Kawaley J
1 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal Neutral Citation Number: [2025] CIGC (FSD) 64 IN THE GRAND COURT OF THE CAYMAN ISLANDS FINANCIAL SERVICES DIVISION CAUSE NO. FSD 273 OF 2024 (IKJ) IN THE MATTER OF THE COMPANIES ACT (2023 REVISION) AND IN THE MATTER OF INTERNATIONAL AIRFINANCE CORPORATION IN CHAMBERS BETWEEN: MOHAMED IDRISS GHODBANE Petitioner -and- (1)MOULAY OMAR EL ALAOUI EL ABDALLAOUI (2) INTERNATIONAL AIRFINANCE CORPORATION Respondents IN CHAMBERS Page 1 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 Digitally signed by Advance Performance Exponents Inc Date: 2025.07.16 13:13:43 -05:00 Reason: Apex Certified Location: Apex 2 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal Before: The Hon. Justice Kawaley Appearances: Mr. Hector Robinson KC and Mr Adam Barrie of Mourant Ozannes (Cayman) LLP, for the Petitioner Mr Christopher Levers and Ms Holly Johnston of Ogier for the 1st Respondent The Company did not appear Heard: In Chambers/on the papers Date of decision: 9 July 2025 Draft Reasons circulated: 9 July 2025 Reasons delivered: 16 July 2025 Application for leave to appeal against trial listing decision and stay pending appeal-whether Judge wrongly influenced by his imminent retirement in fixing trial date REASONS FOR RULING ON LEAVE TO APPEAL APPLICATION Introductory 1. The Petition to wind-up the Company on just and equitable grounds was filed on 30 August
The Summons for Directions was heard on 17 September 2024 and a Directions Order was perfected on 10 October 2024. This appeared to be an acrimonious dispute between two quasi-partners who were unlikely to cooperate in assisting the Court to manage the litigation effectively in circumstances where it was common ground that commercial damage potentially flowed from the pendency of these proceedings. I accordingly indicated from the outset that I would adopt an activist approach to case management. 2. After the Defence was filed, in a Ruling on the papers on 6 December 2024, I acceded in part to an application by the 1st Respondent to provide for discovery but summarily rejected what I perceived as unreasonable attempts to elongate the timetable fixed by the Directions Order, declining to convene an oral hearing. In late December 2024, the Petitioner invited the Court to list the Petition for trial. Page 2 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 3 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal 3. Before I was able to accede to that listing request, a dispute over the exchange of expert reports broke out. Simultaneous exchange was ordered initially at the 1st Respondent’s request. When the time for exchange occurred, the 1st Respondent invited the Court to provide for sequential exchange so he would know what value the Petitioner was contending for (he rightly predicted that the Petitioner would apply to amend the Petition to change the value he initially contended for). Before that amendment application was filed, I directed on 11 March 2025 that simultaneous exchange should occur as this was the usual practice in valuation cases. 4. In directions given on 9 April 2025 and modified on 24 April 2025, for reasons given on 15 May 2025, I listed the Petition for hearing for 5 days between 28 July and 1 August 2025 in the following circumstances: (a) in late March 2025, the parties provided dates to avoid for a five day trial and the last week of July was convenient to both sides; (b) on 31 March 2025, the Petitioner filed the Amendment Summons; (c) on 9 April 2025, I listed the Petition (mistakenly) for only three days in the last week of July in order that “the Petitioner's Summons for leave to amend the Petition should be considered within that procedural framework”; (d) on 11 April 2025, the 1st Respondent's attorneys requested the Court to reconsider that listing and proposed directions for the Amendment Summons which seemed likely to make the proposed trial dates inappropriate. Reasons were requested for any decision to maintain the trial date as instructions had been received to appeal any such decision; (e) on 15 April 2025, I indicated that I rejected “Ogier's request to give directions relating to the Amendment Application which have the result the Petition cannot be tried in late July. Unless the Respondent's dates to avoid in April are provided by close of business on 14 April 2025, the Amendment Application will be listed by reference to Mourant's dates to avoid”; (f) on 16 April 2025, the 1st Respondent's attorneys responded stating that their legal team had no availability in April and proposing dates, based on Leading Counsel’s availability, in mid-May and mid-June for the hearing of the Amendment Summons; (g) on 24 April 2025, I directed that the Amendment Summons be listed for hearing on 1 May 2025 without regard to the non-availability of the 1st Respondent's legal team; (h) on 1 May 2025, I granted leave to amend the Petition after refusing the 1st Respondent's application for an amendment although the perfected Order is dated 15 May 2025; and Page 3 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 4 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal (i) on 15 May 2025, the Reasons for the listing were handed down. 5. The 1st Respondent filed a Summons seeking Leave to Appeal against (1) my decision to deal with the recusal application myself and (2) the listing decision on 3 June 2025 together with a Summons seeking my recusal on the grounds of apparent bias (the “Recusal Summons”). Both Summonses were listed for hearing on 27 June 2025 when counsel agreed that I should: (a) hear full argument on the Recusal Summons; and (b) if the Recusal Summons was dismissed, and to the extent there was insufficient time to hear it, dispose of the Leave to Appeal Summons on the papers. 6. Although I indicated in the course of the hearing that I thought it unlikely that I would dismiss the present application on the technical ground that it was out of time, Mr Levers sought leave to file short supplementary submissions on the time point and the question of when (after dates to avoid were supplied in late March) Ogier became aware that their Leading Counsel was unavailable. It was agreed these submissions would be filed within 7 days of the 27 June 2025 hearing. On Friday 4 July 2025, I dismissed the Recusal Summons (part of which covered the same evidential ground covered by the present application) and notified the parties that I would proceed to determine the Leave to Appeal Summons, hopefully no later than Tuesday 8 July 2025. 7. On 9 July 2025 I notified the parties that I had decided to grant leave to appeal and stay the proceedings pending appeal. These are the reasons for that decision. The Listing Decision 8. The Listing Ruling stated in salient part as follows: “12. I appreciate that it might be said that, taking a high level view, there was no need for expedition in listing a cause which was only commenced in 2024. However what is unreasonable delay and what amounts to a wasting of costs should, in my judgment, always be determined having regard to the particularities of each case…
It was against this background [of] three judicially recorded attempts by the 1st Respondent to undermine this Court’s Orders in the present proceedings, that I approached the issue of finally responding to a listing request made by the Petitioner in December 2024 in early April 2025.
By email dated 13 March 2025, Mourant requested a five-day hearing of the Petition before the end of July 2025 when the Trinity Term ends and set out their Page 4 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 5 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal dates to avoid. By an email dated 20 March 2025, Mourant requested the Court to proceed with listing, indicating that Ogier were still seeking instructions from their client. Mourant also foreshadowed an application to strike-out the 1st Respondent’s Defence. On 21 March 2025 Ogier responded that they were still taking instructions on trial dates but considered that the threatened strike-out application of which no notice had been given was unsatisfactory. In addition complaint was made that if the additionally foreshadowed application to amend the Petition succeeded, it would affect listing because of the potential need for additional discovery.
On 24 March 2025 I indicated that any strike-out Summons by the Petitioner at this juncture would be liable to be summarily struck-out and declined to unilaterally list the Petition without regard to the 1st Respondent’s convenient dates. Ogier thereafter on 28 March 2025 provided their dates to avoid and the last week of July was convenient to both parties….
In these circumstances, I considered the most sensible case management approach was to: (a) list the trial for the earliest possible date convenient to the parties; (b) list the Amendment Summons on an urgent basis so that, if possible, a trial in late July would be effective; and (c) implicitly reserving the ability to revisit the trial date if the disposition of the Amendment Summons meant it was no longer viable. (In effect the Petitioner would potentially be forced to either (1) keep the late July trial date and abandon any amendments incompatible with that date or (2) pursue all of his amendments and accept that an Autumn trial was inevitable.
I declined to accommodate the 1st Respondent’s request for an elongated timetable for dealing with the Amendment Summons because this could only be construed as a collateral attack on my listing decision in relation to the Petition.” [Emphasis added]
On 1 May 2025, I refused the 1st Respondent’s application for an adjournment of the hearing of the Amendment Summons, and with junior counsel appearing (neither Leading Counsel nor Mr Levers was available to attend), granted the amendments sought. The 1st Respondent was granted 28 days to file an Amended Defence. Just over 14 days after the Listing Ruling was delivered on 15 May 2025, the Leave to Appeal Summons was filed. The Draft Grounds of Appeal
The Draft Memorandum of Grounds of Appeal set out various grounds which were restated in the 1st Respondent’s Skeleton as follows: Page 5 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 6 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal “Ground 1: The Learned Judge erred in reaching the said directions/order in circumstances where, having considered the facts, a fair-minded and informed observer would conclude that there was a real possibility that the Learned Judge was biased and/or pre-determined the proceedings (or certain fundamental issues of dispute therein) against the First Respondent. Ground 2: The Learned Judge erred by basing his decision on erroneous facts, including that: (a) the First Respondent's request to relist the hearing of the Petition amounted to a collateral attack on the prior directions given in relation to case management of the Petition; (b)the First Respondent had failed to assist the Court in furthering the Overriding Objective; Ground 3: The Learned Judge erred by taking into account matters which he ought not to have taken into account and/or failed to take into account matters which he ought to have taken into account, including: (a) wrongly took into account his own impending retirement; (b) without prejudice to the above, wrongly took into account the First Respondent's alleged prior conduct which was wholly irrelevant to the exercise of discretion which the Learned Judge had to undertake; (c) without prejudice to above, wrongly took into account his view of the merits of the First Respondent's petition; and (d) failed to take into account the First Respondent's averred position that the time provided would be insufficient for him to adequately prepare for a substantive trial of the Petition, including by failing to give any, or any adequate, weight to the First Respondent's averred position that the time provided would be insufficient for him to adequately prepare for a substantive trial of the Petition, including by failing to give any, or any adequate, weight to the obvious procedural and substantive difficulties in preparing for a fair hearing and just disposal of the Petition, including those matters raised by the Appellant in the letter written by his attorneys to the Court dated 11 April
Ground 4: Further, the Judge’s undue insistence on the most expeditious course at each stage of the proceedings – including the refusal of the Summons for Amended Directions and, in particular, the decision to list the Petition for trial in July 2025 notwithstanding the difficulties to which that gave rise in listing the Amendment Summons – appears to have been influenced, at least in part, by a desire to ensure that the Petition could be concluded prior to his retirement on 19 August 2025. Page 6 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 7 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal Ground 5: In light of the foregoing, and objectively, the Learned Judge's decision was so unreasonable as to fall outside the generous ambit of discretion allowed to a judge. In this connection, it is averred that the Learned Judge erred in making the listing direction in that the Learned Judge, erroneously and without any justifiable basis: (a) gave directions for the listing of the Petition which were entirely of his own motion and which were, in certain instances, entirely contrary to the agreed directions of the parties; (b) gave directions for the listing of the Petition without reference to the availability of the First Respondent's Leading Counsel; and (c) gave directions which were entirely unusual and ignored well-established practice. Ground 6: the Learned Judge's decisions noted above breached section 7(1) of the Constitution Order, 2009 in that the Appellant's constitutionally guaranteed right to a fair hearing in the determination of his legal rights has been abrogated by the terms of the Directions. Extension of time within which to appeal
The Petitioner submitted that the present application for leave to appeal was clearly out of time in relation to decisions made on 9, 24 and 25 April 2025 and that strictly an application for leave to appeal should be made to the Court of Appeal. However no objection was made to my dealing with the application as a Single Judge of the Court of Appeal based on my own observations in FDL v Canterbury Securities, FSD 227/2018, Judgment dated 10 October 2023 (unreported) at paragraph 21. The only prejudice Mr Robinson KC complained of to the Petitioner as flowing from granting the application was the loss of the July 2025 trial date.
In the course of the hearing I indicated that I thought it unlikely that the present application would be dismissed on time grounds. This is because as early as 11 April 2025, Ogier requested reasons for the initial Petition listing decision and so it was obviously reasonable for them to await the 15 May 2025 Listing Ruling before actually applying for leave to appeal. In absence of a formal order being drawn up and because reasons had been requested, the Listing Ruling was an appropriate proxy for the sealed order from which time would ordinarily run. However, the 14 day period expired on Thursday 29 May 2025, so the Tuesday 3 June 2025 filing of the Summons for Leave to Appeal was out of time by 3 working days. Bearing in mind that this application was being prepared simultaneously with a more substantial recusal application, such a short delay required little explanation.
Without even considering Mr Levers’ reply submissions on this point as to whether the leave to appeal was in fact out of time, I was minded to grant an extension of time because, for the reasons set out below, I considered the appeal had realistic prospects of success and that the proceedings should be stayed pending appeal. It followed that the Petitioner would suffer no legally cognizable prejudice in losing the benefit of the trial fixture the 1st Respondent sought to establish was invalidly fixed. In all the circumstances, it was not properly open to me to reject an otherwise meritorious leave to appeal application because it was filed just out of time.
I accordingly granted the necessary extension of time which the 1st Respondent sought. Page 7 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 8 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal Merits of draft Grounds of appeal Legal test for granting leave to appeal
Mr Levers submitted in his Skeleton Argument: “23. The merits test for leave to appeal is well known to the Court: it is that the appeal must have a real (as opposed to a fanciful) prospect of success, that is to say that the decision was wrong (whether because the judge made an error of law, far or there was an error in the exercise of the Court's discretion) or there is some other compelling reason as to why the appeal should be heard: Telesystem International Wireless Incorporated v CVC and others [2001 CILR] N-21. 24 In cases where the appeal primarily centres on the exercise of the Court's discretion, then it will be necessary to satisfy the Court that the appeal has a real prospect of demonstrating that the Judge (i) has failed to take into account relevant matters, or has had regard to irrelevant factors, (ii) based his decision on errors of law and/or fact and/or (iii) has reached a decision that no judge properly exercising their discretion could have come to the same conclusion: Lindell Wellington & Ors v Delroy A Wellington CICA (Civil Appeal No. 14 of 2019 (KY 2023 CA 10)…”
This test was essentially common ground and I accept it as an accurate summary of the governing principles. However Mr Robinson KC submitted in his Skeleton Argument that Sanderson J in CVC/Opportunity v Demarco Almeida 2001 CILR Note 20 had approved the following England and Wales Court of Appeal Practice Statement, which I am also to take into account: “The general rule applied by the Court of Appeal, and thus the relevant basis for first instance courts deciding whether to grant leave, is that leave will be given unless an appeal would have no realistic prospect of success. A fanciful prospect is insufficient. Leave to appeal from an interlocutory order will be refused, even when the appellant has a realistic prospect of success, if (a) the point raised by the appeal is not sufficiently significant to justify the resulting costs; (b) if the significance of the point is outweighed by the procedural consequences, e.g. the loss of an existing trial date; or (c) it will be more convenient to determine the point at or after the trial. (Practice Direction (Court of Appeal: Leave to Appeal & Skeleton Arguments), [1999] 1 W.L.R. 2.”
Because the present leave to appeal application was centred on the decision to list the trial, I did not consider it was properly open to me to find that the appeal had realistic prospects of success but was a point which did not justify disrupting the presently fixed trial. I therefore evaluated the application for leave to appeal by considering the following key considerations: (a) whether at least one of the grounds of appeal has realistic prospects; and Page 8 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 9 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal (b) whether any of the grounds of appeal would for other reasons merit being considered by the Court of Appeal. Ground 1
The 1st Respondent’s counsel advanced the following submission: “26. As noted above, this ground is inextricably linked with the recusal application such that, if that application is successful, this ground is necessarily made out. As such, the First Respondent relies upon the evidence set out in Alaoui 2 on this point, the written submissions made in the skeleton argument filed in support of his recusal application, together with any oral submissions made in that connection.”
Having refused the recusal application, in my judgment the merits of this ground of appeal ought properly to be assessed in the context of any application for leave to appeal against that recusal refusal decision. As a freestanding ground of appeal, this has not been shown to have realistic prospects of success. Grounds 2-5
The basis of the 1st Respondent’s four core grounds of appeal were cogently summarised in the following submission: “28. In summary, the First Respondent's position is that the Judge's decision was clouded by his own views of the merits of the First Respondent's position on the Petition, his erroneous views of the First Respondent's attempts to legitimately seek to address what he felt were unworkable and inappropriate directions and, more importantly, his own impending retirement that the decision that he reached in listing the substantive trial of the Petition on an expedited basis, and in the knowledge that the First Respondent's Leading Counsel was not available, was plainly wrong and certainly outside of the ambit of what a judge properly exercising their discretion could have come to…”
The Petitioner’s counsel responding to the Memorandum of Draft Grounds of Appeal which attacked both the listing of the Amendment Summons and the Petition without relying on the complaint about the influence of my pending retirement on the fixing of the trial date or suggesting that the Petition (in addition to the Amendment Summons) was listed for a date when I knew Leading Counsel for the 1st Respondent was unavailable. It was submitted that the grounds set out in the Memorandum were “hopeless”. Mr Robinson KC had an opportunity to address these issues during the recusal hearing.
There was in my judgment no foundation to the complaint that I listed the trial on a date which I knew was inconvenient to Leading Counsel. Ogier had indicated that the last four days of July Page 9 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 10 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal were convenient and I listed the trial for a 5 day period unwittingly including a fifth day (the first day of August) which fell outside that period. (Initially, I haplessly listed the trial for three days starting on Sunday 27 July 2025, which is arguably indicative of inadequate attention to the listing exercise on my part). During a very short interchange at the beginning of the hearing about how the present application should be dealt with, Mr Levers drew my attention to a sentence in Ogier’s covering email to the Court of 11 April 2025 forwarding a more formal letter which I had overlooked assuming all I needed to focus on was the attached letter: “Dear Ms Karen, Many thanks for your email. Please see the attached letter. We would be grateful if you could please provide this to his Lordship. We also confirm that we are liaising with Leading Counsel's clerk as to availability for the hearings of both the Amendment Summons and the Petition and expect to be able to confirm those dates early next week…” [Emphasis added]
I can hopefully be forgiven for failing to carefully read a covering email to my Personal Assistant and only focussing on the letter she was asked to forward to me. The 11 April 2025 Ogier letter only pointed out my error in listing the Petition for a three day hearing starting on a Sunday and indicated that a three day hearing would not be viable. By an email dated 15 April 2025, Leading Counsel’s availability for the hearing of the Amendment Summons was notified to the Court. No mention was made of his availability or non-availability in the last week of July although Ogier’s 28 March 2025 email had already indicated, as Mr Levers rightly pointed out, that 1 August and other dates in that month were not convenient for the 1st Respondent in general terms. The complaint that the clarified Petition listing of 24 April 2025 for the period 28 July-1 August 2025 “in the knowledge that the First Respondent's Leading Counsel was not available” was not even arguably made out. I had no basis for knowing anything about Leading Counsel for the 1st Respondent’s personal trial availability for the period I listed the trial for.
However, what Mr Levers very effectively demonstrated was that I had unwittingly listed the 5-day trial for a period which overran by one day the dates Ogier had advised the Court was convenient for their client and/or their legal team. This combined with my overt concern to avoid having this date displaced by the Amendment Summons provided powerful support for the supplementary complaint that I had been overly influenced by my pending retirement (on 19 August 2025) to list the trial during the current Law Term so that I could personally deal with it. I am bound to acknowledge that I was influenced by this consideration and failed to explain the influence of this in my reasons for the listing decision.
Mr Robinson KC submitted that if a listing error had been made (there was clarity about Leading Counsel’s availability but I was on notice that dates in August were not convenient) but suggested that the proper remedy for the 1st Respondent was to draw this to my attention and invite me to revisit the listing decision. As regards my impending retirement, he submitted it was incorrect to suggest that the 1st Respondent had no prior knowledge of this before early June, as he complained. Whatever his own personal knowledge may have been, Mourant’s Page 10 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 11 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal email threatening to apply to strike-out the Defence by reasons of the 1st Respondent’s delay in providing their dates to avoid for the trial of the Petition concluded with the following words: “Please do let us know if we can assist the Court in any way further. We are conscious that Justice Kawaley's appointment as a Judge of the FSD concludes in August and are hopeful that these proceedings can be fully resolved by then.”
In my judgment there clearly was some basis for me to infer that the 1st Respondent was deploying thinly-disguised filibustering tactics by seizing on the Amendment Summons as an excuse to run down the clock until I retired. But this did not form an explicit part of the reasoning in the Listing Ruling. I assigned no specific motive for inferred attempts to launch a collateral attack of the listing direction. Critically, it is clearly arguable that ensuring that I presided over the trial was not a relevant consideration for me to take into account. As Mr Todd KC submitted when addressing the recusal application complaints about the Petition listing decision, I could have canvassed the implications of my retirement with both sides. This was not a situation where it was self-evident that because of the duration and scale of the case it was self-evident that assigning the trial to a new Judge would result in a significant delay and wastage of judicial resources. As already noted above, I myself observed in the Listing Ruling that “it might be said that, taking a high level view, there was no need for expedition in listing a cause which was only commenced in 2024”.
For these reasons I found that the proposed appeal has realistic prospects of success in relation to challenging my decision to list the appeal on an expedited basis during a period which was in part inconvenient to the 1st Respondent. For the avoidance of doubt if I am wrong in treating the 1st Respondent as having abandoned his appeal against the listing and disposition of the Petitioner’s Amendment Summons heard on 1 May 2025, I would summarily refuse leave to appeal against those decisions. I order that the costs of this application should be in the appeal because this is the usual Order and the relief the 1st Respondent sought. Ground 6
It is not necessary for me to consider the complaint that the listing decision contravened the 1st Respondent’s constitutional right to a fair hearing under section 7 of the Bill of Rights. My instinctive view is that the procedural errors which arguably occurred are not sufficiently grave to engage those constitutional provisions. Stay pending appeal
Mr Robinson KC made the following robust riposte to the stay pending appeal application: “58. As argued above, the First Respondent's proposed appeal is hopeless. Leave to appeal should not be granted and as such, the issue as to whether there should be a stay pending appeal should not arise. If the Court were to grant leave to appeal and a stay pending appeal, the First Respondent's real objective of delaying the trial of the Petition Page 11 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 12 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal would be achieved to the obvious detriment of the Company and the Petitioner, without any discernible legitimate benefit to the First Respondent. It would be delay for the sake of delay, and nothing else.”
Understandably, the main focus of the Petitioner’s submissions was that leave to appeal should be refused. Mr Levers pivotally submitted: “41. As set out above, the proposed appeal in the present case has strong prospects of success. If the Court accepts that, it follows that a stay should usually be granted, and it is submitted that, in the circumstances of this case, one should be granted. In particular, it is noted that: 41.1 The appeal will be rendered nugatory if the matter were to proceed to a hearing based on the present listing; and 41.2 The balance of convenience lies in favour of the First Respondent. There is no prejudice to the Petitioner if a stay is granted. This matter did not require an urgent listing of the trial in July, and a hearing of the Petition after the summer vacation will not cause any prejudice whatsoever to him. To the contrary, as noted above, the First Respondent is being, and will continue to be prejudiced, if the stay is not granted.”
It was rightly contended that the governing principles are well settled as a matter of Cayman Islands law. In Heriot African Trade Finance Fund Limited-v- Deutsche Bank (Cayman) Limited 2011 (1) CILR 34, Creswell J held: “22. In my opinion, the relevant legal principles are as follows: (a) the Court of Appeal Law (2006 Revision), s.19(3) provides so far as material: ‘No stay of execution . . . shall be granted upon any judgment appealed against save . . . upon good cause shown to the Court or to the Grand Court’; (b) the critical test is whether good cause has been shown; (c) the onus is upon an appellant to show good cause (i.e. good reasons) for the imposition of a stay pending appeal; (d) in considering whether good cause has been shown, the court will have regard to all the circumstances of the case, including, without limitation (i) whether the appeal would be rendered nugatory if a stay is not granted (Wilson v. Church (13) (12 Ch. D. at 458–459)); (ii) whether the appellant can show a good arguable case; (iii) whether the appeal is in exercise of a true right of appeal and not for some collateral purpose; (iv) the balance of convenience (see Quintin v. Phillips Petroleum Co. (9)); and (v) appropriate regard should be had to the reasons given by the first instance judge for refusing a stay;.. Page 12 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16 13 250716 – FSD 273 OF 2024 (IKJ) – International Airfinance - Ruling on Leave to Appeal (e)… (f)the question whether or not to grant a stay is entirely in the discretion of the court; and (g)indications in past cases do not fetter the scope of the court’s discretion.”
I found that: (a) the appeal would be rendered nugatory if the proceedings were to proceed to the scheduled trial which it is said was unfairly listed; (b) the appeal has at least realistic prospects of success and as a result cannot be said to be for a collateral purpose; (c) although the 1st Respondent could theoretically have invited this Court to reconsider the listing decision, it was reasonable in the circumstances for the appeal route to be pursued instead; and (d) the balance of convenience favours granting a stay, taking into account the lack of serious prejudice to the Petitioner if an Autumn trial takes place with a different Judge just over a year after the proceedings have been commenced.
I found that the 1st Respondent had in the unique circumstances of the present case established good cause for a stay pending appeal. Summary
For the above reasons, on 9 July 2025 I: (1) granted R1’s application for leave to appeal against my decision to list the Petition for hearing between 28 July 2025 and 1 August 2025, (2) granted a stay of the present proceedings pending appeal and (3) ordered that the costs of the present application should be in the appeal. ________________________________________________ THE HONOURABLE JUSTICE IAN RC KAWALEY JUDGE OF THE GRAND COURT Page 13 of 13 FSD2024-0273 2025-07-16 FSD2024-0273 2025-07-16