{"id":5955,"date":"2020-06-25T10:29:59","date_gmt":"2020-06-25T15:29:59","guid":{"rendered":"https:\/\/www.campbellslegal.com\/?p=5955"},"modified":"2021-10-07T09:20:03","modified_gmt":"2021-10-07T14:20:03","slug":"not-via-norwich-obtaining-evidence-in-the-cayman-islands-via-statute-for-the-purpose-of-foreign-proceedings","status":"publish","type":"post","link":"https:\/\/www.campbellslegal.com\/articles\/not-via-norwich-obtaining-evidence-in-the-cayman-islands-via-statute-for-the-purpose-of-foreign-proceedings-5955\/","title":{"rendered":"Not via Norwich: Obtaining Evidence in the Cayman Islands via Statute for the Purposes of Foreign Proceedings"},"content":{"rendered":"

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 \u201cEvidence Order<\/strong>\u201d).<\/p>\n

While Norwich Pharmacal<\/em> 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<\/em>,[1]<\/a> by reference to the reasoning of the English High Court in Ramilos Trading<\/em>,[2]<\/a> that if adequate relief can be obtained under the Evidence Order, the Court\u2019s equitable jurisdiction to grant corresponding\u00a0Norwich Pharmacal<\/em> relief\u00a0is unavailable.[3]<\/a> As Kawaley J held in ArcelorMittal<\/em>, \u201cthe key question is whether on the facts of a particular case, the equitable relief is displaced by the availability of the statutory remedy\u201d<\/em>.[4]<\/a> 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.<\/p>\n

The Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 <\/strong><\/h2>\n

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<\/em>, 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.<\/p>\n

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<\/em>[5]<\/a> that \u201cthe main purpose of <\/em>[the Hague Convention] is to facilitate civil justice by creating a transnational framework for national courts to assist each other in civil proceedings<\/em>.\u201d<\/p>\n

Threshold Requirements<\/u><\/h2>\n

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 (\u201cthe requesting court<\/strong>\u201d) 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.<\/p>\n

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.<\/p>\n

There has been limited judicial guidance as to the interpretation of \u201ccourt or tribunal<\/em>\u201d under s.1(a), however the Grand Court has confirmed that the requesting court must be exercising an adjudicatory function[6]<\/a>, as opposed to merely investigative or inquisitorial.[7]<\/a> As for the reference to \u201ctribunals\u201d<\/em>, the equivalent provisions under the UK Act have been held not<\/em> 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]<\/a> 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).<\/p>\n

Relief<\/u><\/h2>\n

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:<\/p>\n