Cayman Grand Court puts roles of non-admitted attorneys under the spotlight

In a concise yet comprehensive recent judgment of the Cayman Grand Court which will be of interest to both practitioners and stakeholders, the Hon. Justice Asif analyzed the roles of attorneys not admitted to practice in the jurisdiction, specifically in relation to the recovery of fees charged by those practitioners. 

The judgment was delivered in the matter of Al Jomaih Power Limited & Denham Investment Limited v. IGCF SPV 21 Limited & KES Power Limited where the Court ruled on the issue of costs following the successful defence by SPV 21 of an application by Al Jomaih Power and Denham Investment Limited for interim injunctive relief. SPV 21, Al Jomaih Power Limited and Denham Investment Limited are each shareholders in KES Power Limited which holds a majority stake in Pakistan’s largest energy company, K-Electric. 

Dillon Eustace’s Cayman Litigation team of Conal Keane (Partner), Niall Dodd (Counsel) and Alan Quigley (Senior Associate) acted for the successful party, SPV 21 (see article in relation to the judgment released in August 2025). 

Given SPV 21’s success and the conduct of the Plaintiffs in bringing the application, it applied for its costs to be on an indemnity basis and for the fees charged by an attorney not admitted in the jurisdiction to be allowed given the particular nature of the application. 

Indemnity Costs Appropriate

The general principles regarding the award of costs in Cayman are well known. The general rule is that costs should be payable on the standard basis. However, GCR O.62, r.4 gives the court discretion to award costs on the indemnity basis if it is satisfied that the paying party has conducted the proceedings, or that part of the proceedings to which the order relates, improperly, unreasonably, or negligently. 

In his decision, Asif J firstly held that there were “a number of features” about the application of Al Jomaih and Denham which drove him to conclude that costs on the indemnity basis were appropriate, including: 

1. The Plaintiffs’ application for an interim injunction was not just weak but was hopeless and should have been seen to be hopeless at it was unreasonable for the Plaintiffs to have pursued it.

2. There was no real prospect of the Plaintiffs obtaining the final relief that they currently seek in the injunction proceedings, and so there was no real prospect of the court granting an interim injunction in those same terms.

3. There was no realistic possibility of SPV 21 causing K-Electric to act contrary to its own interests and wrongfully to prefer the interests of SPV 21 and/or Mr Shaheryar Chishty in the manner advanced by the Plaintiffs as the basis for needing the injunction. This was because of the presence on K-Electric’s board of the Plaintiffs’ own nominated directors and independent directors, such that the directors nominated by SPV21 were not and never would be an overall majority.

4. Even if there were a risk of the Plaintiffs suffering some loss caused by a wrongful act of SPV 21 in some way, the fact that K-Electric is a publicly listed company in Pakistan has the result that any such loss should be capable of quantification, so that the Plaintiffs could not and would not succeed in showing that they risked suffering uncompensatable loss, which is a necessary requirement for the grant of an interim injunction.

5. Al Jomaih and Denham were seeking equitable relief from the court when they themselves were deliberate breakers of the very contract on which they relied. They did not have any reasonable justification for such conduct.

6. The affidavit on which Al Jomaih and Denham primarily relied, which was sworn by an English solicitor who is not admitted in Cayman, was “largely inadmissible” and therefore there was “formally, little or no admissible evidence” to support the application.

7. Al Jomaih and Denham delayed at key points in the conduct of the matter and the wider Cayman proceedings. This “generated the inference” that they have acted for strategic reasons with a view to holding onto a Pakistan injunction (which was obtained ex parte without notice in October 2022) for as long as possible in the face of likely failure to obtain similar relief from the Grand Court.

‘Evidence’ of Non-Admitted Attorneys

A further noteworthy aspect of the judgment was the commentary on the primary affidavit sworn by a foreign practitioner in support of the Plaintiffs’ application. The Court held that the affidavit was “largely inadmissible” and therefore there was “formally, little or no admissible evidence” to support the application. In its submissions to the Court on costs, SPV 21 had asked the Court to penalize the Plaintiffs as the affidavit was inadmissible as it breached GCR O.41, r.5(3). That rule states:

“(3) An affidavit sworn by an attorney shall not be admissible in any cause or matter unless the attorney has direct personal knowledge of the facts and matters to which the attorney deposes and does not appear as advocate in the cause or matter.”

The Judge held that “a brief read through [the] affidavit tends to support SPV21’s complaint – large parts of [the] affidavit are not relevant evidence, but instead are irrelevant, or worse are commentary, argument and submission that should appear in a skeleton argument, not in an affidavit”. The Judge notably stated that if he had made an order in favour of the Plaintiffs, he would have disallowed the costs of preparing the affidavit because it was largely inadmissible and breached GCR O.41, r 5(3).

This aspect of the judgment will be food for thought for parties when preparing evidence grounding any application to the Grand Court as it indicates a renewed focus from the judiciary on the requirement for affiants to have direct personal knowledge of facts and matters to which they depose.

Fees of Non-Admitted Attorneys

Asif J further considered the issue of whether he should allow the successful party, SPV 21, to recover fees payable to an attorney not admitted in the matter. In these proceedings, SPV 21 had engaged both a King’s Counsel (who was admitted shortly before the hearing of the injunction) and an experienced barrister based in the UK who was not admitted but worked with the Dillon Eustace Cayman Litigation team.

The general rule is that work done by foreign attorneys is not recoverable on the standard basis unless they have been granted limited admission and, in that case, only work that has been done after their admission can be claimed: see GCR O.62, r.18(1). That limitation on recoverability does not apply where costs are awarded on the indemnity basis. However, even where the standard basis is applied, the court has discretion to disapply GCR O.62, r.18(1), particularly where the work done by a foreign lawyer is not duplicative and does not fall foul of the principle in GCR O.62, r.18(7) that the paying party should not have to pay more because the receiving party has used a foreign lawyer. 

The Judge held that (1) there was no principled basis to refuse to allow SPV 21 to recover King’s Counsel’s fees incurred in the days before his limited admission and (2) the separate engagement of the experienced barrister did not fall foul of the overriding principle that the paying party should not pay more if local lawyers had been engaged. It was “reasonable in all the circumstances” for SPV 21 to recover all of these fees on an indemnity basis. 

The decision demonstrates that there is no strict bar on the recovery of non-admitted attorneys and that the Court’s discretion is paramount. Further, it would appear that the conduct of the Plaintiffs in these proceedings made the retention of additional legal manpower by SPV 21 all the more reasonable in the circumstances.