Financial Services Division Guide, Grand Court, Cayman Islands (Second Edition) - August 2015

FINANCIAL SERVICES DIVISION GUIDE GRAND COURT SECOND EDITION Rules, Practice Directions etc. are shown in ordinary type. Guide provisions/materials etc. are shown in italics. August 2015 1 | P a g e FOREWORD The idea of a Users’ Guide to the FSD (as indeed the idea of the FSD Users’ Committee) was originally proposed by Sir Peter Cresswell, one of the first FSD Judges, in light of his own experience in the Commercial Court in London. We should all be very grateful for that. Much of the content of the First Edition of the Guide was accordingly largely based on the Commercial Court Guide. Of course a few differences were included to reflect Cayman rules and procedure. However, the present Second Edition of the Guide does reflect much more Cayman practice and procedure as it has developed in the FSD over the years since then. I hope this will be more helpful to Cayman practitioners (and perhaps Judges). It does seem to me desirable to try to encourage consistency of approach for obvious reasons, both by the FSD Judiciary and by practitioners, and perhaps the Guide will achieve this to some extent. I am very grateful for the support of the Chief Justice in this project as well as other FSD Judges and members of the FSD Users Committee. I would also like to thank my Personal Assistant for her work in typing the Guide and her patience in trying to educate me in Information Technology. Additional thanks are due to the Court Administrator for his recent help in arranging the much improved formatting of this edition of the Guide. Of course, as is made clear in the Guide itself, it is still very much a work in progress and there remain obvious gaps and omissions some of which I hope will be filled in future editions. Any errors in the present edition are mine alone, for which I apologise. The Hon. Justice Angus Foster Chambers, Kirk House George Town August 2015 2 | P a g e TABLE OF CONTENTS SECTION A 5-15 A1 – Definitions A2 – The Procedural Framework A3 – The Definition of Financial Services Proceedings A4 – The Overriding Objective A5 – The FSD Users Committee A6 – Commencement of Financial Services Proceedings A7 – Assignment of Proceedings to a FSD Judge A8 – Procedure for Listing Hearings SECTION B 16-44 B1 – Interlocutory Applications in FSD Proceedings 16-25 B1.1 – Applications ―On the Papers‖ B1.2 – Ex Parte Interlocutory Applications B1.3 – Ordinary Interlocutory Applications B1.4 – Lengthy Interlocutory Applications 19-20 B1.5 – Applications to be disposed of by consent B1.6 – Bundles B1.7 – Reading Time B1.8 – Hearing Dates, Time Estimates and Limits B1.9 – Chronologies and Dramatis Personae B1.10 – Forms of Interlocutory Injunction Order B1.11 – Applications to Discharge or Vary Freezing Injunctions B2 – Hearings by Telephone or Video Link 26-36 - Video Conferencing Guide - 32-36 B3 – Case Management and Summonses for Directions 37-38 B4 – Standard Pre-trial Directions 39-40 3 | P a g e B5 – Expert Evidence 41-45 B5.1 – Application for leave to call an expert witness B5.2 – Provisions of general application 41-42 B5.3 – Form and Content of Expert’s Reports B5.4 – Statement of truth B5.5 – Exchange of reports B5.6 – Meetings of expert witnesses B5.7 – Documents referred to in expert’s reports SECTION C – COMPANIES 46-67 C1 – Capital Reductions C2 – Schemes of Arrangement C3 – Restoration of Companies to the Register C4 – Winding Up of Companies – General Provisions C5 – Creditors Petitions 49-50 C5.1 – Presentation of the petition and fixing the hearing date C5.2 – Verifying affidavit and supporting affidavits C5.3 – Advertisement and provision of documents to creditors C5.4 – Withdrawal of petition C5.5 – Company’s response to petition C5.6 – Appearance by opposing and/or supporting creditors C5.7 – Substitution of petitioner C6 – Contributories Petitions C7 – Monetary Authority Petitions C8 – Application for Appointment of Provisional Liquidators 53-54 C9 – Applications by Voluntary Liquidators for Supervision Orders C10 – Sanctions Applications 56-57 C11 – Applications for Payment of Court Fees to be Deferred C12 – Applications for Multiple Proceedings to be treated as ―Consolidated‖ for the Purpose of assessing Court Fees Appendix – Draft Forms 60-67 4 | P a g e SECTION D – TRUSTS AND ESTATES 68-96 D1 – Introduction D2 – Parties D3 – Proceeding without a Hearing D4 – Applications for Directions 71-72 D5 – Administration Actions – GCR O.85 D6 – Applications under Section 63 of the Trusts Law D7 - Applications under Section 72 of the Trusts Law D8 – Pre-emptive Costs Orders D9 – Representation Orders D10 – Applications for Guardians Ad Litem (GCR O80, r.3) 78-79 Appendix – Draft Forms 80-96 SECTION E – ARBITRATION 97-102 E1 – Arbitration Proceedings E2 – Issuing Arbitration Applications E3 – Challenging an Award E4 – Enforcement of Awards E5 – Transitional Provisions SCHEDULES (see also www.judicial.ky) 102-112 S1 – GCR Order 72 – Financial Services Proceedings 103-108 S2 – GCR Order 73 – Arbitration Proceedings 109-111 S3 – Other Potentially Relevant Practice Directions 5 | P a g e SECTION A A1. DEFINITIONS In this Guide: ―arbitration proceeding" means any proceeding before the FSD concerning an arbitration or an award, whether a domestic arbitration or award subject to the Arbitration Law 2012 [―the 2012 Law] or a foreign arbitration or award subject to the 2012 Law and the Foreign Arbitral Awards Enforcement Law 1975 (1997 Revision) [―the 1975 Law‖]; ―award‖ means an arbitral award whether a domestic or a foreign arbitral award ―assigned Judge" means the FSD Judge assigned to the particular proceedings or matter; ―business days‖ do not include Saturdays, Sundays or Cayman Islands public holidays; ―CMC‖ means Case Management Conference; "CWR" means the Companies Winding Up Rules as revised from time to time; "the FSD" means the Financial Services Division; ―FSD Judge‖ means a Grand Court Judge who sits in the FSD and to whom Financial Services proceedings are assigned, sometimes referred to in the GCR as a ―Commercial Judge‖; "GCR" means the Grand Court Rules as they may be revised from time to time; "Guide" means the current edition of this FSD Guide; "mutual fund" has the meaning ascribed to it in Section 2 of the Mutual Funds Law (2013 Revision); "overriding objective" means the overriding objective set out in the preamble to the GCR; "PD" means Practice Direction; "professional services provider" has the meaning ascribed to it in Section 89 of the Companies Law (2013 Revision). "Registrar" means the Registrar of the FSD from time to time; "regulatory laws" has the meaning ascribed to it in Section 2 of the Monetary Authority Law (2013 Revision); "Users Committee" means the FSD Users Committee. 6 | P a g e A2. THE PROCEDURAL FRAMEWORK Proceedings in the FSD are governed by the GCR and relevant PDs. GCR 0.72 (Financial Services Proceedings) and GCR 0.73 (Arbitration Proceedings), are set out in full in Schedules 1 and 2 to the Guide and relevant PDs are set out in full or listed in Schedules 3 and 4. The Guide is published with the approval of the Chief Justice in consultation with the FSD Judges and with the advice and support of the Users Committee. It will be revised from time to time. The Guide does not constrain in any way how FSD Judges might exercise their discretion under the relevant rules and PDs in the management or conduct of any particular proceeding or matter in accordance with the overriding objective. The Guide is intended to provide guidance on and assist in the effective management and conduct of proceedings in the FSD and, within the framework of the GCR and PDs, to establish, over time, the practice which will usually be followed in the FSD. Whether or not specific provision is made in the Guide for any particular matter, the parties and their legal representatives will be expected to act at all times reasonably, co-operatively, fairly and appropriately and in accordance with the spirit of the overriding objective and of the Guide generally. Without prejudice to this generality, it applies particularly to all dealings (including correspondence and all other forms of communication and contact) between legal representatives as well as with the Court. The Guide is clearly not comprehensive; it is intended to be revised, added to and updated from time to time. All suggestions for amendments or additions to the Guide are encouraged. 7 | P a g e A3. THE DEFINITION OF FINANCIAL SERVICES PROCEEDINGS GCR 0.72, r.1 (2) provides that: ―"financial services proceeding" means: (a) any proceeding relating to a mutual fund, including an action by or against its directors (in the case of a corporate fund), its trustee (in the case of a unit trust), its general partner (in the case of a limited partnership), its investment manager or adviser, its administrator, its prime broker or its auditor; (b) any proceeding relating to an exempted insurer, including an action by or against its directors, insurance manager or auditor; any action for breach of a contract of insurance (including an application for a declaration) where the amount of claim exceeds $1 million; (d) any application (including an appeal by a licensee) made to the Court under any of the regulatory laws; (e) any administration action or application under the Trusts Law (to which Order 85 applies) except those relating to the estates of deceased person who died domiciled in the Islands and the net asset value of the estate is (f) any action against a trustee or protector of a trust or the executor or administrator of an estate for breach of trust or breach of fiduciary duty, except those actions relating to a trust or estate whose net asset value is (g) any application made to the Court under the Companies Law (to which Order 102 applies), including any application made in a winding up proceeding (to which the Companies Winding Up Rules 2009 apply); (h) any application for an order for the dissolution of a partnership which carries on business as a mutual fund, including any application made in the dissolution proceeding; (i) any action for breach of contract or breach of duty by or against a professional service provider, except for actions relating to the nonpayment or overpayment of fees where the amount claimed is less than $250,000; (j) any application for an order for evidence pursuant to a letter of request to which Order 70 applies, including any related application for directions to which Order 103 applies; (k) any application to which the Grand Court (Bankruptcy) Rules 1977 or the 8 | P a g e Foreign Bankruptcy Proceedings (International Co-Operation) Rules 2008 apply; (l) any action for the enforcement of a foreign judgment, whether at common law or pursuant to the Foreign Judgments Reciprocal Enforcement Law; (m) any action for the enforcement of a foreign arbitral award pursuant to the Foreign Arbitral Awards Enforcement Law; (n) any application made to the Court pursuant to the Arbitration Law 2012. 9 | P a g e A4. THE OVERRIDING OBJECTIVE The Preamble to the GCR sets out the overriding objective and its application by the Court as follows: -

The Overriding objective 1.1 The overriding objective of these Rules is to enable the Court to deal with every cause or matter in a just, expeditious and economical way. 1.2 Dealing with a cause or matter justly includes, as far as practicable - (a) ensuring that the substantive law is rendered effective and that it is carried out; (b) ensuring that the normal advancement of the proceeding is facilitated rather than delayed; (c) saving expense; (d) dealing with the cause or matter in ways which are proportionate - (i) to the amount of money involved; (ii) to the importance of the case; and (iii) to the complexity of the issues; (e) allotting to it an appropriate share of the Court's resources, while taking into account the need to allot resources to other proceedings. .Application by the Court of the overriding objective 2.1 The Court must seek to give effect to the overriding objective when it (a) applies, or exercises any discretion given to it by these Rules; or (b) interprets the meaning of any Rule. 2.2 These Rules shall be liberally construed to give effect to the overriding objective and, in particular, to secure the just, most expeditious and least expensive determination of every cause or matter on its merits.

Duty of the parties The parties are obliged to help the Court to further the overriding objective. In applying the Rules to give effect to the overriding objective the Court may take into account a party's failure to help in this respect. 10 | P a g e

Court's duty to manage proceedings 4.1 The Court must further the overriding objective by actively managing proceedings. 4.2 This may include- (a) identifying the issues at an early stage; (b) deciding promptly which issues need full investigation and trial and accordingly disposing summarily of the others; (c) encouraging the parties to co-operate with each other in the conduct of the proceedings; (d) helping the parties to settle the whole or part of the proceeding; (e) deciding the order in which issues are to be resolved; (f) fixing the timetable or otherwise controlling the progress of the proceeding; (g) considering whether the likely benefits of taking a particular step will justify the cost of taking it; (h) dealing with as many aspects of the proceeding as is practicable on the same occasion; (i) dealing with the proceeding without the parties needing to attend at Court; (j) conducting procedural hearings by means of telephone conference calls; (k) making appropriate use of technology; and (l) giving directions to ensure that the trial proceeds quickly and efficiently. 4.3 Whenever a proceeding comes before the Court, whether on a summons for directions or otherwise, the Court will consider making orders on its own motion for the purpose of giving effect to the overriding objectives of the rules. 11 | P a g e A5. THE FSD USERS COMMITTEE The FSD‘s ability to meet the special problems and continually changing needs of financial and commercial business, both domestic and international, depends to a large extent upon a steady flow of information and constructive suggestions between the FSD, the representatives of potential litigants and professional advisers and practitioners. The FSD Users Committee is intended to assist in this process. All concerned with the FSD are encouraged to make the fullest use of this important channel of communication. Correspondence raising matters for the consideration of the Committee should be addressed in the first instance to the Personal Assistant to the Chairman of the Committee at the time or to any FSD Judge. There are a number of professional associations whose members or clients business is or may be of a type which, on occasion, may be directly or indirectly the subject of proceedings in the FSD. The participation of some of such associations in the FSD Users Committee at times is important in helping to ensure that the FSD remains responsive to both local and international business needs. These professional associations and other interested bodies who are represented on the FSD Users Committee include: ALTERNATIVE INVESTMENT MANAGEMENT ASSOCIATION CAYMAN (AIMA) ATTORNEY GENERAL'S CHAMBERS/LEGAL DEPARTMENT BANKERS ASSOCIATION CAYMAN FINANCE CAYMANIAN BAR ASSOCIATION (CBA) CISPA INSOLVENCY PRACTITIONERS SUB-COMMITTEE COMPANY MANAGERS ASSOCIATION (CICMA) DIRECTORS ASSOCIATION FUND ADMINISTRATORS ASSOCIATION (CIFAA) INSURANCE MANAGERS OF CAYMAN (IMAC) LAW SOCIETY MONETARY AUTHORITY (CIMA) RESTRUCTURING AND INSOLVENCY SPECIALISTS ASSOCIATION (RISA) SOCIETY OF PROFESSIONAL ACCOUNTANTS (CISPA) SOCIETY OF TRUST S & ESTATES PRACTITIONERS (STEP) 12 | P a g e A6. COMMENCEMENT OF FINANCIAL SERVICES PROCEEDINGS GCR 0.72, r.2 provides as follows: (1) Every financial services proceeding shall be commenced in the (2) Every financial services proceeding shall be commenced by writ, originating summons, originating motion or petition in accordance with Order 5 and entered into the Register of Writs and other Originating Process in accordance with Order 63, rule 8. (3) The title of every proceeding commenced in or transferred to the Financial Services Division shall include the words In the Grand Court of the Cayman Islands, Financial Services Division. (4) In addition to establishing and maintaining a Court file in accordance with Order 63, rule 2, the Registrar shall create and maintain a computerised record for each financial services proceeding which shall comprise the following documents and/or produce reports comprising the following information:- (a) a chronological index of all the pleadings, affidavits and orders; (b) a copy of each pleading, affidavit (without exhibits) and order; a copy of each skeleton argument (without copy authorities); and (d) a schedule containing details of – (i) the fixed Court fee paid; (ii) the date and length of each hearing; (iii) the Court fees paid (if any); and (iv) the identity of the party or parties by whom the fixed fee and any Court hearing fees have been paid. (5) The computerised record (created and maintained in accordance with paragraph (4) above) shall enable the Registrar to produce reports in each proceeding which is commenced in or transferred to the Financial Services Division containing the following information — (i) The date on which the proceeding was commenced or transferred to the Financial Services Division; (ii) The title of the proceeding; 13 | P a g e (iii) The name of the FSD Judge to which it has been assigned; (iv) Particulars of the parties' attorneys and any foreign lawyers; (v) The date and a brief description of each hearing; (vi) The date and estimate length of future hearings; (vii) Particulars of the date and manner in which the proceeding was concluded. The Registrar, acting in consultation with the Chief Justice, shall assign every financial services proceeding to one of the FSD Judges and the cause number assigned to it in accordance with Order 5, rule 1(4)(a) shall include the Judge's initials. The trial of every financial services proceeding shall be heard by the FSD Judge assigned to it. Every interlocutory application made in a financial services proceeding (including every application made in a winding up proceeding) shall be heard or determined by the Commercial(sic)[FSD] Judge assigned to it, except that another FSD Judge may hear or determine an urgent application if the Judge assigned to the proceeding is not available. 14 | P a g e A7. ASSIGNMENT OF PROCEEDINGS TO A FSD JUDGE PD No. 6/2015 provides: Assignment of proceedings to a Judge of the FSD. 2.1 It is the responsibility of the Registrar, acting in conjunction with the Chief Justice, to assign every financial services proceeding, as defined in 0.72, r.1(2), to a named Judge of the FSD at the time the proceeding is commenced. 2.2 It is the responsibility of the petitioner/plaintiff’s attorney to provide the Registrar with any and all information which appears to him to be relevant in determining which Judge should be assigned to the matter. For example — (a) If the plaintiff’s attorney considers that it would be appropriate for two or more related matters to be assigned to the same Judge, this fact should be drawn to the attention of the Registrar in a letter delivered with the originating process; or (b) If the plaintiff’s attorney considers that it would be inappropriate for a matter to be assigned to a particular Judge, for whatever reason, this fact should be drawn to the attention of the Registrar in a letter delivered with the originating process. 2.3 As soon as a Judge has been assigned, the Registrar will — (a) notify the parties' attorneys; and (b) deliver the Court file to the assigned Judge. 2.4 Attorneys can expect to be notified about the name of the assigned Judge on the next business day following the day on which the originating process is filed at the FSD Registry. 2.5 The docket of the financial services proceedings assigned to each Judge of the FSD will be updated by the Judge's secretary and circulated weekly to the Chief Justice, the Registrar and the Listing Officer. 2.6 Attorneys are reminded that GCR 0.5, r.1(7) requires that the initials of the assigned Judge be included in the title of the proceeding as part of the cause number. It follows that the assigned Judge's initials must be included as part of the cause number as it appears in all pleadings, affidavits and orders. 15 | P a g e A8. PROCEDURE FOR LISTING HEARINGS A8.1 All communications with the Listing Officer should be — (a) by hand delivery for the attention of the Listing Officer at the FSD Registry, 3rd Floor, Kirk House; or (b) by e-mail (c) by telephone (345) 244-3841 A8.2 PD No. 6/2015 also provides in relation to listing as follows: Procedure for listing hearings. 3.1 Ms. Yasmin Ebanks will continue to serve as listing officer of the FSD but effective immediately she will make listings in consultation with the Registrar of the FSD. 3.2 All communications with the FSD Registry should be – (a) by hand delivery at the FSD Registry, 3rd Floor, Kirk House; or (b) by e-mail addressed to the Registrar 3.3. The expression "hearing" includes summonses for directions, case management conferences (which may take the form of video or telephone conference calls), interlocutory applications and trials. 3.4 No matter can be listed for hearing unless and until the proceeding has been assigned to a Judge of the FSD who has had an opportunity to review the Court file. 3.5 PD 1/2000 (Listing Forms) does not apply to the FSD. 3.6 Notwithstanding that a primary objective of the FSD is to ensure the availability of Judges, the Listing Officer is not authorized to fix any hearing date without the prior approval of the assigned Judge. If the assigned Judge is not already familiar with the issues or cannot readily ascertain the issues relevant to the proposed hearing by reviewing the Court file, the parties may be required to produce an agreed case memorandum in accordance with 0.72, r.4(3). 3.7 In the case of trials or other potentially lengthy hearings, the assigned Judge will normally fix the hearing date at the hearing of a summons for directions or at a CMC in which all the parties' attorneys (and their leading counsel, if any) will be required to participate. 3.8 The Registrar will publish a monthly list (on the 1st of each month) of hearings scheduled in the FSD for the ensuing month. 16 | P a g e SECTION B B1. INTERLOCUTORY APPLICATIONS IN FSD PROCEEDINGS B1.1 APPLICATIONS ―ON THE PAPERS‖ B1.1(a)Although contested applications are usually best determined at an oral hearing, some applications may, in the discretion of the Judge, be suitable for determination on the papers without the need for an oral hearing. B1.1(b)If the applicant considers that the application may be suitable for determination on the papers, he should ensure before filing the papers that: (i) the application, together with any supporting evidence, has been served on the defendant/respondent (if any); (ii) the defendant/respondent (if any) has been allowed the appropriate period of time in which to serve evidence in opposition; (iii) any evidence in reply has been served on the defendant/respondent (if any); and (iv) there is included in the papers the written consent of the defendant/respondent (if any) to the disposal of the application on the papers without an oral hearing. B1.1(c) An application to be disposed of on the papers will not require a summons. There should however be a supporting letter from the applicant‘s attorney. B1.1(d) Only in the most exceptional cases will the Court dispose of an application on the papers in the absence of the consent of the defendant/respondent (if any) to the Court doing so. If an application is or is likely to be opposed the Court will usually require an oral hearing, in which case the applicant should file and serve a summons in the usual way B1.1(e) The Applicant must submit a draft proposed order with the papers. The draft proposed order must expressly state that the Judge considers the application to be suitable to be disposed of on the papers without the need for an oral hearing. B1.1(f) Any application for an interim injunction or similar remedy will normally require an oral hearing. 17 | P a g e B1. .2 EX PARTE INTERLOCUTORY APPLICATIONS B1.2(a) All applications should be made on notice to the other party/parties (if any), even if that notice has for good reason to be short, unless (i) any Rule or PD provides that the application may be made without notice; or (ii) there are good reasons for making the application without notice, for example, because giving notice would or might defeat the object of the B1.2(b) Where an ex parte application without notice does not involve the giving of undertakings to the Court, it may in the discretion of the Judge be dealt with on the papers [see para. B1.1 above - Applications ―On the Papers‖]. B1.2(c) A party wishing to make an ex parte application without notice which requires an oral hearing should contact the Listing Officer at the earliest opportunity. B1.2(d) On all ex parte applications with or without notice it is the duty of the applicant and those representing him to make full and frank disclosure to the Court of all matters relevant to the application, whether favourable or unfavourable to the applicant. B1.2(e) The papers submitted for an ex parte interlocutory application must include a draft of the proposed order together with an estimate by counsel for the applicant of the reading time likely to be required by the Court. If the application is considered by the applicant to be urgent, the Listing Officer should be informed of that and of the reasons for the urgency. The Listing Officer will usually consult the assigned Judge on whether the matter is to be treated as urgent. 18 | P a g e B1.3. ORDINARY INTERLOCUTORY APPLICATIONS B1.3(a) Inter partes interlocutory applications requiring an oral hearing which will not take more than three hours will be treated as "ordinary" applications. B1.3(b) Subject to any further or other directions of the Court, the timetable for ordinary applications shall be as follows: a) (i) all evidence in support must be filed and served with the application; (ii) all evidence in answer (if any) must be filed and served within 14 days thereafter; (iii) all evidence in reply (if any) must be filed and served within 7 days thereafter. b) This timetable may be abridged or extended by agreement between the parties or by the Court, save that no evidence may be filed or served less than 3 business days before the hearing date without the express prior leave of the Court. Such leave will only be granted in exceptional circumstances. If a party wishes to file and serve evidence less than 3 business days before the hearing date the Court may direct that the matter is to be taken out of the list and re-listed for hearing on an appropriate future date. In that event the Court may, if it sees fit, make any consequential cost order(s), including any wasted costs order(s). B1.3(c) The hearing bundle(s) and any authorities bundle(s) must be delivered to the Personal Assistant to the assigned Judge by noon no later than 3 business days before the hearing date. B1.3(d) Except in very short and straightforward cases, skeleton arguments must be provided by all participating parties. These must be delivered to the Personal Assistant to the assigned Judge at the same time as the hearing bundle(s). B1.3(e) The applicant must provide to all other parties to the application a copy of the hearing bundle(s) together with any authorities bundle(s) at the cost of the receiving party by not later than the time when such bundles are required to be delivered to the Personal Assistant to the assigned Judge. B1.3(f) Any problems with the delivery of the bundles or skeleton arguments in accordance with this timetable or otherwise should be notified to the Personal Assistant to the assigned Judge as far in advance of the hearing date as possible. If the required bundle(s) or skeleton argument(s) or authorities bundle(s) are not delivered by the time specified above, the application may be removed from the list without further warning and the Court may, if it sees fit, make any consequential cost order(s), including any wasted costs order(s). 19 | P a g e B1.4 LENGTHY INTERLOCUTORY APPLICATIONS B1.4(a) Inter partes interlocutory applications requiring an oral hearing which will last more than three hours will be treated as "lengthy" applications. B1.4(b) Lengthy applications usually involve a greater volume of evidence and other documents and more extensive and complex issues. They accordingly require a longer lead time for exchange of evidence and preparation and for reading by the Court. B1.4(c) Subject to any further or other directions by the Court, the timetable for lengthy applications shall be as follows: a) (i) all evidence in support must be filed and served with the application; (ii) all evidence in answer (if any) must be filed and served within 21 days thereafter; (iii) all evidence in reply (if any) must be filed and served within 14 days thereafter. b) This timetable may be abridged or extended by agreement between the parties or by the Court, save that no evidence may be filed or served less than 5 business days before the hearing date without the express prior leave of the Court. Such leave will only be granted in exceptional circumstances. If a party wishes to file and serve evidence less than 5 business days before the hearing date the Court may direct that the matter is to be taken out of the list and re-listed for hearing on an appropriate future date. In that event the Court may, if it sees fit, make any consequential cost order(s), including any wasted costs order(s). B1.4(d) The hearing bundle(s) and agreed authorities bundle(s) must be delivered to the Personal Assistant to the assigned Judge by noon no later than 5 business days before the hearing date together with a reading list and an estimate of the reading time likely to be required by the Judge as agreed between the attorneys who will appear on the application. B1.4(e) Skeleton arguments must be provided by all participating parties. These must be delivered to the Personal Assistant to the assigned Judge at the same time as the hearing and authorities bundle(s), together with an agreed chronology and dramatis personae, unless one or other or both are clearly unnecessary. B1.4(f) The applicant must provide all other parties to the application with a copy of the hearing bundle(s), together with the authorities bundle(s), at the cost of the receiving party no later than the time when such bundles are required to be delivered to the personal assistant to the assigned Judge. 20 | P a g e B1.4(g) Any problems with the delivery of bundles or skeleton arguments should be notified to the Personal Assistant to the assigned Judge as far in advance of the hearing date as possible. If the required bundle or skeleton arguments or agreed authorities are not delivered or provided by the time specified, the application may be removed from the list without further warning and the Court may, if it sees fit, make any consequential costs order(s), including any wasted costs order(s). 21 | P a g e B1.5 APPLICATIONS TO BE DISPOSED OF BY CONSENT B1.5(a) Consent orders must be submitted to the assigned Judge for approval and signature. Subject to any direction otherwise by the assigned Judge there is no need for attendance by or on behalf of the parties. B1.5(b) Where an order provides a time by which something is to be done the order should, wherever possible, state the specific date and time by which the thing is to be done, rather than specify a period of time from a particular date or event. B 1 . 6 B U N D L E S B1.6(a) In inter partes applications the contents of the hearing bundle(s) must be agreed. It is not acceptable for parties to produce or deliver hearing bundle(s) of their own unless there is some clear need to do so and the Court agrees. Usually only agreed hearing bundle(s) will be accepted and it should be made clear on the front of each bundle that it is an agreed bundle and by which attorneys it is agreed. If parties cannot agree whether a particular document should be included in an agreed hearing bundle, the disputed document must nonetheless be included in the bundle but clearly annotated as not being agreed for inclusion, and parties may argue about its inclusion, if necessary, at the hearing of the application concerned. The same applies to authorities bundle(s). Only agreed authorities bundle(s) should be produced and delivered and each party's authorities must be included in the authorities bundle(s). B1.6(b) Where a large volume of documents are to be included in the hearing bundles an agreed core bundle should be produced and delivered consisting only of the most essential documents or relevant extracts for the assistance of the Court. B1.6(c) Hearing bundle(s) must be clearly paginated. All copies of documents and authorities must be clearly legible. 22 | P a g e B 1 . 7 R E A DI N G T I M E B1.7(a) It is essential for the efficient conduct of the business of the FSD that the parties inform the Court of their realistic assessment of the specific reading and time required in advance of the hearing by the assigned Judge in order to enable him or her to prepare for the hearing and to dispose of the application within the time allowed. Accordingly: (i) In the case of all applications, if any party's attorney considers that the time required for reading by the assigned Judge in advance of the hearing is likely to exceed one hour, each party must deliver to the Personal Assistant to the assigned Judge, in the case of lengthy applications, not later than noon at least 5 business days and in the case of ordinary applications not later than noon at least 3 business days before the date of the hearing of the application, in each case a reading list with an estimate of the time likely to be required by the assigned Judge to read all the items on the reading list; (ii) The reading list should identify the essential material which each participating party considers that the assigned Judge needs to read in order to prepare for the hearing. (iii) The parties must use their best endeavours to provide an agreed reading list, but if they cannot agree each party should provide its own list, indicating those items for reading over which they differ. Failure to comply with any of these requirements may result in the adjournment of the hearing or its removal from the list and the Court may, if it sees fit, make any consequential costs order(s), including any wasted costs order(s). 23 | P a g e B1.8 HEARING DATES, TIME ESTIMATES AND LIMITS B1.8 (a) The efficient working of the FSD depends on a realistic estimate of the time needed for the hearing of an application, including a considered estimate of the assigned Judge's necessary pre-hearing reading. The Court also depends and will insist upon compliance with the timetables for filing, serving and delivering documents. B1.8(b) All applicants, other than in an application on the papers, must provide an agreed estimate of the time required to dispose of the application. If the parties cannot agree on such an estimate the applicant must inform both the Listing Officer and the Personal Assistant to the assigned Judge immediately and provide them with each party‘s respective estimate and their explanations for them. B1.8(c) If at any time any party considers that there is a material risk that the hearing of the application will exceed the agreed estimated time, it must inform both the Listing Officer and the Personal Assistant to the assigned Judge immediately. B1.8(d) Where more than one application is to be heard at the same time, a separate agreed estimate of the time required to dispose of each application must be given. B1.8(f) If the time required for the hearing has been significantly under-estimated, the Judge hearing the application may adjourn the matter for continued hearing on a future date and may make any costs orders (including orders for the immediate payment of costs and/or wasted costs order(s)), as he or she may see fit. B1.9 CHRONOLOGIES AND DRAMATIS PERSONAE B1.9 (a) For most lengthy applications, it is of assistance to the Judge for the applicant to provide a chronology, cross-referenced to the documents. A dramatis personae may also be helpful. 24 | P a g e B1.10 FORMS OF INTERLOCUTORY INJUNCTION ORDER B1.10(a) The GCR provide for standard forms of wording for interim injunction orders prohibiting the disposal and/or requiring the disclosure of assets. These are set out for convenience in Schedule 5 of the Guide. These forms should be followed unless the Judge hearing the application orders otherwise. B1.10(b) A phrase indicating that an interim remedy is to remain in force until judgment or further order means that it remains in force until the delivery of a final judgment or other relevant order in the meantime. B1.10(c) It is good practice to draft an order for an interim remedy so that it includes a proviso which permits acts to be done which would otherwise be a breach of the order with the written consent of the attorney(s) of the other party or parties. This enables the parties to agree to variations of the order without the necessity of returning to the Court. B1.10(d) If an injunction order provides for a return date then, unless the order otherwise provides, the parties may agree that the return date shall be postponed to a later date on which all parties will be ready to deal with any substantive issues. In that event, an agreed form of order continuing the injunction to the postponed return date should be submitted for consideration by the Judge and if the order is made in the terms submitted there will be no need for the parties to attend on the day originally fixed as the return date. In such a case any interested party will continue to have liberty to apply to vary or discharge the order. 25 | P a g e B1.11. APPLICATIONS TO DISCHARGE OR VARY FREEZING INJUNCTIONS B1.11(a) Applications to discharge or vary freezing injunctions will usually be treated as matters of urgency for listing purposes. The attorneys of any party applying for discharge or variation of the injunction should ascertain before a date is fixed for the hearing whether, having regard to the evidence which they wish to adduce, the applicant for the injunction would wish to adduce further evidence in opposition to the application for discharge or variation. If so, all reasonable steps must be taken by all parties to agree the earliest practicable date at which they can be ready for the hearing, so as to avoid the last minute need to vacate a fixed date. In cases of difficulty the matter should be referred to the assigned Judge to consider directions or orders providing for temporary relief pending the hearing. B1.11(b) If a freezing injunction is discharged on an application to discharge or vary or on a return date, the Judge will consider whether it is appropriate that he should assess damages (if any) at once and direct immediate payment by the applicant. Where the Judge considers that the assessment of any damages should be postponed to a future date he will give such directions as may be appropriate, including, if necessary, with regard to disclosure of documents, exchange of affidavit evidence and/or experts reports. 26 | P a g e B2. HEARINGS BY TELEPHONE OR VIDEO LINK B2.1 When the assigned Judge is physically overseas it may be appropriate to make an application which cannot reasonably await the Judge‘s return and which is not suitable to be heard ―on the papers‖, by telephone or by video link B2.2 Hearings by Telephone: B2.2(a) The overriding objective specifically provides that the required active management of proceedings by the Court includes inter alia conducting procedural hearings by telephone [see the overriding objective para 4.2 (j)]. B2.2(b) PD No, 1/2010, which relates to hearings by telephone and by video link, provides at para.10: Judges of the FSD may conduct CMCs and, in appropriate cases, hear summonses for directions and interlocutory applications by means of telephone or video conferences when they are off the Island and, pursuant to para 10.2 and paras 9.4 and 9.5, where a hearing takes place by way of a telephone conference call, the etiquette requires that all participating attorneys must be on line before the appointed time, so that the Judge will be the last person to join the conference, whereupon he will ask all the participants to identify themselves. Telephone hearings may not be tape recorded without the consent of the Judge. If the Judge permits or directs that the hearing be tape recorded, he will direct that a written transcript be prepared, sent to the Judge and circulated amongst the parties. Whenever a hearing is not tape recorded, the note taken or approved by the Judge will constitute the official record. B2.2(c) PD2/2012 also relates to interlocutory hearings (whether by telephone or by video link) by a Judge who is physically overseas but see para B2.4 of the Guide below for the usual practice nowadays. 27 | P a g e B2.3 Hearings (and taking evidence) by Video Link B2.3(a) When the assigned Judge is physically overseas it may be more appropriate and desirable for a proposed application to be heard by video link rather than by telephone. This will depend upon various circumstances such as the nature of the proceeding and the application, the location of those involved, including the assigned Judge, the proposed advocates and, if relevant, the proposed witness(es) and the availability to them of suitable video link facilities. B2.3(b) PD No. 2/2004 was issued prior to the establishment of the FSD and the development of hearings by video link which has taken place since. However, it remains in force. It also covers the taking of evidence by video link, which may, of course, be in hearings or trials within the Islands. It provides as follows: 1. Introduction 1.1 This practice direction applies to all applications seeking the sanction of the Court for the use of video conferencing (VCF), 1.2 The purpose of this practice direction is to explain and clarify certain procedures and arrangements necessary in this relatively new method of taking evidence in trials or in other parts of any legal proceedings, for example, interim case management conferences and pre-trial reviews. Further guidance is given in the Video Conferencing Guide appended to this practice direction. 1.3 VCF equipment may be used both (a) in a Courtroom, whether via equipment which is permanently placed there or via a mobile unit, and (b) in a separate studio or conference room. In either case, the location at which the Judge sits is referred to as the "local site". The other site or sites to and from which transmission is made are referred to as "the remote sit‖ and in any particular case any such site may be another Courtroom. Preliminary arrangements 2.1 The Court's permission is required for any part of the proceedings to be dealt with by means of VCF. Before seeking a direction, the applicant should notify the listing officer or other appropriate Court officer of the intention to seek it, and should enquire as to the availability of Court VCF equipment for the day or days of the proposed VCF. 28 | P a g e 2.2 The application for a direction should be made to any of the Judges of the Grand Court. If all parties consent to a direction, permission can be sought by letter, fax or e-mail, although the Court may still require an oral hearing. All parties are entitled to be heard on whether or not such a direction should be given and as to its terms. If a witness at a remote site is to give evidence by an interpreter, consideration should be given at this stage as to whether the interpreter should be at the local site or the remote site. 2.3 If a VCF direction is given, arrangements for the transmission will then need to be made. The Court will ordinarily direct that the party seeking permission to use VCF is to be responsible for this. That party is hereafter - in civil cases -referred to as "the VCF arranging party". 2.4 The VCF arranging party must contact the listing officer or other appropriate officer of the Court and make arrangements for the VCF transmission. Details of the remote site, and of the equipment to be used both at the local site (if not being supplied by the Court) and the remote site (including the number of ISDN lines and connection speed), together with all necessary contact names and telephone numbers, will have to be provided to the listing officer or other Court officer. The Court will need to be satisfied that any equipment provided by the parties for use at the local site and that at the remote site is of sufficient quality for a satisfactory transmission. Costs 3.1 Subject to any order to the contrary, all costs of the transmission, including the costs of hiring equipment and technical personnel to operate it, will initially be the responsibility of, and must be met by, the VCF arranging party. All reasonable efforts should be made to keep the transmission to a minimum and so keep the costs down. All such costs will be considered to be part of the costs of the proceedings and the Court will determine at such subsequent time as is convenient or appropriate who, as between the parties, should be responsible for them and (if appropriate) in what proportions. 29 | P a g e Recording 4.1 The VCF arranging party must arrange for the recording equipment to be provided by the Court so that the evidence may be recorded at the local site. 4.2 Application for a direction from the Court must be made for the provision of recording equipment at the remote site by the arranging party. 4.3 No other recording may be made of any proceedings via VCF, save as directed by the Court. B2.3(c) PD no 2/2012 was issued in March 2012 since when the usual practice in the FSD has also developed (see paragraph B2.4 of this Guide). As a result, apart from paragraphs (vii) and (viii) of the PD, the procedure set out in PD No 2/2012 is generally now only adopted in relation to hearings by video link rather than in relation to hearings by telephone. 30 | P a g e B2.4 Usual FSD Practice regarding hearings by telephone or video link or taking evidence by video link. B2.4(a) Ideally an application for a proposed application to be heard by telephone or by video link should be made to the assigned Judge before he or she goes overseas so that all the relevant considerations can be fully ventilated at an oral hearing in chambers. However, if that is not feasible in the circumstances, the request for a proposed application to be heard by telephone or by video link when the assigned Judge is already overseas will in practice usually be addressed in the first instance to the assigned Judge‘s PA, who will be in direct contact with the Judge and can most easily and quickly transmit the request direct to the Judge. The request should be supported by a letter from the applicant‘s attorney explaining in detail why the request is being made, whether the proposed application will be supported or opposed by any other party, why it is not possible or desirable to await the Judge‘s return, how much supporting documentation in the form of evidence, authorities etc. is involved and how long the hearing is likely to take. It is entirely a matter for the discretion of the assigned Judge whether to hear the application at all while off the Island and, if so, whether by telephone or by video link. All communications with the Judge must be made through the Judge‘s PA; no direct communication with the Judge is permitted. If the Judge agrees to hear the application by telephone or video link the applicant‘s attorney must liaise with the Judge‘s PA who will be responsible for all practical arrangements. B2.4(b) In determining whether or not to hear a proposed application by telephone or video link the assigned Judge will usually consider whether the proposed application is sufficiently urgent and important to justify the time, inconvenience and cost of it being heard by telephone or video link. The Judge will also take into account how long the hearing is likely to take and how long it will be before he or she would be able to hear the application on Island. B2.4(c) The assigned Judge will usually only agree to hear an application by telephone if it is relatively straightforward, not highly contested and will not last more than a maximum 2 hours unless there are special circumstances. 31 | P a g e B2.4(d) An application for a witness to be allowed to give evidence by video link, whether in a hearing when the Judge is overseas or in a hearing or trial when the Judge is not overseas, will usually only be granted in very exceptional circumstances. Unless the proposed evidence of the witness is purely formal and will not involve any significant cross-examination, the Court will be very reluctant to grant such an application. Amongst other things, there will be concerns as to the Judge‘s ability to satisfactorily assess the witness‘s demeanor, objectivity and reliability over a video link and the ability to ensure that no one else is present unseen with the witness who may be able to prompt the witness. Such concerns will be exacerbated if the witness requires an interpreter. The strong preference of the Court is to see and hear the evidence of a witness in person. B2.4 (e) The current video conferencing guide is set out on the next page. 32 | P a g e VIDEO CONFERENCING GUIDE This guidance is for the use of video conferencing (VCF) in civil proceedings. It is in part based upon the protocol of the Federal Court of Australia and CPR 32 Practice Direction of the Courts of England and Wales. It is intended to provide a guide to all persons involved in the use of VCF, although it does not attempt to cover all the practical questions which might arise. VIDEO CONFERENCING GENERALLY VCF may be a convenient way of dealing with any part of proceedings: it can involve considerable savings in time and cost. Its use for the taking of evidence from overseas witnesses will, in particular, be likely to achieve a material saving of costs, It is, however, inevitably not as ideal as having the witness physically present in Court. Its convenience should not therefore be allowed to dictate its use. A judgment must be made in every case in which the use of VCF is being considered not only as to whether it will achieve an overall cost saving but as to whether its use will be likely to be beneficial to the efficient, fair and economic disposal of the litigation, In particular, it needs to be recognized that the degree of control a Court can exercise over a witness at the remote site is or may be more limited than it can exercise over a witness physically before it.

When used for the taking of evidence, the objective should be to make the VCF session as close as possible to the usual practice in a trial Court where evidence is taken in open Court. To gain the maximum benefit, several differences have to be taken into account. Some matters, which are taken for granted when evidence is taken in the conventional way, take on a different dimension when it is taken by VCF: for example, the administration of the oath, ensuring that the witness understands who is at the local site and what their various roles are, the raising of any objections to the evidence and the use of documents. It should not be presumed that all foreign governments are willing to allow their nationals or others within their jurisdiction to be examined before a Court by means of VCF. If there is any doubt about this, enquiries should be directed to the Foreign and Commonwealth Office (International Legal Matters Unit, Consular Division) with a view to ensuring that the country from which the 33 | P a g e evidence is to be taken raises no objection to it at diplomatic level. The party who is directed to be responsible for arranging the VCF (see paragraph 8 below) will be required to make all necessary inquiries about this well in advance of the VCF and must be able to inform the Court what those inquiries were and of their outcome. Time zone differences need to be considered when a witness abroad is to be examined in the Cayman Islands by VCF. The convenience of the witness, the parties, their representatives and the Court must all be taken into account. The cost of the use of a commercial studio is usually greater outside normal business hours. Those involved with VCF need to be aware that, even with the most advanced systems currently available, there are the briefest of delays between the receipt of the picture and that of the accompanying sound. If due allowance is not made for this, there will be a tendency to "speak over" the witness, whose voice will continue to be heard for a millisecond or so after he or she appears on the screen to have finished speaking. With current technology, picture quality is good, but not as good as a television picture. The quality of the picture is enhanced if those appearing on VCF monitors keep their movements to a minimum. PRELIMINARY ARRANGEMENTS The VCF arranging party must ensure that an appropriate person will be present at the local site to supervise the operation of the VCF throughout the transmission in order to deal with any technical problems. It is recommended that the Judge, practitioners and witness should arrive at their respective VCF sites about 20 minutes prior to the scheduled commencement of the transmission. If the local site is not a Courtroom, but a conference room or studio, the Judge will need to determine who is to sit where. The VCF arranging party must take care to ensure that the number of microphones is adequate for the speakers and that the panning of the camera for the practitioners' table encompasses all legal representatives so that the viewer can see everyone seated there. The proceedings, wherever they may take place, form part of a trial to which the public is entitled to have access (unless the Court has determined that they should be heard in private). If the 34 | P a g e local site is to be a studio or conference room, the VCF arranging party must ensure that it provides sufficient accommodation to enable a reasonable number of members of the public to attend. In cases where the local site is a studio or conference room, the VCF arranging party should make arrangements, if practicable, for the Royal Coat of Arms to be placed above the Judge's seat. In cases in which the VCF is to be used for the taking of evidence, the VCF arranging party must arrange for recording equipment to be provided by the Court which made the VCF direction so that the evidence can be recorded. An associate will normally be present to operate the recording equipment when the local site is a Courtroom. The VCF arranging party should take steps to ensure that an associate is present to do likewise when it is a studio or conference room. The equipment should be set up and tested before the VCF transmission. It will often be a valuable safeguard for the VCF arranging party also to arrange for the provision of recording equipment at the remote site. This will provide a useful back-up if there is any reduction in sound quality during the transmission, A direction from the Court for the making of such a back-up recording must, however, be obtained first. This is because the proceedings are Court proceedings and, save as directed by the Court, no other recording of them must be made. The Court will direct what is to happen to the back-up recording. Some countries may require that any oath or affirmation to be taken by a witness accord with local custom rather than the usual form of oath or affirmation used in the Cayman Islands. The VCF arranging party must make all appropriate prior inquiries and put in place all arrangements necessary to enable the oath or affirmation to be taken in accordance with any local custom. That party must be in a position to inform the Court what those inquiries were, what their outcome was and what arrangements have been made. If the oath or affirmation can be administered in the manner normal in the Cayman Islands, the VCF arranging party must arrange in advance to have the appropriate holy book at the remote site. The associate will normally deliver the oath. Consideration will need to be given in advance to the documents to which the witness is likely to be referred. The parties should endeavour to agree on this. It will usually be most 35 | P a g e convenient for a bundle of the copy documents to be prepared in advance, which the VCF arranging party should then send to the remote site.

Additional documents are sometimes quite properly introduced during the course of a witness's evidence. To cater for this, the VCF arranging party should ensure that equipment is available to enable documents to be transmitted between sites during the course of the VCF transmission, Consideration should be given to whether to us a document camera. If it is decided to use one, arrangements for its use will need to be established in advance. The panel operator will need to know the number and size of documents or objects if their images are to be sent by document camera. In many cases, a simpler and sufficient alternative will be to ensure that there are fax transmission and reception facilities at the participating sites. THE HEARING The procedure for conducting the transmission will be determined by the Judge. He will determine who is to control the cameras. In cases where the VCF is being used for an application in the course of the proceedings, the Judge will ordinarily not enter the local site until both sites are on line. Similarly, at the conclusion of the hearing, he will ordinarily leave the local site while both sites are still on line. The following paragraphs apply primarily to cases where the VCF is being used for the taking of the evidence of a witness at a remote site. In all cases, the Judge will need to decide whether Court dress is appropriate when using VCF facilities. It might be appropriate when transmitting from Courtroom to Courtroom. It might not be when a commercial facility is being used. At the beginning of the transmission, the Judge will probably wish to introduce himself and the advocates to the witness. He or she will probably want to know who is at the remote site and will invite the witness to introduce himself and anyone else who is with him. The Judge may wish to give directions as to the seating arrangements at the remote site so that those present are visible at the local site during the taking of the evidence. The Judge will probably wish to explain to the witness the methods of taking the oath or of affirming, the manner in which the evidence will be taken, and who will be conducting the examination and cross-examination. The Judge will probably also 36 | P a g e wish to inform the witness of the matters referred to in paragraphs 5 and 6 above (co-ordination of picture with sound, and picture quality). The examination of the witness at the remote site should follow as closely as possible the practice adopted when a witness is in the Courtroom. During examination, cross-examination and re-examination, the witness must be able to see the legal representative asking the question, and also any other person (whether another legal representative or the Judge) making any statements in regard to the witness's evidence. It will in practice be most convenient if everyone remains seated throughout the transmission. 37 | P a g e B3. CASE MANAGEMENT AND SUMMONSES FOR DIRECTIONS B3.1 The overriding objective expressly requires the Court to further the objectives by actively managing proceedings [see overriding objective paragraph 4]. The assignment of every FSD proceeding to an FSD Judge is in part intended to facilitate this in the FSD. B3.2 GCR 0. 72, r.4 provides as follows: Order 25 shall apply to proceedings pending in the Financial Services Division subject to the following modifications. The Registrar shall issue an initial summons for directions in Form No. 71 in every financial services proceeding within 3 months of the date on which it was commenced or transferred to the Financial Services Division unless in the meantime:- (a) the cause or matter has been finally determined; (b) the Registrar has received notice that the cause or matter has been discontinued or settled; the Court has already made an order for directions; or (d) one or other of the parties has taken out a summons for directions. In order that the Court may be informed of the general nature of the case and the issues which are expected to arise, the attorneys for each party shall prepare and file an agreed case memorandum (within such period as the Registrar shall direct) which should contain — (a) a short and uncontroversial description of what the case is about; (b) a list of issues, including both issues of fact and law, to the extent that it is practical to do so having regard to the state of the pleadings; and a procedural history The attorneys for the plaintiff shall be responsible for filing the agreed case memorandum. The Registrar may at any time issue a notice in GCR Form No.72 requiring that the parties' attorneys and their foreign lawyers (if any) attend before the Judge for the purposes of a case management conference. 38 | P a g e If the party has instructed or intends to instruct a foreign lawyer to appear at the trial or any interlocutory hearing the Registrar shall be so informed and such foreign lawyer may be required to appear on any summons for direction or case management conference. If one or more of the parties have instructed a foreign lawyer, the Registrar may require that the hearing of any summons for directions or any case management conference be conducted via a video link, in which case the parties shall provide suitable conference room facilities for the use of the Judge. B3.3 Consistent with the requirement to actively manage cases, the FSD in practice adopts a flexible and pro-active approach to the apparent intent of GCR O.72, r.4. If nothing has happened in a proceeding within a relatively short period after the assigned FSD Judge has received the Court file (which is intended to be immediately upon assignment of the matter to him), the Judge will usually arrange for his or her PA to enquire of the attorney(ies) concerned as to the position and their proposals regarding the proceeding. Depending on the outcome of that enquiry the Judge may either require the relevant party to issue a summons for directions or call for a case management conference and, in either case, may then give appropriate directions for the progress of the proceeding. In the unusual situation that a party does not issue a summons for directions or a case management conference is not held within a relatively short time of the commencement of the case, the assigned Judge may arrange for a summons for directions to be issued by the Court under the name of the Registrar. B3.4 At or before the initial hearing of the first summons for directions or case management conference, the assigned Judge may, depending on the nature of the proceeding and the circumstances, require an agreed case memorandum to be produced. Alternatively an agreed case memorandum may be directed by the Judge at a later stage, for example prior to and for the purposes of a hearing in or trial of the proceeding concerned. B3.5 PD No. 1/2010 provides inter alia: 9.1 Without prejudice to the requirements of 0.72, r.4(2), the assigned Judge may convene a CMC whenever he thinks fit. [9.2 - 9.5 omitted] ……………………………………………………………………… 9.6 Hearing dates may be fixed by the assigned Judge during the course of a CMC and, in appropriate cases, CMCs may be convened for the principal purpose of fixing the date for the trial or further hearings. [See paragraph B2. of the Guide for the practice and procedure regarding holding CMCs by telephone or by video link when the assigned Judge is overseas] 39 | P a g e B4 STANDARD PRE-TRIAL DIRECTIONS B4.1 Pre-trial directions in any FSD proceeding will, of course, be made by the assigned Judge in his or her discretion having regard to the particular circumstances of the case. Subject to that the following standard pre-trial timetable may be adopted as may be relevant to the particular proceeding: (1) Discovery is to be made by [*], with inspection [*] days thereafter. (2) Witness statements, and hearsay notices where required, are to be exchanged not later than [*]. (3) Unless otherwise ordered, a witness statement is to stand as the evidence in chief of the witness at trial. (4) Signed reports of experts: are to be confined to one [* two] expert[s] for each party from each of the following fields of expertise: [*]; (i) are to be confined to the following issues: [*]; (ii) are to be exchanged [sequentially/simultaneously]; (iii) are to be exchanged not later than [date or dates for each report in each field of expertise]. (5) Meeting of experts: (i) The meeting of experts is to be by [*]; (ii) The joint memorandum of the experts is to be completed by [*]; (iii) Any short supplemental expert reports are to be exchanged [sequentially/simultaneously] by not later than [*] date or dates for each report in each field of expertise]. (6) Either: [If the experts' reports cannot be agreed, the parties are to be at liberty to call expert witnesses at the trial, limited to those experts whose reports have been exchanged pursuant to 4. above.] Or: [The parties are to be at liberty to apply to call as expert witnesses at the trial those experts whose reports they have exchanged pursuant to 4. above, such application to be made not earlier than [*] and not later than [*].] (7) Preparation of trial bundles to be completed in accordance with the FSD Guide by not later than [*]. (8) The estimated length of the trial is [*] days. This includes [*] day[s] pre-trial reading time. (9) If not already agreed, within [*] days the parties are to attend on the Listing Officer to fix the date for trial which shall not be before [*]. 40 | P a g e (10) There is to be a pre-trial review not earlier than [*] and not later than [*], at which all counsel, including any foreign lawyer, who it is intended shall appear as an advocate at the trial, shall attend. (11) Save as varied by this order or further order, the practice and procedures set out in the Guide are to be followed. (12) Costs in the Cause. (13) Liberty to apply. B4.2 Particular note should be taken of the direction at para (10) of the Standard Pre-trial Directions above requiring all counsel who it is intended should appear as advocates at the trial, including any foreign lawyer, to attend the pre-trial review. In appropriate circumstances and with the leave of the Judge such attendance by a foreign lawyer may be by video link. B4.3 The overriding objective places considerable emphasis on the need for the Court to ensure, inter alia, that a cause or matter proceeds and is determined on its merits in the most expeditious way, that it is not delayed and that a trial proceeds quickly and efficiently. The parties legal representatives are expected to co-operate with each other and with the Court in achieving these objectives. The FSD will give these obligations particular regard in giving directions concerning timetables and setting hearing and trial dates. It will not allow hearing or trial dates to be unduly delayed, for example merely to suit the availability of individual overseas lawyers. It is ultimately for the Court to set a hearing or trial date having regard to all the circumstances and the requirements of the overriding objective. 41 | P a g e B5 EXPERT EVIDENCE B5.1 Application for leave to call an expert witness B5.1(a) Any application for leave to call an expert witness or to serve an expert's report should be made at a case management conference or on a summons for directions. The party applying for such leave will normally be expected to identify to which issue or issues in the proceedings the proposed expert evidence relates. The Court may limit the length of an expert report. B5.1(b) Parties should bear in mind that expert evidence may lead to unnecessary expense and they should be prepared to consider the use of single joint experts in appropriate cases. In cases where the use of single joint experts is not appropriate each party will generally be given leave to call one expert in each different field requiring expert evidence. These are referred to in the Guide as "separate experts". B5.1(c) When the use of a single joint expert is contemplated, the Court will expect the parties to co-operate in developing and agreeing to the greatest possible extent terms of reference for that expert. In most cases the terms of reference will be expected to identify in detail what the expert is asked to do, identify any documentary materials he is asked to consider and specify any assumptions he is asked to make. B5.2 Provisions of general application in relation to expert evidence B5.2(a) The provisions set out below apply to all aspects of expert evidence (including expert reports, meetings of experts and expert evidence given orally) unless the Court orders otherwise. Parties should ensure that they are drawn to the attention of any experts who they instruct at the earliest opportunity. B5.2(b) General Requirements: (i) It is the duty of an expert to help the Court on the matters within his expertise. This duty is paramount and overrides any obligation to the party from whom the expert has received instructions or by whom he is paid. (ii) Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced by the pressures of litigation or any party. (iii) An expert witness should provide Independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise. An expert witness should never assume the role of an advocate or seek to promote his client‘s case. 42 | P a g e (iv) An expert witness should not omit to consider material facts which could detract from his concluding opinion. (v) An expert witness should make it clear when a particular question or issue falls outside his area of expertise. (vi) If an expert's opinion is not properly researched because he considers that insufficient data is available, this must be stated in his report with a clear indication that his opinion is no more than a provisional one. (vii) In a case where an expert witness who has prepared a report is unable to confirm that the report contains the truth, the whole truth and nothing but the truth without some qualification, that qualification must be clearly stated in the report. (viii) If, after the exchange of reports, an expert witness changes his view on a material matter having read another expert's report or for any other reason, such changes of view should be communicated in writing (through the party's attorneys) to the other side without delay, and, when appropriate, to 43 | P a g e B5.3 Form and Content of Expert's Reports B5.3(a) Expert's reports must comply with the following requirements: (i) In stating the substance of all material instructions on the basis of which his report is written an expert witness should state the facts or assumptions upon which his opinion is based. (ii) The expert must make it clear which, if any, of the facts stated are within his own direct knowledge and which are not. (iii) If a stated assumption is, in the opinion of the expert witness, unreasonable or unlikely he should state that clearly. (iv)The expert's report must be limited to matters relevant to the issue or issues in the list of issues to which the relevant expert evidence relates and for which leave to call such expert evidence has been given by the Court. B5.3(b) It is helpful if an expert‘s report contains a glossary of significant technical terms. B5.3(c) Where the evidence of an expert is to be relied upon for the purpose of establishing primary facts, as well as for the purpose of relying on his expertise to express an opinion on any relevant matter, that part of his evidence which is to be relied upon to establish the primary facts is to be treated as factual evidence and must be incorporated into a factual witness statement to be exchanged in accordance with the directions for the exchange of factual witness statements. The purpose of this requirement is to avoid postponement of disclosure of any of a party's factual evidence until service of expert reports. B5.4 Statement of truth An expert's report must contain (a) a statement of truth and (b) a statement that the expert has read and complied with the General Requirements in the Guide. B5.5 Exchange of reports In appropriate cases the Court may direct that experts' reports be exchanged sequentially rather than simultaneously. The sequential exchange of expert reports may in some cases save time and costs by helping to focus the contents of responsive reports upon true rather than assumed issues of expert evidence and by avoiding repetition of detailed factual material as to which there is no real issue. Sequential exchange is likely to be particularly effective where experts are giving evidence of foreign law or are forensic accountants. This is an issue that the Court will normally wish to consider at a case management conference. 44 | P a g e B5.6 Meetings of expert witnesses B5.6(a) The Court will normally direct a meeting or meetings of expert witnesses before trial. In appropriate cases it may also be helpful for there to be further meetings during the trial itself. The purposes of a meeting of experts are to give the experts the opportunity (i) to discuss the expert issues (ii) to decide, with the benefit of that discussion, which expert issues they share or can come to share the same expert opinion and on which expert issues there remains a difference of expert opinion between them (and what that difference is). B5.6(b) Neither the parties nor their legal representatives should seek to restrict the freedom of experts to identify and acknowledge the expert issues on which they agree at, or following further consideration after, meetings of experts. B5.6(c) Subject to the above, the content of the discussion between the experts at or in connection with a meeting is without prejudice and shall not be referred to at the trial unless the parties so agree. B5.6(d) Subject to any directions of the Court, the procedure to be adopted at a meeting of experts is a matter for the experts themselves, not of the parties or their B5.6(e) Unless the Court orders otherwise, at or following any meeting the experts should prepare a joint memorandum for the Court recording: (i) the fact that they have met, when and where and that they discussed the expert issues; (ii) the issues on which they agree; (iii) the issues on which they disagree; and (iv) a brief summary of the reasons for any such disagreement. B5.6(f) If experts reach agreement on an issue that agreement shall not bind the parties unless they expressly agree to be bound by it. 45 | P a g e B5.7 Documents referred to in expert’s reports B5.7(a) Unless they have already been provided on inspection of documents listed on discovery, copies of any photographs, plans, analyses, measurements, survey reports or other documents relied on by an expert witness as well as copies of any unpublished sources must be provided to all parties at the same time as the report. B5.7(b) It may be of assistance for an expert's report to list all or some of the relevant previous papers (published or unpublished)or articles or books written or contributed to by the expert. However inspection of such material may be impractical, and the cost disproportionate. B5.7 (c) A party wishing to inspect a document in an expert report should (failing agreement) make an application to the Court. The Court will not permit inspection unless it is satisfied that it is necessary for the just disposal of the case and that the document is not anyway reasonably available to the party making the application from an alternative source. 46 | P a g e SECTION C - COMPANIES C1. CAPITAL REDUCTIONS C1.1 Requirements under PD 1/2010, paragraph 4 When presenting a petition for an order confirming a resolution for reducing the share capital of a company (under s.15 of the Companies Law) the petitioner's attorney is required (pursuant to 0.102, r.5) to issue a summons for directions at the same time as presenting the petition. If upon reading the petition, affidavit and written submissions, the assigned Judge is satisfied that settling a list of creditors should be dispensed with under s.15(3) or that the reduction is not an exceptional case where settlement of a list of creditors is required under s.15(2), and the materials filed do not disclose any other reason for the assigned Judge to require additional evidence or submissions, then he may make an order for directions without the need for a hearing. C1.2 Supporting affidavit At the stage of the hearing or consideration of the summons for directions the Court will require to be satisfied on the evidence (1) that the Company had the power under its articles of association to reduce its capital; (2) that sufficient appropriate information about the proposed capital reduction was provided to the shareholders to enable them to make an informed decision; (3) that the shareholders have been and will be treated equitably; (4) that a valid resolution approving the proposed reduction of capital has been passed and (5) that the company's actual and contingent creditors will be adequately protected. C1.3 Hearing of the petition The Court will usually require notice of the petition and its hearing date to be advertised in a place or places where such notice is most likely to come to the attention of creditors. The Court will only dispense with such advertisement in exceptional circumstances. Relevant draft forms of order are appended to this Section B (see Index to Appendix B below). 47 | P a g e C2. SCHEMES OF ARRANGEMENT These are comprehensively dealt with by PD 2/2010. The question of ―looking through the Register‖ is the subject of debate but currently the provisions of paragraph 4 of PD 2/2010 remain in force. C3. RESTORATION OF COMPANIES TO THE REGISTER C3.1 Applications for orders that struck-off companies be restored to the register are governed by GCR 0.102, rr.17 and 18 and paragraph 6 of Practice Direction No.1/2010. C3.2 Restoration applications are normally made by solvent companies for the purpose of regaining assets which have been vested in the Financial Secretary by operation of law pursuant to section 162 of the Companies Law. Such applications are governed by GCR 0.102, r.17. The application is by an originating application in GCR Form No.66, supported by an affidavit which addresses all the matters specified in rule 17(2). The application must be accompanied by a draft order in GRC Form No.67. C3.3 The application will usually be determined by the Registrar on the papers. If the Registrar is not satisfied that an order can properly be made, he or she will normally either require the applicant to file further evidence or assign the matter to a FSD Judge, who will probably require an oral hearing, in which case the Registrar or the Judge‘s PA will send notice of the hearing to the applicant by e-mail. C3.4 Restoration applications may also be made by creditors in respect of insolvent companies. Unless the Court can be satisfied that an insolvent company will have a registered office and a board of directors who can be expected to deal with its affairs in a proper manner, it may not be willing to make a restoration order without at the same time putting the company into compulsory liquidation and appointing official liquidators. For this reason, in such circumstances such applications may be treated as a preliminary step towards the making of a winding up order. C3.5 A creditor's petition will therefore often seek both an order that the company be restored to the register and an order that it be wound up. Such a petition is made in GCR Form No.68 and CWR Order 3 applies, except that the petition is served on the last known registered office and on the Registrar of Companies. The petition must nominate a qualified insolvency practitioner whom the Court can appoint as official liquidator and he must swear a supporting affidavit complying with the requirements of CWR Q.3, r.4. The petition will need to be advertised and the hearing will take place before a Judge of the FSD in open Court. 48 | P a g e C4. WINDING UP OF COMPANIES — GENERAL PROVISIONS C4.1 Form and content of winding up petitions See CWR 0.3, r.2 and CWR Form no.2. The petition should contain only a concise statement of the facts relied upon. The evidence should be set out in the verifying affidavit which must be filed at the same time as the petition. C4.2 Nomination of qualified insolvency practitioner Every petition must state the name and address of the qualified insolvency practitioner (and any foreign practitioner) whom the petitioner nominates for appointment as official liquidator. A failure to comply with this requirement will result in the fixing of a hearing date being deferred unless and until the petition is appropriately amended. The supporting affidavits required to be sworn by the nominated insolvency practitioners (CWR 0.3, r.4) must be filed at the same time as the petition. C4.3 Hearings in open Court By presenting a winding up petition the creditor/contributory is invoking class rights and every other member of the class is entitled to be heard. For this reason the notice of the hearing will require to be advertised unless all those in the class can be given notice in some other way. Depending on the likely whereabouts of the members of the class, the Court may require such advertisement to be in a newspaper or newspapers overseas. It also follows that the hearing of winding up petitions will always take place in open Court. C4.4 Form and content of winding up orders C4.4(a) See CWR 0.3, r.16 and CWR Form No.6 . C4.4(b) The exercise by an official liquidator any of the powers set out in Part I of the Third Schedule to the Companies Law require the sanction of the Court. The Court will require to be satisfied that the exercise of any such power should be sanctioned in the particular circumstances. It will not usually sanction the exercise of all such powers when making the winding up order. C4.5 Filing, service and registration of winding up orders Winding up orders are orders in rem, binding on all persons whether or not they had notice of the proceeding. CWR 0.3, r.17 requires that all winding up orders must be drawn up, filed, served, gazetted, and registered with the Registrar of Companies and any other relevant authorities within strict time limits. Any failure to comply strictly with these time limits is likely to have serious adverse consequences for the official liquidator. 49 | P a g e C5. CREDITORS PETITIONS C5.1 Presentation of the petition and fixing the hearing date See CWR O.3, r.5. The petitioning creditor's attorney should consult with the Registrar before filing a creditor's petition in order to fix a hearing date, which must be endorsed on the petition itself or specified in a separate notice of hearing. The hearing date will normally be not less than four (4) weeks and not more than six (6) weeks the after the date upon which the petition is filed. C5.2 Verifying affidavit and supporting affidavits The form and content of these affidavits must comply with the requirements of CWR O.3, rr.3 and 4. The verifying affidavit (sworn by or on behalf of the petitioning creditor) and the supporting affidavits (sworn by the nominated insolvency practitioners) must be filed at the same time as the petition. Any failure to file these affidavits will prevent the Registrar from fixing a hearing date and will be regarded as an abuse of the process. C5.3 Advertisement and provision of documents to creditors C5.3(a) See CWR O.3, r.6 and CWR Form No.3 C5.3(b) Unless the Court otherwise directs, every creditor's petition is required to be advertised and the advertisement must be published with the prescribed time limits. Any application for an order dispensing with the need to advertise or for directions relating to the manner of advertising must be made by summons issued at the same time as filing the petition. Any such summons will normally be heard within 48 hours. C5.3(c) In most cases the hearing will need to be advertised locally and in the foreign country or countries in which the company is carrying on business, in which case the advertisement may need to be translated into a foreign language. C5.4 Withdrawal of petition Because a winding up petition invokes class rights, it may not be withdrawn without the leave of the Court. If a petition has not been advertised and no notice of intention to appear has been received from any other creditor, the Court may allow it to be withdrawn by consent but there may be an issue as to liability for costs. If the petition has been advertised, any application for leave to withdraw the petition must be heard at the advertised hearing and is likely to be refused if any other creditor applies to be substituted. See CWR O.3, rr.7 and 10. 50 | P a g e C5.5 Company's response to the petition CWR 0.3, r.9 requires that if the company intends to oppose the petition, its affidavits in opposition must be filed and served on the petitioner within 14 days from the date upon which the petition was served. C5.6 Appearance by opposing and/or supporting creditors For case management reasons, creditors wishing to appear on the petition must give at least three days‘ notice (in CWR Form No.4) of their intention to do so. Creditors who support the making of a winding up order, but oppose the appointment of the petitioner's nominee as official liquidator, must nominate an alternative qualified insolvency practitioner who is willing to act. The alternative candidate must swear a supporting affidavit complying with the requirement of CWR 0.3, r.4, otherwise the Court will not hear the application. C5.7 Substitution of petitioner If the petitioning creditor is not entitled to a winding up order or fails to pursue his petition in one or other of the ways specified in CWR O.3, r.10, the Court may make an order that another creditor be substituted as petitioner. An order for substitution may be made on summons prior to the advertised hearing or at the advertised hearing. In either case, the party applying for substitution must prepare a draft amended petition and swear an affidavit which establishes his right to a winding up order. In an appropriate case the Court will make a winding up order at the advertised hearing upon the amended petition of the substituted creditor. 51 | P a g e C6. CONTRIBUTORIES PETITIONS C6.1 Presentation of petition and summons for directions When presenting a contributory's petition on the just and equitable ground, the petitioner must file the petition, a verifying affidavit(s), the supporting affidavit sworn by the qualified insolvency practitioner nominated for appointment as official liquidator and a summons for directions in CWR Form No.5. The Registrar will assign the matter to a Judge and fix a date for hearing the summons for directions. A date for hearing the petition will be fixed by the Judge as part of the order for directions. C6.2 Characterisation of the proceeding At the hearing of the summons for directions the Judge will consider all the matters set out in CWR 0.3, r.11. In particular, the Judge must always determine whether the proceeding should be treated as (a) a proceeding against the company, in which case it will be treated as the respondent or (b) an inter partes proceeding between one shareholder(s) as petitioner and another shareholder(s) as respondent. The way in which the proceeding is characterized determines the manner of its future conduct. C6.3 Directions — proceeding against the company If the company is treated as the respondent to the petition, it follows that the Judge must always consider how the petition will be drawn to the attention of the shareholders (other than the petitioner) who are entitled to be heard. The Court may direct that the other shareholders be served and/or that the petition be advertised. In the case of a mutual fund, the Court will normally direct that its administrator send copies of the petition and affidavits to the registered shareholders by whatever method of communication is normally used in the ordinary course of business. The Court will fix a date for hearing the petition and set a timetable for the exchange of affidavit evidence. C6.4 Directions — inter partes proceeding between shareholders If the company is treated as the subject-matter of the petition (as it will be in any case in which the petitioner alleges that its management is deadlocked, for example), the opposing shareholders will be treated as the respondents and the Court will direct that they be individually served. In these circumstances, it will not be appropriate for the petition to be advertised. The Court will give directions for trial and will consider directing service of pleadings, exchange of affidavit evidence and attendance for cross-examination. Any application for a pre-emptive costs order should be made at the summons for directions. C6.5 Application for validation order Any application by the company for a validation order should normally be made at the summons for directions or as soon as possible thereafter. 52 | P a g e C7. MONETARY AUTHORITY PETITIONS C7.1 Presentation of petition and summons for directions When presenting a petition on regulatory grounds, the Monetary Authority must file with its petition, a verifying affidavit sworn by an appropriate officer (to which any controller's report must be exhibited), a supporting affidavit sworn by the qualified insolvency practitioner nominated for appointment as official liquidator and a summons for directions. The Registrar will fix a date for hearing the summons for directions as a matter of urgency, bearing in mind that the Monetary Authority has an obligation under CWR 0.3, r.13 to ensure that the petition, summons and affidavits are served by delivering them to the company's registered office immediately after they are filed. C7.2 Hearing of summons for directions Petitions presented by the Monetary Authority on regulatory grounds are always characterized as proceedings against the company, but the Court may direct that the petition be served personally on directors, professional service providers and/or shareholders. If, at the hearing of the summons for directions, the Court is satisfied that the company consents or does not object to a winding up order being made, the Court will make an order summarily under CWR 0.3, r.14(2)(a). In any other case, the Judge will fix a hearing date and give directions for trial. 53 | P a g e C8. APPLICATION FOR APPOINTMENT OF PROVISIONAL LIQUIDATORS C8.1 Application by creditor or contributory C8.1(a) Summons and supporting affidavits An application for the appointment of a provisional liquidator may be made by a petitioning creditor or contributory on the grounds that there is a prima fade case for making a winding up order and the immediate appointment of a liquidator is necessary in order prevent the dissipation or misuse of the company's assets or to prevent oppression of minority shareholders or to prevent mismanagement or misconduct on the part of the directors. It will not be necessary to make a provisional appointment if it appears to the Court that the same result can be achieved by the grant of an injunction. Any such application must be made by summons which may, and usually should, be issued at the same time as the presentation of the petition. C8.1(b) S e r v i c e Under CWR O.4, r.1(2) the company is entitled to a least four (4) clear days‘ notice of any application to appoint provisional liquidators unless there is some exceptional circumstance which justifies an order being made without notice. Evidence that the directors are likely to dissipate the company's assets or oppress minority shareholders or otherwise mismanage the company's affairs may justify the grant of an ex parte interlocutory injunction but it cannot, by itself, justify making an ex parte provisional winding up order. C8.1(c) Applicant's undertaking in damages The Court will not make a provisional winding up order without requiring the petitioner/applicant to give an undertaking that he will pay (a) any damage suffered by the company as a result of the appointment and (b) the remuneration and expenses of the provisional liquidator, in the event that his petition is ultimately withdrawn or dismissed. CWR O.4, r.3 requires such an undertaking to be given in every case, but the jurisdiction to require security is a discretionary one. C8.1(d)Form and content of order See CWR O.4, r.4 and CWR Form No.7. A provisional liquidator's powers must be specified in the order. The Court will not make generalized orders to the effect that the provisional liquidator be empowered to exercise all the powers of the directors. 54 | P a g e C8.2 Application by the company C8.2(a)Ex Parte Summons When a company is in financial difficulty, it may itself present a winding up petition and apply for the appointment of provisional liquidators under section 104(3) of the Companies Law on the basis that they will promote a restructuring of its affairs through the mechanism of a scheme of arrangement with its creditors. Such applications are made by ex parte summons issued simultaneously with the winding up petition. C8.2(b) Directors' affidavit and other evidence The matters required to be addressed by the company's directors in their supporting affidavit are set out in CWR 0.4, r.6(3). The Court will expect to see a detailed analysis of the company's business, the reasons why it got into financial difficulty and reasons why its directors believe that its affairs are capable of being restructured such that it can continue as a going concern. In addition to an affidavit sworn by the company's CEO or the chairman of its board of directors, the Court will normally expect to see a report prepared by the company's auditors and/or independent financial advisers. The company's auditor cannot be appointed as liquidator, but a qualified insolvency practitioner may be nominated for appointment as provisional liquidator notwithstanding that he has been retained by the company to give advice in connection with the application. C8.2(c) Form and content of the order See CWR 0.4, r.7. The purpose and effect of a provisional winding up order made under section 104(3) is to give the company the benefit of the automatic stay for a limited period during which the provisional liquidators will investigate its affairs and advise whether or not it is capable of continuing as a going concern. The order will define the powers of the provisional liquidators and the powers (or limitations upon the powers) of the directors to manage the company's business. The Court will give directions regarding the establishment of a liquidation committee; the preparation of reports by the provisional liquidators and the publication of those reports to the creditors and shareholders. 55 | P a g e C9. APPLICATIONS BY VOLUNTARY LIQUIDATORS FOR SUPERVISION ORDERS C9.1 Voluntary liquidations must be solvent The general principle is that the liquidation of a company can proceed as a voluntary winding up only if, and so long as, the company is solvent. If the company is insolvent or of doubtful solvency, the liquidation must be brought under the supervision of the Court and the voluntary liquidator will not be permitted to continue in office as official liquidator unless he is a qualified insolvency practitioner who meets the residency, independence and insurance requirements of the Insolvency Practitioner's Regulations. A company in voluntary liquidation is deemed to be insolvent unless a declaration of solvency, signed by all of its directors, is filed with the Registrar of Companies within 28 days of the commencement of the liquidation. C9.2 Voluntary liquidator's application for supervision order If the directors fail, for whatever reason, to sign a declaration of solvency within the 28 days‘ time limit, the voluntary liquidator is required (by section 124 of the Companies Law) to apply for a supervision order. The application is made by petition which must contain the particulars specified in CWR 0.15, r.2. The verifying affidavit must be sworn by the voluntary liquidator personally. If the voluntary liquidator is a qualified insolvency practitioner who is ready, willing and properly able to accept appointment as official liquidator, the petition does not need to be served and the assigned Judge will usually make a supervision order (in CWR Form No.23) without the need for a hearing. C9.3 Application for supervision order under section 131 Notwithstanding that a company's directors have all signed a declaration of solvency, it is still open to the voluntary liquidator or any creditor or contributory to make an application for a supervision order for cause under section 131 of the Companies Law. The application is made by petition in accordance with CWR 0.15, r,3. The petition must be verified by affidavit. At the same time as presenting the petition, the petitioner must take out a summons for directions which will be listed for hearing by the assigned Judge Unless the Judge is satisfied that the company's members consent or do not object to a supervision order being made (in which case it will usually be made summarily) he will give directions for trial. The order for directions will deal with service, advertisement and the manner in which the issues will be defined and the manner in which the evidence will be given. The trial of the petition will take place in open Court. 56 | P a g e C10. SANCTION APPLICATIONS C10.1 General A "sanction application" is (a) an application by an official liquidator for an order of the Court sanctioning the exercise or proposed exercise of any of his powers or (b) an application by a creditor or contributory for an order directing an official liquidator to exercise or refrain from exercising his powers in a particular way. All sanction applications are made by summons in the liquidation proceeding. The procedure is governed by CWR 0.11. C10.2 Sanction applications made by official liquidators C10.2(a) CWR 0.11, r.2(1) requires that every sanction application made by the official liquidator must be served on the liquidation committee (either by serving the committee's general counsel or by serving each member individually). Typically, liquidation committees agree to act on the basis that all documentation, including liquidator's summonses, will be delivered as attachments to e-mails. If there is no liquidation committee, the Judge will give directions as to service on creditors/contributories and, if necessary, the assigned Judge may give directions about advertisement. The official liquidator will normally need to swear an affidavit specifically in support of a sanction application, but this may not be necessary if all the relevant evidence is contained in a report or affidavits already on the Court file. Whether or not it is necessary for the liquidator's counsel to prepare a written skeleton argument will depend upon the nature and complexity of the matters in issue but the Court will usually expect a skeleton argument to be provided. C10.2(b) Fixing the hearing of a liquidator's sanction application The Registrar will refer the application to the assigned Judge before any steps are taken towards fixing a hearing date. If, having read the summons, written submissions and the supporting affidavits/reports, the Judge is satisfied that the application has been duly served and is supported by the liquidation committee, he may make an order in terms of the summons on the papers without an oral hearing. If the Judge is not prepared to make an order on the papers, a date agreed by the Judge will be fixed for an oral hearing which will usually take place in chambers. Liquidators‘ counsel should not attempt to fix dates for hearing sanction applications without first filing all the supporting evidence, and the Judge having had a reasonable opportunity to review them. 57 | P a g e C10.3 Sanction applications made by creditors or contributories A sanction application may be made by the liquidation committee (acting collectively through counsel appoint pursuant to CWR 0.9, r.5) or by an individual creditor or contributory acting personally. Such applications are normally only made as a 4result of some difference or disagreement with the official liquidator. The application is made by summons which must be supported by an affidavit containing full particulars of the grounds upon which it is made. The application must be served on the official liquidator who has an obligation under 0.11, r.4(2)(b) to respond to the application by swearing an affidavit or making a report in which he states whether he supports the application, opposes it or takes a neutral position. The Registrar will fix a hearing date in every case. Sanction applications made by liquidation committees or individual creditors or contributories will not be determined on the papers without a hearing. 58 | P a g e C11. APPLICATIONS FOR PAYMENT OF COURT FEES TO BE DEFERRED C11.1 PD No. 1/2010 provides: 7.1 An application by an official liquidator or officeholder for a direction, pursuant to Rule 6(4) of the Court Fees Rules 2009 (as amended), that payment of Court fees be deferred must be made to the assigned Judge. 7.2 Such applications should be made by letter addressed to the assigned Judge (with a copy to the Registrar) and signed by the officeholder personally. 7.3 The application will be determined by the assigned Judge and his decision will be communicated to the applicant and the Registrar by the Judge's secretary [Personal Assistant]. 7.4 In the event that the application is refused, the officeholder shall have the right to ask the Judge to reconsider his decision, for which purpose the applicant may ask the Judge's secretary [Personal Assistant] to fix an appointment for him to appear before the Judge in person. 7.5 The purpose of Rule 6(4) is to ensure that an officeholder who is required or entitled to make an application to the Court in the performance of a legal duty in circumstances where the Court fees will be payable out of a fund under his control, should not be deterred from performing his duty by being put in the position of having to pay the Court fees out of his own pocket. 7.6 For the purposes of determining whether an official liquidator has under his control "sufficient money with which to pay the fees immediately" within the meaning of Rule 6(4), the Judge will have regard to the general rules as to priority contained in CWR O. 20, the effect of which is that Court fees rank ahead of an official liquidator's remuneration. 7.7 If the officeholder does have some cash or cash equivalent assets under his control, his application letter must state (a) the amount which is immediately available; (b) the amount which is likely to become available to him within the next 90 days; (c) the purposes for which he intends to spend such cash over the next 90 days; and (d) whether he has received any remuneration or holds funds in trust for the purpose. 59 | P a g e C12. APPLICATIONS FOR MULTIPLE PROCEEDINGS TO BE TREATED AS "CONSOLIDATED" FOR THE PURPOSES OF ASSESSING COURT FEES C12.1 PD No. 1/2010 provides: 8.1 An application by a petitioner/plaintiff for a direction that two or more separate proceedings governed by the Companies Winding Up Rules or GCR 0.102 be treated as consolidated into one for the purposes of calculating the amount of fixed fees and/or Court hearing fees payable pursuant to Rules 3 and/or 5 of the Court Fees Rules 2009 (as amended) must be made to the Registrar. 8.2 Such applications should be made by letter addressed to the Registrar at the time of filing the originating process. 8.3 The application will be determined by the assigned Judge and the provisions of paragraphs 7.3 and 7.4 [of the same PD, as set out at paragraph C11.1] shall apply. 60 | P a g e COMPANIES APPENDIX TO SECTION C DRAFT FORMS CONTENTS: PAGE NO. STANDARD FORM OF FSD ORDER ORDER FOR SANCTION OF JOLs EXERCISE OF POWER ORDER FOR RELEASE OF EXISTING JOL AND APPOINTMENT OF NEW JOL ORDER FOR CONSOLIDATION OF COURT FEES 61 | P a g e Appendix C Doc. 1: Standard Form of FSD Order [ ] [PLAINTIFF/APPLICANT] AND [ ] [DEFENDANT/RESPONDENT] [OR] [ ] [In Chambers / In Open Court / In Chambers as Open Court] [ Date ] ] ORDER UPON [the Plaintiff‘s / Defendant‘s / etc.] Summons dated [ ] [OR] UPON [the Petition of ] presented on [ ] 62 | P a g e AND UPON reading the affidavit(s) of [ ] sworn on [ ] [NB: Identify all affidavits read – do not say ―as recorded on the file as having been read‖. This does not have any practical meaning. If a large number of affidavits were read say ―AND UPON reading the affidavits in the attached schedule to this order‖.] AND UPON hearing [leading] counsel for the [ ] and [leading] Counsel for the [ ] IT IS ORDERED [AND DIRECTED] THAT AS FOLLOWS: [ ] [Etc….] [Costs] ] ] __________________________ ] This Order is filed by [ ], attorneys-at-law for the [ ], whose address for service is that of [his / its] said attorneys-at-law, [street address, Grand Cayman etc.] Tel: (345) [ ] [(Ref: )] 63 | P a g e Appendix C Doc. 2: Order for sanction of JOLs Exercise of Power ] (IN OFFICIAL LIQUIDATION) [ Date ] ] ORDER UPON the application of the Joint Official Liquidators (―JOLs‖) of [ ] (―the Company‖) by summons dated [ ] AND UPON reading the Affidavit(s) of [ ] sworn on [ ] AND UPON hearing counsel for the JOLs [and counsel for .] 64 | P a g e IT IS ORDERED AND DIRECTED THAT: The JOLs‘ exercise of the power under paragraph 5 of Part 1 of the Third Schedule to the Companies Law (2013 Revision) to make compromises and Arrangements with the creditors of the Company with regard to the distribution of the Company‘s assets on the terms of the distribution proposals exhibited to the Affidavit of [ ] (―the Distribution Proposal‖) is hereby sanctioned. Pursuant to CWR 0.18, r.5(2) the JOLs may divide and distribute the Company‘s assets among its creditors in specie in accordance with the Distribution Proposals. The entry by the JOLs, acting on behalf of the Company, into the [ ] Agreement as defined in and exhibited to the Affidavit of [ ] sworn on [date] be and is hereby sanctioned pursuant to section 110(2) of the Companies Law (2010 Revision). [or] The JOLs‘ costs of and incidental; to this application may be paid out of the assets of the Company as a cost of the winding up. ] ] __________________________________ ] ], attorneys-at-law for the Joint Official Liquidators, whose address for service is that of their attorneys-at-law [name and street address] [(Ref: )] 65 | P a g e Appendix C Doc. 3: Order for release of existing JOL and appointment of new JOL ] [ Date ] ORDER UPON the application of the Joint Official Liquidators (―JOLs‖) of [ ] (―the Company‖) by Summons dated [ ] AND UPON reading the affidavit of [ ] sworn on [Date] AND UPON hearing counsel for the JOLs [and counsel for ] 66 | P a g e IT IS ORDERED AND DIRECTED THAT: Pursuant to CWR 0.5, r.4: 1.1 [Name] of [address] be released from the performance of any further duties as JOL of the Company 1.2 [ ] of ( ) (Tel: ; email ) is appointed as successor JOL of the Company jointly with [ ] [without the need for any report or accounts to be prepared]. All references to the Liquidators or the JOLs in the Order dated [ ] shall with effect from the date of this order be references to [Mr./Ms. ] and [Mr./Ms. ] [The requirement for publication of notice of the appointment of [Mr./Ms. ] in accordance with CWR 0.5, r.3 is dispensed with.] The costs of and incidental to this Summons in relation to the appointment of a successor JOL of the Company shall be borne by the JOLs. ] ] _______________________________________ ] ] attorneys-at-law for the Joint Official Liquidators, whose address for service is [ ] [Ref: ] 67 | P a g e Appendix C Doc. 4: Order for consolidation of Court fees ] [ Date ] ] ORDER UPON READING the letter dated [ ] from [ ] AND UPON the Court being satisfied that pursuant to paragraphs 7 and 8 of Practice Direction 1/2010 the proceedings in FSD Cause No: [ ] and FSD Cause No: [ ] may be treated as ―consolidated‖ for the purpose of assessing court fees IT IS ORDERED that: - The filing fee of [CI$] paid to the Court Office on [ date ] pursuant to Part B of the First Schedule of the Court Fees (Amendment) Rules 2009 be refunded to [ ] forthwith. ] ] __________________________ ] ] whose address for service is [ ] [Ref: ] 68 | P a g e SECTION D – TRUST AND ESTATES D1. INTRODUCTION D1.1 This section contains guidance about a number of aspects of proceedings concerning trusts and estates falling within the jurisdiction of the FSD pursuant to GCR 0.72 (other than probate claims). D1.2 The topics covered in this section include: (a) Applications made pursuant to GCR 0.85, r.2; (b) Applications by a trustee, executor, or personal representative for an opinion, advice or direction or related matters pursuant to the Trusts Law (as revised) ("the Trusts Law"); Applications pursuant to section 63 of the Trusts Law; (d) Applications pursuant to section 72 of the Trusts Law; and (e) The appointment of guardians ad litem under GCR 0.80, r.3. 69 | P a g e D2. PARTIES D2.1 In proceedings to which this Section applies, all of the trustees must be parties and if any of them do not consent to being a plaintiff, they must be made defendants. D2.2 In proceedings to which this section applies, the plaintiff may make any person with an interest in or claim against the estate, or with an interest under the trust, party to the proceedings having regard to the nature of the order sought. D2.3 In the case of a private or STAR trust, it will usually be clear which parties need to be joined as defendants. If there are only two views as to the appropriate course, and one is advocated by one beneficiary or enforcer, that beneficiary or enforcer should be joined. Consideration should be given to whether it is appropriate for the trustee to present the other arguments so that it may not be necessary to join other beneficiaries or enforcers. D2.4 If the trustee is in doubt as to which beneficiaries or enforcers should be made parties, it is open to the trustee to issue the application on an ex parte basis but seeking an urgent direction from the assigned Judge as to which persons shall be joined as parties or to whom notice should be given. D2.5. In the case of an exclusively charitable trust (including a STAR trust), the AttorneyGeneral should always be a defendant. If the trust contains trusts for charity and the relief sought in the application will or might affect the interests of charity, the Attorney-General should be a defendant. 70 | P a g e D3. PROCEEDING WITHOUT A HEARING D3.1 With the exception of applications made pursuant to section 72 of the Trusts Law, in respect of which the parties should always appear, the Court will always consider in its discretion whether it is appropriate to deal with any of the other applications set out at paragraph D1.2 of this Guide on the papers without the need for an oral hearing. D3.2 If the applicant wishes to proceed without a hearing the originating summons may be issued in accordance with GCR 0.7, r.2 as an ex parte originating summons. D3.3 The originating summons must be accompanied by: (a) An affidavit setting out the material facts justifying determination without a hearing and in particular — (i) identifying those affected by the remedy sought; and (ii) detailing any consultation with those so affected and the result of that consultation; and (b) A draft order for the remedy sought. D3.4 It may be of assistance to the Court for the originating summons to be accompanied also by a statement of agreed facts signed in accordance with GCR 0.85, r.8(4). D3.5 If the Court considers that the case does not require a hearing, it will proceed to consider the application on the papers. Further guidance as to applications on the papers can be found in Section B paragraph B1.1 D3.6 If the Court considers that an oral hearing is required, it will give appropriate directions including as to the hearing date. D3.7 In cases involving trusts for charity, the Court may, if appropriate, deal with the case without a hearing on the basis of a letter from or on behalf of the AttorneyGeneral that sets out his position with regard to the application. 71 | P a g e D4. APPLICATIONS FOR DIRECTIONS D4.1 Applications to the Court by a trustee, executor, administrator or enforcer for directions in relation to the administration of a trust or in relation to a deceased person's estate pursuant to section 48 of the Trusts Law, are to be made by originating summons, and are governed by GCR 0.85. D4.2 In all applications for directions, the evidence should be given by affidavit and should contain full disclosure of all relevant matters so as to ensure that if directions are given, the applicant party is properly protected by the order. D4.3 Applications for directions whether or not to take steps in or to defend or pursue litigation should be supported by evidence including the advice of an appropriately qualified lawyer as to the prospects of success and all other relevant matters for the Court to take into account. The qualifications of the lawyer providing the said evidence as to prospects of success must be stated and the advice must state fully the basis on which it is given. If the advice is given on formal instructions, the instructions should be put in evidence. Draft 1 in the Appendix to this Section is a draft application for directions whether or not to take steps in or to defend or pursue litigation (Beddoe application). D4.4 The evidence in such an application should include a costs estimate for the steps the applicant proposes to take or for the defence or pursuit of the litigation and should include any known information concerning the means of any opposite party to the proceedings. D4.5 If a beneficiary of the trust or estate is a party to the litigation about which directions are sought, with an interest opposed to that of the applicant trustee, executor, or personal representative, that beneficiary should be a defendant to the application but any material which would be privileged as regards that beneficiary in the litigation should be put in evidence as exhibits to the applicant's affidavit and the said exhibit(s) should not be served on the beneficiary defendant. The said beneficiary defendant may also be excluded from that part of any hearing which is devoted to discussion of the material which has been withheld. D4.6 When it is proposed that a party or interested person should be excluded from any part of the hearing the applicant must inform the Court of precisely what is proposed and of the nature of any dispute about the proposal if not by affidavit at least by letter copied to all parties/interested persons by noon at least 3 business days before the hearing date. D4.7 All applications for directions should be supported by evidence showing the value of the trust assets, the significance of the proposed litigation or other course of action for the trust and why the Court's directions are required. 72 | P a g e D4.8 In all applications for directions, the evidence must explain what, if any, consultation there has been with beneficiaries and with what result. D4.9 In an application for directions in respect of litigation, the Court will expect evidence that the following steps have been taken in preparation: (a) If the trust is a private trust and/or the estate is one where the beneficiaries are not numerous and are all or mainly adult, identifiable and traceable, the trustee or personal representative has canvassed with all of the adult beneficiaries the proposed or possible courses of action before making the application for directions, and if not, why not. (b) If the trust is a private trust and/or the estate is one with a large number of beneficiaries, including those not yet born or identified, and/or includes minors or incapacitated persons, the trustee or personal representative has canvassed with those adult beneficiaries nonetheless principally concerned the proposed or possible courses of action before making the application for directions. If the trust contains trusts for charity whose interests are or may be affected by the proposed course of action, the Attorney-General has been consulted on behalf of the charity. D4.10 If the Court gives directions allowing the trustee or personal representative to take, defend or pursue litigation it may as it sees fit allow such steps only up to a particular stage in the litigation, requiring the trustee or personal representative, before it proceeds beyond that stage, to renew its application to the Court for directions. In such a case, the Court may direct that the application may be dealt with on the papers at that later stage, if the beneficiaries, who are not defendants or otherwise in an already adverse position to the trustee or personal representative, support the continuation of the directions and the written advice of an appropriately qualified lawyer stating that he or she advises the further directions is submitted in evidence. On consideration of the papers, the Court may give the trustee or personal representative a direction to continue with the litigation up to a further stage or indefinitely as it sees fit. D4.11 In any application for directions where a minor is a defendant, the Court will expect to have put before it the instructions to and advice of an appropriately qualified lawyer as to the benefits and disadvantages of what is proposed and any other relevant course of action from the perspective and interests of the minor. D4.12 In a case of urgency, such as where a limitation period or period for service of proceedings is about to expire, the Court may be able to give directions on a summary consideration of the evidence to cover the steps which need to be taken urgently but limiting those directions so that the application must be renewed on fuller consideration at the earliest possible stage. 73 | P a g e D5. ADMINISTRATION ACTIONS — GCR 0.85 D5.1 The Court will only make an administration order if it considers that the issues between the parties cannot properly be resolved in any other way. D5.2 If, in a claim for an administration order, the plaintiff alleges that the trustee or personal representative has not provided proper accounts, the Court may: (a) stay the proceedings for a specified period, and order proper accounts to be filed and served within that period; or (b) if necessary to prevent proceedings by creditors or persons claiming to be entitled to the estate or fund, make an administration order and include in it an order that no such proceedings are to be taken without the leave of D5.3 Draft 2 in Appendix D to this Section is a standard form of application for an account pursuant to GCR 0.85, r.2 (3). D5.4 Where an administration order has been made in relation to the estate of a deceased person, and a claim is made against the estate by any person who is not a party to the proceedings — (a) no party other than the executors or administrators of the estate may take part in any such proceedings without the leave of the Court; and (b) the Court may direct or permit any other party to take part in the proceedings, on such terms as to costs or otherwise as it thinks fit. D5.5 Where an order is made for the sale of any property vested in a trustee, the Court shall direct who shall have the conduct of the sale. 74 | P a g e D6. APPLICATIONS UNDER SECTION 63 OF THE TRUSTS LAW D6.1 An application under section 63 of the Trusts Law should be made by D6.2 The Court may in appropriate cases, consider the application on the papers without the need for a hearing. D6.3 The evidence in support of an application pursuant to section 63 of the Trusts Law should contain the following: (a) A full description of the transaction which the trustee wishes to undertake; (b)The reason(s) why the said transaction cannot be undertaken by reason of the absence of a specific power in the trust instrument; (c)The reason(s) why the said transaction would be appropriate and expedient; (d) Any other information which the trustee considers relevant, including details of any consultation with the beneficiaries and the results of the said consultation; and (e) A draft of the order sought. 75 | P a g e D7. APPLICATIONS UNDER SECTION 72 OF THE TRUSTS LAW D7.1 An application under section 72 of the Trusts Law should be made by D7.2 Unless the Court orders otherwise, any person who settled the trust or provided property for the purposes of the trust must, if still alive, be made a party to the D7.3 Where minor or unborn or unascertained beneficiaries will be affected by a proposed arrangement to vary the trusts of a settlement, the evidence filed in support of the application must: (a) Show that their guardians or their trustees support the arrangements as being in the interests of the minor or unborn or unascertained beneficiaries; and (b) Unless the Court orders otherwise, be accompanied by a written opinion to this effect by the lawyer who will appear on the hearing of the application on their behalf. D7.4 A written opinion filed under paragraph 7.3 (b) must: (a) If it is given on formal instructions, be accompanied by a copy of those instructions; or (b) If not, state fully the basis on which it is given. D7.5 No written opinion is required to be filed in support of an application to approve an arrangement under section 72(1)(d) of the Trusts Law (discretionary interests under protective trusts). D7.6 Where the interests of two or more minors, or two or more of the minors and unborn or unascertained beneficiaries, are similar, only a single written opinion requires to be filed. 76 | P a g e D8. PRE-EMPTIVE COSTS ORDERS D8.1 Where the trustee has power to agree to pay the costs of a party to an application, and exercises such a power, an order is not required and the trustee is entitled to recover out of the trust fund any costs which it pays pursuant to the agreement made in the exercise of such power. D8.2 Where the trustee does not have, or decides not to exercise, a power to make such an agreement, the trustee or the party concerned may apply to the Court at any stage of proceedings for an order that the costs of any party (including the costs of the trustee) shall be paid out of the fund (known as a ‗pre-emptive costs order‘). The Court may as it sees fit direct that such parties or any of them be indemnified out of the trust fund in any event for any or all costs incurred by them and for any or all costs which they may be ordered to pay to any other party. D8.3 Such an order may provide for payments out of the trust fund from time to time on account of the indemnity so that the parties' costs may be paid on an interim basis. Applications for pre-emptive costs orders should be made on notice to the trustee. The Court will require to be satisfied that there are matters which need to be investigated. How far the Court will wish to go into that question, and in what way it should be done, will depend on the circumstances of the case. The order may be expressed to cover costs incurred only up to a particular stage in the proceedings, so that the application has to be renewed, if necessary, in the light of what has occurred in the proceedings in the meantime. D8.4 On an application for a pre-emptive costs order, the Court may: (a) In the case of the trustee's costs, authorise the trustee to raise and meet such costs out of the fund on an indemnity basis; (b) In the case of the costs of any other party, authorise or direct the trustee to pay such costs (or any part of them, or the costs incurred up to a particular time) out of the trust fund to be taxed, if not agreed by the trustee, on the indemnity basis or, if the Court directs, on the standard basis, and to make payments from time to time on account of such costs. D8.5 The evidence in support of an application for a pre-emptive costs order should be given by affidavit or affirmation. The trustee and the applicant (if different) must ensure full disclosure of all relevant matters to show that the case is one which falls within the category of case where a pre-emptive costs order may properly be made. D8.6 Draft 3 in Appendix D to this section is a draft pre-emptive costs order. 77 | P a g e D9. REPRESENTATION ORDERS D9.1 The Court may, in an appropriate case and if it is satisfied that it is expedient to do so, make an order appointing a person to represent any other person(s) where the person or persons to be represented: ( a ) i s o r a r e u n b o r n ; ( b ) cannot readily be ascertained; although ascertained, cannot be found; or ( d ) is or are a class of person(s) who have or may have the same interest in or be affected in the same way by the application; and (i) one or more members of that class are within sub-paragraphs (a), (b) or (c) above; or (ii) to appoint a representative would further the overriding objective and save expense. D9.2 A trustee or any party or person who seeks to be appointed may apply for a representation order at any time. D9.3 An application for a representation order must be served on all parties to the proceedings and upon the person proposed to be appointed, if that person is not the applicant or a party to the application and on any other person as may be directed by the Court. D9.4 Draft 4 in Appendix D to this section is a draft form of representation order. 78 | P a g e D10. APPLICATIONS FOR GUARDIANS AD LITEM - (GCR 0.80, r.3) D10.1 A guardian ad litem is required for "persons under disability" which is defined in GCR 0.80, r.1(c) as "a person who is a child or a patient". A "patient" is a patient as defined by the Mental Health Law (as revised) or a person in respect of whom a guardian has been appointed under section 14 of the Grand Court Law (as revised). D10.2 A person under disability may not defend, make a counterclaim, intervene in any proceedings, or appear in any proceedings under a judgment or order, notice of which has been served on him, except by his guardian ad !item. D10.3 Subject to the exceptions set out in paragraphs (3) and (4) of GCR 0.80 r.3, a guardian ad litem can be appointed by a party without order of the Court. In such cases, the guardian ad litem is required only to give his written consent to act in that role, and that consent must be duly filed with the Court. Draft 5 in Appendix D to this section is draft consent letter. D10.4 Unless a guardian ad litem has been appointed by order of the Court, so that the guardian ad litem is recognised, the documents prescribed by GCR 0.80 r. 3(6) (described further at paragraphs D10.5, D10.6, and D10.7 below) must be filed and the guardian ad litem must be represented by an attorney. 10.5 Where the guardian ad litem is to represent a child, the documentation to be filed is: (a) The written consent referred to at paragraph D10.3 above; and (b) A certificate by the attorney for the child certifying that: (i) he knows or believes, as the case may be, that the person to whom the certificate relates is a child, giving the grounds of his knowledge and belief; and (ii) the person so named as guardian ad litem has no interest in the cause or matter in question adverse to that of the child. Draft 6 in Appendix D is a draft form of an attorney's Certificate for an attorney acting for a child. Draft 7 in Appendix D to this section is a draft form of an attorney's Certificate for an attorney acting for a person under disability other than a child. D10.6 There is a separate procedure for the appointment of a guardian ad litem by the Court in circumstances where a person under disability has not acknowledged service of an originating summons. The relevant party must make an application to Court for the appointment of a guardian ad litem for that person before the action can proceed further. 79 | P a g e D10.7 Such an application must be supported by evidence which shows that: (a) The person to whom the application relates is a person under disability; (b) The person proposed as guardian ad litem is willing and a proper person to act as such and has no interest in the proceedings adverse to that of the person under disability; (c) The originating summons was duly served on the person under disability; and (d) Notice of the application to appoint a guardian ad litem was so served on the person under disability within time. 80 | P a g e TRUSTS AND ESTATES APPENDIX TO SECTION D DRAFT FORMS CONTENTS: PAGE NO. APPLICATION FOR DIRECTIONS (BEDDOE APPLICATION FOR AN ACCOUNT PRE-EMPTIVE COSTS ORDER REPRESENTATION ORDER CONSENT LETTER (GUARDIAN AD LITEM) ATTORNEY'S CERTIFICATE (MINOR) ATTORNEY'S CERTIFICATE (DISABILITY) 81 | P a g e Appendix D Doc.1: Application for Directions (Beddoe Application) -and- ____________________________________ TO: [insert Defendant's name and address] LET THE DEFENDANT, within [14 days] after service of this Summons on him, counting the day of service, return the accompanying Acknowledgment of Service to the Court Office, P.O. Box 495, George Town, Grand Cayman KY1-1106, Cayman Islands. 82 | P a g e BY THIS ORIGINATING SUMMONS, which is issued on the application of [name] [the trustee} of the trusts of the settlement dated [ ] made by [ ] and [ ] known as the [ ] Trust/Settlement or [the executor named in the Will of [ ] dated [ ] or [the administrator of the estate of [ ] who died on [ ], the Applicant/Plaintiff seeks the following relief pursuant to GCR 0.85 r.2(2)(a) An order that the Plaintiff be at liberty to bring a claim against [ ] seeking the following relief [ ] or to make application to join and defend an action brought by [ ] against [ ] in Grand Court FSD Cause No [ ] for the following relief [ ] or to take the following steps in an action brought by [ ] against [ ] in Grand Court Cause No [ ] FSD Cause No. [ ] for the following relief [ ]; That the Plaintiff be indemnified against any and all costs and expenses arising out of, and incidental to, the said action(s) out of the trust assets/out of the estate of the said [ ] deceased, including for the avoidance of doubt, its own established professional charges and for the time spent by its own employees in dealing with the conduct of the said litigation/proceeding(s). That provision be made for the costs of this application. ] __________________________________ [ ]Attorneys-at-law for the Applicant/Plaintiff If the Defendant does not acknowledge service, judgment may be given or made against, or in relation to him or her, as the Court may think just and expedient. NOTE: This Originating Summons may be served not later than 4 calendar months (or if leave is required to effect notice out of the jurisdiction, 6 months) beginning with that date, unless renewed by order of the Court. IMPORTANT: Directions for acknowledgement of service are given with the accompanying forms. THIS ORIGINATING SUMMONS was issued by [firm] on behalf of the Plaintiff whose address for service is [address]. 83 | P a g e Appendix D Doc.2: Application for an Account -and- ___________________________________________ TO: [Defendant's name and address] LET THE DEFENDANT, within [* days] after service of this Summons on him, counting the day of service, return the accompanying Acknowledgment of Service to the Court Office, P.O. Box 495, George Town, Grand Cayman KY1-1106, Cayman Islands. 84 | P a g e BY THIS ORIGINATING SUMMONS, which is issued on the application of [state the name and address of the Plaintiff(s)], the Plaintiff(s) seeks the following relief pursuant to GCR 0.85, r 2(3)(a) namely: that the Defendant, in its capacity as [executor of the Will dated [date] of [deceased's name] deceased or in its capacity as [trustee of the trusts of the settlement dated [date] known as the [name of trust/settlement] (―the settlement‖), be ordered to provide full and proper particulars and accounts of the [real and personal] estate of the deceased [and the investments thereof] [or full and proper particulars and account of the trusts of the Settlement] from [inception] to [ ]; that the Defendant account to the Plaintiff for any sums deducted by way of fees and expenses during the said period; if necessary, that the administration of the estate of the Deceased [and/or the execution of the trusts of the Will and/or the trusts of the Settlement] may be carried out under the direction of the Court and all necessary and proper accounts, directions and inquiries shall be provided in accordance with the directions of that the Defendant be ordered to pay the costs of this application personally; such further and/or other relief as the Court considers necessary. Dated [ ] [ If the Defendant does not acknowledge service, such judgment may be given or made against, or in relation to it/him or her, as the Court may think just and expedient. NOTE: This Originating Summons may be served not later than 4 calendar months (or if leave is required to effect notice out of the jurisdiction, 6 months) beginning with that date, unless renewed by order of the Court. IMPORTANT: Directions for acknowledgment of service are given with the accompanying forms. THIS ORIGINATING SUMMONS was issued by [firm] on behalf of the Plaintiff whose address for service is [address]. 85 | P a g e Appendix D Doc.3: Order for pre-emptive costs [Date] BEFORE THE HONOURABLE MR./MRS. JUSTICE etc.: -and- 86 | P a g e ORDER ___________________________________ UPON THE APPLICATION etc. AND UPON reading the affidavit[s] of [ ] sworn on [ ] and the exhibit[s] thereto AND UPON hearing Counsel for [* ] AND UPON counsel for the Defendant undertaking to make the repayments mentioned in paragraph 2 below in the circumstances there mentioned IT IS [BY CONSENT] ORDERED THAT: The Plaintiff as trustee of (―the [Settlement/Trust]‖) do: (a) Pay from the assets of the [Settlement/Trust] the costs of and incidental to these proceedings incurred by the Defendant such costs to be taxed, if not agreed, on the indemnity basis and (for the avoidance of doubt) to (i) Include costs incurred by the Defendant from and after [date] in anticipation of being appointed to represent any class of persons presently or formerly beneficially interested under the trusts of the [Settlement/Trust] irrespective of whether [he/she] is in fact so appointed; and (ii) Exclude (in the absence of any further order) costs incurred in prosecuting any counterclaim or any appeal; (a) Indemnify the Defendant in respect of any costs which he/she may be ordered to pay to any other party to these proceedings in connection therewith. 87 | P a g e Until the outcome of the taxation (or the agreement regarding costs) contemplated in paragraph 1 above, the Plaintiff as trustee do pay from the assets of the [Settlement/Trust] to the Attorneys for the Defendant monthly (or at such other intervals as may be agreed) such sums on account of the costs referred to in paragraph 1(a) of this order as the Attorneys for the defendant shall certify: (i) To have been reasonably and properly incurred and not to exceed such amount as is likely in their opinion to be allowed on a taxation on the indemnity basis; and (ii) To have accrued on account of the present proceedings in the period prior to the date of such certificate and not to have been previously provided for under this Oder. PROVIDED ALWAYS that the Attorneys for the Defendant shall repay such sums (if any) as, having been paid to them on account, are disallowed on a taxation or are otherwise agreed to be repaid and any such sums shall be repaid together with interest at 1% above the base rate for the time being of [ ] Bank from and including the date of payment to those Attorneys up to and including the date of repayment, such interest to accrue daily. Any party may apply to vary or discharge paragraphs 1 and 2 of this Order but only in respect of costs to be incurred after the date of such application. ________________________________ THIS ORDER is filed by [firm], attorneys-at-Law for the [party], whose address for service is [address]. 88 | P a g e APPROVED AS TO FORM AND CONTENT ___________________________________ ________________________________ [Attorneys-at-Law for the Defendant] 89 | P a g e Appendix D Doc.4: Representation Order1 -and- [Date] ] 1The draft orders suggested here are listed as examples of classes which might require representation in proceedings involving trust and estates. 90 | P a g e ORDER ________________________________ THE APPLICATION etc. AND UPON reading the affidavit[s} of [ ] sworn on [ ] and the exhibit[s] thereto AND UPON hearing Counsel for [ ] etc. IT IS ORDERED [BY CONSENT] THAT The [number of defendant] [name], do represent the spouses, former spouses, widows and widowers (whether or not remarried) of the children and descendants of [name]; The [number of Defendant] [name], do represent the as yet unborn descendants of [name]. The [number of Defendant] [name], do represent: (a) The children and remoter issue living on[date] or thereafter; born of [name]; (b) Any person to whom any of such children or remoter issue may have been married whether or not the marriage be subsisting; (c) the children and remoter issue living on [date] or thereafter born of [name] The costs of the representative parties of and incidental to the Originating Summons dated [ ] be paid out of the assets subject to the abovementioned [settlement/trust], such costs to be taxed, if not agreed, on the indemnity basis. The parties shall be at liberty to apply for further directions. _____________________________________ THIS ORDER is filed by [firm], attorneys-at-Law for the [party], whose address for service is [address]. 91 | P a g e APPROVED AS TO FORM AND CONTENT ___________________________________ ________________________________ [Attorneys-at-Law for the Defendant] 92 | P a g e Appendix D Doc.5: Letter of consent from Guardian ad litem [insert letterhead] [Date] To: The Grand Court Edward Street George Town Grand Cayman Attention: The Registrar; Financial Services Division Dear Sir [Insert name of Cause and FSD Cause No.] I refer to the above Cause in respect of which an Originating Summons was filed on [date]. By this letter, I confirm that I consent to my appointment as Guardian ad litem to act on behalf of the following [minor defendant(s)] or [defendant(s) under disability] in this Cause (―the Defendant(s)‖): [Insert name], whose date of birth is [date] and who is currently [age]; or [insert name] who, pursuant to the attached [document], is a ―person under disability‖ for the purposes of Grand Court Rules Order 80, rule 1 I hereby confirm that I am willing and able to represent the said Defendant(s) in this Cause competently and fairly, and that I have no interests adverse to the interests of the said Defendant(s). I have appointed [insert firm’s name], Attorneys-at-Law to represent me in this Cause. All documents in this Cause may be served on me care of my Attorneys at [insert address], Grand Cayman. Yours faithfully, [Name] 93 | P a g e Appendix D Doc.6: Attorney's Certification (Minor) ] -and- ATTORNEYS CERTIFICATE ________________________________ I, [name], of [firm] Grand Cayman, Attorneys-at-Law for the guardian ad litem of the [insert number] Defendant in this Cause, hereby certify as follows: I believe that [insert name] (―the Minor Defendant‖) is a child and accordingly a ―person under disability‖ as defined in Order 80, rule 1(c) of the Grand Court Rules. My belief in this regard is based upon my review of the birth certificate of the Minor Defendant, a certified copy of which is attached to this Certificate; and 94 | P a g e I believe that the Guardian ad litem appointed to act for the Minor Defendant, being [insert name] of [insert address], is suitable, willing, and able to act as Guardian ad litem and has no interest in this Cause or in the matters arising therein which is adverse to the interests of the Minor Defendant. I certify that the information above is true and correct to the best of my knowledge and belief. __________________________________ (Name) Date THIS ATTORNEYS CERTIFICATE is filed by [firm], attorneys-at-law for the Guardian ad litem of the [insert number] Defendant, whose address for service is c/o [address] 95 | P a g e Appendix D Doc.7: Attorney's Certification (Disability) ] -and- ATTORNEYS CERTIFICATE _______________________________ I, [name] of [firm] Grand Cayman, Attorneys-at-Law for the Guardian ad litem of the[insert number] Defendant in this Cause, hereby certify as follows: 1. I believe that [insert name] (―the Patient‖) is a patient within the meaning of section 2 of the Mental Health Law (1997 Revision). My belief in this regard is based upon [state reasons]; 2. There has been no appointment of a guardian ad litem of the Patient pursuant to section 14 of the Grand Court Law (1995 Revision). 96 | P a g e 3. The consent of [insert name] of [insert address], to act as next friend or guardian ad litem is annexed hereto. [insert name] is [state relationship of proposed guardian ad litem to the Patient]. 4. I believe that the Guardian ad litem appointed to act for the Patient, being [insert name] of [insert address], is suitable, willing, and able to act as Guardian ad litem and has no interest in this Cause or in the matters arising therein which is adverse to the interests of the Patient. I certify that the information given above is true and correct to the best of my knowledge and belief. ______________________________ _______________________________ [Name] Date THIS ATTORNEYS CERTIFICATE is filed by [firm], attorneys-at-law for the Guardian ad litem of the [insert number] Defendant, whose address for service is c/o [address] 97 | P a g e SECTION E ARBITRATION E1. ARBITRATION PROCEEDINGS E1.1 This section provides guidance about arbitration proceedings as defined in Section A pf this Guide. E1.2 All arbitration proceedings are financial services proceedings pursuant to GCR O.72, r.1 (see r.1 (2) (m) and (n)) and must therefore be commenced in the FSD. E1.3 The rules relating to arbitration proceedings are set out in GCR O. 73. In construing the rules the Court is required to and will apply the general principles that: (a) the object of arbitration is to obtain the fair resolution of disputes by an impartial arbitral tribunal without undue delay or undue expense; (b) the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest; and in matters governed by the 2012 Law, the Court shall not intervene except as provided in the 2012 Law (see section 3(3) of the 2012 Law and GCR O. 73, r. 1). 98 | P a g e E2. ISSUING ARBITRATION APPLICATIONS E2.1 Applications to the Court under the 2012 Law are known as ―arbitration applications‖. The procedure applicable to arbitration applications is to be found in GCR O. 73. E2.2 Most arbitration applications issued pursuant to Order 73 are made by an Originating Arbitration Application in Form 6A of Schedule 1 to the GCR. An application to stay legal proceedings under section 9 of the 2012 Law must be made by summons in those proceedings. For service of such a stay application see GCR O.73, r.5 E2.3 An arbitration application should contain, among other things, a concise statement of the remedy claimed and, if an award is challenged, the grounds for that challenge. E2.4 Service of an arbitration application may be made on a respondent‘s duly authorised attorney or agent within the jurisdiction, or alternatively on a respondent out of the jurisdiction with leave of the Court (see GCR O.73, rr.7 and 8 respectively). Acknowledgments of service must be in Form 9A of Schedule 1 to the GCR. E2.5 GCR O.73, r.13 provides for automatic directions, unless the Court directs otherwise. Any other automatic directions provided for other types of FSD proceedings do not apply to arbitration applications. E2.6 Applications for the exercise by the Court of any of its powers in support of arbitration proceedings are governed by GCR O.73, r.18. Whether such applications are made ex parte or on notice, the supporting affidavit must always explain why the arbitral tribunal concerned has no power itself to grant the measure(s) applied for or is unable for the time being to act effectively. 99 | P a g e E3. CHALLENGING AN AWARD E3.1 Where a party seeks leave to appeal to the Court on a question of law arising out of an award pursuant Section 76 of the 2012 Law, the application must, in addition to complying with paragraph E2.3 above: (i) identify precisely the question of law; (ii) state the grounds (but not the argument) on which the party challenges the award and contends that leave should be given; (iii) be accompanied by a skeleton argument in support of the application and; (iv) append the award concerned. E3.2 An application for an award to be set aside pursuant to section 75 of the 2012 Law or for leave to appeal pursuant section 76 of the 2012 Law must be brought within one month of the date of the award.(see section 77(3) of the 2012 Law). An application to extend time may be made in accordance with section 79(4) of the 2012 Law. 100 | P a g e E4. ENFORCEMENT OF AWARDS E4.1 All applications for leave to enforce an arbitral award, whether a domestic award pursuant to either section 52 or section 72 of the 2012 Law or a foreign award pursuant to section 5 of the 1975 Law, shall be made in accordance with section 72 of the 2012 Law and GCR O. 73, r. 31 et seq.. E4.2 An application for leave to enforce an award is required to be made by ex parte originating summons but the Court may direct that the application is to be served on such parties to the arbitration concerned as it may think fit, including, with the leave of the Court, out of the jurisdiction. E4.3 An application for leave to enforce an award must be supported by written evidence exhibiting the specified documents (see GCR O.73, r.31 (5)). E4.4 An order giving leave to enforce an award must be served and service of the order out of the jurisdiction is permissible without leave. E4.5 Within 14 days of service of the order giving leave to enforce an award (or such other period as the Court may determine if the order is to be served out of the jurisdiction) the respondent may apply to have the order set aside. The copy of the order served must state the respondents entitlement in this respect (see GCR O.73, r.31(6) – (10)). 101 | P a g e E5. TRANSITIONAL PROVISIONS E5.1 Any arbitration proceedings in respect of an arbitration commenced before 2 July 2012 under the Arbitration Law 1974 (2001 Revision) may be continued and enforced as if that Law was still in force (see section 89(2) of the 2012 Law). E5.2 Any such arbitration proceedings will not have been issued in the FSD, and are not required to be transferred to the FSD. 102 | P a g e SCHEDULES TO FSD GUIDE S1. GCR ORDER 72 - FINANCIAL SERVICES PROCEEDINGS 103 S2. GCR ORDER 73 - ARBITRATION PROCEEDINGS 109 S3. OTHER POTENTIALLY RELEVANT PDS 103 | P a g e SCHEDULE 1 GRAND COURT RULES ORDER 72 FINANCIAL SERVICES PROCEEDINGS Application and Interpretation (0.72, r.1) This Order applies to financial services proceedings and the other provisions of these Rules apply to those proceedings subject to the provisions of this Order. In these Rules "financial services proceeding" means - (a) Any proceeding relating to a mutual fund, including an action by or against its directors (in the case of a corporate fund), its trustee (in the case of a unit trust), its general partner (in the case of a limited partnership), its investment manager or adviser, its administrator, its prime broker or its auditor; (b) Any proceeding relating to an exempted insurer, including an action by or against its directors, insurance manager or auditor; Any action for breach of contract of insurance (Including an application for a declaration) where the amount claimed exceeds $1 million; (d) Any application (including an appeal by a licensee) made to the Court under any of the regulatory laws; (e) Any administration action or application under the Trusts Law (to which Order 85 applies) except those relating to the estates of deceased persons who dies domiciled in the Islands and the net asset value of the estate is less than $1 million; (f) Any action against a trustee or protector of trust or the executor or administrator of an estate for breach of trust or breach of fiduciary duty, except those actions relating to a trust or estate whose net asset value is (g) Any application made to the Court under the Companies Law (to which Order 102 applies) including any application made in a winding up proceeding (to which the Companies Winding Up Rules 2009 apply); (h) Any application for an order for the dissolution of a partnership which carries on business as a mutual fund, including any application made in the dissolution proceeding; (i) Any action for breach of duty against any professional service provider, except for actions relating to the nonpayment or over-payment of fees where the amount claimed is less than $250,000; 104 | P a g e (j) Any application for an order for evidence pursuant to a letter of request to which Order 70 applies, including any related application for directions to which Order 103 applies; (k) Any application to which the Grand Court (Bankruptcy) Rules, 1977 or the Foreign Bankruptcy Proceedings (International Co-operation) Rules 2008 apply; (l) Any action for the enforcement of a foreign judgment whether pursuant to common law or pursuant to the Foreign Judgments Reciprocal Enforcement Law; and (m) Any action for the enforcement of a foreign arbitral award pursuant to the Foreign Arbitral Awards Enforcement Law. (2) In this Order – (a) "the Registrar" means the Registrar of the Financial Services Division of (b) "mutual fund" has the meaning ascribed to it in Section 2 of the Mutual Funds Law (2007 Revision); "exempted insurer" has the meaning ascribed to it in Section 2 of the Insurance Law (2008 Revision); (d) "the regulatory laws" has the meaning ascribed to it in Section 2 of the Monetary Authority Law (2008 Revision); and (e) "professional services provider" has the meaning ascribed to it in Section 89(1) of the Companies Law (2009 Revision). Commencement of Financial Service Proceedings (0.72, r.2) Every financial services proceeding shall be commenced in the Financial Services Division. Every financial services proceeding shall be commenced by writ, originating summons, originating motion or petition in accordance with Order 5 and entered into the Register of Writs and other Originating Process in accordance with Order 63, rule 8. The title of every proceeding commenced in or transferred to the Financial Services Division shall include the words In the Grand Court of the Cayman Islands, Financial Services Division. In addition to establishing and maintaining a Court file in accordance with Order 63, rule 2, the Registrar shall create and maintain a computerised record for each financial services proceeding which shall comprise the following documents and/or produce reports comprising the following information: - (a) A chronological index of all the pleadings, affidavit and orders; (b) A copy of each pleading, affidavit (without its exhibits) and order; A copy of each skeleton argument (without copy authorities); and 105 | P a g e (d) A schedule containing details of — (i) The fixed Court fee paid; (ii) The date and length of each hearing; (iii) The Court hearing fees paid (if any); and (iv) The identity of the party or parties by whom the fixed fee and any Court hearing fees have been paid. The computerised record (created and maintained in accordance with paragraph (4) above) shall enable the Registrar to produce reports in respect of each proceeding which is commenced in or transferred to the Financial Services Division containing the following information — (a) The date on which the proceeding was commenced or transferred to the (b) The title of the proceeding; The name of the Commercial Judge to which it has been assigned; (d) Particulars of the parties' attorneys and any foreign lawyers; (e) The date and a brief description of each hearing; (f) The date and estimated length of future hearings; (g) Particulars of the date and manner in which the proceeding was concluded. The Registrar, acting in consultation with the Chief Justice, shall assign every financial services proceeding to one of the Commercial Judges and the cause number assigned to it in accordance with Order 5, rule 1(4)(a) shall include the Judge's initials. The trial of every financial services proceeding shall be heard by the Commercial Judge assigned to it. Every interlocutory application made in a financial services proceeding (including every application made in a winding up proceeding) shall be heard or determined by the Commercial Judge assigned to it, except that another commercial Judge may hear or determine an urgent application if the Judge assigned to the proceeding is not available. Transfer of Proceedings (0.72, r.3) (1) Any cause or matter pending in the Court, including matters commenced prior to the Commencement Date, may be transferred to the Financial Services Division on the ground that — (a) It is a financial services proceeding which ought properly to have been commenced in the Financial Services Division; or (b) The Court is satisfied upon the application of any party that it would be appropriate in all the circumstances for the cause or matter to be tried by a Commercial Judge. 106 | P a g e Case management and summonses for directions (0.72, r.4) Order 25 shall apply to proceedings pending in the Financial Services Division subject to the following modifications. The Registrar shall issue an initial summons for direction in Form No.71 in every financial services proceeding within 3 months of the date on which it was commenced or transferred to the Financial Services Division unless in the meantime: - (a) the cause or matter has been finally determined; (b) the Registrar has received notice that the cause or matter has been discontinued or settled; the Court has already made an order for directions; or (d) one or other of the parties has taken out a summons for directions. In order that the Court may be informed of the general nature of the case and the issues which are expected to arise, the attorneys for each party shall prepare and file an agreed case memorandum (within such period as the Registrar shall direct) which should contain — (a) A short and uncontroversial description of what the case is about; (b) A list of issues, including both issues of fact and law, to the extent that it is practical to do so having regard to the state of the pleadings; and A p r o c e d u r a l h i s t o r y The attorneys for the plaintiff shall be responsible for filing the agree case memorandum. The Registrar may at any time issue a notice in Form No.72 requiring that the parties' attorneys and their foreign lawyers (if any) attend before the Judge for the purposes of a case management conference. If a party has instructed or intends to instruct a foreign lawyer to appear at the trial or any interlocutory hearing the Registrar shall be so informed and such foreign lawyer may be required to appear on any summons for directions or case management conference. If one or more of the parties have instructed a foreign lawyer, the Registrar may require that the hearing of any summons for directions or any case management conference be conducted via a video link, in which case the parties shall provide suitable conference room facilities for the use of the Judge. 107 | P a g e Listing interlocutory hearings and trials (0.72, r.5) The Registrar shall be responsible for listing the hearing of all case management conferences, interlocutory applications and trials. Order 34 shall not apply to proceedings pending in the Financial Services Division. The Registrar shall maintain - (a) A composite Court diary for the Financial Services Division; and (b) An individual Court diary for each Commercial Judge. Transitional Provisions (0.72, r.6) The Financial Services Division Court shall be established with effect from the first day of November 2009 (referred to in this Rule as "the Commencement Date") and this Rule shall apply to every financial services proceeding commenced prior to the Commencement Date. Any party or parties to a cause or matter commenced prior to the Commencement Date may apply to the Registrar in Form No.73 for an order that it be transferred to the Financial Services Division and the Registrar shall make a transfer order if he is satisfied that the cause or matter is a financial services proceeding within the meaning of Rule 1 (2). Whenever a party seeks to issue an interlocutory summons or an application is made to fix a hearing date for a trial and it appears to the Registrar that the cause or matter is a financial services proceeding, he shall — (a) Invite the parties to apply in Form No.73 for a transfer order; or (b) If the parties or any of them fail to apply in Form No.73 within 14 days, the Registrar shall make a transfer order on his own motion. Every transfer order made by the Registrar under this rule shall be in Form No.74 and shall specify — (a) The Commercial Judge to whom the proceeding has been assigned; (b) The amount of the transfer fee payable in accordance with Rule 3 (5) of the Court Fees Rules 2009; and The party or parties liable to pay the transfer fee. The liability for payment of the transfer fee shall be determined as follows: (a) The parties may agree that any one of them shall be liable or that liability be divided amongst them in agreed proportions; and in default of agreement — (b) The party by whom the transfer application is made under paragraph (2) of this Rule shall be liable to pay the transfer fee; or In the case of a transfer order made under paragraph (3) (b) of this Rule, the party seeking to issue the summons or fix the hearing date shall be liable to pay the transfer fee; or 108 | P a g e (d) In the case of an application made in a winding up proceeding (to which the Companies Winding Up Rules 2009 apply), the official liquidator shall be liable to pay the transfer fee as an expense of the liquidation. Every transfer order made by the Registrar shall be served by him upon the attorneys for all the parties by facsimile or e-mail and by placing an office copy in the attorneys' Court post office box. Any party who is dissatisfied with the decision to make a transfer order may apply within 7 days to the Chief Justice who shall review the matter de novo and may substitute his own decision for that of the Registrar. Any party who is dissatisfied with the terms of the transfer order may apply within 7 days to the Chief Justice who shall review the matter de novo and may vary the transfer order by assigning the matter to a different Commercial Judge and/or reducing the amount of the transfer fee and/or varying the paying party or parties. An application under paragraphs (7) or (8) of this Rule shall be made in writing in Form No.75 upon notice to the other parties who may submit their own reply or submission in writing within 3 days after receiving notice of the application. No step may be taken in any proceeding, which has been transferred to the Financial Services Division under this Rule, except for any application under paragraphs (7) and (8) for a review of the transfer order, unless and until the transfer fee has been paid in full. 109 | P a g e SCHEDULE 2 GCR ORDER 73 ARBITRATION PROCEEDINGS Interpretation (0.73, r.1) In this Order — (a) "the 1974 Law" means the Arbitration Law 1974 (2001 Revision); (b) "the 1975 Law" means the Foreign Arbitral Awards Enforcement Law 1975 (1997 Revision); "the 1998 Order" means The Multilateral Investment Guarantee Agency (Overseas Territories) Order 1988 (SI 1988/791); (d) "the Convention" means the Convention establishing the Multilateral investment Guarantee Agency signed on behalf of the United Kingdom on 9 April 1986. Applications by originating motion (0.73, r.2) Every application to the Court — (a) to remit an award under Section 18 of the 1974 Law; (b) to remove an arbitrator or umpire under Section 19(1) of the 1974 Law; to set aside an award under Section 19(2) of the 1974 Law; or (d) for relief under Section 20 of the 1974 Law, must be made by originating motion. A notice of motion to which subparagraph (1)(a), (b) or (c) relates must be issued within 28 days after the award has been made and published to the parties. Applications by originating summons (0.73, r.3) Every application to the Court — (a) for the appointment of an arbitrator, umpire or third arbitrator under Section 11 of the 1974 Law; (b) for an enlargement of time under Section 12(2) of the 1974 Law; for the removal of an arbitrator or umpire under Section 12 (3) of the 1974 Law; (d) for an order under Section 17 of the 1974 Law requiring an arbitrator or umpire to state a special case; or (e) for an order under Section 29 of the 1974 Law extending time for the commencement of arbitration proceedings must be made by originating summons. An application for a declaration that an award made by an arbitrator or an umpire is not binding on a party to the award on the ground that it was made without jurisdiction must be made by originating summons. 110 | P a g e Enforcement of arbitral awards (0.73, r.4) An application for leave under Section 22 of the 1974 Law; Section 5 of the 1975 Law; or Section 4 of Schedule 1 of the 1988 Order to enforce an arbitral award shall be made by ex parte originating summons. An application for leave under paragraph (1) must be supported by an affidavit - (a) where the application is under Section 22 of the 1974 Law , exhibiting the arbitration agreement and the original award or, in either case, a copy thereof; or (b) where the application is made under Section 5 of the 1975 Law, exhibiting the documents specified in Section 6 of the 1975 Law; or where the application is made under Section 4 of Schedule 1 of the 1988 Order, exhibiting a copy of the award certified pursuant to the Convention and stating whether at the date of the application the enforcement of the award has been stayed (either provisionally or otherwise) pursuant to the Convention and whether any, and if so what, application has been made pursuant to the Convention which, if granted, might result in a stay of the award; and in any case (d) stating the name and usual last place of abode or business of the applicant (hereinafter referred to as "the creditor") and the person against whom it is sought to enforce the award (hereinafter referred to as "the debtor") respectively; and (e) as the case may require, either that the award has not been complied with or the extent to which it has not been complied with at the date of the An order giving leave must be drawn up by or on behalf of the creditor and must be served on the debtor by delivering a copy to him personally or by sending a copy to him at his usual or last known place of abode or business or in such other manner as the Court may direct. Within 14 days after service of the order or, if the order is to be served out of the jurisdiction, within such period as the Court may think fit, the debtor may apply to set aside the order and the award shall not be enforced until after the expiration of that period or, if the debtor applies within the 14 day period to set aside the Order, until after the application is finally disposed of. The copy of the order served on the debtor shall state the effect of paragraph In relation to a body corporate this rule shall have effect as if for any reference to the place of abode or business of the creditor or the debtor there were substituted a reference to the registered office of the body corporate, provided that nothing in this rule shall affect any enactment which provides for the manner in which a document may be served on a body corporate. 111 | P a g e Application to stay enforcement of award under 1988 Order (0.73, r.4A) 4A. Where it appears to the Court on granting leave to register an award or on an application made by the judgment debtor after an award has been registered — (a) That the enforcement of the award has been stayed (whether provisionally or otherwise) pursuant to the Convention; or (b) That an application has been made pursuant to the Convention, which, if granted, might result in a stay of an enforcement of the award, The Court shall, or, in the case referred to in subparagraph (b) may, stay execution of the award for such time as it considers appropriate in the circumstances. An application by the judgment debtor under paragraph (1) shall be made by summons and supported by affidavit. Service out of the jurisdiction of summons, notice, etc. (0.73, r.5) Subject to paragraph (2), service out of the jurisdiction of — (a) An originating summons or notice of originating motion issued pursuant to rule 2 or 3 of this Order; or (b) Any order made on such a summons or motion as aforesaid, is permissible without the leave of the Court provided that the arbitration to which the summons, motion or order relates is governed by Islands law or has been, or is to be held within the jurisdiction. service out of the jurisdiction of an originating summons under rule 4 for leave to enforce an award is permissible with the leave of the Court whether or not the arbitration is governed by Islands law. An application for the grant of leave under this rule must be supported by an affidavit stating the grounds on which the application is made and showing in what place or country the person to be served is, or probably may be found; and no such leave shall be granted unless it shall be made sufficiently to appear to the Court that the case is a proper one for service out of the jurisdiction under this rule. Order 11, rules 5, 6 and 8 shall apply in relation to any such summons, notice or order as is referred to in paragraph (1) as they apply in relation to a writ. 112 | P a g e SCHEDULE 3 OTHER POTENTIALLY RELEVANT PRACTICE DIRECTIONS S4.1 PD 1/1999 – Filing Documents in Court S4.2 PD2/1999 – Drawing up and filing Judgment and Orders S4.3 PD 1/2001 – Guidelines re the taxation of Costs S4.4 PD 1/2003 – Official Liquidators Security for performance S4.5 PD 1/2004 – Correction to Judgments S4.6 PD 2/2006 – Orders S4.7 PD 1/2011 – Further Guidelines re the taxation of costs S4.8 PD 1/2012 – Delivery of Reserved Judgments S4.9 PD 3/2012 – Attire in the Grand Court S4.10 PD 4/2012 – Limited Admission as an attorney-at-law S4.11 PD 3/2013 – Procedure for Winding up Petitions S4.12 PD 4/2013 – Communications between Counsel and the Courts S4.13 PD 1/2014 – Practice Guidance usage of electronic equipment S4.14 PD 5/2014 – Court Fees Amendment Rules