October 21, 2020

Cayman Islands: Shanda Games- Court of Appeal confirms timing for leave to appeal to Privy Council

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Contributed by Harney Westwood & Riegels LLP From ILO

The Court of Appeal has ruled that for the purposes of an application for leave to appeal to the , time runs from the date on which an order is sealed or perfected, not the date on which the judgment was delivered.

Facts

In the Court of Appeal decision in Shanda Games Limited, both Shanda and the Maso parties filed applications for leave to appeal to the Privy Council on matters arising from the Court of Appeal decision delivered on March 6 2018. The Maso parties sought leave to appeal against the decision as it relates to minority discount in Section 238 proceedings, and Shanda sought leave to appeal against the decision as it relates to interest on fair value.

Appeals to the Privy Council from the Court of Appeal are regulated in the Cayman Islands (Appeals to Privy Council) Order 1984. The order provides that applications for leave to appeal must be made within 21 days from the date of the decision to be appealed. The order does not provide for how to determine the date of a decision.

The decision in question was delivered on March 6 2018 but was sealed and a certificate issued on March 9 2018. Both Shanda and the Maso parties filed their respective appeals within 21 days of the date on which the decision was sealed and a certificate issued. However, the Maso parties asserted that Shanda’s appeal was filed out of time as it was filed more than 21 days after the date on which the decision was delivered.

Decision

Shanda successfully argued that the “date of the decision” should be construed in accordance with local law governing timeframes for filing appeals. Rule 11(4) of the Court of Appeal Rules provides that the timeframe for filing an appeal is calculated from the date on which a judgment or order is filed in accordance with Rule 5, Order 42 of the , which sets out the procedure for drawing up and filing orders. As such, the approach for appeals from the Grand Court to the Court of Appeal is that time starts to run from the date on which a decision is perfected.

The Maso parties unsuccessfully argued that the 1984 order should be construed in light of rules and decisions in relation to appeals from other jurisdictions to the Privy Council. This argument did not find favour with the Court of Appeal, which found that it made practical sense to interpret the timeframe in the 1984 order in accordance with local Cayman law and not on appeals from “whatever jurisdiction” to the Privy Council. The court also placed weight on the procedural rules in place in England and Wales at the time that the 1984 order was drafted, which provided that appeals were made against orders, not decisions – meaning that time started running from the date on which a decision was sealed, not when it was handed down.

The Court of Appeal granted leave to both Shanda and the Maso parties to appeal to the Privy Council as of right and made a costs order against Maso for its position on the Shanda appeal.

For further information on this topic please contact Paul Madden at Harney Westwood & Riegels’ Grand Cayman office by telephone (+1 345 949 8599) or email ([email protected]). Alternatively, contactIan Mann, Paula Kay or Vicky Lord at Harney Westwood & Riegels’ Hong Kong office by telephone (+852 5806 7800) or email ([email protected], [email protected] or[email protected]). The Harneys website can be accessed atwww.harneys.com.

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