Kellock J
IN THE GRAND COURT OF THE CAYMAN ISLANDS
**PCCL 1 of 1999**
**Cause No. 379 of 1999**
**PCCL 2 of 2002**
IN THE MATTER of the Proceeds of Criminal Conduct Law (2001 Revision)
AND IN THE MATTER of Euro Bank Corporation (in Liquidation)
AND IN THE MATTER of Crystal Limited
BEFORE THE HONOURABLE MR. JUSTICE KELLOCK (IN CHAMBERS)
**APPEARANCES**
Cheryl Rich
Attorney-General
Colin McKittrick
for Euro Banks Corporation (in Liquidation)
REASONS FOR JUDGMENT
**2003 I**
**OCT**
/ the At
On March 25, 2003, the Attorney-General made a costs order which followed upon the judgment of my brother Henderson J. on October 25, 2002. The last-mentioned judgment put an end to proceedings commenced by the Attorney-General against Euro Bank in respect of money standing to the credit of Criminal C d ("Crystal") in that bank.
There were no pleadings.
In the first
In the first proceedings under section 10 of the Proceeds of Criminal Conduct Law (2001 Revision) ("the PCCL") restraining Euro Bank (which by 10, prn vstl. d Cr
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is in liquidation) from dealing in any way with funds which were or might become due to Crystal. In the second proceeding the Attorney-General sought an order against Crystal (one of the bank’s depositors) restraining it from making use of those funds. In the third proceeding (the winding up proceeding) the Attorney-General put forward some other claims, but these were withdrawn before the argument before Mr. Justice Henderson commenced.
The relief claimed by the Attorney-General in the applications to Henderson J, constitute a second attempt in 2006 to obtain ex parte relief originally provided for by a restraining order obtained in November 2000. That order was eventually set aside as the Attorney-General could not establish the liquidators’ grounds to support it. The Attorney-General then sought to persuade Henderson J. My belief is that the relief provided for in the discharged ex parte order was not persuasive and the applications were dismissed with leave to the liquidators of Euro Bank to apply for costs. The liquidators made that application on 10 October 2003.
I note that Motion 1000 reasons make it clear that the restraining order sought would, if granted, have denied the Attorney-General with the opportunity to obtain confiscation orders in respect of the funds held by the Bank.
Ms. Richard e to deny the liquidators their costs on the grounds that the Attorney-General’s participation in these proceedings was in the public interest and the liquidators o fact inapt.
art av
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Crystal Assumed and Discharged the Burden of Persuading Henderson J. to Dismiss the Applications for the Restraint Orders
Notwithstanding these submissions, I made an order requiring the crown to pay the costs of the bank and the liquidators but directed they be taxed as the costs of one summons.
On April 16, 2003, Ms. Richards Sought Leave from Me to Appeal to the Court of Appeal from That Order
The grounds laid in support of that application were essentially the same as those advanced on September 18, 2002, before Henderson J. It was not until the commencement of the argument before Henderson J. on September 18, 2002, that the learned Judge made it clear that there was a common thread issue raised in each application. That issue was whether or not there were reasonable grounds for thinking that the money on deposit with Euro Bank for Crystal was the proceeds of the conduct. If not, the applications against Crystal and Euro Bank would fail.
I Have Considered Mr. McKie's Submissions
I have considered Mr. McKie's submissions and have no doubt that Mr. McKie was required to prepare for the hearing and did, in fact, provide the court with skeleton arguments. The liquidators were primary parties to the proceedings, and there is no basis for regarding them as interveners, third parties, or otherwise.
Conclusion
I have considered the submissions and confirmed the accuracy of Mr. McKie's submissions.
persons whose interests could be protected by a watching brief. I am therefore of the opinion
that any appeal on that ground would be bound to fail.
With respect to the argument that the Attorney-General should be immune from liability for costs
in this case, I note firstly that the Crown's cost liability is specifically addressed by section 24(5)
of the Judicature Law (as amended by the Judicature (Amendment) (Costs) Law 2001). This
section states that “Costs, including wasted costs, may be awarded to or against the Crown.”
Secondly, One objective Grand Court Rules was replaced in 2002 by a new order which has as
its overriding rule 62 that a “successful party to any proceeding should recover from the
opposing party reasonable costs incurred by him...” (Order 62 rule 4(2)). Having so
provided, Order 6 sub-rules mention the Attorney-General or the Crown or
provide an exception to the overriding objective of Order 62. It is of course possible that in
some exceptional cases the court might consider releasing the Crown from liability
for costs but
Thirdly, I do not follow the argument of the application for leave to appeal (heard
Wednesday, April 16, 2003) that Mr. Justice Henderson had released his judgment in another
case whatever in any alleged criminal conduct.
The text is transcribed faithfully as requested, with headings and paragraph structures preserved. No additional content has been invented.
Similar Proceeding Brought by the Attorney-General
In the matter of an Application by the Attorney-General pursuant to the Proceeds of Criminal Conduct Law (2001) Revision and In the matter of Donald Fraser (defendant) and another, PCCL# 1/99. That is the same file as the application against Euro Bank in respect of Crystal.
In the Fraser Case
In the Fraser case, Mr. Justice Henderson was asked to award costs against the Crown to two parties who a. Fets had been frozen by a restraint order but who had been successful in obtaining a variation to same subchards appeared for the Attorney-General on April 10, 2003 to make essentially the Marc. Msmissions to Mr. Justice Henderson that she made to me on March 10, 2003 and agerson 1 h 16, 2003 in support of the application for leave to appeal.
Mr. Justice Henderson's Judgment
Mr. Justice Henderson made the costs order against the Crown in his April 14, 2003 judgment for essentially the reasons I have set out above.
Like
It is to be arch) reject Ms. Richards did not inform me on April 16, 2003 that Mr. Justice Henderson had decided to decide the same issue on April 10, 2003 and had decided it on April 14, 2003. Mr. Justice Henderson advises me that Ms. Richards did not tell him that I had (in) ected the arguments she put to him on April 10, 2003.
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In the circumstances, I do not think it would be appropriate to grant the leave sought as I am firmly of the view that there is no proper basis for an appeal. Even if I were in doubt, the proper course would be to deny leave to appeal (see Practice Note paragraph 8 (1999) 1 ALL E.R. 186).
Leave to appeal is therefore refused with costs to be taxed if not agreed.
**Mr. Justice K.**
**003**
**Dated:** April
**, 2, 2003**
**Reasons rele.**
The document includes a signature and a stamp, which are not transcribed here as they are not textual content. The date is partially obscured, with only "April , 2, 2003" visible. The page number "6" and the reference "21139771.1" are also included at the bottom right.