Post-Judgment Norwich Pharmacal Orders: A Square Peg In A Round Hole?

The decision of the Grand Court of the Cayman Islands earlier this year in ArcelorMittal USA LLC v Essar Global Fund Limited & Anor1 re-examines Norwich Pharmacal Orders (NPO) as a form of post-judgment relief. It will not be the last word on the subject (not least because it is subject to appeal) but it highlights the difficulties caused by the use of NPOs post-judgment applications and how different the regime which has been developed in Jersey is.

In December 2017 ArcelorMittal USA LLC ("ArcelorMittal") obtained an ICC arbitral award against Essar Steel Limited ("Essar Steel"), a company incorporated in Mauritius. Enforcement proceedings were brought in England and Mauritius but the debt of over US$1.5 billion remained unpaid. ArcelorMittal sought a NPO in Cayman against two Cayman companies which it said actively controlled the Essar group of companies (including Essar Steel) and had demonstrated a propensity for directing the group to dissipate assets and evade debts.

The application was granted ex parte. The defendants sought to set it aside on the following principal grounds:

A NPO could not be granted in support of a foreign arbitral award which was not being enforced and/or recognised in the Cayman Islands. This was because, in these circumstances, the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 had supplanted the equitable jurisdiction. Deliberate non-payment of a debt was not an actionable wrong for the purposes of NPO relief. In this respect UVW v XYZ2 had been wrongly decided. The scope of the ex parte order was impermissibly broad, straying beyond essential information into broad discovery. Save for narrowing the scope of the order, the defendants' arguments were unsuccessful.

In arguing that the NPO jurisdiction had been ousted by statutory provision the defendants relied heavily on the English decisions in R (on the application of Omar v Secretary of State for Foreign and Commonwealth Affairs3 and Ramilos Trading Ltd v Buyanovsky4. These decisions held that the relevant provisions of the Crime (International Cooperation) Act 2003 and Evidence (Proceedings in Other Jurisdictions) Act 1975 respectively had been intended to exclude the availability of NPO relief.

Kawaley J accepted that where an applicant can obtain adequate relief via the statutory route for obtaining evidence in foreign proceedings then the corresponding equitable jurisdiction would fall away. The key question was whether the...