CAYMAN ISLANDS Law and Practice Contributed by: Sam Dawson, Peter Sherwood and Denis Olarou, Carey Olsen
custody or power and are relevant to any issue in the proceedings. The test of relevance in the Cayman Islands is wider than standard disclosure in England and includes any document that tends to support or undermine either party’s case, including “train of enquiry” documents (this is sometimes referred to as the Peruvian Guano test). Documents are understood to include anything that is capable of recording or storing information. After lists are exchanged, each party can inspect and take copies of the documents on the other party’s list (save for documents over which privilege is asserted). If a party is dissatisfied with the level of discovery giv- en, it can make specific discovery applications seek- ing particular documents or categories of documents. Outside of specific discovery applications, request- based conceptions of discovery found in, for exam- ple, arbitrations and under England & Wales Practice Direction 51U, are not recognised in the Cayman Islands. Discovery by Oral Examination In principle, discovery is also available by oral exami- nation, although this is a tool that is seldom used. The court may order such discovery, on the application by a party, if the court is of the opinion that discovery by oral examination is necessary for disposing fairly of the cause or matter or for saving costs. Oral examination takes the form of a cross-exami- nation under oath, which is transcribed by the court reporter. The transcript can be used at trial, including Discovery against third parties is available under the well-known Norwich Pharmacal jurisdiction in respect of third parties innocently or otherwise mixed up in the wrongdoing by the defendant (or potential defendant). 5.3 Discovery in This Jurisdiction For the general approach to discovery and the appli- cable rules, see 5.1 Discovery and Civil Cases . during cross-examination of witnesses. 5.2 Discovery and Third Parties
A particular aspect of discovery in the Cayman Islands is that financial services litigation, in particular, often calls for discovery of documents that might be said to contain information confidential to the disclosing party’s clients or former clients. This can make the process of reviewing documents for discovery par- ticularly time-consuming and might also require the disclosing party to make applications under the Con- fidential Information Disclosure Act, 2016, so as to ensure that the giving of discovery does not constitute an actionable breach of confidence. 5.4 Alternatives to Discovery Mechanisms This is not applicable in this jurisdiction. 5.5 Legal Privilege Cayman Islands law on legal privilege mirrors English law in this area and recognises the following main cat- egories of privilege. • Legal advice privilege, which applies to confiden- tial communications between the legal advisor and their client made for the purpose of giving or receiving legal advice. • Litigation privilege, which applies to confidential communications between a client or legal adviser and a third party, which came into existence after litigation started or was contemplated, for the dominant purpose of giving or receiving legal advice or preparing evidence in connection with that litigation. In addition to the heads of privilege outlined above, “without prejudice” privilege may arise in the context of communications created in a bona fide effort to settle a dispute. If the party considers a document to be relevant but privileged, it must still list it in its list of documents (albeit listing by category description is generally accepted), but it is not required to allow the other party to inspect the document or take copies of it. Documents may be redacted where they are partially privileged. In principle, a claim to privilege over a par- ticular document may be challenged in court, but this is not a straightforward undertaking.
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