20 August 2012

Article by Higgs & Johnson Counsel & Attorneys at Law

The Evidence (Proceedings in Foreign Jurisdictions) (Cayman Islands) Order 1978 (the “Order”) extends the United Kingdom’s Evidence (Proceedings in Other Jurisdictions) Act 1975 to the Cayman Islands and, in doing so, gives statutory effect in the Cayman Islands to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (commonly known as the Hague Evidence Convention).

Section 1 of the Schedule to the Order provides that the Grand Court shall have all the powers conferred on it under the Order, “where an application is made to the Grand Court for an order for evidence to be obtained in the Cayman Islands and that Court is satisfied:

(a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal (“the requesting court”) exercising jurisdiction in a country or territory outside the Cayman Islands; and

(b) that the evidence to which the application related is to be obtained for the purposes of civil proceedings which have either been instituted before the requesting court or whose institution before that court is contemplated.”

The procedure under which a letter of request is given effect is governed by Order 70 of the Grand Court Rules (the “GCRs”), which provides that such an application may be made ex parte and must be supported by affidavit which must exhibit the letter of request (with a translation if the letter of request is not in English). The letter of request must precisely identify the evidence requested. The Cayman Islands Grand Court will likely consider an overly vague request to be simply a “fishing expedition”, in which case it may be minded to reject the request¹. Similarly, if the Court considers that the evidence requested amounts to pre-trial discovery, it may find itself unable to assist the requesting court².

An application will be heard in Chambers by a Grand Court Judge. The Court may make “such provision for the obtaining of evidence in the Cayman Islands as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application was made“. Specifically, the Court may make provision for:

• the examination of those parties who are to be called to produce information (“witnesses”), either orally or in writing;
• the production of documents;
• the inspection, photographing, preservation, custody or detention of any property;
• the taking of samples of any property and the carrying out of any experiments on or with any property;
• the medical examination of any person; or
• the taking and testing of samples of blood from any person³.

The order may include provision for witnesses to apply under Section 4 of the Confidential Relationships (Preservation) Law (2009 Revision) for permission to disclose confidential information. Each Section 4 application will then be heard by a Judge in Chambers, which can cause some delay to the process.

Once Section 4 applications have been heard and orders granted, the Court will typically require the witnesses to attend before an examiner on a specific date to disclose information and, where appropriate, be examined. The Court may appoint “any fit and proper person nominated by the person applying for the order or before such qualified person as the Court deems fit” to act as examiner⁴. Examinations must be conducted in the manner provided for by the GCRs (specifically GCR Orders 39 and 70).

A witness cannot be compelled to give evidence either if it is evidence that he or she could not be compelled to give in civil proceedings before the Cayman Islands Grand Court, or (subject to certain rules) in the territory of the requesting court, or if such evidence would endanger the security of the United Kingdom, the Cayman Islands or “any other territory for which the United Kingdom is responsible under international law“⁵.

Following the examination, the examiner will produce to the Clerk of the Cayman Islands Grand Court the deposition of each examined party. The Clerk of the Court will, under Order 70 Rule 5, send a certificate with the depositions appended to the applicant “for transmission to the court or tribunal out of the jurisdiction“.

Footnotes

1 United States v Carver and others [1980-83 CILR 297

2 Re a request from the Superior Court of Ontario [2006 CILR 460]

3 Schedule, Section 2(2)

4 GCR Order 70, Rule 4(1)

5 Schedule, Section 3.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.