Background
Cowan & Ors v Equis Special L.P. & Ors[1] (Cowan v Equis), is a long-running Cayman case concerning the management and operation of a group of related private equity funds engaged in renewable energy projects in Asia (Equis). Mr. Cowan, who had been employed by Equis Group in connection with the establishment of the first Equis fund, filed various claims against the Equis in his own capacity and derivatively on behalf of Equis Special L.P (Plaintiffs).
Various applications were heard by the Grand Court in March 2024, including by the Plaintiffs for leave to amend their statement of claim, and by some Defendants for security for costs and for disclosure of the identity Mr. Cowan’s funder (Security Defendants). A very large amount of written evidence was filed in respect of these applications.
Security for costs
In dismissing the Security Defendants’ application for security for costs in its entirety (noting that it was filed some five years after the commencement of the proceedings), the Court provided a valuable analysis of GCR O.23 r.1 and the guiding jurisprudence. The particular gateway relied upon by the Security Defendants provides that:
“Where on the application of a defendant in an action or other proceeding sit appears to the Court –
(a) That the plaintiff is ordinarily resident out of the jurisdiction…
…then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant’s costs of the action or other proceedings as it thinks just.”
Following analysis of the authorities, the Court noted that GCR O.23 r.1 should be applied in a way which does not discriminate against foreign resident plaintiffs (at [128]). This follows from a line of pre-Brexit English authority prohibiting discrimination against plaintiffs from other EU Member States. It followed that as impecuniosity is not a permissible basis on which to seek security against a Cayman Islands-resident plaintiff, it is also not a permissible basis on which to order security for costs against a foreign-resident plaintiff.
The appropriate consideration as regards a foreign-resident plaintiff is the real risk of non-enforcement (distinct from non-recovery) in the foreign jurisdiction or whether enforcement will be encumbered by an extra burden, compared with equivalent steps in Cayman (at [134]-[136]). Where a real-risk of non-enforcement can be demonstrated, security may be ordered by reference to the costs of the proceedings. Where there is not a real risk of non-enforcement, but extra burdens in enforcement are established, then an applicant will only be entitled to security for the additional costs of enforcement outside of the jurisdiction.
Here, the Security Defendants advanced their application essentially, on the basis that it would be just to make the order, because if they prevail at trial they are unlikely to be able to recover what would be significant costs due to the Plaintiff having insufficient assets. In rejecting the application, the Court found that the relevant authorities made clear that “Having insufficient assets to satisfy an adverse costs order is not a basis for obtaining security for costs to trial against a foreign resident plaintiff”. Importantly, the Court held that “The Court cannot simply move on to matters of discretion and ignore the juridical basis to make such an order.”
The Security Defendants failed to establish a real risk of non-enforcement or extra burdens in enforcement. Consequently, there was no juridical basis for the Court to order security because the “real likelihood that the [Security Defendants] may not recover a large portion of their costs even if they win” did not “change the Court’s assessment of the right outcome in this case” (at [148]).
Disclosure of funding
The Cayman court has jurisdiction to make orders requiring the disclosure of the identity of funders and details of funding arrangements. In considering whether to make such an order, the Court will have regard to the facts and circumstances of a particular case.
Mr. Cowan filed evidence that a lifelong friend was funding his claim and has not revealed his friend’s identity out of respect for his anonymity. The Security Defendants argued that the identity of the friend ought to be disclosed, in order to facilitate an application for a third-party costs order.
Justice Parker found that, a “pure funder” should be regarded as being in the public interest, provided that there is a genuine case to be heard. Pure funders not only provide access to justice, but also prevent fewer claimants from having to litigate in person. Consequently, the Court was not inclined to discourage such funding and was of the view that the disclosure of the identity of Mr. Cowan’s friend was not necessary for justice to be done.
Mediation
In furtherance of the Cayman Islands’ commitment to alternative dispute resolution, the former Chief Justice Sir Antony Smellie KC, published Practice Director No.3 of 2022 in August 2022, which sets out judicial mediation guidelines (Guidelines) to encourage settlement of disputes in line with the Overriding Objective. The Guidelines provide that proceedings can be referred by the Court to judicial mediation at any stage in the proceedings, and provides criteria for referral to mediation, including where there is a substantial risk that the costs and time of a trial would be disproportionately high compared to the amount in dispute.
In this instance, the Court endorsed the parties attending a mediation in order to settle their disputes and made it clear that it would be prepared to order a mediation under the Guidelines, should the parties not agree. The approach taken reflected the Court’s concerns relating to the conduct of the parties in these proceedings, which have been hard fought at great expense.
Overriding Objective
Finally, Justice Parker criticised the practice of filing “huge volumes of evidence” at a late stage and skeleton arguments running to hundreds of pages. The Judge noted that such conduct places the Court under an “intolerable burden and trespasses on the warning not to conduct mini trials in relation to these types of application”. The Judge reiterated the duties under the Overriding Objective to conduct litigation reasonably and economically and counselled against attempts to score points or make tactical applications which do not assist the Court in resolving the key issues before it.
Observations
This judgment provides an array of guidance and highlights the potential pitfalls of long-running and hard-fought litigation.
- In order to satisfy the court that a defendant is entitled to security for costs against a plaintiff resident out of the jurisdiction, a defendant should demonstrate either a real risk of non-enforcement or provide demonstrable evidence of the burden in enforcing in the foreign jurisdiction.
- The Court will exercise its discretion as to whether disclosure of the identity of and agreements with funders is necessary for justice to be done, having regard to the facts and circumstances of a particular case. Whilst the discretion exists, it does not follow that the Court will order disclosure as a matter of course.
- The Cayman courts are prepared to order judicial mediation in appropriate cases, reflecting the judiciary’s firm commitment to encourage alternative dispute resolution in the Cayman Islands.
[1] (Unreported, 22 May 2024)
