Henderson J
22/5/08
IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS
HOLDEN AT GEORGETOWN， GRAND CAYMAN
CAUSE NO. 478 OF 2004
BETWEEN：
(1) WISTERIA BAY LIMITED
(2) UTTERTON LIMITED
(3) ABDALLAH IBRAHIM ABDALLAH AL-AYED
AND：
(1) TASARRUF MEVDUATI SIGORTA FONU
(An entity Established Under Turkish Law)
(2) MAVI TURIZM VATIRIM TICARET A.S.
(3) RUMELI CIMENTO SANAYI TICARET A.S.
Applicants
Respondents
Appearan
Mr. Robert Miles Q.C. instructed by Mr. Hector Robinson，
Mr. George Keightley and Mr. Peter Hayden of
Mourant du Feu&Jeune for the Applicants
Mr. Geoffrey Cox Q.C. and Mr. Richard Davison instructed by Mr.
Alistair Walters and Miss Kirsten Houghton of Campbells for the
Respondents
Before：
Hon. Justice Henderson
for le
Heard：
May 22， 2008
defende
RULING
fevhaati Sige zal，
The first th
nts("the defendants") have applied to me， sitting as a single judge of the
Court of A
cave to appeal and， whether or not I grant leave， for a stay of execution.
Ruling-Tasarr
pp
uree
On May 6, 2008, the Chief Justice struck out the defendants' defences and counterclaims because of certain defaults which he found amounted to an abuse of the court's process. On May 13, 2008, he signed judgment for the plaintiffs expunging certain ships' mortgages and vacating the ships' registrations in the Cayman Islands.
The defendants applied to Smellie, C.J. for leave to appeal and for a stay of execution. Both were refused. The parties are agreed that an appeal can be brought only with leave.
The plaintiff besays that in these circumstances, a single judge of the Court of Appeal has no jurisdictional leave to appeal. I now turn to that question.
The Court of Appeal (2006 Revision) provides only that a single judge may exercise any jurisdiction on 31(1) upon him by rules of court (except the actual determination of the appeal itself): see and later 2).
Nonetheless, Section 24(1) of the Court of Appeal Rules (2004 Revision) confers jurisdiction upon a single judge to hear and determine three types of applications: for a stay; for an injunction; and for an extension of any appeal by its absence is any reference to an application for leave.
That section reads:
In any case or matter pending before the Court, a single judge may, upon application, make an order for:
(a) a stay of execution on any judgment appealed from;
(b) the determination of such appeal;
Ruling – Tasarri v. Sefat (to) ta Fonu et al. v. Wisteria Bay Limited et al (Cause No. 478 of 2004 22.05.08)
(b) an injunction restraining the defendant in the action from
disposing or parting with the possession of the subject-matter
of the appeal pending the determination thereof;
(c) extension of time,
and may hear, determine and make an order on any other interlocutory
application."
In Horvar Properties (Cayman Islands) Ltd. and another v. Brown， [1994-95] CILR N-2， former
Chief Justice Harre held that， where leave to appeal is required， there is no "case or matter pending
before the edict" until leave has been granted. The mere filing of a notice of application for leave
to appeal， even if filed within time and in proper form， does not amount to the initiation of a case or
matter in the
He said：
"In my
subrule
take a c baview the words "such appeal" and "the appeal" in
itself as at 24 (1) (a) and (b) are meaningless unless they refer
for my view the words "case or matter pending before the court"
at the beginning of the rule. The whole of rule 24 refers in
part Appeal， to a case or matter which is already pending before
the Court of Appeal and not to any application for leave to
appeal. Sigor/ in that view by looking at the powers of a single
the C powered in that view by looking at the powers of a single
criminal cases under section 26 (1) of the Court of
the time within which notice of appeal or application
may be given but do not include the power
such an application. It would be an anomaly for that
o exist in civil but not in criminal cases."
The application to Harre， C.J. was for leave， that application having already been brought
unsuccessful
Brand Court. His Lordship held that any further leave application must be
Ruling-Tasarr
ve ta Fonu etc. v. Wisteria Boy Limited et al Cause No. 478 of 2004 22.05.08
ally
titio
The document appears to be a legal document, possibly a ruling or a court decision, discussing the procedures and considerations for appeals in the Cayman Islands Court of Appeal. Below is a faithful transcription of the text, formatted according to the instructions provided:
Ruling - Tasarry Sllt sava Fom etc. v. Wisteria Bay Limited et al Cause No. 478 of 2004 22.05.08
**Page 4 of 7**
**made to the full Court of Appeal as provided for in section 32 of the Law. The result is that a single judge may never grant a stay or an injunction until leave to appeal has been obtained.**
Since the Court of Appeal of the Cayman Islands is composed entirely of judges who do not reside within the country, significant delay will be experienced often before such a leave application can be heard. In the interim, no stay is available if a Grand Court judge has refused to grant one. A single judge of the Court of Appeal is powerless to intervene even where the result of the appeal could be rendered nugatory without a stay of execution.
**M. m. m.**
All of this, as just to coniles, is anomalous and out of harmony with section 25 of the Law, which directs the Court to construe the law liberally in favour of the right to appeal.
A different position is taken by Harre, C.J. in Worldwide Financial Holding v Citel [1994-95] OLR 44. Harre held there, in conformity with his earlier ruling, that a single judge has no jurisdiction to grant leave to appeal. This conclusion raises difficulty in that the judges of the Court of Appeal are only intermittently resident in the Cayman Islands. An appeal may be rendered nugatory or prejudiced by delay in obtaining leave from the full Court. That is a matter which a Court Judge should consider very carefully when deciding to grant or refuse leave to appeal.
**C.J. Stephen**
I have no doubt that Sir John Nellie, C.J. would have had that comment firmly in mind when he refused to resolve this matter.
This transcription is based on the visible text in the image provided. If there are any further instructions or specific formatting requirements, please let me know.
The applicants argue that the decision in Horvat Properties is clearly wrong and should not be followed. Mr. Miles also says that my jurisdiction to grant leave can be found in rule 11.
This rule was amended in 1999 by the addition of subsections (5) and (6) which read:
"(5) In any case in which leave to appeal is required, an application for leave shall be made to the court below-
(a) at the time the judgment or order is pronounced; or
(b) by summons or motion issued within fourteen days from the date on which the judgment or order is filed,
And if leave is granted, the appellant's notice of appeal shall be lodged within fourteen days of the date upon which the order giving leave to appeal is filed.
(6) An which the order giving leave to appeal is filed.
An application for leave to appeal out of time shall be determined by summons or motion to a single judge."
Before that, Rule 11(5) provided for the full Court of Appeal to grant leave to appeal if the application was out of time under Rule 11(6) rectifies that difficulty by permitting a single judge to grant leave.
The crux of the argument is that rules 11(5) and 11(6) are not alternative procedures but provide a separate and independent applications. The first three defendants draw some additional support for their position from rule 21(4) which provides:
"Leave is conferred under the Law or these Rules, an application may be made to the court below or to the Court, it shall be made in the instance to the court below."
If this position is correct, every would-be appellant will have three opportunities to obtain leave. First, an application will be made to a judge of the Grand Court under rule 11(5). Then, after the time for making the application has expired, an application for leave out of time will be brought to the court below.
before a single judge of the Court of Appeal. If that also is unsuccessful， a third application will be
made to the full court.
Do our Court of Appeal Rules contemplate that every prospective appellant should have three
chances to obtain leave? Such applications can impose significant additional cost and delay upon a
respondent who may have waited years to obtain a judgment in the Grand Court.
I am happy to adopt the liberal and purposive approach to construction of the rules urged upon me
by Mr. Miles， but it does not lead me to the result he seeks. Two opportunities to ask for leave are
enough. I see no sound reason for allowing three and would not read the rules in this way unless
to
the right to
cessive applications is established in clear and expressive language. It is not.
ee suc
Rule 11 est logic； and alternate ways of seeking leave： to the Grand Court， if the application is
brought in tipplicant isha a single judge of the Court of Appeal， if it is not. The suggestion that an
unsuccessful 11 nor noat the Grand Court level need only wait a while and then apply again to a
single judge 2 spective cal. If the intent is to provide for a second application to a single judge， why
require the lapl
appellant to wait until the requisite number of days have past? Neither the
language of that ri. Rule any implication which may arise fairly from it would compel such an
artificial resn. Inve to 1(4) is of no assistance on this point.
ut of tim
My conclusi hani Sigoriticle 11(5) and rule 11(6) establish mutually exclusive and alternative rights
to apply for
seal. An applicant should apply to the Grand Court for leave but， if the
application i
， the Grand Court judge will sit as a single judge of the Court of Appeal to
hear the app
either event， a further appeal to the full court is possible.
isim
ee
Ruling-Tasarruf
thr Fomu etc.v. Wisteria Bay Limited et al/Cause No. 478 of 2004 22.05.08
liclea rul
oonult
1 recognisethatfailuretoobtainleaveinthefirstinstancemay，in somecases，determine the
outcome because no stay or injunction can be granted when leave is refused. This militates in
favour of granting leave and a stay in close cases.
On balance， I find that a purposive approach to this question of construction leaves me with a
preference for a regime where some unsuccessful litigants are confined effectively to one leave
application over a regime where everyone is entitled to three.
For these reasons， both applications are dismissed for want of jurisdiction.
Dated this
Co
1
20thday
Henderson
Judge of the
Court