The Companies Law (2016 Revision) v Trina Solar Ltd

• Jurisdiction: Cayman Islands
• Judgment Date: 19 July 2017
• Date: 19 July 2017
• Docket Number: CAUSE NO. FSD 92 OF 2017 (NSJ)
• Court: Grand Court (Cayman Islands)

In the Matter of the Companies Law (2016 Revision)

and

In the Matter of Trina Solar Limited

CAUSE NO. FSD 92 OF 2017 (NSJ)

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FINANCIAL SERVICES DIVISION

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL ORDER DATED 19 JULY 2017

1 This is my judgment on the summons dated 1 August 2017 (the Leave Summons) issued by Trina Solar Limited (the Applicant) for leave to appeal my order dated 19 July 2017 (the 19 July Order). Draft grounds of appeal (the Draft Grounds of Appeal) were appended to the Leave Summons.

2 By the 19 July Order I refused to grant the relief sought by the Applicant in its summons (the Original Summons) dated 7 July 2017. The Original Summons sought an order setting aside a consent order dated 21 June 2017 (the Consent Order). The Consent Order required the Applicant to pay interim payments to Maso Capital Investments Limited and Blackwell Partners LLC — Series A (the Respondents) in connection with the Applicant's Petition under section 238 of the Companies Law (2016 Revision) seeking a determination by the Court of the fair value of the Respondents' shares. I refused to set aside the Consent Order on the basis that the grounds relied on by the Applicant were not made out and held that the Consent Order remained valid and binding. On 18 July 2017 (following the hearing of the Original Summons on the previous day) I gave and read out in Court my reasons for dismissing the Original Summons and these reasons were subsequently recorded in a Note of ex tempore judgment (the Judgment).

3 Pursuant to a timetable agreed by the Applicant on the one hand and the Respondents on the other, the Applicant's attorneys Harney Westwood & Riegels (Harneys) filed a skeleton argument in support of the Leave Summons on 4 September 2017; Robert Levy Q.C. and Walkers acting for the Respondents filed their written submissions in opposition on 11 September 2017 and Harneys filed a skeleton in reply on 13 September 2017. Subsequently, Walkers sent a further email on 14 September 2017 to clarify its position in relation to a particular matter dealt with in Harneys' reply skeleton. Both the Applicant and Respondents invited me to deal and consented to my dealing with the Leave Summons on the papers without the need for a hearing. On 25 September 2017, I sent an email to counsel and explained that I had prepared my judgment on the Leave Summons but suggested, subject to the agreement of the parties, that I delay handing it down until I was in a position to hand down my judgment on the related application for leave to appeal paragraph 2 of the order dated 8 August 2017 in Cause No: FSD 138 of 2017 since the two leave applications were very closely connected (and the timetable for the filing of submissions in that other leave application was running behind the timetable for this application). Both parties agreed with this suggestion. Therefore this judgment is being handed down at the same time as the judgment in the leave application relating to Cause No: FSD 138 of 2017.

4 Both parties accept that leave from this Court must first be sought under section 6 of the Court of Appeal Law (2011 Revision) since the 19 July Order is to be treated as an interlocutory order. Harneys submit that the general test of whether leave to appeal should be granted is whether the appeal has a real (i.e. realistic, not fanciful) prospect of success but that in exceptional circumstances leave will be granted even where no such prospect exists if the appeal involves an issue which should be examined by the Court of Appeal in the public interest. Hameys referred to and relied on Telesystem International Wireless v CVC/Opportunity Equity Partners [ 2001 CILR N-21] and CVC Opportunity Equity Partners Limited v Demarco Almeida [ 2001 CILR N-20] and the English Practice Direction Court of Appeal: Leave to Appeal & Skeleton Arguments [1999] 1 WLR 2 (the English Practice Direction) which was referred to in and applied by these decisions.

5 In their skeleton argument Harneys submitted that it was clear from the English Practice Direction that leave to appeal on a point of law should not be granted unless the Judge considers that there is a real prospect of the Court of Appeal coming to a different conclusion on a point of law which will materially affect the outcome of the case. They also submitted that three additional considerations were to be taken into account when dealing with an application for leave to appeal an interlocutory order: whether the point at issue is not of sufficient significance to justify the costs of an appeal; whether the procedural consequences of an appeal may outweigh the significance of the interlocutory issue and whether it would be more convenient to determine the point in issue at or after the trial.

6 Harneys submitted that I had made errors of law and that there is a real prospect of the Court of Appeal coming to a different view on one or more of four points of law that were part of my reasoning. The four points appear as the four grounds of appeal set out in the Draft Grounds of Appeal. The Applicant submitted that there is a real prospect that the Court of Appeal will conclude that:

• (a). an interim payment order cannot be made by consent pursuant to GCR Order 42 rule 5A since the making of an interim payment order involves the exercise by the Court of a judicial discretion;

• (b). the interim payment which was required to be paid by the Consent Order was not a “liquidated sum” within the meaning of GCR Order 42 rule 5A(2)(a)(i);

• (c). the Court had no...