The Evidence (Proceedings in other Jurisdictions) Cayman Islands Order 1978 and A Request for International Judicial Assistance from the…….Court …….in the Republic of Argentina and Criminal Proceedings Now Pending Before the…….Court…….in the Republic of Argentina
| Jurisdiction | Cayman Islands |
| Judge | The Hon. Mr. Justice Angus Foster |
| Judgment Date | 11 May 2012 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. FSD: 54 OF 2012 AJEF |
| Date | 11 May 2012 |
The Hon. Mr. Justice Angus Foster
This concerns an Ex Parte application by the Attorney General pursuant to Order 70, rule 2 of the Grand Court Rules and the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978 (‘the Order’), which is a statutory instrument extending the Evidence (Proceedings in Other Jurisdictions) Act 1975 of the United Kingdom (‘the Act’) to the Cayman Islands, subject to the adaptations in the Schedule to the Order. In fact the provisions of the Schedule to the Order are identical to the provisions of the Act which are relevant to this application.
By virtue of the Order the Grand Court has power to give effect to applications on behalf of foreign courts or tribunals for evidence to be obtained in the Cayman Islands, which is to be used in legal proceedings before the foreign court or tribunal concerned.
The application before me is made following the issue of a ‘Letter Rogatory’ in Spanish but accompanied by an English translation issued on 8th August 2011 (i.e. 9 months ago) by the Judge of…. Court Argentina (‘the Request’).
It is clear from the Request that proceedings have been issued before the Court in Buenos Aries claiming defamation of the plaintiffs by the defendant in the action. The claim is brought by 7 individuals, who are all directors of either ‘A’ or ‘B’ banks, in respect of a paid newspaper notice placed by the defendant in 2 of Argentina's national newspapers in October 2006. The defendant is one ‘M’ who is the president of 2 Argentine companies which are minority shareholders of ‘A’ Bank. It is also made clear in the Request that, in terms of the Argentine Criminal Code, the legal proceedings concerned are criminal proceedings with criminal penalties for the defendant if the defamation is established.
According to the Request, the newspaper notice concerned, which the plaintiffs contend is defamatory, makes specific reference to‘entities domiciled abroad’ and, although the Request does not specifically state that one of those entities is ‘A’ Bank in Cayman, the Request requests information to be produced by ‘A’ Bank in Cayman and consequently the Request has been directed to this court.
Section 2 of the Order is one of the provisions of the Act which is expressly extended to the Cayman Islands. Section 2 (4) of the Order accordingly provides:
(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; [my emphasis] 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 likely to be, in his possession, custody or power, [my emphasis]
It is well established both in the United Kingdom and in the Cayman Islands that the effect of these provisions is that such a request for evidence by a foreign court or tribunal must specify particular identified documents which are required for the trial of the foreign proceedings. The Note to 0.70 of the Rules of the Supreme Court (‘RSC’), which was at the time the relevant rule of court in England equivalent to the current rule in this jurisdiction (GCR 0.70), specifically provides at paragraph 70/6/6, which is headed‘Distinction between evidence for trial or for pre-trial purposes’ refers expressly to the distinction between evidence in the nature of proof to be used for the purposes of the trial and evidence in the nature of pre-trial discovery to be used for the purposes of leading to a train of enquiry which might produce direct evidence for the trial. The Note confirms that:
This distinction was in the mind of the draftsman of the Act of 1975 and was made the subject of an express declaration by her Majesty's Government when ratifying the Hague Convention that the United Kingdom ‘would not execute letters of request issued for the purpose of obtaining pre-trial discovery of documents.
Accordingly, the English Court will refuse to make an order in aid of a foreign request for evidence if it appears or to the extent to which it appears that that evidence is required not for the purpose of proof at the foreign trial, where it is admissible and relevant to the issues in those proceedings, but for the purpose of discovery, something in the nature of a roving enquiry in which a party is seeking to ‘fish out’ some material which might lead to obtaining admissible evidence at the trial, even though the procedure of the foreign court permits such a practice [and the Note then refers to that practice in the United States of America and Canada by way of example]. On the other hand, if the foreign request is for evidence in the nature of proof to be adduced at the trial, the English Court will give effect to such request and it may do so subject to modifications as to the disallowances of certain witnesses or documents’.
And the Note then makes reference to the leading authority from the House of Lords in England:Rio Tino Zinc Corporation v Westinshouse Electric Corporation [1978] A.C 547.
The Note from the RSC referred to above continues at paragraph 70/6/8 and makes reference to Section 2(4) (b) of the Act (which is the same as Section 2(4) (b) of the Schedule to the Order as follows:
Moreover, in applying this provision of the Act, the Court is limited to ordering the production of ‘particular documents specified’, i.e. individual documents separately described, together with replies to letters where replies must have been sent (per Lord Diplock and per Lord...
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