Re D

• Jurisdiction: Cayman Islands
• Judge: (Summerfield, C.J.)
• Judgment Date: 31 January 1985
• Court: Grand Court (Cayman Islands)
• Date: 31 January 1985

Grand Court

(Summerfield, C.J.)

IN THE MATTER OF D (in liquidation)

R. Alberga, Q.C. for the liquidators;

A. Foster for the auditors;

R. Ground, Senior Crown Counsel, for the Attorney General as amicus curiae;

A. Jones by invitation as interested in a parallel application.

Cases cited:

(1) International Power Indus. NV, Re, [1985] BCLC 128, applied.

(2) Mysore West Gold Mining Co., In reELR(1889), 42 Ch. D. 535; 58 L.J. Ch. 731; 61 L.T. 453; 5 T.L.R. 695; 37 W.R. 794; 1 Meg. 347.

(3) Norwich Equitable Fire Ins. Co., In reELR(1884), 27 Ch. D. 515; 54 L.J. Ch. 254; 51 L.T. 404; 32 W.R. 964.

Legislation construed:

Companies Law (Laws of the Cayman Islands, 1963, cap. 22), s.124: The relevant terms of this section are set out at page 300, lines 1–21.

s.125: The relevant terms of this section are set out at page 300, lines 22–27.

Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), s.2:

‘(1) . . . the Grand Court shall have power, on any such application as is mentioned in section 1 above, by order to make such provision for obtaining evidence in the Cayman Islands as may appear to the court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made; and any such order may require a person specified therein to take such steps as the court may consider appropriate for that purpose.

(2) Without prejudice to the generality of subsection (1) above but subject to the provisions of this section, an order under this section may, in particular, make provision-

(a) for the examination of witnesses, either orally or in writing;

(b) for the production of documents . . . .’

Rules of the Supreme Court 1965 (England, S.I. 1965/1776), O.39, r.1:

‘(1) The Court may, in any cause or matter where it appears necessary for the purposes of justice, make an order . . . for the examination on oath before a judge . . . at any place, of any person.’

r.2: ‘(1) Where the person in relation to whom an order under rule 1 is required is out of the jurisdiction, an application may be made-

(a) for an order . . . under that rule for the issue of a letter of request to the judicial authorities of the country in which that person is to take, or cause to be taken, the evidence of that person . . . .’

Companies-compulsory winding up-examination of witnesses by court-assistance of foreign court-Grand Court has no power under Companies Law (cap. 22), ss. 124–125, Rules of Supreme Court, O.39, or inherent jurisdiction, to seek assistance of foreign court to examine witnesses resident abroad

Evidence-depositions-deponent out of jurisdiction-assistance of foreign court-Grand Court may not seek assistance of foreign court to take depositions abroad if not able to reciprocate under Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, e.g. if request made by foreign court when no justiciable issue

The joint liquidators of D applied for an order that a letter of request for international judicial assistance be issued to the relevant authorities in Switzerland for the examination of witnesses resident there, under the Companies Law (cap. 22), ss. 124 and 125.

The joint liquidators of D had applied for an order under the Companies Law, ss. 124 and 125 that a Cayman firm of auditors, which they believed had audited D”s accounts, be required to appear before the court for examination by it and to produce documents in its possession which would facilitate D”s winding up. The application failed, because the audit had in fact been carried out by the Swiss branch of the auditors, which now held the relevant documents and refused to deliver them to the Cayman branch when requested to do so.

The liquidators therefore applied for an order that a letter of inter-

national judicial assistance be issued to a Swiss court, under the Rules of the Supreme Court, O.39 (applicable by virtue of the Grand Court Law, s.20(2)) for the examination of the auditors resident there. They also contended that the court had an inherent jurisdiction and power to seek such assistance of a foreign court, for the purposes of ss. 124 and 125.

The Attorney General, appearing as amicus curiae, supported the application.

Held, dismissing the application:

(1) The Grand Court had no power to seek the assistance of a foreign court in exercising its powers to examine witnesses under the Companies Law, ss. 124-125 since-

(a) its powers under those sections were restricted to the court itself and could not be delegated to an independent examiner, such as a foreign court (page 300, line 34 – page 301, line 3);

(b) the power conferred by O.39, under which the application was made, could not apply here, as none of the Rules of the Supreme Court has application in winding-up proceedings and there was therefore no statutory procedure available by which the court could seek assistance (page 301, line 21 – page 302, line 5); and

(c) the court”s inherent powers to seek such assistance extended only to obtaining evidence for the purposes of a justiciable matter before the court or other tribunal and not, as here, for the benefit of the liquidator to facilitate the winding up of the company (page 301, lines 4–14).

(2) Even if the court had been entitled to seek the assistance of a foreign court, it would not, in the exercise of its discretion, do so in a case such as the present, since it would not be able to reciprocate in the event of a similar request being made to it by a foreign court as, under the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, the information would not be required for the trial of a justiciable issue. The court...