Tower Corporation Ltd v Hadsphaltic Intl Ltd
| Jurisdiction | Cayman Islands |
| Judge | (Zacca, P., Georges and Henry, JJ.A.) |
| Judgment Date | 28 August 1987 |
| Court | Court of Appeal (Cayman Islands) |
| Date | 28 August 1987 |
(Zacca, P., Georges and Henry, JJ.A.)
R. D. Alberga, Q.C. and N. Clifford for the appellant;
W. Simpson, Crown Counsel, for the Attorney General;
I. Croxford and D. Jones for Hadsphaltic International Ltd.;
M. Harvey, Q. C. and A. J. Foster for Maples & Calder.
(1) Great Atlantic Ins. Co. v. Home Ins. Co., [1981] 1 W.L.R. 529; [1981] 2 All E.R. 485, dictum of Templeman, L.J. followed.
(2) McGarry (E.) (Elec.) Ltd. v. Burroughs Machs. Ltd., Court of Appeal (England), April 14th, 1986, unreported, followed.
(3) Maxwell v. Pressdram Ltd., [1987] 1 W.L.R. 298; [1987] 1 All E.R. 656;
Civil Procedure-appeals-interlocutory appeals-no leave to appeal unless exceptional circumstances, i. e. ruling crucial to decision of major issue in case-trial judge best equipped to make decision and appeal court slow to disturb his refusal of leave
The appellant sought leave to appeal against a ruling given on an issue arising in the course of proceedings in the Grand Court.
The appellant owned the land on which an office block was built by Hadsphaltic International Ltd., which held a charge on the property to cover the construction costs. When the appellant could not meet its obligations under the charge, Hadsphaltic became entitled to and in fact sought to exercise its power of sale by public auction.
At the auction, there were only two bidders: the Registrar of Lands representing the Cayman Government, and an associate company of Hadsphaltic which had been formed for the purpose of bidding at the auction. The Government was the successful bidder at US$4.65m.
The appellant then commenced the present proceedings alleging, inter alia, that the sale had been at an undervalue since there had been a previous valuation of the property at US$7.5–8m. and Hadsphaltic”s setting a reserve considerably lower (at a level, in fact, which simply covered the amount owing to Hadsphaltic and the costs of the auction) was evidence of negligence and breach of duty which had caused loss to the appellant. Hadsphaltic denied liability but, against the possibility of its being found liable, it in turn brought proceedings against Maples & Calder, the attorneys advising it in the transaction, from whom it sought an indemnity. Maples & Calder denied negligence in advising Hadsphaltic.
Before the trial, the appellant sought disclosure of the instructions from the Governor in Council to the Registrar of Lands in relation to the auction and in particular those concerning the maximum bid the Government was prepared to make. Disclosure was refused by the Attorney General and when, during the trial, the appellant sought to subpoena the Registrar of Lands to produce the instructions, the Attorney General intervened, claiming Crown privilege for the documents.
The Grand Court (Summerfield, C.J.) upheld the Attorney General”s submission and in addition refused leave to appeal and a stay of proceedings pending appeal.
The appellant appealed against the refusal of leave to appeal, submitting that exceptional circumstances existed justifying the granting of leave: the application made in respect of the additional evidence sought would affect the final outcome of the action and the Grand Court should therefore be enabled to rule on the application, grant leave to appeal, adjourn the trial and enable the appeal to proceed with due expedition to the Court of Appeal.
The Attorney General submitted that since the issue was one of the admissibility of evidence, regard should be had to the importance of the evidence and whether or not it would be decisive of one or more of the issues to be determined at the trial.
Held, dismissing the appeal:
Leave to appeal against a ruling given on an issue arising during a trial would only be granted in exceptional circumstances, primarily because the hearing of such an appeal would normally interrupt and delay the trial. The test of whether a ruling on the admissibility of evidence (as in the present case) could give rise to an exceptional circumstance was whether the admission (or not) of that evidence was crucial to the decision of a major issue in the case. It was clear in the present case that the disclosure of the instructions given to the Registrar of Lands was not crucial to the central issue of whether or not there had been negligence in the conduct of the auction and, although it would have been useful evidence in relation to the question of undervalue, it would not have been crucially decisive of that issue either. It was of particular importance that the trial judge had not considered the issue to be an exceptional one justifying the granting of leave to appeal: he was the person most familiar with the issues and best fitted to decide whether exceptional circumstances existed. In the absence of misdirection or the consideration of irrelevant material on his part, the appeal court would be slow to disturb his decision and the appeal would therefore be dismissed (page 398, line 39 – page 399, line 4; page 400, line 34 – page 401, line 16; page 402, lines 6–14).
| GEORGES, J.A., delivering the judgment of the court: This is | |
| an appeal from a ruling made in the course of the hearing of these | |
| actions which arise from the sale of an office block in George | |
| Town, Grand Cayman, known as the Tower Building. The land | |
| 5 | on which this building stands was owned by the appellant. To |
| facilitate its construction, the appellant entered into certain finan- | |
| cial arrangements which need not, for the purposes of this appeal, | |
| be described in detail. As part of these arrangements, Hadsphai- | |
| tic Internationa! Ltd., the contractors who constructed the build- | |
| 10 | ing, became holders of a charge on the property to cover the cost |
| of construction, some US$4.5m. There should have been at Bank | |
| International Ltd. a deposit of US$4.5m. to meet this cost but | |
| unhappily this bank had its licence withdrawn and is now in liqui- | |
| dation. The appellant could not meet its obligations under the | |
| 15 | charge and Hadsphaltic became entitled to exercise its power of |
| sale, which it did. | |
| The |
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