Hawkins v Abarbanel: Privy Council clarifies illegality defence in unlicensed lending

The Privy Council has delivered significant guidance on statutory illegality defences in Rogelio Antonio Hawkins v Abarbanel Limited [2025] UKPC 58, dismissing an appeal that sought to void a loan contract on grounds that the lender operated without required Cayman Islands business licences.

Abarbanel Limited advanced US$407,000 to Mr Hawkins in 2014, secured by charges over his properties. When Hawkins discovered in 2018 that Abarbanel lacked licences under the Local Companies (Control) Act and Trade and Business Licensing Act, he sought declarations that the contract and charges were illegal and unenforceable.

The relevant statutes required companies to obtain licences before carrying on business in the Cayman Islands, with criminal penalties for non-compliance. Critically, section 23 of the LCCA provided that "no business transaction shall be void or voidable by reason only that, at the relevant time, any party thereto is in breach of this Law."

The Board's reasoning on statutory illegality

Lord Burrows, delivering the Board's judgement, emphasised that where statute addresses the effects of illegality, common law illegality principles from Patel v Mirza do not apply. The court must apply the statute itself.

Neither statute expressly prohibited contracts made by unlicensed businesses. The question turned on whether such prohibition could be implied from the statutory purpose. The Board concluded it could not.

The LCCA's purpose, evident from its 1971 "Memorandum of Objects and Reasons," was to screen and control foreign companies to protect Cayman-controlled businesses—not to invalidate contracts for consumer protection. The TBLA existed purely to raise revenue through licensing fees.

Several factors supported this interpretation. The criminal sanctions—daily fines calculated on business operation rather than contracts concluded—provided rational enforcement mechanisms. Treating all contracts as unenforceable would create commercial chaos, affecting employment contracts, utilities agreements, and premises arrangements alongside core business transactions.

Section 23's decisive effect

The Board held that section 23 removed any doubt by expressly providing that breaches do not render transactions void, voidable, or unenforceable. The appellant's attempt to distinguish "unenforceable" from "void or voidable" failed. Context and purpose indicated no rational basis for such distinction—it would largely undermine the provision's effect.

Historically, "void for illegality" and "unenforceable" had been used interchangeably. A purposive interpretation required reading section 23 as covering the entire field of contractual validity. Though the TBLA contained no equivalent provision, the statutes' close connection—enacted simultaneously with an integrated licensing board—meant section 23's clarification extended to both Acts.

Common law position

Although statutory interpretation resolved the matter, the Board confirmed that applying Patel v Mirza's trio of considerations would reach the same conclusion. The statutory purposes were consistent with upholding freely agreed contracts. Denying enforcement would be disproportionate, causing commercial disruption without advancing the legislation's protective aims for Cayman-controlled businesses or revenue collection.

Permission to appeal procedure

The Board also addressed whether the Court of Appeal correctly refused permission to appeal despite an appeal as of right. Consolidating various formulations in the authorities, the Board confirmed that permission may be refused where an appeal raises no genuinely disputable issue, is devoid of merit, or constitutes an abuse of process. These formulations are synonymous and apply equally whether the local court or the Board considers the application.

The substantive and procedural appeals were dismissed, providing clarity on both illegality defences in unlicensed business contexts and appellate permission thresholds in Caribbean jurisdictions with appeals as of right.

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