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 seeking a transcript of proceedings will engage a transcriber privately, as was the case here. The Chief Justice at first instance had observed that the transcripts “… have not been certified or ordered to be the official record for the proceedings and so do not physically form part of the record of the proceedings. In the circumstances, in the absence of any good public interest reason for the court to cut across the contractual arrangement without the consent of the parties … in order to provide the transcripts to a private non-party, I consider it would be inappropriate to do so”.
Appeal Decision
On appeal, the CICA (Newman JA, with whom Martin and Field JJA agreed) ordered disclosure of all witness statements and affidavits, not limited to those which referred to IBC, but excluding their exhibits or attachments. The CICA saw no reason why all the witness statements should not be disclosed; to the extent there was a concern relating to proportionality, it was found to be outweighed by the potential value of the statements and their relevance to IBC notwithstanding the absence of a reference to IBC in some of the witness statements.
The CICA also ordered disclosure of the transcripts (upon payment of a fee), but not the documents referred to in the transcripts. The CICA said that it would be unfortunate if the practice of parties paying privately to transcribe hearings should prevent or hinder the ability of the public or any other legitimate applicant from learning what happened in litigation. The CICA said that the practice of producing a transcript is a good example of what Lord Woolf had in mind in Barings v Coopers & Lybrand [2000] 3 All ER 910 at paragraph 43 where he said, “As a matter of basic principle the starting point should be that practice adopted by the courts and parties to ensure the efficient resolution of litigation should not be allowed to adversely affect the ability of the public to know what is happening in the course of the proceedings”.
The CICA recognised that the copyright in the text of the transcripts was owned by the parties and that each contributed US$500,000 for the transcription of what had been a very lengthy trial. In default of agreement as to the costs of the transcripts, the CICA held that the third party should pay US$75,000, to include the cost of providing the transcripts and any necessary licensing of the copyright in them.
The CICA declined to order production of the documents referred to in the transcripts, or the attachments and documents referred to in witness statements. This was on the basis that, in this case, that would give rise to a large measure of duplication and repetition and, without them, IBC would still gain an adequate understanding of what is relevant to the foreign proceedings. This would not prevent such disclosure being ordered in another case.
Comment
It is not the invariable practice of the Grand Court to record hearings, and when requested to do so by the parties, it will be for the parties privately to engage the services of a transcription provider, which will produce an unofficial transcript. It is therefore notable that the CICA ordered the disclosure of such privately obtained and unofficial transcripts to a third party. This is likely to result in an increase in requests by third parties for copies of transcripts of court proceedings.
As it relates to witness statements the decision is more orthodox, insofar as witness statements not limited to those which referred to the third party were ordered to be produced. However, it is notable that the exhibits to those witness statements were not ordered to be produced, given that the CICA cited the English case of Hinchliffe [1895] 1 Ch 17 which stands for the proposition that a person who has the right to inspect and take copies of an affidavit also has a right to the documents exhibited thereto (which are deemed to form part of the affidavit).
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[1] The International Banking Corporation BSC (in Administration) v Ahmad Hamad Algosabi and Brothers Company – CICA No. 28 of 2017 (30 July 2018)
