Cayman Islands: 讼费令:破产与诉讼

Last Updated: 28 January 2019
Article by Barnaby Gowrie, Shelley White, Fiona MacAdam, Xia Li, Regina Fan and Crystal Au-Yeung

Most Read Contributor in Cayman Islands, March 2019

最近在有关Abraaj Holdings (FSD 95 of 2018, Unreported 4 January 2019) 一案的判决中,开曼群岛大法院澄清,在破产程序中并无以不合理的方式行事的呈请债权人不应被判承担讼费。相反,在诉讼程序中通常会要求败诉申请人承担诉讼费。

相关的聆讯源于联合临时清盘人("联合临时清盘人")申请再次押后针对Abraaj Holdings("公司")提起的清盘呈请("呈请")。此举得到两名人士的支持,其中一名为公司的债权人兼清算委员会成员,另一人为公司董事、股东兼创始人。押后申请遭到科威特社会公共安全研究所("PIFSS")的反对。法院判决允许押后呈请,但表示PIFSS在反对押后方面不无道理。因此,由于PIFSS并无以不合理的方式行事,所以尽管该两名人士所支持的呈请胜诉, McMillan法官并没有批准彼等所主张的讼费令。McMillan J进一步裁定,他并不认为其中一名人士应被视为诉讼程序当事人,故亦不信纳其主张讼费令的权利。

开曼群岛法律相关的一般规定载于2018年公司清盘规则("公司清盘规则")。特别是,第24号命令第8(1)条规定,成功提呈债权人清盘呈请的人士所产生的费用应由公司资产支付,而该费用应按赔偿基准确定,除非与清算人达成协议。然而,并非出于提呈清盘令的理由不成立,而是由于法院认为公司暂时维持临时清算符合公司债权人的最佳利益,进而致使呈请人败诉,对于此类情况公司清盘规则并没有作出规定。因此,该判决是一个很好的澄清。在作出判决时,McMillan J参照公司清盘规则第24号命令第9(4)条,当中规定(在制裁申请的范围内)不得对其申请或反对败诉的债权人或分担人作出讼费判决,除非法院认为其立场完全不合理,或误导法院或就申请作出不当行事。

该判决的独特之处在于,它表明在一方论据并非不合理的情况下,即使败诉,法院也未必会对其施加讼费令。这在破产程序中尤为重要,此类程序往往涉及众多相互抵触的利益相关者,牵涉的利益和问题比较复杂,而该判决避免了这些不同利益相关者因担心被判承担不利讼费而不愿作出合法商业论证的情况。

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