CAYMAN ISLANDS Law and Practice Contributed by: Alan Bercow, Jae Shin and Ross McLeod, Appleby
USA LLC v Essar Steel Limited and others – 2 July 2019).
• very serious actual or potential harm to the claimant; • clear evidence of potentially incriminating evidence in the respondent’s possession; and • a real prospect of destruction of such evi - dence. 2.3 Obtaining Disclosure of Documents and Evidence From Third Parties Norwich Pharmacal Orders Disclosure of documents and evidence to iden - tify 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 arguable 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 wrongdoing. 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 demonstrate that there are: • good grounds to argue that the property about which information is sought belonged to the applicant; 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
2. Procedures and Trials 2.1 Disclosure of Defendants’ Assets 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 injunc - tion by identifying the nature and extent of the respondent’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). The order will normally specify that this includes assets that are not in the defendant’s own name, jointly owned assets, and assets from which the defendant benefits. This is part of the freezing injunction for which a cross-undertaking in dam - ages is required. 2.2 Preserving Evidence The Cayman Islands courts have jurisdiction to make a search (Anton Piller) order (the oth - er “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 premises 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 sub - ject 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;
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