Re Drammen Byrett's Request

• Jurisdiction: Cayman Islands
• Judge: (Smellie, C.J.)
• Judgment Date: 05 April 2000
• Court: Grand Court (Cayman Islands)
• Date: 05 April 2000

Grand Court

(Smellie, C.J.)

IN THE MATTER OF A REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE FROM THE DRAMMEN BYRETT

D.T. McGrath for the applicants;

A. McN. McLaughlin for the estate of Anders Jahre;

A.J.E. Foster for the trustees of the Aall Foundation and Robert Slatter;

J.P. Walton for the Compass Trust (representing the estate of the settlor of the Continental Foundation and the Aall Foundation);

W.J. Helfrecht as a witness and for the Attorney General (but not as amicus curiae) on matters relating to the Confidential Relationships (Preservation) Law.

Cases cited:

(1) First American Corp. v. Zayed, 2000 CILR 57, applied.

(2) -Voluntary Purchasing Group Inc. v. Insurco Intl. Ltd., 1994–95 CILR 84, applied.

Legislation construed:

Grand Court Rules, O.39, r.8(1):

‘Subject to any directions contained in the order for examination-

(a) any person ordered to be examined before the examiner may be cross-examined and re-examined; and

(b) the examination, cross-examination and re-examination of

persons before the examiner shall be conducted in like manner as at the trial of a cause or matter.’

Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (S.I. 1978/1890), Schedule, s.2(4):

‘An order under this section shall not require a person-

(a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in his possession, custody or power; or

(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 to be likely to be, in his possession, custody or power.’

Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (The Hague, March 18th, 1970; UK Treaty Series 20 (1977), Cmnd. 6727), art. 3(f): The relevant terms of this paragraph are set out at page 87, lines 33–37.

Evidence-assistance to foreign court-examination of documents and witnesses-court may modify request for oral evidence if scope of examination amounts to ‘fishing’-may not so restructure or rephrase request as to alter its substance-questions requiring reference to documents must specify documents to be produced

Evidence-assistance to foreign court-examination of documents and witnesses-requesting court may not extend scope of request for oral evidence by seeking cross-examination on answers to listed questions-new request required to change from ‘list’ to ‘subject-matter’ format under Hague Convention, art. 3(f)

The applicants applied for an order for compliance with a letter of request from a Norwegian court.

The applicants were defendants in an action for damages in the Norwegian court brought by the estate of a wealthy Norwegian businessman in respect of his foreign assets transferred to a Bahamian trust under their control. The trust was later converted to a Cayman trust, and the assets were subsequently transferred to another Cayman trust. The charitable nature of the original trust was challenged in the Grand Court and, on appeal to the Court of Appeal, it was held not to be a valid charitable trust (see 1997 CILR 527).

The Norwegian court requested that the trustee of the original trust and the Cayman counsel representing the Attorney General in the Cayman proceedings give evidence by way of deposition for use in the proceedings there. A list of questions to be put to the witnesses and documents to be produced to the court was attached to the request. The Norwegian court later issued a supplementary statement for the benefit of the Grand Court to the effect that the witnesses should be subject to examination and cross-examination by counsel for the parties to the Norwegian proceedings on the basis of their answers.

They submitted that (a) whilst they were prepared to answer certain specific questions and produce relevant documents for use in the Norwegian court, parts of the request should be struck out or modified by the Grand Court as being insufficiently particularized or so broad and speculative in nature as to constitute ‘fishing’ for information leading to alternative lines of enquiry; and (b) since the Norwegian court had opted,

under art. 3(f) of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, to list the questions to be posed and had submitted the list as an exhaustive account of the proposed examination, it could not now extend that list by seeking cross-examination of the witnesses upon their answers.

Held, making the following order:

(1) The witnesses” objections to the request as presently formulated were well-founded. The speculative or ‘fishing’ nature of parts of the request related both to the production of documents and the giving of oral evidence. The court had a discretion to adopt a ‘blue pencil’ approach to its order for compliance, allowing the request in part by amending the offending references and clarifying them in as few words as possible. It could not, however, restructure or recast the request so that it became different in substance from the original. In accordance with s.2(4) of the Schedule to the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978, those questions calling for specified and unspecified documents (e.g. minutes of board meetings) to be produced would be redacted to require only the former. Other questions of an open-ended nature, seeking to elicit evidence leading to new avenues of enquiry, relating to matters not mentioned in the Norwegian proceedings, or requiring detailed evidence of events many years ago to be given from memory, would be deleted or curtailed to...