Jones J
1 IN THE GRAND COURT OF THE CAYMAN ISLANDS
2 FINANCIAL SER-
3 Before the Honour
4 In Chambers, 6th
5
6
7
8 IN THE MATTER
AND IN THE MA-
COURT OF THE CAYMAN ISLANDS
VICES DIVISION
able Mr Justice Andrew J. Jones QC
nd 21st October 2014
CAUSE I
Of the Foreign Arbitral Awards Enforcement Law
TED, Case No. 50-117-T-00924-12
(O: FSD 96 of 2014
(1997 Revision)
(1997 Revision)
10 Award dated 27 Jul
11 BETWEEN:
12
13 SAS
14
15
16
17
18
19
20
KEN COMMUNICATION TECHNOLOGIES LIM-
- and -
BRADTRUM COMMUNICATIONS INC.
at TED Arbitral
TED
Plaintiff
Defendant
20 Ms Jane Hale-Smith
21 Ms Shelley White
22
23
24
25 I. This is an ap-
and skeleton
26
27 inspection by
grounds that
28
of Appleby for the Plaintiff
Walkers for the Defendant
REASONS
litigation for an order pursuant to GCR Order 63, rule argument filed on behalf of the Plaintiff be "closed any party or other person except with the prior leave of they contain information which is confidential as if
1
1 Alternatively
2 if any non-
3 of this Court
4 2. To put the ap-
5 a foreign ar-
6 (1997 Revision
7 the domestic
8 affidavits sw-
9 with the req-
10 copies of the
the Court is asked to make an order that the parties bodily makes an application under rule 3(5) for an order file.
application into context, it is relevant to record that this initial award pursuant to the Foreign Arbitral Award on (“the Law”) which gives effect to the New York Clayman stands. The action was commenced as issued on 29th August 2014. The summons was 07 Matthew R. Reed, a California qualified law conducting the arbitration on behalf of the Plaintiffurements of section 6 of the Law, Mr Reed’s affidavent (as amended) continuing the arbitration as
given 7 days’ notice permitting inspection
an action to enforce Enforcement Law
convention as part of
as adopted by two
way who has been
In order to comply
with this exhibit certified
award, together
13 subject to str-
14
15 on 5th Septem-
16 award was not
17 for the enforc-
18 days of the de-
made, this ac-
20 3. At that point
21 Originating Sv
22 R. Reed swo-
23 dated 3rd Sept-
24 Reed’s affidav-
25 presented for
26 with the Court
27 and the exhibit
28 GCR Order on
29 arbitration as Mer with some other related material. The subject matter confidentiality provisions, The originating summons be- 2014. It was apparent from Mr Reed’s evidence that being challenged by the Defendant and I therefore implement of the award, subject to the Defendant’s righte of service) for the order to be set aside. No such application is now concluded.
the Court file contained the following original documents issued on 29th August 2014, the 1st and 2nd An on 28th August and 3rd September 2014, Counsel’s emaber 2014 and the Order dated 5th September 2014. Its are not on the Court file. The Rules require that affidavit with their exhibits. Both the affidavit and its seal and the date stamp, whereupon the affidavit is set returned to the party’s attorneys who then have it. Rule 9(2) to preserve them for use by the Court in Doing so, I came on for hearing
at the validity of the
or an ex parte order
to apply (within 14
lication having been
ents – the Ex Parte
Skeleton Argument
The exhibits to Mr
Jaffidavits must be
known are stamped
ut on the Court file
an obligation under
It follows that the
30 respectively)
31 the order refle-
32 corresponded
33 Summons and
34 documents ha-
35 Register of Ju-
36 of the prescrib-
37 Order 63, ful-
38 inspection.
39
40
1 4. Access to Co
2 (3) Subject pa
3 only by the par
4 (4) The Court
5 closed and not
6 (5) The Court
proceedings to
8 proceedings".
It is important
that court files is limited. GCR Order 63, rule 3 provides as fol-
paragraphs (4) and (5), the Court file relating to any proceeding slides to that proceeding.
may order that the Court file relating to any proceeding or any speci- pen to inspection by any party or other person except with the pri-
may give leave [in special circumstances] on application to any individual Court file or to take a copy of any document on the C
1 to note that paragraph (5) was amended with effect from
laws :-
all be open to inspection
specific document therein be
or leave of the Court.
permitted a party to the
pursuit relating to those
from 1 February 2013
16 by the Grand
11 circumstances
12 file has been
13 not apply to
14 bankruptcy P
15 proceedings.
16 5. On 24th Sept.
17 sworn by Mr
18 request of the
19 the confident
20 originally so
21 the exhibits M
22 person except
23 to Mr Reed's
24 his other affi-
25 (and will nev-
26 indicated to a Court (Amendment No.5) Rules 2012, The requirements" in order to justify an order for a non-party to be given access to the exhibits M
For the sake of completeness, I should reserve appropriate proceedings. company liquidation proceedings. The rights of stakeholders to access Court files governed by separate rules.
member 2014 the Plaintiff issued a summons supported thew R. Reed in which he explains that the summons Defendant because some of the information on the Contract between the right an order pursuant to rule 3(4) that all three of Mr MR-1 and MR-2 be "closed and not open to inspection
with the prior leave of the court". However, the affidavit and counsel's skeleton argument because it is a confidential information and that he placed on the Court file. Prior to listing the sum mons Defendant's attorneys my initial view that such an act to establish "special
end that these rules do
limited access to a Court
proceedings and personal
files relating to such
by a third affidavit
as was issued at the
court file is subject to
articles. The summons
need's affidavits and
attorneys now limited
it is recognised that
the exhibits are not
amons for hearing. I
der would serve no
useful purpose.
Defendant de-
28 29 argument at
30 hearing of the
31 rule 3(5) had
32 further submi-
33 6. Prior to 1995
34 relating to the
The practice
document op-
of the 1976 I
e and therefore ought not to be made. As a result of cided to instruct its own attorneys and Ms White apply the summons had been issued by her client. Unfortunately, summons proceeded on a false basis because I did not open amended. Having discovered my error, I invited sessions which she has done, both in writing and at a hear-
the Grand Court (Civil Procedure) Rules 1976 did not of those files might be made available either to p was that Court files were open to inspection only by an to public inspection was the Cause Book established rules. It constituted a chronological record of each pro-
this indication, the
cared and made the
unately, the original
Ms White to make
ing today.
obtain any provision
he circumstances in
uries or non-parties.
the parties. The only
pursuant to rule 5(2)
proceeding commenced
Court by reference to its title, commencement date and an copies of the Writs or other documents by which a matter of practice, the general public was given order 63 was enacted in 1995 as part of a comprehensive applicable to all civil proceedings commenced in this abolished and replaced by the Register of Writs (which contains an office copy of every writ, originating section issued on or after 1st June 1995. By rule 8(2), any request and obtain a copy of any document on the Registered fee, GCR Order 63 also provided for the amendments which contains an office copy of every final fault judgments) made on or after 1st June 1995.
cause number, but it
rich proceedings are
access to the Cause
e review of the rules
e Grand Court. The
d Other Originating
immonis, originating
and (3) any member of
g Grand Writs upon
e establishment of a
judgment or order
it does not contain
the necessary
14 order be tre-
15 Register of
16 payment of
17 and Register
18 existing prac-
19 the parties, su-
20 to decide in
21 power to clo-
22 files.
23 7. The Court w/
24 some proper
25 ordinarily has
26 the Court is
27 between the
28 such considera-
29 documents or
tion of its judgments unless the judge so determined as it is a final order made in open court. By amendments is open to public inspection and copies of fee. Subject to the creating a right of access to the Court files (as defined) is open subject to the exceptions contained in paragraphs (4) and his case turns upon the way in which the Court should be (or seal) documents and its power to allow non-pa-
l only order that documents on a Court file will be purposed. A document may be closed to inspection by the an unrestricted right of access to all the documents attached that it is necessary to do so for the purpose and use of such (4) Saad Investments Co Ltd [2016] arises in this case. Both parties already have the Court file and the litigation between them has been directs that such an
es 7(2) and (3), the by be obtained upon
Register of Writs (C) codifies the pre-
(5). The issue I have properly exercise its
lies access to Court
closed (or sealed) for
a party, who would
on the Court file, if
only during justice as
1) CIL R 326.) No
n finally concluded.
copies of all the
30 in an applicat-
31 parties who ha
32 the person to
33 to obtain the
34 8. In the present
35 Reed's first a
36 possibility that
37 inspect the CC
38 removing the
39 make a pre-em-
40 allow someone
prior is made to close the Court file or specified document, no right of access anyway, it seems to me that it is class of persons who would otherwise have some exclusive court's permission to inspect the file.
case the Court is being asked to make a pre-emptive individuarivit and the skeleton argument as a means of put the Court could make an order under rule 3(5) and if the for some reason. Counsel argues that the amended to establish "special circumstances" makes it all the more imperative order to protect against the risk that the Court may to inspect this Court file. In my view this argument by close (or sealed) these documents simply as a means
4
ents as against non-
necessary to identify
tation of being able
a order to close Mr
pecting against the
moving someone to
ment of rule 3(5) by
is more important to
right be persuaded to
is of curtailing the
1 effect of an
2 anyone would
3 some specific
4 person or clu
5 inspect the C
6 to close (or
7 of persons w
8 file. Then on)
9 between the
10 not been sug-
11 the ground is
12 copies of the
order for inspection under rule 3(5) when there is no but ever have any arguable grounds for obtaining such ance reason for making an order. It must be directed at
ess of persons who would have arguable grounds for obtur file. In the circumstances of this case it would screal) these documents, because it has not been possible he would have any grounds for obtaining permission issue raised in this proceeding was the enforceability clause and defendant. In the event the defendant didge that any non-party could expect to be able to inspect it is affected by the Court’s order. Nor could any documents in question on the basis that they were read, or
13 asis for thinking that
order. There must be
against an identifiable
raining permission to
ve no useful purpose
to identify any class
to inspect this Court
Ian arbitral award as
not to inspect it. It has
best the Court file on
one expect to obtain
out or referred to in
my view.
14 place in char-
15 proceeding by
16 9. Ms White’s
17 under rule 3(c)
18 client. In this
19 effect, I am to
20 application in
21 application in
22 Court’s discr-
24 10. In conclusion
25 do contain in
26 their contract.
27 The Court fil-
28 or class of
29 persons who have never been used in open court proceedings. Nor will they ever be used in open court at any time as been finally concluded.
(matative application is that I should make a direction) will be entertained by the Court without giving 7 day context “the Court” means a judge or, in the case of a Judicial Services Division, the particular judge to whom it being asked to direct myself not to make an ex parte order ever made under rule 3(5), irrespective of the ground made. I do not think that it is appropriate to fertilizationary jurisdiction in this way.
I accept that Mr Reed’s first affidavit and the plaintiff’s plea which is required to be kept confidential by the but this is not, by itself, a reason for closing (or sealing) not open to public inspection and counsel has not persons who might have arguable grounds for obtaining such a order in the proceeding took
time in the future. The
that no application
s prior notice to her
proceeding pending
or was assigned. In
rin the event that an
ids upon which the
the exercise of the
13 skeleton argument
is made pursuant to
g) these documents,
identified any person
ining an order for
making any of
30 making any of
31 they contain
32 serve no pub-
33 34 DATED this 30th day
35
36
37
38 The Hon Justice An-
39 JUDGE OF THE G
of October 2014
Drew J. Jones, QC
RAND COURT
5