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In the Grand Court of the Cayman Islands — Civil Division

[2022] CIGC (G) 184

Cause No. G 0184/2019

Between

McGrath Tonner (A Firm)

- v -

Khatidja McLean - Reasons for Decision

Before
Walters J

Judgment delivered 2022-06-08

<table>
<tr>
<td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td>
<td>GRAND COURT</td>
</tr>
<tr>
<td>CIVIL DIVISION</td>
<td>CAYMAN ISLANDS</td>
</tr>
</table>

G 184 of 2019

MCGRATH TONNER (A FIRM)

Plaintiff

AND

KHATIDJA MCLEAN

Defendant

IN CHAMBERS

Appearances:

Mr Ben Tonner QC and Mr Jonathan Casey of McGrath Tonner for the

Plaintiff

Ms Khatidja McLean, Defendant in person.

Heard:

31 May 2022

Decision:

31 May 2022

Written Reasons

Delivered:

8 June 2022

HEADNOTE

Leave to appeal, factors to take into consideration.

<h2>REASONS FOR DECISION</h2>

<ol>
<li>At a hearing on 18 January 2022, I gave oral judgment declining to set aside the default judgment</li>
</ol>

against the Defendant and indicating that, in the exercise of my discretion pursuant to GCR O19

r.9, I was given the judgment mechanism

for what in

pointing to vary to provide effect would

be an

against the Defendant. As of the paragraph which follows, the basis for the Plaintiff's

claim for the request for the professional fees on 1 February 2022, which was

provided was

against the Defendant. As of the paragraph which follows, the basis for the Plaintiff's

claim for the request for the professional fees on 1 February 2022, which was

provided was

for that decision.

220608 McGrath Tonner v Khatidja McLean - Reasons for Decision re Leave to Appeal

1 of 4

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<td>2.</td>
<td>The Plaintiff now seeks leave to appeal against that decision. At a hearing on 31 May 2022, having read the submissions of Mr Tonner QC on behalf of the Plaintiff and heard from him briefly, I indicated that I did not think that this is an appropriate case in which to give leave to appeal and these are my detailed reasons for that decision.</td>
</tr>
<tr>
<td>3.</td>
<td>Pursuant to Section 6(f) of the Court of Appeal Act (2011 Revision) leave is required to appeal against an interlocutory judgment or order. Section 12(6) of the Court of Appeal Rules (2014 Revision) sets out what judgments and orders shall be treated as interlocutory for the purposes of an application for leave to appeal including “an order setting aside or refusing to set aside another judgment or order (whether such other judgment or order is final or interlocutory)”1.</td>
</tr>
<tr>
<td>4.</td>
<td>The Plaintiff seeks leave to appeal on the basis that:</td>
</tr>
<tr>
<td>4.1</td>
<td>Having found inter alia that it would be unfair to set aside the default judgment, the decision to order a taxation of the judgment debt was wrong in principle and/or a decision to which no judge properly directing himself to the law and relevant procedure could have come.</td>
</tr>
<tr>
<td>4.2</td>
<td>That I wrongly ordered a procedure which the Court is not empowered to do.</td>
</tr>
<tr>
<td>4.3</td>
<td>That I failed to apply the relevant principles to the extent that the exercise of my discretion miscarried.</td>
</tr>
<tr>
<td>5.</td>
<td>The Plaintiff says that the debt owed by the Defendant is a contractual debt owed between a creditor and a debtor. Consequently, they say that the judgment debt was not susceptible to the process of taxation and the fact that the underlying debt relates to the provision of legal services does not invoke the Court’s jurisdiction to order taxation of the quantum of the debt.</td>
</tr>
<tr>
<td>6.</td>
<td>During the course of this hearing it was confirmed by Mr Tonner that, as provided for in the judgment as varied, on 28 January 2022 the Defendant wrote to his firm with comments on the time for which she had been charged and offered to pay the sum of CI$19,000 against a total of CI$32,348.50. This amounts to approximately 60% of what she was billed, leaving a disputed balance of CI$13,348.50.</td>
</tr>
<tr>
<td>7.</td>
<td>When dismissing the Defendant’s application to set aside the judgment, I did so pursuant to GCR O19, r 9 which provides the court with a discretion to set aside or vary default judgments. I</td>
</tr>
</table>
1 S12 (6) (aa)
220608 McGrath Tonner v Khatidja McLean - Reasons for Decision re Leave to Appeal

<table>
<tr>
<td>exercised my discretion on the basis that the Defendant accepted that she owed the Plaintiff some money but disputed the amount that it was reasonable for her to have to pay. In my view, in the circumstances of this case, the order that I made was the fairest approach to the resolution of that issue with the intention of avoiding the continuation of what could be time consuming and expensive litigation, whilst still allowing the Plaintiff the benefit of a judgment for an amount that was ultimately agreed or assessed as reasonably due to them.</td>
</tr>
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<td>8.</td>
</tr>
<tr>
<td>It must be the case that a Cayman Islands attorney at law accepts that their fees should be reasonable2. In this case, in the face of genuine complaints about sums charged to the Defendant, the fairest way to ensure that the standard of reasonableness is achieved is to order as I did. That is not that the costs are taxed pursuant to GCR O. 62 but rather that they are assessed on the same basis as if they were being taxed using the same procedure provided for in that Order, taking advantage of the experience of the court taxing officer in that regard. On the basis of the facts in this case, in my view that decision gives effect to the overriding objective of the Grand Court Rules which is to enable the Court to deal with every cause or matter in a just, expeditious and economical way.</td>
</tr>
<tr>
<td>9.</td>
</tr>
<tr>
<td>The principles that the Court should apply when considering an application for leave to appeal have been helpfully set out by Doyle J in a recent group of matters3. The judge referred to the case of Telesystem International Wireless Incorporated v CVC/Opportunity Equity Partners L.P.4 which set out the test to be applied</td>
</tr>
<tr>
<td>“The general test if whether leave to appeal should be granted is：Does the appeal have a real (i.e. realistic, not fanciful) prospect of success?.... In exceptional circumstances leave will be granted even where no such prospect exists if the appeal involved an issue which should be examined by the Court of Appeal in the public interest, e.g. when a public policy issue arises or a binding authority requires reconsideration. The relative significance of the issues and costs necessary to examine them will be a relevant factor.</td>
</tr>
<tr>
<td>In an appeal on a point of law (including on the ground that a finding or the lower courted by evidould not be jouned by the higher court) the court of appeal will ffer cons a real progran ted unle</td>
</tr>
<tr>
<td>rt is unsuppend), leave s the court</td>
</tr>
<tr>
<td>iders there ipect that 'sh</td>
</tr>
<tr>
<td>2001 CILR N-21.</td>
</tr>
<tr>
<td>220608 McGrath Tonner v Khatidja McLean - Reasons for Decision re Leave to Appeal</td>
</tr>
</table>

<table>
<tr>
<td>If the court is unsure whether leave should be granted, it should then refuse leave and allow the Court of Appeal to decide the matter."</td>
</tr>
<tr>
<td>10.</td>
<td>My reasons for judgment were circulated to the parties in draft on 26 January 2022. The parties were given 7 days in which to provide any comments and neither party did so. On the 1 February 2022 the reasons for judgment were then signed, sealed and published. On 22 February 2022, the Plaintiff wrote to the court raising the issues which form the basis of its appeal and inviting me to revisit my decision, which I declined to do.</td>
</tr>
<tr>
<td>11.</td>
<td>I should add that the judgment that I gave was not based on relief sought by Ms McLean who was acting in person. Although Ms McLean appears at this hearing she did not have any submissions to make about the application for leave.</td>
</tr>
<tr>
<td>12.</td>
<td>Following the principles as confirmed in Chia and being sensitive to the fact that the application for leave to appeal is against my own reasons for judgment, my views are as follows:</td>
</tr>
<tr>
<td>12.1</td>
<td>I am not of the view that the appeal against the exercise of my discretion has a real prospect of success;</td>
</tr>
<tr>
<td>12.2</td>
<td>I am not of the view that the issues in this case warrant the scrutiny of the Court of Appeal;</td>
</tr>
<tr>
<td>12.3</td>
<td>The costs being incurred in pursuing the appeal are disproportionate when set against what is the disputed balance of the legal fees (some CI$13,348.50) and this is certainly not a case in which, in my view, Ms McLean should be put at any costs risk arising on an appeal as a result of my judgment.</td>
</tr>
<tr>
<td>12.4</td>
<td>I do not think that there is a point of law at issue in this case in relation to which the Court of Appeal is likely to come to a different conclusion that will materially affect the outcome of the case.</td>
</tr>
<tr>
<td>13.</td>
<td>For the reasons given, I do not grant leave to appeal.</td>
</tr>
</table>

Neutral Citation	[2022] CIGC (G) 184
Cause Number	G 0184/2019
Court	CIGC (Civ)
Judge	Walters J
Parties	McGrath Tonner (A Firm) v Khatidja McLean - Reasons for Decision
Judgment Date	2022-06-08
Subject	Leave to appeal, factors to take into consideration. Leave to appeal – real prospect of success test; Court’s discretion to vary default judgment under GCR O19 r.9; Whether attorney’s fees can be assessed using taxation procedure in this context
Filename (current)	22-06-08-McGrath-Tonner-v-Khatidja-McLean.pdf
File MD5	29fd649af4ec08962f1aa50de18e25dc
Source pipeline	pdb
PDB record ID	2763
PDB URL	https://judicial.ky/n0c-storage/judgments-repository2/22-06-08-McGrath-Tonner-v-Khatidja-McLean.pdf

McGrath Tonner (A Firm) v Khatidja McLean - Reasons for Decision

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