Re C

• Jurisdiction: Cayman Islands
• Judge: (Schofield, J.)
• Judgment Date: 22 August 1994
• Court: Grand Court (Cayman Islands)
• Date: 22 August 1994

Grand Court

(Schofield, J.)

IN THE MATTER OF C

C.G. Quin for the applicant;

R.D. Alberga, Q.C. and S.T. McCann for the respondent.

Cases cited:

(1) Ontario Secs. Commn., In re, 1994–95 CILR 131, distinguished.

(2) Rio Tinto Zinc Corp. v. Westinghouse Elec. Corp., [1978] A.C. 547; [1978] 1 All E.R. 434, distinguished.

(3) U.S. v. Carver, 1980–83 CILR 297.

Legislation construed:

Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), Schedule, s.1:

‘Where an application is made to the Grand Court for an

order for evidence to be obtained in the Cayman Islands, and the court is satisfied-

(a) that the application is made in pursuance of a request issued by . . . a court or tribunal . . . exercising jurisdiction in a country or territory outside the Cayman Islands; and

(b) that the evidence to which the application relates is to be obtained for the purposes of civil proceedings which . . . have been instituted before the requesting court. . . .

the Grand Court shall have the powers conferred on it by the following provisions of this Act.’

Schedule, s.2(4): ‘An order under this section shall not require a person-

. . .

(b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or likely to be, in his possession, custody or power.’

Evidence-assistance to foreign court-setting aside order for assistance-locus standi to apply-company has locus standi if order for examination of its officers

Evidence-assistance to foreign court-‘court or tribunal’––under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1, body with investigatory powers is tribunal if conducts hearing with same power to call evidence as court and accused has right of reply

Evidence-assistance to foreign court-‘proceedings which have been instituted’-preliminary investigation to establish criminal liability institutes criminal proceedings if first essential step in criminal process

Evidence-assistance to foreign court-examination of documents and witnesses-request for production of documents relating to specific relevant transactions not ‘fishing expedition’ for pre-trial discovery-court may sever request relating to unspecified transactions

The applicant sought the discharge of an ex parte order, granted upon an application by letters rogatory from the respondent, for the examination of documents and witnesses.

Allegations were made against certain high-ranking South American Government officials that they had corruptly received payments of money from a consortium which was subsequently awarded a substantial Government contract. Under the Constitution of the country, Congress was required to determine whether these allegations should proceed to trial before the Supreme Court. It set up the respondent Special Committee to investigate the charges and

to prepare a report which Congress would consider without being bound to follow. Congress could then pass a resolution obliging the Public Prosecutor to proceed with criminal charges in fixed terms.

The respondent conducted a hearing, with the same powers to call evidence as a court and with the accused officials having the right to reply to the allegations either personally or through a legal representative. Evidence was given that three payments had been made by the consortium, at the behest of one of the officials, into the applicant”s bank account in Grand Cayman. The respondent committee then applied for judicial assistance pursuant to the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978. An ex parte order was granted providing for the examination of the bank manager and any shareholder, director or officer of the applicant company and all documents relating to the three particular and any subsequent transactions on the bank account and the applicant”s corporate records. The applicant applied, inter partes, to set aside this order.

It submitted that the ex parte order should be set aside because (a) under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, Schedule, s.1 as applied to criminal proceedings by s.5, the respondent was not entitled to apply for judicial assistance since (i) it was not a tribunal but merely an investigative body preparing a non-binding report; and (ii) its enquiries were to aid Congress to decide whether to institute criminal proceedings against the officials and did not institute the proceedings themselves; (b) the order enabled the respondent to conduct a ‘fishing expedition’ for pre-trial discovery by providing for the production of documents relating to unspecified transactions; and (c) the applicant had a legal interest in the Cayman proceedings and, consequently, locus standi to seek the discharge of the ex parte order since it had been effectively brought into the proceedings by the order for the examination of its officers.

The respondent submitted in reply that (a) it was a tribunal since it conducted a hearing with the same power to call evidence as the courts and with the accused officials having the right to reply to the allegations which faced them; (b) Congress”s resolution appointing the respondent as a Special Committee had amounted to the institution of criminal proceedings since it was the first essential step in the criminal process; (c) the request was not a ‘fishing expedition’ for pre-trial discovery since it was made as a result of direct evidence about specific matters relevant to its final determination; and (d) in any event, the applicant had no locus standi to seek the discharge of the ex parte order since, although it had a proprietary interest in the information sought, it had no legal interest.

Held, setting aside the order in part:

(1) The applicant company had a legal interest in these pro-

ceedings and, consequently, had locus standi to seek...