Arnage Holdings Ltd v Walkers (A Firm)
| Jurisdiction | Cayman Islands |
| Judgment Date | 08 August 2020 |
| Docket Number | CAUSE NO: FSD0105 OF 2014 (ASCJ) |
| Court | Grand Court (Cayman Islands) |
CAUSE NO: FSD0105 OF 2014 (ASCJ)
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FINANCIAL SERVICES DIVISION
Anneliese Day QC instructed by Anthony Akiwumi of Ettiene Blake and Richard Annette of Stuarts Walker Hersant Humphries for the Plaintiffs on the Defendant's Security for Costs Application and Ben Hobden of Conyers for the Plaintiffs on the Defendant's Leave to Appeal Application.
Mark Simpson QC instructed by Sebastian Said, Anna Snead and Daniel Hayward-Hughes of Appleby (Cayman) Ltd for the Defendant on its Applications
The present matter arises out of an acrimonious dispute between the Plaintiffs claiming against the Defendant as their former attorney-at-law for breaches of fiduciary duty resulting in confidential information belonging to the Plaintiffs being obtained by the Defendant for another client and deployed to the detriment of the Plaintiffs in Brazil. On 24 July 2019, I delivered judgment in final form 1 dismissing the Defendant's strike out and summary judgment applications 2 and granting instead the Plaintiffs' application for summary judgment on liability on their claims against the Defendant (“the Judgment”).
On 26 July 2019, the Defendant filed its summons seeking leave to appeal against the Judgment and on the 19 February 2020, I dismissed that application. These are the reasons for that decision.
By its summons of 24 July 2014, the Defendant had also filed an application for security for its costs of the action to be provided by the Plaintiffs. I now also give reasons for refusing that application, the outcome of which was, of course, largely consequential on the outcome of the Judgment.
This action has engaged this Court over the course of several years and has required the Court to deal with numerous applications. Eventually, after expensive interlocutory skirmishes and fits and starts, the Court heard the arguments herein to completion, on what were in effect, interlocutory cross-applications for summary judgment and striking out. The Judgment having been delivered, the Defendant required and sought leave to appeal. The requirement is as provided by section 6(f) of the Court of Appeal Law which reads:
“ No appeal shall lie —
(f) without the leave of the Grand Court, or of the Court, from an interlocutory judgment made or given by the Judge of the Grand Court except.. (then follow seven exceptions none of which applies here).
It followed that the applicable tests for the grant of leave to appeal had to be applied. The test is settled and well known. As expressed in The Iran Nabuvat [1990] 1 W.L.R 1115, and applied many times in the past by this Court and the Court of Appeal, 3 it is whether the grounds for appeal show a “realistic prospect of success” or that there is a point in issue that should be considered by the Court of Appeal in the public interest. In Select Advantage, Morrison JA expressed the first part of the principle in terms that: “The general rule is that leave to appeal will be given only in the case of an appeal with a realistic (as distinct from fanciful) prospect of success.”
In seeking to satisfy that test, the Defendant relies on a plethora of grounds of appeal, some 68 in all. I will not traverse each ground seriatim. For the present purposes of giving reasons for my decision, I think it should suffice to separate the grounds into two broad categories — those which challenge the decisions on findings of fact and those which go to substantive issues of law.
As to the first category which necessarily also challenge the exercise of discretion — it must be noted at the outset that, as the Rules of the Supreme Court advise 4, leave to appeal must not be given unless it can be shown that the discretion was exercised by the judge (i) under a mistake of law ( Evans v Bartlam [1937] A.C. 243) or (ii) in disregard of principle ( Young v Thomas [1892] 2 Ch. 134) or (iii) under a misapprehension as to the facts (ibid); or (iv) that he took into account irrelevant matters ( Egerton v Jones [1939] 3 All .E. r. 889 at 892 CA) or (v) failed to exercise the discretion ( Crowther v Elgood (1887) 34 Ch. D. 691 at 697) or
Accordingly, to the extent that any of the grounds of appeal challenge findings of fact, my approach has been to test those grounds against the foregoing principles as to whether they could justify leave to appeal.
I concluded that they did not. For the reasons which follow, a primary consideration was that issues of fact were narrowly circumscribed for the purposes of these cross-applications and, so far as they related especially to whether or not summary judgment should be granted to the Plaintiffs, largely a matter of record. In other words, there was, in my view, very little scope for dispute as to the relevant facts and the conclusions in the Judgment based on facts would be very unlikely to be upset on appeal.
For instance, on the crucial issue whether the Defendant acted against the interests of the Plaintiffs as their putative clients, the Judgment notes at [10]:
“It is uncontroverted that in aid of Dr Braga's campaign against the Plaintiffs, the Defendant obtained the disclosure of the Plaintiffs' confidential information in this jurisdiction by way of ex parte (without notice) applications to this Court and provided that information to be deployed by Dr Braga against them in Brazil”.
That being so, the other primary factual issue which was central to the summary judgment application for liability for breach of fiduciary duty, was whether the Plaintiffs (or any of them) were indeed clients of the Defendant at the relevant time. It is this factual issue upon which the Judgment concludes in favour of the Plaintiffs, having regard essentially to the records of the Defendant itself and/or admissions latterly made in the Amended Defence 5 or evidence filed in the proceedings by the Defendant, sufficient to justify conclusions on the
summary judgment basis. This leaves the more factually complex issues of causation 6 and quantification of loss involving, among other things, questions as to the meaning and effect of judgments of the Brazilian courts, to be decided at trialNotwithstanding the plain facts upon which the summary judgment application proceeded, this has been a bitterly fought case. Every imaginable point of challenge was raised by the Defendant. Nothing was conceded until the latest possible moment when, in July 2017 (shortly before the resumption in September 2017 of the adjourned hearing of the cross-applications) the Defendant changed tack and proffered admissions as to its attorney-client relationship with some 7 but not others of the Plaintiffs. The embattled and aggressive stance of the Defendant meant that the assistance to which the Court was entitled by way of co-operation and agreement between the parties for narrowing issues on points of fact and law, was never forthcoming. Cards were played as closely to the chest as possible and arguments strategically deployed or reserved by the Defendant at every stage, as if to “keep the power dry” for battle at a later stage.
That was the fraught environment in which the Court was called upon to resolve the competing interlocutory applications for strike out (on the part of the Defendant) on the basis that the claims disclosed no reasonable cause of action or were an abuse of process; and for summary judgment (on the part of the Plaintiffs), on the basis that there was no arguable defence to their claims.
It is also to be emphasized that the Defendant, while objecting to the Plaintiffs' application for summary judgment being heard, nonetheless persisted with this, its second application for the striking out of the Plaintiffs' claims.
In order of sequence, having earlier refused the Defendant's first strike out application based on allegations against the Plaintiffs of abuse of process 8, it was decided to hear the Plaintiffs' application for summary judgment on liability before finally hearing from the Defendant on this, its second strike out application. However, the issues being so inter-related, arguments in support of the opposing positions were deployed simultaneously throughout and there was never a suggestion from the Defendant that the Court could simply refuse to hear both sides on their opposing applications and direct instead that the case proceed to trial.
Rather, as noted at [16] of the Judgment:
“Framed in those conflicting terms, it was immediately apparent that the Plaintiffs' application for summary judgment and the Defendant's cross-strikeout application, were not readily given to resolution on the summary basis upon which such applications are typically to be heard and decided. For even while important matters of fact were incontrovertible (and so not requiring trial to proof) 9, some factual issues were complicated. Complex issues of law also arose for determination but none which could not also be determined without the need for a full trial and as contemplated by the rules where the determination of points of law could result in the disposal of the entire case or an important aspect of the case”. 10
Thus, both opposing applications had to be resolved and it was the decision in the exercise of discretion to do so and to arrive at judgment on both, that is...
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