Midtown Acquisitions L.P. v Essar Global Fund Ltd

• Jurisdiction: Cayman Islands
• Court: Grand Court (Cayman Islands)
• Judge: (Mangatal, J.)
• Judgment Date: 27 November 2017
• Date: 27 November 2017

MIDTOWN ACQUISITIONS L.P.

and

ESSAR GLOBAL FUND LIMITED

(Mangatal, J.)

Grand Court, Financial Services Division

Civil Procedure — judgments and orders — finality — court can reopen judgment and admit additional evidence after judgment delivered but before order sealed — principles to be considered

Held, granting summary judgment:

(1) Where a decision had been delivered but an order had not yet been sealed, a judge had power to reverse his or her decision at any time before the order was sealed and it was not limited to exceptional circumstances. The overriding objective in the exercise of the power was to deal with the case in question justly. Relevant factors to consider would include whether a party had already acted on the decision to his detriment, a mistake in the judgment, a failure to draw the judge’s attention to a plainly relevant fact or point of law, or the discovery of new facts after judgment had been given. A decision could be revisited simply because the judge had a carefully considered change of mind. When considering whether to reopen a trial on the basis of new evidence, the following principles applied. (i) The court did have jurisdiction to admit new evidence and order a further hearing (and thereby reopen the trial or hearing) after judgment had been handed down. (ii) The principle to be applied generally was the overriding objective of dealing with cases justly and proportionately, including the issue of costs. This also involved dealing with cases expeditiously and fairly and allocating an appropriate share of the court’s resources to a dispute. (iii) In cases involving an application to call new evidence and have a new trial, the court should take into account the principles in Ladd v. Marshall, namely that the evidence could not have been obtained with reasonable diligence for use at the trial, the evidence must probably have an important influence on the result of the case, and the evidence must be apparently credible, though not necessarily incontrovertible. (iv) The Ladd v. Marshall principles were persuasive but not determinative, but the trial judge enjoyed a greater discretion to let in fresh evidence prior to the final order being drawn up since he was better equipped than the appellate court to know what effect such fresh evidence would have on his original decision. (v) However, because it was inherently contrary to the public interest and unfair to the other party that an unsuccessful party should be able to raise new points or call fresh evidence after a judgment had been given against him, it would generally require powerful factors in an applicant’s favour before the court would be prepared to grant an application if the applicant could not satisfy the three requirements in Ladd v. Marshall. (vi) Each case would have particular features that the court would think it right to take into account when deciding how to dispose of an application. (vii) When applying the overriding objective in the context of applications to admit new evidence after trial and after judgment had been handed down, there was a balance to be struck between the interests of having the true facts considered and the need for finality in litigation (paras. 25–28).

(2) In the present case, the three criteria in Ladd v. Marshall were made out. The evidence as to what had transpired in other courts after the hearing in January and evidence as to the shifts of position by the defendant could not have been obtained for use at the hearing; the evidence was credible; and it would have an important influence on the result of the case. It was appropriate for the judge to reconsider his decision in light of the new material as well as his greater appreciation of the case advanced by the defendant in England and Dubai (paras. 29–30).

(3) Having considered the additional evidence, the court would revisit its original decision to refuse summary judgment and would grant summary judgment for the plaintiff in the sum of US$171,769,169, with interest to be assessed. The defendant appeared to have very shifting positions on its defences. The main plank of its defence had been fraud but it had now been conceded that the defendant made no allegation of fraud. The court had been misled, albeit perhaps unwittingly. It was now plain the defendant had no real prospect of succeeding before the court on a defence of fraud impeaching the New York judgment. That defence was entirely frivolous, or at any rate unsustainable and without conviction. Absent a fraud allegation, the defences of enforcement of the New York judgment being contrary to public policy or in breach of natural justice would fall away. The court would therefore grant summary judgment to the plaintiff (paras. 40–46).

Cases cited:

(1) Att. Gen v. Bridger, 2015 (1) CILR 206, applied.

(2) Charlesworth v. Relay Roads Ltd., [2001] 1 W.L.R. 230; [1999] 4 All E.R. 397; [2000] C.P. Rep. 37; [2000] C.P.L.R. 109; [2000] R.P.C. 300, referred to.

(3) L & B (Children), Re, [2013] UKSC 8; [2013] 1 W.L.R. 634; [2013] 2 All E.R. 294; [2013] 2 FLR 859; [2013] 2 F.C.R. 19, applied.

(4) Ladd v. Marshall, [1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745, applied.

(5) Shanda Games Ltd., In re, 2017 (2) CILR N [3], applied.

The plaintiff applied to reopen its application for summary judgment and to adduce additional evidence.

The New York Supreme Court had given judgment in favour of the plaintiff and against the defendant in the sum of US$171,769,169. The plaintiff sought summary judgment in the Grand Court to enforce the New York judgment in the Cayman Islands. The court dismissed the application, on the basis that the defendant had a real prospect of succeeding on its defence that the New York judgment had been obtained by fraud, misrepresentation or other misconduct.

After judgment had been reserved but before the order dismissing summary judgment had been sealed, the plaintiff applied to reopen the application and admit additional evidence showing that the defendant had not pursued the fraud, public policy or natural justice defences in proceedings (of which the court had not previously been informed) to enforce the judgment in England or Dubai.

J. Eldridge and P. Smith for the plaintiff;

U. Payne and P. Murphy for the defendant.

1 MANGATAL, J.:

Introduction

This is the application of the plaintiff, Midtown Acquisitions L.P., to reopen its summary judgment application made by summons dated October 26th, 2016 and to introduce additional evidence, including the fifth and sixth affidavits of Benjamin Finestone, sworn respectively on May 4th, 2017 and June 23rd, 2017. The application is opposed by the defendant, Essar Global Fund Ltd...