Al Sadik v Investcorp: Cayman Grand Court Provides Guidance On Interim Payments And Orders Consequent Upon The Grant Of An Anti-Suit Injunction

The August 2019 judgment of Kawaley J, sitting in the Grand Court of the Cayman Islands (the "Grand Court"), in Riad Tawfiq Al Sadik v Investcorp Bank B.S.C & Ors (FSD 47 of 2009) has provided litigants with judicial guidance of general application concerning interim payments on account of costs. The reasons provided are the most detailed since the introduction of the interim payments jurisdiction into the Grand Court Rules in 2016, concluding that the Rules contain "an implicit starting assumption that an interim payment should be made ". This is in stark contrast to the approach taken prior to the introduction of the rule, when the inherent jurisdiction to order interim payments was exercised only in "rare and exceptional circumstances".

The judgment also reinforces the position in the Cayman Islands concerning costs and damages orders consequent upon the grant of an anti-suit injunction. Kawaley J confirmed that a party which successfully applies for an anti-suit injunction to restrain wrongfully commenced foreign proceedings will ordinarily be entitled to its costs of both the anti-suit injunction and foreign proceedings on the indemnity basis, payable as costs and damages respectively.

Background

The Plaintiff's substantive claims were dismissed by the Grand Court, the Court of Appeal and the Privy Council in 2012, 2016 and 2018 respectively. Less than two weeks before the Privy Council issued its judgment dismissing the final appeal in June 2018, the Plaintiff issued proceedings in Dubai relating to substantially the same dispute. The first defendant ("Investcorp") applied to the Grand Court in August 2018 for an anti-suit injunction to restrain the Dubai proceedings. Kawaley J granted the injunction, determining that the Dubai proceedings were commenced in breach of an exclusive jurisdiction clause and, in any event, an abuse of process.

Following the grant of the anti-suit injunction, Investcorp applied for its costs of the Cayman injunction proceedings payable on the indemnity basis, together with an interim payment on account. Investcorp also sought an award of contractual damages reflecting the costs it had incurred defending the Dubai proceedings.

Indemnity Costs

Under GCR O. 62 r. 4(11), the Court's jurisdiction to order indemnity costs is limited to circumstances in which a party has conducted proceedings " improperly, unreasonably or negligently ". Kawaley J confirmed that the Dubai proceedings were brought improperly within...