Re C

• Jurisdiction: Cayman Islands
• Judge: (Harre, C.J.)
• Judgment Date: 30 August 1994
• Court: Court of Appeal (Cayman Islands)
• Date: 30 August 1994

Court of Appeal

(Harre, C.J.)

IN THE MATTER OF C

C.G. Quin and Mrs. A.R.M. Hernandez for the applicant;

R.D. Alberga, Q.C. and S.T. McCann for the respondent.

Cases cited:

(1) Becker v Bank of Nova Scotia, 1986–87 CILR 389.

(2) Boeing Co. v. PPG Indus. Inc., [1988] 3 All E.R. 839, distinguished.

(3) H Ltd. v. B, 1994–95 CILR N–5, applied.

(4) Harrison”s Share, In re, Harrison v. Harrison, [1955] Ch. 260; [1955] 1 All E.R. 185.

(5) Radio Corp. of America v. Rauland Corp., [1956] 1 Q.B. 618; [1956] 1 All E.R. 549.

(6) Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] A.C. 547; [1978] 1 All E.R. 434.

(7) Salter Rex & Co. v. Ghosh, [1971] 2 Q.B. 597; [1971] 2 All E.R. 865, dictum of Lord Denning, M.R. applied.

(8) U.S. v. Carver, 1980–83 CILR 297.

(9) White v. Brunton, [1984] Q.B. 570; [1984] 2 All E.R. 606, dictum of Donaldson, M.R. applied.

Legislation construed:

Court of Appeal Law (Law 9 of 1975), s.4:

‘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. . . .’

s.22: The relevant terms of this section are set out at page 268, lines 6–12.

Rules of the Supreme Court, O.59, r.1A(3): The relevant terms of this paragraph are set out at page 266, lines 19–22.

O.59, r.1A(6)(bb): The relevant terms of this paragraph are set out at page 266, lines 25–27.

O.70: The relevant terms of this order are set out at page 266, line 45 – page 267, line 1.

Civil Procedure-judgments and orders-finality-judge may withdraw or alter order before drawn up, passed and entered-meanwhile may be treated as subsisting if no prejudice and justice so requires, unless parties undertake to preserve status quo until reasons for ruling given

Evidence-assistance to foreign court-practice and procedure-practice and procedure under Rules of Supreme Court, O.70 to be followed in dealing with application made under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978

Civil Procedure-appeals-leave to appeal-leave required for appeal against interlocutory order, i.e. order not finally disposing of entire cause-Rules of Supreme Court, O.59, r.1A categorizes certain orders as interlocutory

Civil Procedure-appeals-leave to appeal-if leave of Grand Court applied for and refused, improper for dissatisfied party then to appeal, asserting that leave not required-to respect refusal until able to apply to full Court of Appeal

The applicant sought a determination as to whether leave was needed to appeal against an order refusing to set aside the respondent”s ex parte order for the examination of documents and witnesses.

In an ex parte application, made in accordance with the Rules of the Supreme Court, O.70, the respondent obtained an order under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 to assist proceedings in South America. The order related to the disclosure of confidential information and accordingly was also subject to a Confidential Relationships (Preservation) Law, s.3A application for directions.

At the subsequent inter partes hearing, the Grand Court (Schofield, J.) refused to set aside the order, except in so far as it was too wide, and refused the applicant leave to appeal. (The proceedings are reported at 1994–95 CILR 254.) The applicant nevertheless lodged a notice of appeal on the basis that leave was not required in any case, since an order refusing to set aside an ex parte order was final and leave to appeal was not required under the Court

of Appeal Law, s.4(f). As a preliminary matter, a single Judge of the Court of Appeal considered whether leave to appeal was in fact needed; he initially expressed a conclusion extempore at the hearing but subsequently altered it before finalizing the order. The parties had undertaken to preserve the status quo in the interim.

The applicant submitted, inter alia, that, in accordance with the definition of a final order in the Rules of the Supreme Court, O.59, r.1A(3) (which applied in the absence of local rules), the order refusing to set aside the ex parte order had finally determined the matter subject only to a possible appeal, since the further application for directions under the Confidential Relationships (Preservation) Law, s.3A was only necessary because the information was confidential.

The respondent objected that the order did not fall within the definition of a final order and leave was therefore required under the Court of Appeal Law, s.4(f) since (a) the order was merely to obtain evidence for the South American proceedings in which the entire cause would finally be determined; (b) it was subject both to the later s.3A application for directions and to the restrictions of the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.3, as applied to criminal proceedings by s.5, which might prevent its implementation; and (c) the ex parte procedure inevitably led to contested O.70 applications falling within the Rules of the Supreme Court, O.59, r.1A(6)(bb), under which an order setting aside or refusing to set aside another order was interlocutory.

Held, ruling that leave to appeal was required:

(1) The extempore conclusion the court had reached was not binding on it, since an order could always be withdrawn or altered by a judge before it was drawn up, passed and entered. Although it could in the meantime be treated as subsisting if justice so required, the parties in the present proceedings had undertaken to preserve the status quo until the court had delivered its reasons and no prejudice had therefore been caused (page 266, lines 3–7).

(2) The order refusing to set aside the ex parte order for judicial assistance (which was properly applied for following the Rules of the Supreme Court, O.70 practice and procedure) was not a final order as defined by O.59, r.1A(3) since it would not have finally determined the cause whichever way the ruling had been given. The order was interlocutory because (a) it was the South American proceedings which would finally determine the matter in dispute and the Cayman order merely enabled evidence to be given to assist those proceedings; (b) the fact that the proceedings involved confidential information was fortuitous and other orders might not require a subsequent application for directions under s.3A; nevertheless, all orders for the disclosure of information, confidential or otherwise...