Arnage Holdings Ltd v Walkers (A Firm)
| Jurisdiction | Cayman Islands |
| Judge | David Doyle |
| Judgment Date | 25 January 2022 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: FSD 105 OF 2014 (DDJ) |
The Hon. Justice David Doyle
CAUSE NO: FSD 105 OF 2014 (DDJ)
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FINANCIAL SERVICES DIVISION
The importance of strict compliance with Court orders — the overriding duty of attorneys to the court and the importance of the overriding objective — unless orders and case management orders — the undesir ability of parties and attorneys attempting to litigate matters informally via emails with the court and the necessity for formal applications in proper form to be filed with the court
Mr. Alex Potts QC of Conyers Dill & Pearman on behalf of the Fifth Plaintiff
Mr Mark Simpson QC instructed by Appleby on behalf of the Defendant
This is a troubling case. It involves a party (Fernando Toledo, “Mr Toledo” or the “Fifth Plaintiff) who, without adequate explanation, has failed to fully and properly comply with a court order.
I apologise for the length of time taken to produce these reasons but, in view of the seriousness of the position, I thought it best to let the dust from the vigorous exchanges with the attorneys on 16 November 2021 settle and to give myself the luxury of some time for reflection before finalising the reasons for the decisions I made on that day. I did not want my thought process to be adversely impacted by the natural concern a court has when its orders are not complied with and when a party fails to comply with a specific direction from the court in a judgment to co-operate with the other side and to assist the court in accordance with the overriding objective of dealing with cases justly. This judgment provides the reasons for the decisions I made on 16 November 2021. It also sets out the importance of strict compliance with courts orders, the overriding duty of attorneys to the court and the importance of the overriding objective. It highlights the undesirability of parties attempting to litigate matters informally via emails with the court and the necessity for formal applications in proper form to be filed with the court.
On 16 November 2021 I heard submissions from attorneys representing the Fifth Plaintiff and the Defendant in respect of two main matters:
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(1) Proposed directions for the trial that had been set to begin at 10 am on 3 October 2022 with twelve weeks of valuable court time allocated; and
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(2) The Fifth Plaintiff's summons for a stay, or an adjournment, or an extension of time.
I dismissed the summons for a stay or an adjournment. I granted a short extension of time for the Fifth Plaintiff to provide discovery and inspection by 4pm on 30 November 2021. I declined to make an “unless order”. I made directions towards the trial of the Fifth Plaintiffs claim against the Defendant. My reasons for doing so are as follows:
On 5 May 2021, following a hearing on 19 April 2021, I delivered a judgment in these proceedings (the “May 2021 Judgment”) deciding that certain issues should not, as requested by the Plaintiffs, be heard at a separate trial in advance of other issues. I stated:
“95. I do however agree with Mr Chapman for the Claimants when he emphasises that these protracted proceedings must be progressed. It was apparent from the hearing and the documents filed in advance of the hearing that the issues had been refined since the filing of the pleadings and both sides sensibly agreed that substituted pleadings would be helpful. I therefore order that the Plaintiffs are to file and serve a substituted pleading of their claim (maximum of 40 pages) before 4pm on 7 June 2021 and Walkers are to file and serve a substituted defence (maximum of 30 pages) by 4pm on 9 July 2021.
96. I also order that the parties are to provide their discovery by list by 4pm on 16 July 2021 and that inspection is to be given by 4pm on 30 July 2021.
97. I require the attorneys for the parties to co-operate with each other to file, if possible on an agreed basis and if not then separately, by 4pm on 13 September 2021 a detailed and meaningful draft of proposed further directions to a main trial of all disputed issues in 2022.
98. I have provided that significant amount of time to enable the parties to complete the necessary work and to co-operate with each other in the production of the draft directions and other agreed documentation to assist the court. The attorneys have been living with this case far longer than I have and 1 rely upon them to consider how best the court will be assisted in determining what should be included in the draft directions and any other accompanying and consequent documentation.
99. Furthermore as these proceedings progress, from my present perspective the court would certainly be assisted with an updated agreed case memorandum with the agreed facts and legal issues being outlined and the areas of disagreement being highlighted, an updated chronology and dramatis personae, the names of the witnesses and the areas their evidence is intended to cover, the proposed time allocation for the evidence and the proposed estimates of time for the opening and closing addresses by the attorneys for the parties.
100. It is unfortunately necessary to remind the parties and their attorneys that they have a duty to assist the court in achieving the overriding objective and I expect them to do just that. The parties and the experienced attorneys engaged on each side of this protracted dispute (no doubt at great expense) must realise that the time for costly and time-consuming interlocutory skirmishing has passed and now is the time to focus on progressing these long outstanding proceedings to a manageable trial in 2022.”
On 10 May 2021 the following Order was made:
UPON the Plaintiffs' Summons dated 4 February 2021 seeking an order that the issues as to (i) whether the Plaintiffs (or any of them) were clients of the Defendant; (ii) whether the Defendant owed duties to the Plaintiffs (or any of them) and, if so, which duties; and (iii) whether the Defendant breached any such duty and, if so, in what respect(s) be tried as preliminary issues (Preliminary Issues Summons);
IT IS ORDERED THAT:
Preliminary Issues Summons
1. The Preliminary Issues Summons is dismissed.
Pleadings
2. The Plaintiffs are to file and serve a substituted pleading of their claim (maximum of 40 pages) before 4pm on 28 June 2021.
3. The Defendant is to file and serve a substituted defence (maximum of 30 pages) by 4pm on 20 August 2021.
Discovery
4. The parties are to provide their discovery by list by 4pm on 16 July 2021.
5. Inspection is to be given by 4pm on 30 July 2021.
Further directions for trial
6. A case management conference is to be listed before Honourable Justice Doyle for the first available date after 27 September 2021.
7. The parties shall file a detailed and meaningful draft of proposed further directions to a main trial of all disputed issues by 4 p.m. on 13 September 2021.
(the “May 2021 Order”)
There followed protracted email correspondence with court administration and the attorneys in respect of availability culminating in an email from court administration on 30 July 2021 11:40 confirming that the case management conference had been set for 10 a.m. on 16 November 2021 and that the trial remain listed for 10 a.m. on 3 October 2022 for the duration of 12 weeks. The attorneys were expressly reminded that under the Order made on 10 May 2021 inspection was to be given by 4 p.m. on 30 July 2021 and that the parties were to file a detailed draft of proposed further directions to a main trial of all disputed issues by 4 p.m. on 13 September 2021.
On 30 September 2021 the following Order was made by consent;
UPON the parties having agreed to consent to an order in the following terms.
IT IS HEREBY ORDERED BY CONSENT THAT:
1. Paragraph 4 and 5 of the Order dated 10 May 2021 are hereby varied such that the deadlines for the parties to provide their discovery by list and inspection are extended to 4pm on 22 October 2021.
2. Paragraph 7 of the Order dated 10 May 2021 is hereby varied such that the deadline for the parties to file a detailed and meaningful draft of proposed further directions to a main trial of all disputed issues is extended to 4pm 5 November 2021.
3. Costs be costs in the cause.
(the “September 2021 Consent Order”)
The Court was informed that, without reference to the court, the dates for discovery by list (16 July 2021) and inspection (30 July 2021) had been varied by agreement between the parties first to 31 August 2021 and then to 30 September 2021. On 28 September 2021 the parties sought a further extension to 22 October 2021 (for both discovery and inspection). On 30 September 2021 my Personal Assistant on my instructions responded as follows:
“Further to your email of Tuesday 28 th September 2021, Justice Doyle is concerned about further slippage and notes that the parties wish to vary the Order… He is minded to approve the variations suggested but requires the attorneys to file an agreed draft Consent Order for his approval. There should be no further slippage.”
A Certificate of the Order of the Court of Appeal of the Cayman Islands dated 4 October 2021 at paragraph 2 provided that by no later than 45 days from the date of the Certificate of Order the First, Second, Third and Fourth Respondents/Plaintiffs are jointly and severally liable to give security for the costs of the Appellant/Defendant of the proceedings incurred to 30 April 2021 in the sum of US$4,25 million (“Security”)...
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