Morrison JA, Moses JA
CICA (Civil) Appeal 12 of 2021 – Leave to appeal JCPC
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IN THE COURT OF APPEAL OF THE CAYMAN ISLANDS
ON APPEAL FROM THE GRAND COURT OF THE CAYMAN ISLANDS
CICA (Civil) Appeal No 12 of 2021
(Formerly FAM 66 of 2014)
BETWEEN:
AH
Respondent /Appellant
-AND-
AW
Petitioner/Respondents
CONSIDERED ON THE PAPERS
BEFORE:
The Rt. Hon Sir John Goldring, President
The Hon C Dennis Morrison, Justice of Appeal
The Rt. Hon Sir Alan Moses, Justice of Appeal
Judgment delivered:
17th March, 2022
APPLICATION FOR LEAVE TO APPEAL TO PRIVY COUNCIL
JUDGMENT
The Rt. Hon Sir John Goldring, President
Introduction
1.
For convenience, I shall refer to the proposed Appellant as the husband, the Respondent as the
wife.
Discretionary leave to appeal to the Judicial Committee of the Privy Council (“JCPC”)
2.
The husband now applies for leave to appeal to the Judicial Committee of the Privy Council.
He agrees that there is no appeal as of right. By section 3(2) of the Cayman Islands (Appeals to
the Privy Council) Order 1984:
“Subject to the provisions of this Order, an appeal shall lie from the decisions
of the Court to Her Majesty in Council with the leave of the Court in the
following cases-
CICA (Civil) Appeal 12 of 2021 – Leave to appeal JCPC
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….(b) decisions in any civil proceedings where in the opinion of the Court
the question involved in the appeal is one that, by reason of its great
general or public importance or otherwise, ought to be submitted to
Her Majesty in Council…”
3.
As this Court recently observed in Essar Global Fund Limited and Essar Capital Limited v
Arcelormittal North America Holdings LLC CICA, 6 May 2021:
“It is also relevant to quote the test which the JCPC itself applies when
considering applications for permission to appeal, which is set out in
paragraph 3.3.3(a) of Practice Direction 3 to the Judicial Committee
(Appellate Jurisdiction) Rules 2009:
“Permission to appeal is granted-
(a) in all cases for applications that, in the opinion of the Appeal
Panel, raise an arguable point of law of general public
importance which ought to be considered by the Judicial
Committee at that time bearing in mind that the matter will
already have been the subject of judicial decision and may
already have been review on appeal.””
The background
4.
The background to this application is set out in the two substantive judgments of this Court, the
second of which forms the basis of this application. I shall not repeat the detail. The issue before
the first instance judge in the second appeal was the sum the husband should pay the wife by
way of a capital, ‘clean break,’ payment. The judge concluded that the pre-nuptial agreement
between the parties required a payment of CI$348,210.00. She concluded that such a sum was
inadequate having regard, in particular, to the needs of the wife. The judge ordered the husband
to pay CI$650,000. The fundamental issue in the appeal was whether the judge’s award of that
sum was within the legitimate range of awards available to her: in other words, the appeal
essentially concerned the judge’s exercise of her discretion.
5.
The Court of Appeal concluded, for the reasons it set out, that the award was within the range
of awards available to her.
Does the proposed appeal raise a question of great general or public importance?
6.
As it seems to me, this proposed appeal raises no question of great general or public importance.
CICA (Civil) Appeal 12 of 2021 – Leave to appeal JCPC
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7.
First, as I have set out, the Court of Appeal was required to consider whether the judge was
entitled to exercise the undoubted discretion she had in the way she did. That raises no issue of
principle.
8.
Second, the argument that the first instance judge was bound by the figures she had previously
indicated does not seem to me to raise any arguable point of law. Moreover, it does not raise a
question of great or public importance.
9.
Third, the argument that the pre-nuptial agreement constrained the judge from making the
award she did, again relates to the exercise by the judge of her judicial discretion and seems to
me to raise no arguable point of law of great or public importance meriting consideration by
the Judicial Committee of the Privy Council.
10.
There are no other reasons to grant leave.
11.
In short, for the reasons I have shortly set out, I would refuse leave to appeal.
The application for a stay
12.
I see no reason in the circumstances why there should be a stay in respect of the CI$650,000.
As I understand it, the husband has only paid CI$212,304.03, some CI$171,905.07 short of the
sum of CI$384,210.00 which, on any view he was obliged to pay. In my view, the husband
should continue to make payments in accordance with the order of the judge dated 23 August
2021.
Costs
13.
The wife is entitled to her costs of this application. While I am sympathetic to the application
for indemnity costs, it does seem to me that they should be on the standard basis.
The Rt Hon Sir Allan Moses, Justice of Appeal
14.
I agree.
The Hon C. Dennis Morrison, Justice of Appeal
15.
I also agree.