Cayman Islands: Obtaining Evidence: Is Offshore Off-limits?

Last Updated: 28 July 2009
Article by Andrew Bolton

Donald Rumsfeld, the former US Defence Secretary, speaking at a press briefing in 2002, famously said: "As we know, there are known knowns: there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns – the ones we don't know we don't know." His remark has since been both mocked for its tortured expression and praised as a neat distillation of a complex philosophical truth. He was actually speaking about the situation in post-invasion Afghanistan, but he might equally have been talking about the conduct of a complex piece of cross-border litigation. In litigation, there are sometimes "unknown unknowns" – those facts which emerge completely out of the blue, that the participants never even realised they did not know, or needed to know, and that blow the case off track. The greater the experience of the firm and the individuals handling the case, the better will be a party's chances of avoiding this problem, as the lawyers involved bring that experience to bear, to think through and imagine as many possible scenarios as possible and plan accordingly. But a large part of the conduct of litigation inevitably remains focussed on the known unknowns – those pieces of information that we know we do not have, but also are aware that we need.

In a world where commercial transactions are often international in nature, this information may be held in a wide variety of jurisdictions. In particular, given the importance of offshore financial centres to the free flow of capital and the efficient conduct of international business, it is not surprising that when a transaction ends up in litigation, very often some of the sought-after information resides in such jurisdictions. When it comes to getting hold of it in those cases, it is commonly assumed that numerous obstacles will be encountered and in particular that issues of confidentiality or secrecy will stand in the path of those seeking the information. At least in the case of the leading offshore centres of the Caribbean, namely the Cayman Islands and the British Virgin Islands, as well as Bermuda, the Channel Islands and the Isle of Man, this is not in fact the case. The key lies in understanding the differences in the legal and administrative systems of the territory concerned, knowing where the relevant information will reside (which may be somewhere different from the situation in the home jurisdiction of the client or other "onshore" lawyers involved) and using the tools available to obtain it.

It is true that in many offshore jurisdictions less information is available from official, public sources than in some other countries. For example, a company search in the Cayman Islands will reveal only the date of incorporation, the legal category to which the company belongs, the address of the registered office and whether the company is in good standing with the registry (or has, for example, been struck off). In Bermuda, a search will provide a little more, including the names of the directors, but in most such jurisdictions details of the shareholders are not obtainable from a company search. This is not necessarily as large a difference from "onshore" practice as it appears: often in onshore jurisdictions the details held by the registry are out of date, or only reveal the names of nominees. The common approach of the OFCs is to require the register of members to be maintained at the registered office of the company, or by its registered agent, rather than at the registry. For example s. 96 of the BVI Business Companies Act lists a number of documents that must be kept by the registered agent.

In some cases, such as in the Cayman Islands in the case of an "ordinary resident" company, these registers are open to public inspection, but generally access will be limited to members of the company or, for some information such as that relating to mortgages and charges, to creditors.

There is, however, a much wider category of information that would not be publicly available in any jurisdiction. It is worth noting in this context that in all the OFCs referred to above, stringent anti-money laundering regulations are in force. These require various service providers to obtain (and retain) extensive client identification evidence including details of the ultimate beneficial owners of companies, the settlor and beneficiaries of trusts, the purchasers of land and so on. In addition, of course, banks will have records of deposits and payments that may be crucial in tracing assets, and there may be many other sources of information specific to a particular case. The question, therefore, is how to get access to this wealth of information.

Unlike some jurisdictions, none of the OFCs mentioned here imposes any restriction on the ability of foreign lawyers or office holders to come and take evidence from anyone in their territory who is willing and legally free to give it. Where, however, compulsion will be required, there are two main possibilities.

Where the information is needed as evidence for the purposes of proceedings in, for example, England or the United States, a letter of request from the High Court or the relevant state or federal court to the court of the relevant territory will often be productive. Between sovereign states, these are governed by the Hague Convention on the Taking Abroad of Evidence in Civil and Commercial Matters of 18 March 1970. Since the six OFCs addressed in this article are not sovereign states but dependencies of the United Kingdom, their status under the convention depends on the UK having expressly extended the Convention to them. This has happened in the case of Jersey, the Isle of Man and the Cayman Islands (in all of which either the UK's Evidence (Proceedings in Other Jurisdictions) Act 1975 has been extended to the territory by Order in Council, or free-standing local legislation largely mirrors it), but for some reason it has not been formally extended to the BVI or Bermuda. However, this is immaterial, as the BVI has implemented it by statute and Bermuda by rules of court.

It follows that where the necessary conditions are met, the local courts of all the offshore jurisdictions referred to here will give effect to a letter of request from the High Court, or indeed any other court. The requirements, which will be familiar to practitioners involved in cross-border disputes, are in essence that there must be a formal application to the receiving court, made pursuant to a formal request, which must come from a court or tribunal with jurisdiction in the relevant country, for evidence in civil proceedings that have been instituted or are in contemplation. "Fishing" is not allowed and no order made on a letter of request can require someone to do something that could not be required in local proceedings in the territory concerned.

Each element of those requirements has given rise to specific case law in the various OFCs (as it has in England and Wales), and it pays to obtain local advice on the formulation of the letter of request even before the High Court or other foreign court is asked to issue it, so as to be as sure as possible that the receiving court will give effect to it. Overall, however, the attitude of the courts of all these OFCs is to help wherever possible. Deemster Doyle of the High Court of the Isle of Man summarised that approach saying: "Here on the Isle of Man, we are all citizens of the Island but we are also citizens of the global community in which we live, work and contribute. We need to recognise our international as well as our local responsibilities. If the English High Court requires assistance then the Manx High Court, if it has jurisdiction and subject to any necessary safeguards, should not, in a proper case, be slow to provide such assistance."

The other, and very widely used, means of compulsorily obtaining information from persons based in OFCs, is the disclosure order based on the well-established Norwich Pharmacal and Bankers Trust principles or as an ancillary order to an asset-freezing injunction. These are recognised and accepted by all six of the territories discussed here, and can be a very powerful device, for example enabling a claimant to gain access to the information as to beneficial ownership required under the anti money laundering legislation. Indeed, in Jersey a recent decision of the Court of Appeal (Macdoel Investments Ltd and others v. Federal Republic of Brazil [2007] JCA 069) appeared to widen the Norwich Pharmacal principle beyond the limits that apply to it in England, saying "the courts of Jersey are in no sense bound by the scope of the jurisdiction that may have been delineated de facto by the circumstances of these cases. Nor are these courts constrained by the limits which may be placed on the application of the principle in the different social and economic conditions that may prevail from time to time in England and Wales."

In none of the jurisdictions considered here is "secrecy" likely to be a real problem. In the Cayman Islands the person in possession of the information may need to make a further application to court under the Confidential Relationships (Preservation) Law for directions as to whether and how the disclosure should be made. But whilst the court will wish to protect the private information of uninvolved third parties from being disclosed if possible, its approach over many years has been to permit disclosure in the vast majority of cases. The statute itself nowadays operates more as a mechanism for approving disclosure than as a "secrecy law" and is highly likely to be replaced soon with more up to date data protection and privacy legislation.

Whilst, therefore, some guidance may be needed through the subtly differing local procedures and requirements, when it comes to obtaining from reputable offshore centres information necessary for multi-jurisdictional disputes, "known unknowns" can indeed be turned into "known knowns." Offshore definitely does not mean off-limits.

This article first appeared in Legal Week's 25 June 2009 issue.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions