The Estate of Israel Igo Perry Deceased Between: (1) Lea Lilly Perry (2) Tamar Perry Plaintiffs v (1) Lopag Trust R (2) Private Equity Services (Curacao) NV (3) Fiduciana Verwaltungsanstalt (4) Gal Greenspoon (5) Yael Perry (6) Dan Greenspoon (7) Ron Greenspoon (8) Mia Greenspoon (Children, by Hagai Greenspoon, Their Guardian Ad Litum) (9) Admintrust Verwaltungsanstalt Defendants and (1) Andrew Childe (2) Christopher Rowland
| Jurisdiction | Cayman Islands |
| Judgment Date | 23 February 2023 |
| Docket Number | CAUSE NO. FSD 205 of 2017 (NSJ) |
| Court | Grand Court (Cayman Islands) |
In the Matter of the Estate of Israel Igo Perry Deceased
and
CAUSE NO. FSD 205 of 2017 (NSJ)
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FINANCIAL SERVICES DIVISION
On 1–2 December 2022 a hearing (the Hearing) was held in relation to the Fifth Defendant's Notice of Motion issued on 23 March 2022 (the NOM). The Hearing followed previous hearings (and judgments delivered) in the NOM. It dealt with the Fifth Defendant's application in the NOM for a declaration that the Trustees had acted in breach of the injunction previously granted by me. At the hearing, Ms Tracey Angus KC appeared for the Fifth Defendant and Mr Graeme McPherson KC appeared for the Trustees.
On 12 January 2023, my Personal Assistant (Ms. David) circulated to the attorneys for the Trustees and the Fifth Defendant a draft of my judgment (the Judgment). The covering email invited comments from the parties by no later than 19 January 2023. Following receipt on 19 January 2023 of the typographical corrections proposed by the parties, on 20 January 2023 I indicated that I would accept these corrections and was ready to hand down the Judgment subject to dealing with an issue which had been raised by the Trustees in a letter sent to the Court on 17 January 2023 by their Cayman attorneys (Campbells).
In that letter Campbells explained that they were corresponding with the attorneys for the Fifth Defendant (Priestleys):
“… in relation to steps which are required to preserve the confidentiality of the judgment when it is formally handed down to ensure that paragraph 4 of the Order dated 8 July 2022 is given effect. We hope that agreement can be reached … If that proves not to be the case, we anticipate that short written submissions from each party may be required before Judgment is handed down to enable [the Court] to consider and determine the effect of handing down the Judgment and what restrictions, if any, should be placed on the use to which the Judgment may be put after handing down…. In those circumstances we would ask that [the Court] delay handing down Judgment for a short period…”
It transpired that the hoped-for agreement could not be reached and accordingly written submissions were filed by the Fifth Defendant on 24 January 2023 and by the Trustees on 25 January 2023. The Trustees seek an order that prevents publication of the Judgment while the Fifth Defendant seeks permission to disclose and rely on the Judgment (if necessary subject to some redactions) in the supervisory proceedings currently being conducted by the Liechtenstein court.
I have reviewed these submissions and concluded that the Trustees' application should be dismissed and that the Fifth Defendant's application should be granted. The Trustees have, in my view, failed to establish a proper basis on which an order precluding publication of the Judgment, and the overriding of the principle of publicity and open justice, can be justified. While the order I made preventing the collateral use of the documents ordered to be discovered pursuant to the order dated 8 July 2022 (the July Order) is to be treated as continuing after the Hearing and publication of the Judgment, for the reasons set out in [51] of this judgment, upon handing down of the judgment the Fifth Defendant is at liberty to refer to the Relevant Terms (as defined in [5] of the Judgment) set out in the Judgment in its revised form, including references to clause 27.3 and schedules 3 and 4 (once produced by the Trustees) of the LFA and freely to quote from and refer to any other parts of the Judgment (as well as the August Judgment and previous judgments) in the current or any other proceedings in Liechtenstein or elsewhere once the Judgment has been handed down.
Redacted versions (the Redacted Documents) of the financing (litigation funding) agreement dated 22 June 2018 (the LFA) and the deed of variation thereof dated 26 March 2021 (the DOV), which were entered into between the Trustees and the funder (the Funder), were disclosed in the proceedings commenced by the NOM on terms, as regards the Fifth Defendant, set out in the July Order and, as regards the Plaintiffs, set out in the order dated 7 September 2022 (the September Order). The Redacted Documents were disclosed as an exhibit to the 12th Affidavit of Natasha Partos ( Partos 12).
Partos 12 was provided in accordance with [4] of the July Order which stated (underlining added):
“For the avoidance of doubt, insofar as the [Redacted Documents] are disclosed to the Fifth Defendant pursuant to paragraph 2 hereof she may not, without the permission of the court, rely upon them in any other proceedings (in any jurisdiction) nor provide them to any other person save for the purpose of the proper conduct of these proceedings. For the further avoidance of doubt, this paragraph is not intended to prevent the Fifth Defendant from relying upon the Relevant Terms or the LFA in any other proceedings (in any jurisdiction) or from providing the same to any other person, in all cases where and to the extent that they have been or are in future disclosed to the Fifth Defendant other than pursuant to paragraph 2 hereof.”
The Trustees subsequently agreed that the Redacted Documents would be provided to the Plaintiffs on the same terms. This agreement was recorded in [2] of the September Order, which was made by consent:
“For the avoidance of doubt, insofar as the Redacted LFA is disclosed to the Plaintiff pursuant to paragraph 1 hereof, the Plaintiffs may not, without the permission of the court, rely upon them in any other proceedings (in any jurisdiction) nor provide the Redacted LFA to any other person save to the Plaintiffs' legal team, consisting of Walkers and the Plaintiffs' counsel, for the purpose of the proper conduct of these proceedings.”
As I have noted, I have previously handed down a number of judgments dealing with applications and issues arising in relation to the NOM. These include my judgments dated 31 May 2022, 8 July 2022, and 12 August 2022. I refer to these judgments as the May Judgment, the July Judgment, and the August Judgment respectively. All these judgments were uploaded to the Court's public Register of Judgments.
In the August Judgment I dealt with the Fifth Defendant's challenge to the redactions made by the Trustees. I explained the background and the issues arising as follows:
“2. Following a judgment of 31 May 2022 (the Judgment) and ruling of 8 July 2022 (the Ruling), the Court made an order dated 8 July 2022 (the Order). By paragraph 2 of the Order the Trustees were ordered to produce those parts (together the Relevant Terms) of the LFA and any deed of variation thereof (the Deed): (a). that required or permitted the Trustees to have (or give the funder) recourse to (or which gave the Trustees or the funder rights over) assets of the Ypresto Trust for the payment of sums due under the LFA (and the terms which condition and regulate those rights of recourse or rights over the Ypresto Trust assets) including not only the main operative provisions but related and relevant definitions and terms. (b). on which the Trustees rely in support of their case that the Trustees and the funders do not have and cannot exercise rights of recourse to those assets until after the Injunction has been discharged.
3. Paragraph 3 of the Order permitted the Trustees to redact any clauses or provisions within the LFA that (a) were irrelevant to and unconnected with the Relevant Terms, (b) were subject to privilege or (c) contained commercially sensitive information (the Redaction Criteria), subject to a proviso that the redactions made should not affect the ability of the Court and the Fifth Defendant to understand and interpret the nature and extent of the rights of recourse to and rights over the Ypresto Trust assets (the Redaction Proviso).
4. Paragraph 5 of the Order directed the Trustees to provide by 11 July 2022 an affidavit explaining why they contended that their proposed redactions were justified being as specific as possible without making disclosure of matters that the claim for privilege or commercial sensitivity was designed to protect (the Specificity Requirement).
5. On 11 July 2022 the Trustees served on the Fifth Defendant and the Plaintiffs an affidavit made by Ms Natasha Partos of Campbells, the Trustees' attorneys (Partos 12). The exhibit to Partos 12 contained a redacted copy of the LFA (the Redacted LFA) and a redacted copy of the Deed (the Redacted Deed). The Trustees provided explanations for their redactions at [6] of Partos 12 (“Redactions for commercial sensitivity are as the clause is commercially sensitive in the context of this litigation”) and in a table at Annex A to Partos 12 (Annex A).
6. On 15 July 2022 the Fifth Defendant's attorneys, Priestleys, notified the Trustees' attorneys (pursuant to paragraph 6 of the Order) that she challenged some of the Trustees' redactions. Priestleys' letter enclosed a list (the List) of the redactions challenged by the Fifth Defendant (the Challenged Redactions).
7. On 22 July 2022 the Trustees provided, by way of a letter from Campbells...
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