the Applicant was held by ABRAAJ Investment Management Limited ( AIML). In addition, other shares in the Applicant are held by the Infrastructure and Growth Capital Fund LP (the Fund). The Fund is a Cayman Island registered private investment fund with numerous institutional investors that is managed by IGCF General Partner Limited (the GP).

10 On 3 August 2022, AIML (acting by...