Sasken Communication Technologies Ltd v Spreadtrum Communications Incorporated

• Jurisdiction: Cayman Islands
• Judge: (Chadwick, P., Rix and Newman, JJ.A.)
• Judgment Date: 18 January 2016
• Court: Court of Appeal (Cayman Islands)
• Date: 18 January 2016

Court of Appeal

(Chadwick, P., Rix and Newman, JJ.A.)

SASKEN COMMUNICATION TECHNOLOGIES LIMITED

and

SPREADTRUM COMMUNICATIONS INCORPORATED

Ms. S. White for the appellant.

Case cited:

(1) Ahmad Hamad Algosaibi & Bros. Co. v. Saad Invs. Ltd., 2011 (1) CILR 326, followed.

Legislation construed:

Grand Court Rules, O.63, r.3: The relevant terms of this rule are set out at para. 1.

Practice Direction cited:

Practice Direction No. 1/2015, Applications for Sealing Orders and for inspection of Court Files in Civil Proceedings: GCR Order 63, r.3.

Courts—court file—inspection—notice of application under GCR, O.63, r.3(4) to inspect sealed court file to be given to parties who sought closure of file—opportunity to be given to make submissions to court—amendment of Practice Direction No. 1 of 2015 recommended to clarify requirement for notice to be given

Courts—court file—inspection—order sealing court file under GCR, O.63, r.3(4) to be granted if closure of file in interests of justice—in interests of justice if parties” contract stipulates that material in file confidential—no need to demonstrate clear danger of application to inspect file

The parties sought an order closing the court file concerning the proceedings in order to prevent inspection without the leave of the court.

The plaintiff sought enforcement of an arbitration award against the defendant, which was enforced by order of the court. The parties subsequently agreed that two documents exhibited in the proceedings should be closed within the court file pursuant to O.63, r.3(4) of the Grand Court Rules as they contained confidential material.

It was submitted that (a) the file should be closed pursuant to O.63, r.3(4) in order to prevent disclosure of the confidential material; (b) there was no requirement that the parties demonstrate an imminent risk of an application to inspect the court file before an order closing the file could be granted; and (c) notice of an application to inspect the file should be given to the parties, and such an application should not be allowed if no notice was given.

The Grand Court (Jones, J.) refused to grant the order sought as (a) O.63, r.3(3) stipulated that, in any event, the court file was only open to the parties to the proceedings and an order pursuant to r.3(4) would, therefore, be unnecessary; (b) an order under r.3(4) would only be granted if it were demonstrated that there was a clear danger that an application for inspection would be made; and (c) an application to inspect could be granted without notice of the application having been given to the parties as the court”s discretion would otherwise be fettered.

On appeal, the parties submitted that (a) an order sealing the court file ought to have been granted as it was not necessary to demonstrate that there was a clear danger that an application would be made to inspect the file; and (b) notice of an application to inspect the court file ought to be given to the parties to the proceedings.

Held, allowing the appeal:

(1) A closure order would be granted restricting access to the court file as the parties” contract stipulated that the documents were confidential, and it was therefore in the interests of justice that they be sealed pursuant to O.63, r.3(4) so that no third party would be able to inspect them without the leave of the court. It was not necessary that the parties seeking the closure of a file pursuant to r.3(4) demonstrate a clear or present danger that an application would be made to inspect the file; it was sufficient that the closure of the file was in the interests of justice (paras. 16–17; para. 19; para. 22).

(2) It was necessary that notice of an application to inspect the court file be given to the parties who had sought the closure of the file so that they would have an opportunity to address submissions to the court, as it was a necessary inference of a file being closed or sealed that notice should be given of an application to inspect it. Further, a requirement to give notice did not fetter the discretion of the court as it would be able to exercise its discretion more effectively with the assistance of the submissions of all the concerned parties. Although Practice Direction No. 1 of 2015 (which now prescribed the procedure for an application to inspect the court file) did not state that notice was required, it had not been intended to address the question whether notice was necessary and was therefore not determinative; if the Practice Direction did indicate that notice was unnecessary, however, it would be contrary to the rationale...