Skip to main content
Link to Walkers homepage

Cayman Court's approach to extension of time applications in a discovery context for cross-border disclosure orders

May 23, 2024

Article
Person looking at laptop screen

KEY TAKEAWAYS:

  • The Cayman Islands Court refused New Frontier Health's request for an indefinite delay in disclosure, stressing the need for a fair trial and prompt compliance with court orders

  • The Court weighed PRC data laws against the necessity of timely disclosure and ruled in favour of the dissenting shareholders

  • Cayman Islands companies must comply with local court orders, even when facing potential international legal risks

On 24 April 2024, Doyle J handed down judgment in In the matter of New Frontier Health Corporation (Cause No. FSD 72 of 2022 and FSD 74 of 2022).

In doing so, he refused the application of a Cayman-Islands incorporated company for an open-ended extension of time to comply with its disclosure obligations in dissent proceedings notwithstanding the Company's argument that such documents could not be disclosed without certain regulatory approval from the People's Republic of China ("PRC").

Background

The substantive proceedings in this matter, brought by certain minority shareholders ("Dissenting Shareholders") of New Frontier Health Corporation (the "Company"), centre around an appraisal action brought under section 238 of the Cayman Companies Act.  As part of those proceedings, the Company was required to disclose a vast number of documents to the Dissenting Shareholders in compliance with its discovery obligations.

Notwithstanding prior extensions of time afforded to the Company, the Company had failed to disclose its remaining 444,000 documents to the Dissenting Shareholders. In a rather novel application seeking an open-ended extension of time to produce the remaining documents, the Company argued that certain restrictive PRC laws, namely the PRC Data Security Law and the Personal Information Protection Law ("PRC Laws") meant that regulatory approval was required from the PRC governmental authorities before it could comply with its obligations. If the Company were to disseminate documents without such authorisation, there was a legitimate risk of recrimination and prosecution.

Decision

The Court undertook a balancing exercise taking into account factors such as the overriding objective and the Court's duty to manage proceedings, the actual risk of prosecution under the PRC Laws, the need for and the importance of the documents, the location of the documents and the parties, comity considerations, the availability of an alternative means of securing the documents, the conduct of the party seeking the extension, the prejudice caused by the delay, the impact of non-compliance, whether there was an acceptable explanation and good excuse for the delay and what the justice of the case required.  After weighing up these factors, the Court ultimately exercised its discretion in favour of the Dissenting Shareholders.

In reviewing all of the evidence placed before him, including the expert evidence adduced on behalf of the Company on actual risk of prosecution, Doyle J accepted that the disclosure of data and/or personal information held within the PRC could infringe PRC law.  He also accepted that the Company had properly demonstrated an "actual risk of prosecution" as required under the Bank Mellat test[1] , although the risk of prosecution, he determined, was "low to moderate."   

Doyle J further accepted that the PRC had a legitimate interest in protecting data and security, but found that such interest was overridden by the Cayman Court's "constitutional obligation to secure a fair trial within a reasonable time, the overriding objective, and the importance of Cayman companies complying with orders of Cayman courts…"

Accordingly, on balance, the just and fair conclusion to be reached was that the remaining 444,000 documents, which had been reviewed by PRC counsel and were ready for production, should be disclosed without any further delay.

Comment

This case provides helpful guidance as to the Cayman Court's approach to extension of time applications in a discovery context. The Cayman Court did not refuse the further extension of time lightly and recognised the PRC's legitimate interest in data protection and security.  However, having considered the degree and extent of the risk of prosecution and the need for and importance of the outstanding documents to ensure the fair determination of the Section 238 proceedings within a reasonable time, the Court found in favour of the Dissenting Shareholders in the interests of justice and demonstrates the importance of Cayman companies complying with orders of Cayman courts in its jurisdiction.

 

[1] Bank Mellat v Her Majesty’s Treasury [2019] EWCA Civ 449
Dispute ResolutionInsolvency & RestructuringCayman Islands

Authors

Victoria Raymond

Victoria Raymond

Partner/Hong Kong

T/+852 2596 3367
M/+852 9763 3316
E/Email Victoria Raymond
More articles from this author View profile
Tim Molton

Tim Molton

Senior Associate/Hong Kong

T/+852 2596 3441
M/+852 6011 0317
E/Email Tim Molton
More articles from this author View profile
Vanessa Li

Vanessa Li

Senior Paralegal/Hong Kong

T/+852 2596 3423
E/Email Vanessa Li
More articles from this author View profile

Solution areas

Dispute ResolutionInsolvency & Restructuring

Key Contacts

Get in touch with our team

Barnaby Gowrie
Barnaby Gowrie

Barnaby Gowrie

Partner

Cayman Islands

T

+1 345 914 6365

M

+1 345 525 3385

E

Email Barnaby Gowrie
View profile
Fraser Hern
Fraser Hern

Fraser Hern

Partner, Walkers (CI) LP

Jersey

London

T

+44 (0) 20 7903 8702

M

+44 (0) 7797 777 417

E

Email Fraser Hern
View profile
Adam Hinks
Adam Hinks

Adam Hinks

Partner

Singapore

T

+65 6603 1657

M

+65 8112 1173

E

Email Adam Hinks
View profile
Murray Laing
Murray Laing

Murray Laing

Partner

Dubai

T

+971 4 363 7924

M

+971 50 698 3560

E

Email Murray Laing
View profile
Neil Lupton
Neil Lupton

Neil Lupton

Partner

Cayman Islands

T

+1 345 914 4286

M

+1 345 525 8027

E

Email Neil Lupton
View profile
Jennifer Maughan
Jennifer Maughan

Jennifer Maughan

Partner

London

T

+44 (0) 2072 204 989

E

Email Jennifer Maughan
View profile
Luke Petith
Luke Petith

Luke Petith

Partner

Dubai

T

+971 4 363 7926

M

+971 54 492 3553

E

Email Luke Petith
View profile
Tom Pugh
Tom Pugh

Tom Pugh

Partner

Hong Kong

T

+852 2596 3466

M

+852 6209 2634

E

Email Tom Pugh
View profile
Shelley White
Shelley White

Shelley White

Partner

Cayman Islands

T

+1 345 914 4205

M

+1 345 516 3169

E

Email Shelley White
View profile

Get the latest insights and expertise in your inbox 

Fluid ink image
Sign up
logo footer

Connect with us

FacebookFacebook
InstagramInstagram
LinkedInLinkedIn

Employee login

Self Service Password ResetWalkers AnywhereWalkers Sharefile
Legal notices/Cookies policy

All rights reserved - © 2025 Walkers Global