Hawkins v Abarbanel Ltd (Cayman Islands)

Michaelmas Term

[2025] UKPC 58

Privy Council Appeal No 0043 of 2024

JUDGMENT

Rogelio Antonio Hawkins (Appellant)

 v

Abarbanel Limited (Respondent) (Cayman Islands)

From the Court of Appeal of the Cayman Islands

before

Lord Reed

Lord Hodge

Lord Burrows

Lord Stephens

Dame Janice Pereira

JUDGMENT GIVEN ON

2 December 2025

Heard on 7 October 2025

Appellant

Philip Rule KC

Samir Amin

(Instructed by Henry Orren Merren IV)

Respondent

Toby Brown

(Instructed by Nelsons Attorneys-at-Law Ltd (Cayman Islands) and Seddons GSC LLP (London))

Lord Burrows:

1. Introduction

1. The Board is here concerned with two appeals (in the same proceedings) from the Cayman Islands Court of Appeal. The first and main appeal is substantive. The question at issue is whether the breach of a statute, by which a moneylender failed to obtain a licence for carrying on its business, rendered a contract of loan made by the lender, and secured by a charge over the borrower's land, unenforceable for illegality. The Court of Appeal, upholding the first instance judge, held that the contract was not unenforceable for illegality and could therefore be enforced by the lender against the borrower.
2. The second appeal raises a procedural issue. The Court of Appeal refused the borrower permission to appeal to the Judicial Committee of the Privy Council despite the borrower having an appeal as of right. Although this procedural appeal does not now directly affect the parties, because the borrower was given special leave to appeal by the Board in any event, it raises an important question of general public importance on which we have had full submissions from the parties. That question is as follows: did the Court of Appeal apply the correct legal test in deciding that permission to appeal should be refused even though there was an appeal as of right?

2. Facts

3. Rogelio Antonio Hawkins (who is the plaintiff and the appellant in these appeals) is a resident of the Cayman Islands. Abarbanel Ltd (the defendant and the respondent in these appeals) is a company registered in the Cayman Islands which is ultimately owned and under the control of two brothers resident in the USA, David and James Barker. At all material times, its two sole directors (David Barker and Kelvin Latta) were US citizens.
4. On 19 February 2014, Mr Hawkins and Abarbanel entered into a loan agreement under which a principal sum of US$357,000 was advanced by Abarbanel. The term of the loan was one year but could subsequently be extended from month to month. Interest, calculated daily and compounded, was at 16% per annum for the first year, increasing to 18% per annum if the account fell into arrears, and thereafter at 15.27% above the 10-year "constant maturity rate" on US Treasury securities (then 2.73%). The loan was secured by charges upon two properties owned by Mr Hawkins, including his home.
5. Prior to executing the charges on 14 March 2014, Mr Hawkins received legal advice from an attorney to the effect that the proposed interest rates were very high.…