Cayman Grand Court Permits U.S. Depositions of Future Trial Witnesses

In the course of international litigation a party seeks to depose a future witness of fact using powers available to that litigant under the laws of another jurisdiction or under powers of the domestic court. What approach does a Court take to such steps?

Four recent judgments in the Cayman Islands have considered these issues from the perspective of Cayman law. The judgments confirmed that in appropriate circumstances domestic and foreign depositions will be permitted to assist trial preparation, but confirmed that depositions will only be permitted in exceptional circumstances.

Depositions Under Foreign Systems – s.1782 Depositions

In the United States, Title 28 of U.S. Code s.1782 allows a litigant in non-U.S. proceedings to apply for permission to obtain evidence for use in such proceedings. The litigant must establish that it is an "interested person" in a foreign proceeding, including documentary discovery and the taking of depositions.

Most common law jurisdictions have been hostile to permitting depositions of future witnesses, even in circumstances where the law of the jurisdiction in which the witness was resident permits such depositions. An established body of case law has consistently indicated that anti-suit proceedings would be readily granted to restrain s.1782 depositions of intended witnesses largely on the basis that such depositions would constitute unwarranted double cross-examination, including decisions in England (Omega Group Holdings v. Kozeny [2002] C.L.C. 132), Australia (Allstate Life Insurance v ANZ Banking Group [1996] FCA 1270) and Jersey (United Capital Corporation v Bender [2006] JLR 269 (CA)).

However in Phoenix Meridian Equity Limited v. Lyxor Asset Management S.A ("Phoenix") (CICA 4 of 2009, 24 September 2009) the Cayman Islands Court of Appeal confirmed, after an expedited hearing and a special sitting of the Court, the Grand Court's refusal of an anti-suit sought by the Defendant to restrain s.1782 depositions of future witnesses. This decision was reached in part by applying the principles in the leading existing cases to the facts of the case and in part by taking into account specific issues of Cayman civil procedure.

Phoenix was a funds dispute which centred on the Defendant's alleged basis for the calculation of the NAV in respect of a principal protected investment product offered by Societe Générale. The parties' valuation of the redemption value of the product differed by some US$100m,

The Plaintiff sought s.1782...