CAYMAN ISLANDS Law and Practice Contributed by: Alan Bercow, Jae Shin and Ross McLeod, Appleby
6. Privileges 6.1 Invoking the Privilege Against Self- Incrimination Privilege against self-incrimination is a statu - tory right in the Cayman Islands (Section of the 55 Evidence Act) where answering a ques - tion or producing a document would tend to expose that person to a criminal offence. Thus, a defendant to a civil fraud claim may invoke the privilege against self-incrimination but only to that extent. Exposure to civil liability would not give rise to that right. 6.2 Undermining the Privilege Over Communications Exempt From Discovery or Disclosure Legal professional privilege in the Cayman Islands comprises two types of privilege: • legal advice privilege – covering confidential communications between lawyers and clients for the purpose of giving or receiving legal advice; and • litigation privilege – covering communications created for the dominant purpose of litigation. Both of these are subject to the “fraud excep - tion” or “iniquity exception” , which prevents their application where communications are made in furtherance of fraud or other criminal purposes. Practically, challenging privilege on fraud grounds typically involves an application for disclosure, with the court often conducting an in camera review of documents to determine if the exception applies. The threshold is high, requiring more than mere allegations, but once established, all related communications lose protection.
A defendant may seek to challenge the authority of or basis for the foreign judgment on the fol - lowing limited grounds: • the foreign judgment was obtained by fraud, either on the part of the court or the opposing party; • the foreign court was not competent to pronounce the judgment, because it lacked jurisdiction over the person against whom it was pronounced; • the foreign judgment was obtained in pro - ceedings contrary to natural justice or where the defendant’s rights were grossly violated; • the foreign judgment is of a type that can - not be enforced in the Cayman Islands (eg, a tax or other similar charge or a fine or other penalty); or • it would be contrary to public policy to rec - ognise or enforce the foreign judgment – for example, where the foreign law is repugnant to Cayman Islands law. Once service is effected, the defendant is required to file an acknowledgement of service and a defence within the prescribed time limits. In enforcement cases, the defence will generally be limited to the defences set out above. In the absence of filing such an acknowledgement of service or defence, the claimant may apply for default judgment. If the defendant does file a defence, the claimant may nevertheless apply for summary judgment on the grounds that the defence raised is spurious and that there is no real triable defence to the action. It would be very unusual for the matter to go to full trial in the absence of exceptional circumstances, as the merits of the underlying case will generally not be re-examined by the Cayman Islands court.
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