Telesystem Intl Wireless Inc. v CVC/Opportunity Equity Partners LP

• Jurisdiction: Cayman Islands
• Judge: (Kellock, Ag. J.)
• Judgment Date: 18 March 2003
• Date: 18 March 2003
• Court: Grand Court (Cayman Islands)

Grand Court

(Kellock, Ag. J.)

TELESYSTEM INTERNATIONAL WIRELESS INCORPORATED, T.I.W. DO BRASIL LIMITADA and DEMARCO ALMEIDA

and

CVC/OPPORTUNITY EQUITY PARTNERS L.P. and FOUR OTHERS

E.D. Simpson for the applicants;

Ms. S.M. Corbett for the respondents.

Cases cited:

(1) Att. Gen. v. Guardian Newspapers Ltd. (No. 2), [1990] 1 A.C. 109; [1988] 3 All E.R. 545, distinguished.

(2) Harman v. Home Secy., [1983] 1 A.C. 280, applied.

(3) Mustad (O.) & Son v. S. Allcock & Co. Ltd., [1964] 1 W.L.R. 109; [1963] 3 All E.R. 416, distinguished.

Injunctions-prohibitory injunction-discharge-confidential docu-ments-no discharge of order restraining use of documents outside specified proceedings, on ground that already published, if applicant for discharge responsible for publication-no discharge of express or implied restriction on use by reading of document into record at trial of proceedings-no leave to use document without information on intended use

The defendants applied for the discharge of earlier orders relating to the publication and use of a confidential document.

The third plaintiff, a Brazilian businessman, was a defendant in proceedings brought by the second defendant Cayman company, claiming the return of funds and shares in the company. A letter stolen from the third plaintiff”s office showed that the first plaintiff had agreed to engage the same firm of Cayman attorneys to represent them both in those proceedings and another related action, and to indemnify the third plaintiff if he failed to receive more than a specified sum in his own cause as the value of his company shares. The defendant companies sought to use a copy of the letter in the two actions to obtain an order restraining the attorneys from acting by reason of conflict of interest. The court (Sanderson, J.), in an oral judgment delivered in the defendants” absence on October 29th, 2001, refused an order restraining them from using the document at all, because it was relevant to the issues in the action against the third plaintiff, and was not protected by privilege, but, in written reasons delivered afterwards on October 30th, expressly prohibited the use of it outside those particular proceedings.

The defendant companies displayed the letter on their website two days later, with a note stating that the Grand Court had permitted its use in any proceedings as evidence of collusion between the first and third plaintiffs. The text of the defendants” note was published the following day in two Brazilian newspapers. The offending material remained on the website for five days after the defendants were informed by their Brazilian in-house counsel of the terms of the final order.

The Grand Court then made further orders, inter alia, that (i) the document could be used by the defendants and their attorneys only in and

for the purpose of the specified proceedings (November 14th, 2001); and restraining (ii) the first defendant from repeating or continuing the publication of the document on the Internet or by any other means; (iii) all the defendants from making any use of the document other than in and for the purpose of the specified proceedings; and (iv) all the defendants from publishing the facts or events of any of the related proceedings, without the court”s leave (November 16th, 2001).

The plaintiffs successfully brought proceedings against the defendants for contempt of court (see 2002 CILR 96) for breach of the order of October 30th, and the defendants were fined by the Grand Court (Smellie, C.J.) and, inter alia, ordered to explain to the Brazilian authorities the true effect of the court”s earlier order and its findings regarding the import of the document. The Court of Appeal upheld the Grand Court”s findings (on different grounds) (see 2002 CILR 591).

The action concerning the third plaintiff”s employment was tried in April 2002. The document was referred to in argument but was ruled by the trial judge to be irrelevant to the issues and was therefore not adduced in evidence or put to any witness at the trial.

The defendants applied for the discharge or variation of the aforementioned parts of the court”s November orders, or alternatively, for leave to use the document for all purposes.

They submitted that (a) the court had jurisdiction to vary its earlier order, just as the November 16th order had varied the order of the 14th by permitting the use of the document outside the proceedings with the leave of the court; (b) any duty on the defendants” part not to disclose the document on the ground that it was confidential was now extinguished because the document was fully in the public domain, as a result of its earlier publication and the subsequent trial of the action; and (c) the court should lift the restraint on use of information relating to the proceedings.

Held, dismissing the applications:

(1) The court doubted whether the second of the court”s orders could have varied the first, but would treat the latter order as the operative one, since it had been approved by counsel for the plaintiffs (para. 14).

(2) There were no grounds on which to set aside or vary the court”s order restraining the use of the document. The publication of the document had occurred through no fault of the plaintiffs, and the authorities relied on by the defendants, dealing with attempts to restrain confidential material already published, related to publication by the party defending that confidentiality rather than by...