Cayman Islands Court of Appeal confirms availability of Norwich Pharmacal Relief in principle

07/05/21

On Monday 3 May 2021 the Court of Appeal of the Cayman Islands (Goldring P, Rix and Martin JJA) handed down judgment in Arcelormittal USA LLC v Essar Global Fund Limited & ors. The Court dealt with the important issue of principle as to whether Norwich Pharmacal Orders were available in aid of foreign proceedings or were excluded by the Evidence (Proceedings in Other Jurisdictions) Order 1978 (the "Cayman Evidence Order").

In Ramilos Trading Ltd v Buyanovsky [2016] EWHC 3175 (Comm) Flaux J (as he then was) in the English Commercial Court found that the existence of the statutory regime to obtain evidence for foreign proceedings contained in the UK's Evidence (Proceedings in Other Jurisdictions) Act 1975 (“the English Statute”) excludes the availability of Norwich Pharmacal relief for the purposes of foreign proceedings. Ramilos followed the earlier English Court of Appeal decision in R (Omar) v Secretary of State for Foreign Affairs [2013] EWCA Civ 118 that had reached the same conclusion in the context of the UK's Crime (International Co-operation) Act 2003.

Since the Cayman Evidence Order is in the same terms as the English Statute, this is an important issue for both the Cayman Islands (and the British Virgin Islands as well as other offshore jurisdictions) in the light of the English decisions.

The CICA held that the NPO jurisdiction was available in the Cayman Islands provided that the NPO is confined to information rather than evidence.

The CICA also dealt with the applicable test, amongst other things. The test applied was good arguable case without the Canada Trust gloss of “much the better of the argument.”

The CICA also distinguished the BVI decision of Wallbank J in UVW v XYZ BVI HC (Com) 108 of 2016.

The judgment is here.