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Not via Norwich: Obtaining Evidence in the Cayman Islands via Statute for the Purposes of Foreign Proceedings

This article explores the statutory powers which can be invoked by foreign litigants seeking to obtain evidence in the Cayman Islands under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (the “Evidence Order”).

While Norwich Pharmacal relief remains an alternative course available to parties to foreign proceedings seeking to obtain evidence in the Cayman Islands, the Grand Court recently held in ArcelorMittal,[1] by reference to the reasoning of the English High Court in Ramilos Trading,[2] that if adequate relief can be obtained under the Evidence Order, the Court’s equitable jurisdiction to grant corresponding Norwich Pharmacal relief is unavailable.[3] As Kawaley J held in ArcelorMittal, “the key question is whether on the facts of a particular case, the equitable relief is displaced by the availability of the statutory remedy”.[4] Accordingly, it is essential that foreign litigants seeking to obtain evidence in the Cayman Islands, as well as those within the jurisdiction whose evidence is sought to be obtained, understand clearly the statutory regime and its interaction with common law and equitable remedies.

The Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978

The obtaining of evidence in the Cayman Islands for the purpose of foreign legal proceedings is governed by the Evidence Order, which details the scope of (and limitations upon) international judicial assistance. The Evidence Order extended to the Cayman Islands the UK Evidence (Proceedings in Other Jurisdictions) Act 1975, and was introduced to give effect in the Cayman Islands to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 18 March 1970. The Evidence Order, together with Order 70 of the Grand Court Rules, provides the means of obtaining evidence in the Cayman Islands for use in proceedings in a foreign court.

The Grand Court is accustomed to receiving and acting upon requests from foreign courts to obtain evidence for the purpose of foreign proceedings, and recently confirmed in ArcelorMittal[5] that “the main purpose of [the Hague Convention] is to facilitate civil justice by creating a transnational framework for national courts to assist each other in civil proceedings.”

Threshold Requirements

The Grand Court has jurisdiction to make orders under s.2, Sch. 1 of the Evidence Order in both civil and criminal cases where the requirements of s.1(a) and (b) are both satisfied, namely (i) where a request has been issued by a foreign court or tribunal exercising jurisdiction in a country or territory outside the Cayman Islands (“the requesting court”) and where (ii) the evidence to which the application relates is to be used in proceedings instituted before the requesting court, or in contemplated foreign proceedings. Accordingly, the foreign proceedings need not be extant at the time of the request.

A request from a requesting court typically takes the form of a letter rogatory, which is the customary means of obtaining judicial assistance from overseas in the absence of a treaty or other agreement. Letters rogatory are often transmitted via diplomatic channels based on principles of comity, which can prove time-consuming, however the process may be expedited by contacting a Cayman Islands law firm to assist with the request.

There has been limited judicial guidance as to the interpretation of “court or tribunal” under s.1(a), however the Grand Court has confirmed that the requesting court must be exercising an adjudicatory function[6], as opposed to merely investigative or inquisitorial.[7] As for the reference to “tribunals”, the equivalent provisions under the UK Act have been held not to apply to private arbitral tribunals as their jurisdiction is not exercised over the relevant country or territory, nor is it of a public nature.[8] This issue has not been expressly determined by the Courts of the Cayman Islands, however the Grand Court is likely to follow the English authority on this point and refuse relief under the Evidence Order at the request of private arbitral tribunals. A foreign arbitral tribunal may instead pursue interim relief under Part VII of the Arbitration Law 2012, including orders for discovery of documents, preservation of evidence, evidence to be given by affidavit or for a witness to be examined on oath (see ss. 38 and 43).

Relief

Where an application satisfies the threshold requirements of s.1, Sch.1 of the Evidence Order, and complies with the procedural requirements of Order 70 of the Grand Court Rules, the Grand Court has wide discretion under s.2 to make such provision for obtaining evidence as may be appropriate to give effect to the request, including without limitation for the:

  • examination of witnesses, either orally or in writing;
  • production of documents;
  • inspection, photographing, preservation, custody or detention of any property;
  • taking of samples of any property and the carrying out of any experiments on or with any property; and
  • medical examination of any person, including taking blood samples.

Limits on Relief

There are two key statutory limitations to the Grand Court’s wide jurisdiction under the Evidence Order.

First, the Grand Court cannot require any steps to be taken in response to a request from a foreign court which the Grand Court could not order by way of obtaining evidence domestically. The duty to assist the requesting court is accordingly qualified by and cannot go beyond local laws.

Secondly, the Grand Court may not direct any person to undertake general discovery, or produce documents other than “particular documents specified in the order” which appear to the Grand Court likely to be in the possession, custody or power of the party subject to the order (see s.2(4)). Smellie J. (as he then was) observed in Voluntary Purchasing Group[9] that “particular documents” in this context means “individual documents separately described, although it is permissible to have a compendious description of several documents, provided that evidence of the actual documents is produced to satisfy [the Court] that they do exist or at least have existed.” The standard of particularity required in any given case must be considered in the context of the circumstances of the case and having regard to the nature of the documents sought to be subpoenaed,[10] however the specificity requirement will in nearly every case preclude the Evidence Order being used to conduct a fishing expedition.

For any party who becomes subject to a disclosure order made under the Evidence Order, it is important to consider your duties as well as any limitations on those duties. Under Cayman law, regard must be had to the Confidential Information Disclosure Law, 2016 as well as protecting documents which may be subject to privilege. In addition, any person who would be exempt from providing evidence under the laws of the requesting court’s jurisdiction will be similarly exempt from giving that evidence pursuant to an order of the Grand Court. While a requesting court is unlikely to request evidence which it could not compel directly from someone within its own jurisdiction, it may still be necessary to obtain foreign legal advice to ensure that the order sought in Cayman is consistent with the laws of the requesting jurisdiction.

The fact that an order can be made ex parte, without the subject of the application being able to make submissions on the nature of the particular documents or evidence sought, increases the risk that an order will be made requiring a party to produce evidence that is confidential, privileged or not disclosable under the laws of the requesting court. Consequently, the subject of an order may be able to refuse disclosure on the basis that it is ultra vires, or challenge an ex parte order on the basis of material non-disclosure.

Where the subject of the order is given notice of the application, and wishes to oppose the relief, it is open to argue that the disclosure order does not satisfy the jurisdictional thresholds under s.1, Sch.1 of the Evidence Order. The subject may also invite the Court not to exercise its discretion to make any order on the basis it is not appropriate for the purposes of giving effect to the letter of request. This will require a fact-specific analysis. The subject of a request should always carefully consider their position with a view to minimizing costs risk.

Conclusion

Whether you are a party to proceedings initiated or contemplated before a foreign court or tribunal interested in obtaining evidence in the Cayman Islands, or you have been served in the Cayman Islands with an application or order made pursuant to the Evidence Order, it is important that you take appropriate legal advice to understand your rights and obligations in relation to this nuanced area of the law.

[1] ArcelorMittal USA LLC V. Essar Global Fund Limited and Essar Capital Limited [2019 (1) CILR 297] (“ArcelorMIttal”) at [68]. ArceclorMittal is currently on appeal to the Cayman Islands Court of Appeal.
[2]  Ramilos Trading Limited v Buyanovsky [2016] EWHC 3175, in which the English Commercial Court found that the statutory regime contained in the UK Evidence (Proceedings in Other Jurisdictions) Act 1975 to obtain evidence for foreign proceedings operates to exclude Norwich Pharmacal relief for the purposes of foreign proceedings.
[3] For the latest developments on Norwich Pharmacal relief in Cayman and the BVI, and to understand the intersection with the Cayman statutory regime, click here.
[4] ArcelorMittal at [69] [5] ArcelorMittal at [68
[6] Re Dunne’s Payments [1997 CILR 330] [7] In The Matter of a Request for International Judicial Assistance from the Canton of Berne [1996 CILR 179] [8] Commerce & Industry Insurance Co (Canada) v Lloyd’s Underwriters [2002] 1 W.L.R. 1323
[9] Voluntary Purchasing Group Incorporated V. Insurco International Limited [1994–95 CILR 84] [10] United States of America v. Carver (8) [1980–83 CILR 319]

Andrew Pullinger - Partner, Campbells Grand Cayman - Commercial Litigation

Andrew Pullinger

Partner
+1 345 914 5865
Harry Shaw - Associate, Campbells Grand Cayman - Dispute Resolution

Harry Shaw

Associate
+1 345 914 5869