Sanderson J
```markdown # IN THE GRAND COURT OF THE CAYMAN ISLANDS ## HOLDEN IN GEORGE TOWN, GRAND CAYMAN ### CAUSE NO. 229 OF 2001 #### TELESYSTEM INTERNATIONAL WIRELESS INC (A company incorporated under the laws of Canada) #### TIW DO BRASIL LTDA (A limited liability co. organised under the laws of Brazil) **Plaintiffs** - and - #### CVC/OPPORTUNITY EQUITY PARTNERS, L.P. (A Cayman Islands Exempted Limited Partnership) #### CVC/OPPORTUNITY EQUITY PARTNERS, LTD. (A company incorporated under the laws of the Cayman Islands) (Sued in its capacity as the General Partner of CVC/Opportunity Equity Partners, LP) #### VERONICA VALENTE DANTAS RODENBURG & DANIEL VALENTE DANTAS **Defendants** ************** **REASONS FOR JUDGMENT OF THE HONOURABLE MR. JUSTICE SANDERSON** on the 5th day of October, George Town, Grand Cayman **PLAINTIFF:** M **APPEARANCE:** [Name] **FOR THE F:** [Name] **ICES:** [Name] **FOR THE DEFENDANTS:** MR. A. TRACE Q.C. **FOR THE DEFENDANTS:** MR. A. BOLTON ```
```html <table> <tr> <td>1</td> <td>REASONS FOR JUDGMENT</td> </tr> <tr> <td>2</td> </tr> <tr> <td>3</td> <td>SANDERSON， J.：</td> </tr> <tr> <td>4</td> <td>The plaintiff seeks leave to appeal the decision of Graham，</td> </tr> <tr> <td>5</td> <td>J. made on July 19， 2001， where he ordered that these</td> </tr> <tr> <td>6</td> <td>proceedings be stayed. He did so because he concluded there</td> </tr> <tr> <td>7</td> <td>was a lis alibi pendens in Brazil and that Brazil was the</td> </tr> <tr> <td>8</td> <td>convenient and proper forum for the parties to litigate the</td> </tr> <tr> <td>9</td> <td>issues.</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> <td>The plaintiff had previously obtained an injunction in these</td> </tr> <tr> <td>12</td> <td>proceedings freezing the defendant's assets here， up to a</td> </tr> <tr> <td>13</td> <td>maximum amount of US $390， 000， 000. I am told that the</td> </tr> <tr> <td>14</td> <td>injunction has actually frozen approximately $60， 000， 000 in</td> </tr> <tr> <td>15</td> <td>the Cayman Islands. The plaintiff， therefore， also seeks an</td> </tr> <tr> <td>16</td> <td>order that if leave is granted， then that injunction should</td> </tr> <tr> <td>17</td> <td>be continued.</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>Alternatively if leave is not granted， the plaintiff</td> </tr> <tr> <td>20</td> <td>requests that the present injunction should not be</td> </tr> <tr> <td>21</td> <td>discharged until the appeal is rc</td> </tr> <tr> <td>22</td> <td>Appeal. furtherso</td> </tr> <tr> <td>23</td> <td>that a new injunction should issue.</td> </tr> <tr> <td>24</td> </tr> <tr> <td>25</td> </tr> </table> ``` ```latex \documentclass{article} \usepackage{amsmath} \section*{REASONS FOR JUDGMENT} SANDERSON, J.: The plaintiff seeks leave to appeal the decision of Graham, J. made on July 19, 2001, where he ordered that these proceedings be stayed. He did so because he concluded there was a lis alibi pendens in Brazil and that Brazil was the convenient and proper forum for the parties to litigate the issues. The plaintiff had previously obtained an injunction in these proceedings freezing the defendant's assets here, up to a maximum amount of US \$390,000,000. I am told that the injunction has actually frozen approximately \$60,000,000 in the Cayman Islands. The plaintiff, therefore, also seeks an order that if leave is granted, then that injunction should be continued. Alternatively if leave is not granted, the plaintiff requests that the present injunction should not be discharged until the appeal is rc Appeal. furtherso that a new injunction should issue. ```
```markdown (Sanderson, J. -- Reasons for Judgment)
The test for leave to appeal is, does the appeal have a real
prospect of success? Real means realistic and not fanciful
(see Bridge Trust Co. Ltd. and Robert N. Slatter v. The AG
of the Cayman Islands, Cause No. 296/94, Grand Court of the
Cayman Islands, July 13th, 2001 and Swain v. Hellman(1999)
The Times 4th November and Tanfern Ltd. v. Cameron-McDonald
(2000) 17th May.)
Mr. Black referred to the practice directions given by Lord
Woolf MR (as he then was) in his consolidated Practice
Direction ([1999]1 WLR 2, 3) in relation to the seeking of
leave under the English rules. 13
"The general test for leave
10. There is no limit on the number of
appeals the Court of Appeal is prepared to
hear. It is therefore not relevant to consider
whether the Court of Appeal might prefer to
select for itself which appeals it would like
to hear. The general rule applied by the Court
of, and the
first instance courts on basis
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```markdown (Sanderson, J. -- Reasons for Judgment) Leave may also be given in exceptional circumstances even though the case has no real prospect of success if there is such an issue which, in the public interest, should be examined by the Court of Appeal. Examples are where a case raises questions of great public interest or questions of general policy, or where authority binding on the Court of Appeal may call for reconsideration. The approach will differ depending on the category and subject matter of the decision and the reason for seeking leave to appeal, as will be indicated below. However, if the issue to be raised on the appeal is of general importance that will be a factor in granting leave. On the other hand, if the issues are not generally important and the costs of an appeal will far exceed what is at stake, that will be a factor which weighs against the grant of leave to appeal. A judge considers that there is a real prospect of the Court of Appeal coming to a different conclusion on a point of law which will ```
```markdown (Sanderson, J. -- Reasons for Judgment)
materially affect the outcome of the case. An
appeal on the grounds that there is no evidence
to support a finding is an appeal on a point of
law, but it is insufficient to show that there
was little evidence.
A question of fact
13. The Court of Appeal will rarely
interfere with a decision based on the judge's
evaluation of oral evidence as to the primary
facts or if an appeal would involve examining
the fine detail of the judge's factual
investigation.
14. Leave is more likely to be appropriate
where what is being challenged is the inference
which the judge has drawn from the primary
facts, or where the judge has not received any
particular benefit from having actually seen
the witnesses, and it is properly arguable that
materially different inferences should be drawn
from the evidence. In such a case the judge.
he graze, sho
at is if on whie ssly i
ifts leav,
chd exp.nc
thf basis re is giv
ou] 1 leaverdicate
15. If a case is one which has involved
considering many witnesses and/or documents, it
will be especially important that the trial ```
```markdown (Sanderson, J. -- Reasons for Judgment)
court considers whether to grant leave and, where it refuses leave, gives its reasons for doing so. This is because in a case of this sort the Court of Appeal is less able to assess whether an appeal is appropriate.
**Questions of discretion**
16. The Court of Appeal does not interfere with the exercise of discretion of a judge unless the court is satisfied the judge was wrong. The burden on an appellant is a heavy one (many family cases do not qualify for leave for this reason). It will be rare, therefore, for a trial judge to give leave on a pure question of discretion. He may do so if the case raises a point of general principle on which the opinion of a higher court is required.
**Appeals from interlocutory orders**
17. An interlocutory order is an order which does not entirely determine the proceedings. An application is for leave to appeal from an interlocutory order, additional considerations arise: (a) the point may not be of sufficient significance to justify the costs of an appeal; ```
```html <table> <tr> <td>(Sanderson，J. -- Reasons for Judgment)</td> </tr> <tr> <td>1</td> <td>(b) the procedural consequences of an appeal</td> </tr> <tr> <td>2</td> <td>(e.g. loss of the trial date) may outweigh the</td> </tr> <tr> <td>3</td> <td>significance of the interlocutory issue； (c) it</td> </tr> <tr> <td>4</td> <td>may be more convenient to determine the point</td> </tr> <tr> <td>5</td> <td>at or after trial. In all such cases leave to</td> </tr> <tr> <td>6</td> <td>appeal should be refused."</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> <td>In addition to the above paragraphs which were cited by</td> </tr> <tr> <td>9</td> <td>Mr. Black in his written argument， Lord Woolf also stated in</td> </tr> <tr> <td>10</td> <td>paragraph 8：</td> </tr> <tr> <td>11</td> <td>"From which court should leave to appeal</td> </tr> <tr> <td>12</td> <td>be sought?</td> </tr> <tr> <td>13</td> <td>8. The court which has just reached a</td> </tr> <tr> <td>14</td> <td>decision is often in the best position to judge</td> </tr> <tr> <td>15</td> <td>whether the case is or is not one where there</td> </tr> <tr> <td>16</td> <td>should be an appeal. It should not leave that</td> </tr> <tr> <td>17</td> <td>decision to the Court of Appeal. Courts of</td> </tr> <tr> <td>18</td> <td>first instance can help to minimise the delay</td> </tr> <tr> <td>19</td> <td>and expense which an appeal involves. Where</td> </tr> <tr> <td>20</td> <td>the parties are present for delivery of the</td> </tr> <tr> <td>21</td> <td>judt shoul</td> <td>hatine ju</td> <td>eave</td> </tr> <tr> <td>22</td> <td>ow to as er eityr the</td> <td>bel sk whethfo</td> <td>wants</td> </tr> <tr> <td>23</td> <td>gment， id be r</td> <td>er par：ldge</td> </tr> <tr> <td>24</td> <td>to appeal and to deal with the matter then and</td> </tr> <tr> <td>25</td> <td>there. However， if the court of first instance</td> </tr> <tr> <td>is in doubt of whether an appeal would have a</td> </tr> </table> ```
```html <table> <tr> <td>(Sanderson，J. -- Reasons for Judgment)</td> </tr> <tr> <td>1</td> <td>real prospect of success or involves a point of</td> </tr> <tr> <td>2</td> <td>general principle， the safe course is to refuse</td> </tr> <tr> <td>3</td> <td>leave to appeal. It is always open to the</td> </tr> <tr> <td>4</td> <td>Court of Appeal to grant leave."</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>These practice directions have been considered and followed</td> </tr> <tr> <td>7</td> <td>in this jurisdiction (see Ramon E. Beteta v. Columbraria</td> </tr> <tr> <td>8</td> <td>Ltd.， Grand Court of the Cayman Islands， Cause 638 of 1999</td> </tr> <tr> <td>9</td> <td>judgment of Kellock， J. - June 7th， 2000.)</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> <td>The salient facts of this case are set out in Graham， J.'s</td> </tr> <tr> <td>12</td> <td>reasons for judgment， and I will not repeat all of them. In</td> </tr> <tr> <td>13</td> <td>summary， the plaintiff commenced similar proceedings in</td> </tr> <tr> <td>14</td> <td>Brazil where the main issue was whether or not there was an</td> </tr> <tr> <td>15</td> <td>enforceable letter agreement which terms required the</td> </tr> <tr> <td>16</td> <td>defendant to cooperate with the plaintiff such that they</td> </tr> <tr> <td>17</td> <td>could exercise majority control in the Brazilian company in</td> </tr> <tr> <td>18</td> <td>which they had invested. After those proceedings were</td> </tr> <tr> <td>19</td> <td>commenced in Brazil， similar proceedings were brought here</td> </tr> <tr> <td>20</td> <td>where that issue as well as other collateral and related</td> </tr> <tr> <td>21</td> <td>were</td> </tr> <tr> <td>22</td> <td>For the reasons mentioned by Mr. Justice Graham in his</td> </tr> <tr> <td>24</td> <td>reasons for judgment， he concluded that there was a lis</td> </tr> <tr> <td>25</td> <td>alibi pendens in Brazil and he stayed the proceedings here</td> </tr> </table> ```
```markdown (Sanderson, J. -- Reasons for Judgment)
on the basis of a foreign non-convenience argument. He
concluded that the proceedings would most suitably and
fairly be litigated in Brazil. Since that decision was
given, the proceedings have continued in Brazil where CVC
was successful in resisting the plaintiff's claim there.
The court in Brazil concluded that the letter agreement was
only a fallback arrangement and was never put into effect.
The plaintiff wishes in these proceedings, if allowed to
continue, to argue the validity of the letter agreement and
invites this court to ultimately reach a conclusion contrary
to the finding of the court in Brazil. 12.
I am also advised by Mr. Black that the judgment in Brazil
is currently under appeal. 15.
The plaintiffs filed a document which contains several
potential grounds of appeal and points out several alleged
errors in the reasons for judgment of Mr. Justice Graham.
For the reasons argued by the plaintiff, I do not think that
any of them have a real prospect of success. I acknowledge
that the possible acknowledgment of the judgment is one, but I
do not think it is a realistic real prospect. 23.
I am also not persuaded that there is a point of general
importance or public interest such as to warrant the ```
(Sanderson, J. -- Reasons for Judgment)
granting of leave to appeal in a situation where I do not
think there is a reasonable prospect of success.
Further, CVC has already succeeded on this issue in Brazil
subsequent to the decision of Mr. Justice Graham. The
plaintiff now seeks to have that same issue litigated here.
It argues, in part, that it should be entitled to elect the
proceedings in the jurisdiction it wants to continue and
that there is a different claim being made here than there
was in Brazil. The essence of the claim being made here is
the validity and enforceability of the letter agreement and
that issue has been clearly resolved against the plaintiff
by the Brazilian courts. I do not think it is likely that
our Court of Appeal would allow what are essentially
duplicate proceedings to carry on here when that issue has
been resolved elsewhere.
Accordingly, having reached the conclusion that there is no
realistic prospect of success, the application for leave to
appeal is dismissed.
In the event that the plaintiff
sought a stay of my order and an order that the injunction
be continued until determination of this issue by the Court
of Appeal. I am prepared to grant this request on a very (TELESYSTEM INTERNATIONAL WIRELESS INC et al v. OPPORTUNITY COMMUNICATIONS LTD et al)
(Sanderson, J. -- Reasons for Judgment)
limited basis only.
Mr. Justice Panton and Mr. Justice Graham felt that an injunction was appropriate in order to preserve the assets.
The strength of the plaintiff's case is now weaker than it was when the injunction was granted by Panton, J. and extended by Graham, J. because of the events that have transpired in Brazil. There is, however, $60,000,000 here that is covered by the injunction and could potentially be lost to the plaintiff should the Court of Appeal grant leave to appeal and set aside the decision of Mr. Justice Graham.
Considering the interests of both the plaintiff and the defendant, I think it is appropriate to continue the injunction until November the 23rd, 2001. This will allow the plaintiff time to apply to the Court of Appeal for leave. I would suggest that this be done on notice rather than ex parte. Unless the injunction is renewed by the Court of Appeal, it will lapse on November 23rd, 2001.
THE HON. MR. JUSTICE D.G. SANDERSON 25.