The Evidence (Proceedings in Foreign Jurisdictions) (Cayman
Islands) Order 1978 (the "Order")
extends the United Kingdom's Evidence (Proceedings in Other
Jurisdictions) Act 1975 to the Cayman Islands and, in doing so,
gives statutory effect in the Cayman Islands to the Convention on
the Taking of Evidence Abroad in Civil or Commercial Matters
(commonly known as the Hague Evidence Convention).
Section 1 of the Schedule to the Order provides that the Grand
Court shall have all the powers conferred on it under the Order,
"where an application is made to the Grand Court for an
order for evidence to be obtained in the Cayman Islands and that
Court is satisfied:
(a) that the application is made in pursuance of a request
issued by or on behalf of a court or tribunal ("the requesting
court") exercising jurisdiction in a country or territory
outside the Cayman Islands; and
(b) that the evidence to which the application related is to
be obtained for the purposes of civil proceedings which have either
been instituted before the requesting court or whose institution
before that court is contemplated."
The procedure under which a letter of request is given effect is
governed by Order 70 of the Grand Court Rules (the
"GCRs"), which provides that such an
application may be made ex parte and must be supported by affidavit
which must exhibit the letter of request (with a translation if the
letter of request is not in English). The letter of request must
precisely identify the evidence requested. The Cayman Islands Grand
Court will likely consider an overly vague request to be simply a
"fishing expedition", in which case it may be minded to
reject the request1. Similarly, if the Court considers
that the evidence requested amounts to pre-trial discovery, it may
find itself unable to assist the requesting court2.
An application will be heard in Chambers by a Grand Court Judge.
The Court may make "such provision for the obtaining of
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 was made".
Specifically, the Court may make provision for:
the examination of those parties who are to be called to
produce information ("witnesses"),
either orally or in writing;
the production of documents;
the inspection, photographing, preservation, custody or
detention of any property;
the taking of samples of any property and the carrying out of
any experiments on or with any property;
the medical examination of any person; or
the taking and testing of samples of blood from any
The order may include provision for witnesses to apply under
Section 4 of the Confidential Relationships (Preservation) Law
(2009 Revision) for permission to disclose confidential
information. Each Section 4 application will then be heard by a
Judge in Chambers, which can cause some delay to the process.
Once Section 4 applications have been heard and orders granted,
the Court will typically require the witnesses to attend before an
examiner on a specific date to disclose information and, where
appropriate, be examined. The Court may appoint "any fit
and proper person nominated by the person applying for the order or
before such qualified person as the Court deems fit" to
act as examiner4. Examinations must be conducted in the
manner provided for by the GCRs (specifically GCR Orders 39 and
A witness cannot be compelled to give evidence either if it is
evidence that he or she could not be compelled to give in civil
proceedings before the Cayman Islands Grand Court, or (subject to
certain rules) in the territory of the requesting court, or if such
evidence would endanger the security of the United Kingdom, the
Cayman Islands or "any other territory for which the
United Kingdom is responsible under international
Following the examination, the examiner will produce to the
Clerk of the Cayman Islands Grand Court the deposition of each
examined party. The Clerk of the Court will, under Order 70 Rule 5,
send a certificate with the depositions appended to the applicant
"for transmission to the court or tribunal out of the
1 United States v Carver and others [1980-83 CILR
2 Re a request from the Superior Court of Ontario [2006
3 Schedule, Section 2(2)
4 GCR Order 70, Rule 4(1)
5 Schedule, Section 3.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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