Leave to appeal out of time granted following discovery of “fresh evidence”

On 19 May 2022 the Cayman Islands Court of Appeal heard an application by a creditor
for leave to appeal out of time against an order of the Financial Services Division of the Grand Court dated 4 February 2019. The Grand Court had dismissed the creditor’s appeal against the partial rejection of his revised proof of debt in the winding up of China Branding Group Limited (“CBG”) by its Joint Official Liquidators (“JOLs”).

The creditor’s application to the Court of Appeal was based on “fresh evidence” which appeared to have been in the possession of the JOLs at the time of the 2019 proceedings but which the JOLs had not disclosed to him or to the Grand Court. The creditor only discovered the “new” material in 2021 in proceedings brought by him in California against a former director of CBG. The creditor was therefore able to argue that the Grand Court proceeded on a false basis and that leave to appeal should be granted on the well-known principles in Ladd v Marshall [1954] 1 WLR 1489.

In its written judgment dated 1 July 2022, delivered by the Rt. Hon Sir Jack Beatson, the Court of Appeal concluded there were prima facie grounds for considering the that the Grand Court judge had been misled as to the correct state of affairs. Accordingly, leave to appeal out of time was granted. The full appeal is due to be heard by the Cayman Islands Court of Appeal on 5-6 December 2022.

Ben Tonner QC and Sally Bowler of McGrath Tonner appeared for the successful applicant creditor.