.-I ' I I ,IiI1.:: ,}; .. •.• ' .• " ",,-;;,~~ IN THE GRANT COURT OF THE CAYMAN ISLANDS ".' .. ·<~:) \~"i~ti;.~~~\~ SITTING AS A SINGLE JUDGE IN THE COURT OF APPEAL )~':.}:{,t:~2~ '\ I '; ' : ,~: , ; . , '1 ' • ( -;".'!t CAUSE NO: 211 OF 2006 \.... ::.,'--) ;' ~) fA CICA NO. \:.. " /\~1 ;.:~ BEWEEN AND
UNILEVER PLC 2 UNILEVER NV 3 MOLSON INC 4 JOHNSONDIVERSEYHOLDINGS INC 5 JOHNSONDIVERSEY INC 6 JOHNSONDIVERSEY UK LIMITED 7 JOHNSONDIVERSEY GULF FZE ABC INTERNATIONAL CAUSE NO. 325 OF 2006 BETWEEN
MOLSON COORS BREWING CO.
JOHNSONDIVERSEY EUROPE BV
COMMERCIAL MARKETS HOLDCO INC.
MR. S. CURTIS JOHNSON III
MRS. HELEN JOHNSON LEIPOLD
MR. CLIFTON LOUIS
MRS. IMOGENE P. JOHNSON
NALCO HOLDING CO
NALCO SAUDI CO LIMITED
KIMBERLY-CLARK CORORATION AND ABC INTERNATIONAL IN CHAMBERS THE 24th MARCH 2009 BEFORE THE HON. CHIEF JUSTICE " '~ .: . (; .) <} ~,';/ ~\~ ....... .. .-/ .. ---- - ~ .,0'1 ~c;,.;'f:} PLAINTIFFS DEFENDANT PLAINTIFFS DEFENDANT APPEARANCES: Mr. Nick Dunne of \Valkers for the plaintiffs Mr. Lee Freeman of Priestleys for the defendant RULING
ABCI applies, in respect of summary judgment given against it in February 2008, for leave to appeal out of time. It also applies for leave to appeal, in respect of a decision refusing its application to set aside that summary judgment, which decision was given in September 2008.
ABCl's primary argument for leave to appeal now IS that it has been prevented from having tried the factual matter whether Saudi Law governs the contract which it asselis exists as between itself and the plaintiffs. ABCI asselis that matters of fact, and in particular matters of fact going to the state of foreign Saudi law, are not given to summary dispensation. Thus it is said that ABCI now has an arguable case on appeal that that matter should be referred back to this COUli for trial. At such a trial the contest would be between the competing expelis on Saudi Law.
This argument is, in my view, bound to fail. A main basis on which Summary Judgment was given in February 2008 and on which the application to set that judgment aside was refused in September 2008, was that, as a straight-forward matter of contractual interpretation, Saudi Law was not shown to be the governing law of the contract upon which ABCI seeks to rely. Accordingly, there could be no factual dispute to be resolved as to the meaning and effect of Saudi Law thus found to be inapplicable to the dispute.
For that reason alone, ABCI now fails to show any prospect of success on appeal against the February 2008 summary judgment and its application must be refused. 2
It must also be refused in respect specifically of the September 2008 ruling. In that ruling, the issue of expeli evidence as to Saudi Law was specifically addressed and its secondary importance to the more important matter of contractual interpretation demonstrated as a reason for not setting aside the sUlmnary judgment of February 2008. I also feel obliged to note - on the basis of the continuing absence of any proper explanation for its failure to defend against the Summary Judgment application in February 2008 or for failing to appeal earlier against it before September 2008 - that I am concerned that its real reason for seeking leave to appeal out of time now is to further delay the disposition of the case. ABCI's cOllduct in the past is the reasonable basis for this concern and is fully described in my earlier rulings in this matter. And so, to the extent that ABCI must satisfy me now that there are good reasons for its not having sought to pursue its appeal within the time franles allowed by the Rules of the Court, it has failed to do so. oth applications are refused. March 25 2009 \ . 3