Re BTU Power Company
| Jurisdiction | Cayman Islands |
| Judge | (Smellie, C.J.) |
| Judgment Date | 06 March 2015 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 06 March 2015 |
(Smellie, C.J.)
J. Guthrie, Q.C. for the proposed appellant;
F.B.W. Tregear, Q.C. for the proposed respondents.
(1) Ahmad Hamad Algosaibi & Bros. Co. v. Saad Invs. Co. Ltd., Grand Ct., Cause No. 54 of 2009, November 15th, 2013, unreported, referred to.
(2) Bancredit Cayman Ltd., In re, 2009 CILR 578; [2010] Bus. L.R. 587; [2009] UKPC 39, followed.
(3) Cybervest Fund, In re, 2006 CILR 80, applied.
(4) Dyxnet Holdings Ltd v. Current Ventures II Ltd., 2015 (1) CILR 174, followed.
(5) Gibbs v. Ruxton, 2000 J.C. 258; 2000 S.L.T. 310; 2000 S.C.C.R. 136, referred to.
(6) Keary Devs. Ltd. v. Tarmac Const. Ltd., [1995] 3 All E.R. 534; [1995] 2 BCLC 395, applied.
(7) M.V. Yorke Motors (A Firm) v. Edwards, [1982] 1 W.L.R. 444; [1982] 1 All E.R. 1024, applied.
(8) Merribee Pastoral Indus. Pty. Ltd. v. ANZ Banking Group, [1998] HCA 41, referred to.
(9) Millar v. Dickson, [2002] 1 W.L.R. 1615; [2002] 3 All E.R. 1041; 2002 S.C. (P.C.) 30; 2001 S.L.T. 988; [2001] H.R.L.R. 59; [2001] UKPC D 4, considered.
(10) Porter v. Magill, [2002] 2 A.C. 357; [2002] 2 W.L.R. 37; [2002] 1 All E.R. 465; [2002] H.R.L.R. 16; [2002] H.L.R. 16; [2001] UKHL 67, referred to.
(11) Pretoria Pietersburg Ry. Co. (No. 2), In re, [1904] 2 Ch. 359, applied.
(12) R v. Bow St. Metrop. Stip. Mag., ex p. Pinochet Ugarte (No. 2), [2000] 1 A.C. 119; [1999] 2 W.L.R. 272; [1999] 1 All E.R. 577, referred to.
(13) Soh v. Australia (Commonwealth), [2006] FCA 575, referred to.
(14) Yiacoub v. R., [2014] 1 W.L.R. 2996; [2014] UKPC 22, applied.
Court of Appeal Law (2011 Revision), s.5: The relevant terms of this section are set out at para. 8.
s.19(2): ‘The appellant shall, at the time of lodging the notice of appeal required by subsection (1), deposit in the Grand Court the sum of fifty dollars as security for the due prosecution of the appeal together with such further sum as security for costs of the appeal as a Judge of the Grand Court may direct, and such security for costs may be given by the appellant entering into a bond by himself and such sureties and in such sum as the Judge of the Grand Court may direct, conditioned for the payment of any costs which may be awarded against the appellant and for the due performance of the judgment of the Court.’
s.33:‘All the powers conferred by the Law, any other law or rules of court on a single Judge may, for all purposes, be exercised by a judge of the Grand Court in the same manner as they may be exercised by a single Judge and subject to the same provisions and such exercise shall, for all purposes, be as valid as if that power had been exercised by a single Judge.
Provided that, on the application of a party aggrieved by it, the Court, as duly constituted for the hearing and determination of appeals under this Law, may review and discharge and vary any
exercise of any such powers by a judge of the Grand Court under this section.’
s.36:‘Where, in any case, no special provision is contained in this or any other law, or in rules of court, with reference thereto, any jurisdiction in relation to appeals in criminal or civil matters shall be exercised by the Court as nearly as may be in conformity with the law and practice for the time being observed in Jamaica, and where such law and practice has no application, then to the law and practice for the time being observed by the Court of Appeal having equivalent jurisdiction in England.’
Court of Appeal Rules (Jamaica), r.1.7: The relevant terms of this paragraph are set out at para. 23.
r.2.12: The relevant terms of this paragraph are set out at para. 22.
Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, s.7(1): ‘Everyone has the right to a fair and public hearing in the determination of his or her legal rights and obligations by an independent and impartial court within a reasonable time.’
Civil Procedure-appeals-costs-security for costs-Court of Appeal has jurisdiction to order individual resident overseas to provide security both for costs of appeal and for application for leave to appeal in compulsory winding-up proceedings-inappropriate to make order if individual ‘highly likely to succeed’ on appeal-order may not be justified if appeal concerns matter of public interest; however, unfounded allegations of judicial bias not sufficient as respondent may bear burden of spurious claim-order particularly justified if individual has substantial assets and refuses to abide by costs orders
Courts-Court of Appeal-jurisdiction-court has jurisdiction to order individual resident overseas to provide security for costs in appeals in compulsory winding-up proceedings-by Court of Appeal Law (2011 Revision), ss. 5 and 36 has same jurisdiction as Grand Court and Jamaican Court of Appeal, both of which able to order security
Joint official liquidators applied for a company to be wound up on the just and equitable ground.
The prospective appellant was a director of the company and was resident abroad. The joint official liquidators (‘JOLs’) applied, with the support of the shareholders and the prospective appellant”s consent, for the company to be wound up. The Grand Court (Cresswell, J.) agreed, and held that the company ought to be wound up, but rejected the prospective appellant”s claim for reimbursement of legal fees he had purportedly incurred in his position as director of the company.
The prospective appellant sought to apply for leave to appeal against the orders of the Grand Court on the basis that Cresswell, J. was biased as his parallel appointment as a judge in Qatar indicated that he might be favourably disposed towards the Qatari shareholders of the company; every order made by the judge would therefore be challenged, including the order winding up the company. In responding to the prospective appellant”s intended application for leave to appeal, the JOLs sought an order from the Court of Appeal that the prospective appellant should provide security for the costs of the application for leave to appeal as well as the appeal itself on the basis that the prospective appellant had previously failed to pay substantial costs orders made against him.
The prospective appellant submitted that (a) the court had no jurisdiction to order security for costs; (b) the appeal concerned a matter of considerable public interest, namely judicial bias, and therefore a requirement to provide security for costs presented an unjustifiable barrier to bringing the matter to court; and (c) the appeal was highly likely to succeed and as he had insufficient funds, an order to provide security would therefore prevent him from safeguarding his rights. He also made clear his intention not to comply with any order to provide security for costs made by the court.
The JOLs submitted in reply that (a) the court had jurisdiction to order security for costs on the basis of the Court of Appeal Law (2011 Revision), s.5, which gave the Court of Appeal the same powers as the Grand Court (which itself had jurisdiction to order security for costs in winding-up proceedings), or, alternatively, under s.36 of the Law, by reference to the practice of the Jamaican Court of Appeal; (b) their conduct as liquidators was not being questioned and they would thus be forced to incur costs while defending the conduct of the court; and (c) the prospective appellant had previously failed to pay costs orders in favour of the JOLs amounting to $286,550.
Held, allowing the application:
(1) The prospective appellant would be ordered to provide security of US$150,000 for the costs of the prospective respondents incurred in the appeal and the application for leave to appeal. The court had jurisdiction to decide the application by virtue of the Court of Appeal Law (2011 Revision) (‘the Law’), s.33, which vested a single Judge of the Grand Court with the powers of the Court of Appeal when that court was not in session. Further, the Court of Appeal had jurisdiction to order an individual resident overseas to provide security for costs in the course of winding-up proceedings as either (a) the Grand Court had inherent jurisdiction to do so, and the Court of Appeal had identical powers to the Grand Court according to s.5 of the Law; or (b) s.36 of the Law gave the Court of Appeal similar powers to the Jamaican Court of Appeal, which had wide jurisdiction to order security for costs (paras. 8–10; paras. 17–25).
(2) It would be appropriate to make the order as the prospective appeal was not ‘highly likely to succeed.’ The prospective appellant”s challenge was too broad, encompassing every order made by Cresswell, J. in the Grand Court, including the order to wind up the company. The Court of Appeal would be likely to hold that the challenge should have been narrowed to encompass only those orders adverse to the prospective appellant himself (i.e. the orders refusing to cover legal expenses purportedly incurred in his capacity as director), and would be unlikely to reverse the order to wind up the company as doing so would harm the interests of a large number of people and would provide no benefit to the prospective appellant. As the prospective respondents were only compelled to respond to the appeal because the order to wind up the company was challenged, security ought to be provided for their costs (para. 34; paras. 43–45; para. 54; paras. 58–59).
(3) The allegations of bias made against the judge in the Grand Court appeared unfounded, and an order for security was therefore not liable to deter adjudication of a matter of public interest. The prospective appellant”s opponents were not the Qatari individuals but rather the JOLs and, as the JOLs operated for the benefit of all those with a financial interest in the company, including the prospective appellant, they could not be equated with one party in particular (i.e. the Qatari...
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