Cayman Islands Court Of Appeal Clarifies Scope Of Third Party Access To Litigation Documents

In a judgment likely to prove significant for litigants and third parties seeking access to Court documents, the Cayman Islands Court of Appeal (CICA) has clarified what documents third parties to litigation may obtain from the Court file and the parties to litigation before the Grand Court of the Cayman Islands.1

The appeal concerned an application by a third party to the well-known AHAB v Saad litigation against AHAB for production of:

All witness statements and affidavits, including exhibits or attachments; All documents read by the Court in the course of the trial; and All transcripts of evidence of witnesses that had been cross-examined at trial, and documents referred to in the transcripts. In summary, the CICA substantially allowed the appeal against the order of the Grand Court directing only narrow disclosure, ordering AHAB to disclose all witness statements and affidavits (excluding documents referred to therein and exhibits) as well as all transcripts of the proceedings upon payment of a fee.

Issues and First Instance Decision

There was no dispute that the third party seeking the documents, IBC, had a legitimate interest and purpose in doing so, which was the use of such documents in foreign proceedings in which it was involved with one of the parties.

The overarching question that arose was whether the documents sought should be provided to the third party, either under the Rules of Court or the Court's inherent jurisdiction, based on the principles of open justice.

At first instance, the application for (1) and (2) were put on the footing of specific Rules of Court, viz. GCR Order 38 rule 2(A)(12) for leave to inspect and take copies of witness statements, together with documents attached to them, which had been directed to stand as evidence in chief at trial; and GCR Order 63 rule 3 to inspect and take copies of documents on the Court file. The application for (3) was advanced on the basis of open justice principles, and not any specific rule of Court.

The Grand Court (the Honourable Chief Justice Smellie QC) ordered disclosure only of witness statements and affidavits put in evidence at trial in which reference was made to IBC, but not their exhibits or attachments because the rules of Court do not require them to be filed at Court.

The Grand Court refused to order disclosure of the transcripts. This was primarily because there is no requirement in the Cayman Islands for a recording of the proceedings to be made, and parties...