Bertoli et Al v Malone
| Jurisdiction | Cayman Islands |
| Judge | Schofield J. |
| Judgment Date | 10 July 1990 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | No. 407 of 1989 |
| Date | 10 July 1990 |
Schofield, J.
No. 407 of 1989
Grand Court
Practice and procedure - Evidence — Letters of request under the Mutual Legal Assistance Treaty — Criminal proceedings begun in the United States against the appellants for racketeering and related offences — Seeking to oppose request and to have hearing before Mutual Legal Assistance Authority — Whether Mutual Legal Assistance Authority under an obligation to consider whether the plaintiffs should be granted a hearing — Whether Mutual Legal Assistance Treaty retrospective in effect — State Immunity Act, 1978 (U.K.) sections 1 and 4 — S.I. No. 458 of 1979 — Mutual Legal Assistance Treaty, Articles 1 and 3 — Confidential Relationships (Preservation) Law, section 10.
Mr. Robin Ground Q.C., with
Mr. Richard Finlay — for the defendant
On 11 th December, 1989, the plaintiffs filed a writ of summons against Richard R. Thornberg, the Attorney General of the United States of America, Samuel Alito, United States Attorney for the District of New Jersey, Robert Warren, Assistants United States Attorney, and David Rosenfield, Special Assistant United States Attorney. The plaintiffs are the defendants in a criminal case before the United States District court of New Jersey wherein it is alleged that the plaintiffs have been guilty of racketeering and related offences. The prosecuting authorities in the United States were making an application to the trial judge for an order requesting the Grand court of the Cayman Islands to make such orders as were necessary and appropriate under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order, 1978, with a view to securing the taking of prosecution. However one paragraph of the application of the District judge in New Jersey was to the following effect: “The defendants herein (i.e. the plaintiffs to this suit) may not challenge either this court order or the letter of request in any proceedings before the Grand court of the Cayman Islands …”
In th endorsement to the writ the plaintiffs sought a declaration that in any such application to this court that plaintiffs were entitle and had a legal right to be heard and, further, an injunction restraining the defendants from making an application to this court under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Orders, 1978, which denied the plaintiffs the right to challenge the application or any proceeding thereon in this court.
On the 4 th January, 1990, the plaintiffs presented an ex parte application for interlocutory relief in terms of the prayers in the endorsement to the writ, and affidavits were filed to the effect that the offending paragraph above was not included in the draft request to be submitted to this court. If, therefore, an order were made by the District Judge in New Jersey denying the plaintiffs access to the Grand Court of the Cayman Islands the Grand Court would not have been made aware of that fact. Furthermore, it was argued that if service of the interlocutory application were effected on the four then defendants to this suit they may cross-apply to the United States District court for an order prohibiting the application in this court from proceeding. On those bases I granted an interlocutory injunction restraining the defendant from making any such application which denied the plaintiffs the right to challenge the application or the proceedings under the Evidence (Proceedings in Other Jurisdictions) Cayman Islands) Order, 1978. Leave was issued to serve out of the jurisdiction and liberty to apply was granted to the defendants. No application was ever made to set aside the interlocutory injunction although, as will be seen, the action against the four defendants and my order based upon it were misconceived.
The defendants instead proceeded with a request under the Mutual Legal Assistance (United States of America) Law, 1986. The Mutual Legal Assistance Treaty between the United States of America and the United Kingdom, including the Cayman Islands (hereinafter called “the Treaty” was ratified in March 190 and the Mutual Legal Assistance (United States of America) Law, 1986, (hereinafter called “the Law”) giving effect to the Treaty, came into operation at the end of that month. The Treaty provides, in Articles 1, that Government of the United States and of the Cayman Islands shall provide mutual assistance, in accordance with the provisions of the Treaty, for the investigation, prosecution, and suppression of criminal offences. Each Government established a Central Authority trough which such assistance is sought and given, and in the Cayman Islands such Central Authority (hereinafter called “the Authority”) is, by section 4 of the Law, the Chief Justice or another judge of the Grand Court designated by him. The request for assistance in this case was thus made by the United States Authority to the remaining the defendant to this suit as the Authority.
An ex parte summons was filed on 10 th May, 1990, by the plaintiffs seeking that Drew C. Arena, who has been designated as the United States Central Authority, he added as the fifth defendant and that the Cayman Authority he added as the sixth defendant. The summons also sought amendments to the original writ of summons to include reference to the request being made to the Authority under the Law included a prayer that the amended writ be reissued and that the writ and summons be served outside the jurisdiction. Those prayers were granted.
On an undertaking by the Authority that no information would be divulged to the United States Authority pursuant to the request until the suit had been further prayers in the summons for temporary injunctions against the defendants were adjourned and it was agreed that an early hearing of the substantive application was desirable.
Immediately prior to the hearing of the suit I was faced with two summons filed by the Attorney General who by stage of proceedings represented all six defendants. The first summons was an ex parte summons pursuant to Rule 16 (5) of the Grand Court (Civil Procedure) Rules for leave to enter a conditional appearance on behalf of all six defendants. That was granted. The second summons, inter partes, sought orders inter alia for the striking out of the endorsements and amended endorsements to the writ pursuant to Rule 4 (1) (d) of those Rules as against all defendants as being an abuse of the process of the court. After hearing argument I struck out the proceedings as against the first five defendant, leaving the sixth defendants, the Authority, as the only defendant. Because the application raised a point of substance I decided to give my reasons for that decision in this judgment.
The State Immunity Act, 1978, of the United Kingdom, has been extended to the Cayman Islands by S.I. 468 of 1979. Section 1 of the Act reads:
“1. (1) A State is immune from the jurisdiction of the courts of the (Cayman Islands) except as provided in the following provisions of this Part of this Act.
(2) A court shall give effect to the immunity conferred by this section even though the State does not appear in the proceedings in questions.”
Section 14 (1) of the Act provides:
“14. (1) The immunities and privileges conferred by this Part of the Act apply to any foreign or Commonwealth State other than the (Cayman Islands) and reference to a State include reference to
(a) the sovereign or other head to that State in his public capacity;
(b) the government of that State; and
(c) any department of that government
but not to any entity (hereafter referred to as a “separate entity”) which is distinct from the executive organ of the government of the State and capable of suing or being sued.”
The first five defendants were all officers in the Justice Department of the United States of America, indeed the first defendant was the United States Attorney General himself. They were being sued in their official capacities with a view to controlling or declaring upon the exercise of their official functions. In truth the Department of the Attorney General was being sued and it cannot be open to the plaintiffs to avoid the immunity from action provided to that Department by the State Immunity Act, 1978, simply by identifying individuals in the Departments who are performing the function which they seek to control. To do so is an abuse of the process of the court. An illustration of the in appropriateness of permitting the plaintiffs to sue individuals in a government department is if successive officers dealing with the subject-matter of the suit leave the department and their file is handed over to other officers. Are the successive holder of the relevant file to be followed and added as defendants? For those reasons I struck out the first five defendants from these proceedings.
As to my injunction of the 4 th January, 1990, attached to the first four defendants only, it follows that it is thus discharged. It also follows that as the Authority has no jurisdiction over any application or request made under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order, 1978, all reference to any application under that Order should be deleted from the endorsement to the amended writ of summons. I so ordered.
So a writ issued against the Attorney General of the United States of America and various of his officers to prevent them from making an application under the Evidence (Proceedings in Other Jurisdictions) Cayman Islands) Order, 1978, without the plaintiff having right to be heard has ended its life as a claim against the Authority for the following declarations:
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(1) that in any applications or request to the Authority being made by the former defendants under the Law by or pursuant to a request from the United States Central Authority the plaintiffs are...
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