I Ltd v A
| Jurisdiction | Cayman Islands |
| Judge | (Harre, C.J.) |
| Judgment Date | 17 August 1994 |
| Court | Grand Court (Cayman Islands) |
| Date | 17 August 1994 |
(Harre, C.J.)
C. Purle, Q.C. and E. McQuater for the plaintiffs;
R. McCombe, Q.C., R.D. Alberga, Q.C. and A. Trace for the defendants.
(1) Bank of Credit and Commerce Intl. S.A. v. Aboody, [1990] 1 Q.B. 923; [1992] 4 All E.R. 955, considered.
(2) Berdan v. Greenwood, Court of Appeal (England), February 7th, 1880, unreported.
(3) Boyse, In re, Crofton v. CroftonELR(1880), 20 Ch. D. 760.
(4) Debtor, In re A, [1978] 1 W.L.R. 1512; [1979] 1 All E.R. 434.
(5) Langen v. TateELR(1880), 24 Ch. D. 522.
(6) St. Edmundsbury & Ipswich Diocesan Board of Finance v. Clark, [1973] Ch. 323; [1973] 2 All E.R. 1155, considered.
(7) Tito v. Waddell, [1975] 1 W.L.R. 1303; [1975] 3 All E.R. 997, distinguished.
Rules of the Supreme Court, O.35, r.3: The relevant terms of this rule are set out at page 250, lines 6–9.
Courts-Grand Court-jurisdiction-territorial jurisdiction-court has extra-territorial jurisdiction to view non-portable real evidence abroad but not to hear oral evidence in foreign country
Two of the defendants sought, inter alia, the adjournment of the trial to Saudi Arabia to enable the taking of the evidence of another defendant, P.
P was in Saudi Arabia and had neither entered an appearance nor recognized the jurisdiction of the Cayman court in the present proceedings because he was under indictment in the United States and consequently would not risk extradition by coming to the Cayman Islands or any place where a similar risk existed. His evidence was, however, of great importance and the defendants sought, inter alia, to tender it by adjourning the proceedings to Saudi Arabia.
The defendants submitted that, since it was the duty of the court to make its decision on the basis of all the material evidence available, it needed to consider taking the evidence of P in some special procedure, as he had compelling reasons for not coming to the Cayman Islands which were unconnected with the trial; (a) the judicial authorities in Saudi Arabia had no objection to evidence being given there; and (b) since the court had the power to adjourn a trial to another jurisdiction to enable the inspection of non-portable real evidence, it should similarly exercise its discretion under the Rules of the Supreme Court, O.35, r.3 to adjourn the trial to Saudi Arabia to take oral evidence from P.
The plaintiffs submitted in repy that (a) it was impossible for P”s oral evidence to be taken in Saudi Arabia; (b) the defendants” application should be dismissed since P had neither entered an appearance nor recognized the court”s jurisdiction and to allow the application would therefore give him the opportunity of contesting the plaintiff”s claim without having the burden of the proceedings if he lost and, in any event, as a matter of comity, he should not be granted any indulgence due to his evasion of justice; and (c) although the court had the power to adjourn the trial to another jurisdiction to allow for the inspection of non-portable real evidence, it could not do so to hear oral evidence since it would be unable to
follow its normal procedures without exercising an extra-territorial jurisdiction which it did not have.
Held, refusing to make the ruling sought but adjourning the proceedings for the making of further inquiries:
The court had a duty to decide the case on all the material evidence available on the issues before it and it would therefore consider the defendants” application to allow P”s evidence to be given in some special procedure because it accepted that he had compelling reasons for refusing to come to the Cayman Islands which were unconnected with the trial. Although the court had a discretion to adjourn a trial to another jurisdiction to view non-portable real evidence, it would decline to adjourn to Saudi Arabia to take P”s oral evidence since, unlike the case of real evidence, an actual witness would not necessarily observe the rules of the court and the court would be powerless to compel him to do so or to give evidence at all without exercising an extra-territorial jurisdiction which it did not have. The court would be willing to proceed with the application if this problem could be resolved and, accordingly, the summons would be adjourned to allow time for further consultation (page 250, lines 23–35;page 253, lines 7–20;page 253, line 30 – page 254, line 4).
| HARRE, C.J.: This is a summons by the fifth and seventh | |
| defendant companies (‘the defendants’) for two alternative forms of | |
| relief. In the first place, they ask for an order that a letter of request | |
| 45 | shall issue to the proper judicial authority in Saudi Arabia for the |
| examination of the third defendant, P, in Saudi Arabia, with the trial | |
| judge or other person determined by the court as special examiner. | |
| The alternative sought, which is preferred by the defendants, is an | |
| order that the evidence of P be taken in Saudi Arabia, as part of the | |
| 5 | trial itself. Under O.35, r.3 of the English Rules of the Supreme |
To continue reading
Request your trial