THE TURKS & CAICOS ISLANDS Law and Practice Contributed by: Stephen Wilson KC, Dominique Gardiner and Lovelie Luxama, Wilson Wells
5.6 Rules Disallowing Disclosure of a Document
• sanctions for failing to comply with the requirement or orders for discovery – these include the possibil- ity that the action may be dismissed or, as the case may be, that the defence be struck out and judg- ment entered against the defendant. 5.4 Alternatives to Discovery Mechanisms As discussed in 5.3 Discovery in This Jurisdiction , the Supreme Court has issued rules setting out dis- covery mechanisms. This is not the case for the Mag- istrate’s Court, where the system is very much “trial by ambush”. Documents are only admitted into the record if entered into evidence via a witness’ testi- mony. 5.5 Legal Privilege The concept of legal professional privilege is recog- nised in the Turks and Caicos Islands. Some docu- ments may be privileged from production, even though they must be disclosed in the list of documents made in compliance with the Rules of the Supreme Court as relating to any matter in question between the par- ties. If a party seeks to claim that any documents are so privileged, the claim must be made in the list of documents “with a sufficient statement of the grounds of the privilege” (see Order 24, rule 5 (2)). Privilege may also be claimed by those who are not a party but against whom discovery is sought. The principal categories of privilege may be summa- rised as: • documents protected by legal professional privi- lege; • documents tending to incriminate or expose to a penalty the party who would produce them; and • documents privileged on the grounds of public policy. The above-mentioned principles are not confined to external counsel in the Turks and Caicos Islands: they extend to in-house counsel, provided that in-house counsel is acting in the capacity of a legal adviser and not as a business adviser, and to confidential commu- nications with any legal adviser (eg, foreign lawyers).
In addition to legal professional privilege, a party is not compelled to give discovery that is likely to incriminate or expose to proceedings for a penalty themselves or their spouse or civil partner. A party may withhold a document on the grounds that the disclosure of it would be injurious to the public interest. A party may not disclose in civil proceedings confi- dential information covered by the Confidential Rela- tionships Act (Chapter 16.14). 6. Injunctive Relief 6.1 Circumstances of Injunctive Relief An application for an injunction may be made by any party to a matter before or after the trial of the cause or matter, whether or not the claim for the injunction was included in that party’s writ, originating summons, counterclaim or third-party notice. An application for an injunction must be made by motion or summons; however, where the case is one of urgency, the application may be made ex parte on affidavit. Indeed, if the matter is really urgent, the application can even be made before the originating process has been filed in the court, and may be grant- ed on such terms providing for the issue of the writ or summons and such other terms as the court thinks fit. The court has a wide inherent jurisdiction to make injunctions where it appears to the court to be just or convenient to do so. An order may be made uncon- ditionally or upon such terms and conditions as the court thinks just, having regard to settled reasons or principles. Interim and Permanent Injunctions Injunctions may be temporary (interlocutory) – ie, granted to preserve a state of affairs until the parties’ rights are determined at trial (or granted at trial to pre- serve the position pending appeal) – or permanent.
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