CAYMAN ISLANDS Law and Practice Contributed by: Alan Bercow and Jae Shin, Appleby
The Cayman Islands courts also have the jurisdiction to grant a “notification injunction” as an alternative to a freezing injunction. Where a freezing injunction is intrusive to the extent that it is not just and convenient to grant one, a notification injunction may still be avail - able, provided the grounds for a freezing injunction are established. Once a notification order is made, if the defendant wishes to dispose of an asset, they must first notify the claimant so as to give the claimant the opportunity to seek an order preventing the notified disposition ( Arcelormittal USA LLC v Essar Steel Lim- itedand others – 2 July 2019). Ancillary to the granting of a freezing injunction, an order is made for the defendant to disclose their assets so as to: • ensure that the freezing injunction is effective in preserving assets; • facilitate the policing of the freezing injunction by identifying the nature and extent of the respond - ent’s interest in assets; and • allow the claimant to take further steps to prevent asset dissipation ( Perry v Lopag Trust and others – FSB 205 of 2017). 2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets The order will normally specify that this includes assets that are not in the defendant’s own name, joint - ly owned assets, and assets from which the defend - ant benefits. This is part of the freezing injunction for which a cross-undertaking in damages is required. 2.2 Preserving Evidence The Cayman Islands courts have jurisdiction to make a search (Anton Piller) order (the other “nuclear weapon” in civil litigation). Search orders are a form of injunction that requires a respondent to allow the applicant’s solicitors to enter the respondent’s prem - ises and search for and remove all items covered by the order. The purpose of a search order is usually to preserve evidence or property that is (or may be) the subject of an action or as to which a question arises in an action. These are very intrusive orders and the applicant must show:
• an extremely strong prima facie case; • very serious actual or potential harm to the claim - ant; • clear evidence of potentially incriminating evidence in the respondent’s possession; and • a real prospect of destruction of such evidence. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Norwich Pharmacal Orders Disclosure of documents and evidence to identify a proper defendant or obtain information to plead a claim may be obtained from third parties by way of a Norwich Pharmacal Order (NPO). The requirements for an NPO are that: • a wrong must have been committed, or it is argu - able that a wrong has been committed, by an ultimate wrongdoer; • Norwich Pharmacal relief is necessary to enable a claimant to commence proceedings against the wrongdoer; and • the third party has been “mixed up” in the wrong - doing. Bankers Trust Orders Furthermore, Bankers Trust Orders can be sought against third parties who may possess information on or evidence of financial activities that may aid in the identification, recovery or preservation of property. To obtain such relief, an applicant will need to demon - strate that there are: • good grounds to argue that the property about which information is sought belonged to the appli - cant; and • real prospects that the information sought will lead to the recovery or preservation of the property. The interests of the applicant and the detriment to the respondents must be balanced in making such an order, which should be directed at identifying the whereabouts of the property. Restrictions as to Use In the cases of both Norwich Pharmacal and Bank - ers Trust relief, applicants will be subject to express and implied undertakings to use the information or
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