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Jonathan Addo
Jonathan Addo
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Nicola Roberts
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Paul Smith
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Andrew Thorp
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Jessica Williams
Jessica Williams
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Jayson Wood
Jayson Wood
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  • Cayman Islands

Re-Opening Proceedings, Indemnity Costs and Interim Payments

Following on from its 12 August 2019 decision in XIO GP Ltd v Pacini and ors, the Grand Court of the Cayman Islands was faced with a multitude of applications seeking, amongst other things: (i) that the proceedings be re-opened and further evidence adduced, (ii) costs on the indemnity basis, and (iii) an interim payment on account of costs.

The main proceedings concerned the validity of the (purported) appointment of the Defendants to the Plaintiff company’s board of directors and a counterclaim by the Defendants that a partnership existed between the Defendants and the sole-shareholder of the Plaintiff. Judgment was ultimately awarded in favour of the Plaintiff, in fairly emphatic terms, with the Court declaring the appointments a nullity and dismissing the partnership claim as “a weak claim [that] must fail”.

The Defendants subsequently sought to have the proceedings re-opened in order to adduce fresh evidence; the Plaintiff sought its costs on an indemnity basis and an interim payment towards those costs.

The Grand Court accepted that as a trial Court it had a wider discretion than appellate Courts to let in fresh evidence, however ultimately dismissed the Defendants’ application on the grounds that:

  1. It was not satisfied that the majority of evidence sought to be introduced could not have been obtained with reasonable diligence prior to the trial;
  2. It did not consider the evidence would have had an important influence on the result;
  3. There were no powerful factors in favour of re-opening the case, and that to do so is inherently contrary to the public interest and unfair to the successful party; and
  4. It would not be proportionate to re-open the case and allot a further share of the Court’s resources to the issues.

On the issue of indemnity costs, the Court reiterated its view that the partnership claim was a weak one, but as the Defendants had not conducted the proceedings improperly, unreasonably or negligently, an order for costs on the standard basis was appropriate. The Court did however agree with the Plaintiff when it came to the issue of an interim payment. After considering previous caselaw in which the Grand Court approved the principle that a successful litigant should not be kept out of its costs while awaiting taxation, it ordered the Defendants to pay a reasonable portion of the total estimated costs within 21 days.

Re-Opening Proceedings, Indemnity Costs and Interim Payments

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