Background

Frequency of use

How common is commercial litigation as a method of resolving high-value, complex disputes?

The Grand Court has jurisdiction over commercial litigation. It is the superior court of record in the Cayman Islands and has unlimited monetary jurisdiction. Proceedings before the Grand Court are principally governed by the Grand Court Rules.

The Cayman Islands is a leading international offshore banking and financial centre and the commercial disputes that are commenced in the jurisdiction reflect that.   

Large scale commercial litigation will be conducted through either the Civil Division or the Financial Services Division of the Grand Court, and the responses set out in this chapter are limited to the proceedings therein.

Litigation market

Please describe the culture and ‘market’ for litigation. Do international parties regularly participate in disputes in the court system in your jurisdiction, or do the disputes typically tend to be regional?

The Cayman Islands is an international financial centre and the majority of commercial cases litigated in the jurisdiction involve international commercial parties.   

The Cayman company law regime is considered favourable to both creditors and company directors and there are limited legal remedies and causes of action available to shareholders of Cayman companies. This makes the Cayman Islands attractive to corporate groups as a base for their operations.     

Legal framework

What is the legal framework governing commercial litigation? Is your jurisdiction subject to civil code or common law? What practical implications does this have?

The Caymans Islands is a common law jurisdiction and derives a substantial amount of its legal principles from the legislation and judicial decisions of England and Wales. These decisions are not directly binding, but have persuasive authority before the Grand Court. 

The Cayman Islands' final court of appeal is the Judicial Committee of the Privy Council. As such, parties litigating in the Grand Court can appeal to the justices of the UK Supreme Court, but constituted in another forum.

Bringing a claim - initial considerations

Key issues to consider

What key issues should a party consider before bringing a claim?

The key legal issues that a party should consider before commencing a claim are as follows:

  • Does the plaintiff have a cause of action which is recognised in the Cayman Islands?
  • Is the cause of action time-barred due to the application of a limitation period?
  • Does the Grand Court have jurisdiction over the prospective parties to the dispute?
  • Does the Grand Court have subject-matter jurisdiction over the proposed cause of action?
  • will a Grand Court judgment be enforceable in other foreign jurisdictions where the defendant may have assets?
Establishing jurisdiction

How is jurisdiction established?

The Grand Court must have jurisdiction over both of the prospective parties to the proceedings, as well as the subject matter of the dispute between them. Subject-matter jurisdiction may be established automatically due to the nature of the dispute or where there is shown to be a sufficient connection between the cause of action and the Cayman Islands. 

The Grand Court automatically has jurisdiction over natural persons which are resident or domiciled in the Cayman Islands and non-natural persons being registered or incorporated in the islands. It is also possible for the Grand Court to be conferred jurisdiction in a contract, deed or trust under which the parties agree to refer disputes arising under or in connection with the relevant instrument to the Grand Court, notwithstanding that they are not resident or domiciled in the jurisdiction.  

The Grand Court must also be competent to determine the subject matter of the dispute before it. Subject-matter jurisdiction in some instances arises because of the locus of the subject matter falling in the Cayman Islands. However, simply because a dispute involves a company registered in the Cayman Islands, it does not mean that there will automatically be sufficient connection between the jurisdiction and the subject of the dispute to found jurisdiction in the Grand Court.

Plaintiffs can restrain defendants from bringing overlapping proceedings in another jurisdiction by seeking an anti-suit injunction to prohibit defendants from pursuing the overseas proceedings in question.   

Preclusion

Res judicata: is preclusion applicable, and if so how?

The doctrine of res judicata applies in appropriate proceedings in the Grand Court. As a result, an issue that has been litigated in a competent foreign court and which has rendered a decision that is final and conclusive on the merits of the dispute, cannot be re-litigated in the Grand Court. The principle applies equally to judgments and orders of the court that are entered into by consent between the parties, as well as to proceedings in which a court makes a determination. 

For res judicata to apply, the foreign proceedings must:

  • be made by a court of competent jurisdiction;

  • be between the same parties; and

  • concern the same subject matter. 

Res judicata is not available between civil and criminal proceedings (even where they are premised on the same facts), as the civil standard of proof is lower than that of the criminal standard and the formulation of allegations in criminal and civil proceedings invariably differ, thus preventing the pertinent issues from coinciding.

Applicability of foreign laws

In what circumstances will the courts apply foreign laws to determine issues being litigated before them?

Foreign law is a matter of fact in the Cayman Islands, provable by expert evidence placed before the Grand Court. In the absence of evidence being advanced to the contrary, the Grand Court will proceed on the assumption that the foreign law is the same as Cayman law.

Where the proper law of a dispute is the law of a jurisdiction other than the Cayman Islands, the Grand Court will apply that foreign law. Whether a foreign law is the proper law of the dispute will depend on the nature of the dispute. 

In seeking to apply foreign law to a dispute, a party can gain tactical advantages, including: 

  • availing itself of a cause of action that is unavailable under Cayman law;
  • permitting a higher damages award than would otherwise be available from the Grand Court; and
  • securing the benefit of a shorter limitation period to preclude in its entirety the cause of action from being advanced.
Initial steps

What initial steps should a claimant consider to ensure that any eventual judgment is satisfied? Can a defendant take steps to make themselves ‘judgment proof’?

If there are reasonable grounds to believe that a prospective defendant may dissipate assets before judgment can be obtained, plaintiffs may seek interim relief from the Grand Court, including:

  • an interim freezing and disclosure order (see ‘When is it appropriate for a claimant to consider obtaining an order freezing a defendant's assets? What are the preconditions and other considerations?’);
  • the appointment of interim receivers to assets and property in the jurisdiction; and
  • a Chabra injunction (see ‘What other forms of interim relief can be sought?’). 
Freezing assets

When is it appropriate for a claimant to consider obtaining an order freezing a defendant’s assets? What are the preconditions and other considerations?

A freezing order (ie, a Mareva injunction in the Cayman Islands) may be granted by the Grand Court as an interim measure, restraining the respondents from disposing of or dealing with their assets or assets that are alleged to be the beneficial property of the plaintiff, pending the outcome of trial. It must be demonstrated that:

  • the plaintiff has a good arguable case on the merits of its underlying claim;
  • refusing to grant the injunction would involve a real risk that a judgment or award in favour of the applicant would remain unsatisfied (ie, that the defendant’s assets will be dissipated); and
  • it is just and convenient, in all the circumstances, for the court to grant the injunction.

The risk of dissipation is assessed on a case-by-case basis and is more easily established where the Mareva injunction is sought in support of an underlying proprietary claim. 

Pre-action conduct requirements

Are there requirements for pre-action conduct and what are the consequences of non-compliance?

There are no codified pre-action protocols which are applicable in the Cayman Islands. However, the Overriding Objective of the Grand Court Rules is that all matters should be dealt with in a just, expeditious and economical way. Consequently, the court has a wide discretion when it addresses the question of costs, and a party's pre-action conduct may be considered when making an appropriate costs order.

Other interim relief

What other forms of interim relief can be sought?

Interim remedies are available throughout the lifecycle of a claim and in some circumstances may be sought before proceedings are commenced. Interim remedies available from the Grand Court include: 

  • summary judgment;
  • strike out;
  • security for costs;
  • injunctive relief (eg, antisuit, mandatory or prohibitory and including Chabra relief);
  • Anton Pillar orders for the search and seizure of property;  
  • attachment or interim payment orders; and
  • the appointment of receivers to preserve property pending trial, which may include the appointment of receivers in aid of foreign proceedings.
Alternative dispute resolution

Does the court require or expect parties to engage in ADR at the pre-action stage or later in the case? What are the consequences of failing to engage in ADR at these stages?

Parties involved in matters listed in the Civil Division or the Financial Services Division of the Grand Court need not engage in ADR. The court has no jurisdiction to compel parties to resort to arbitration or mediation before proceeding to litigate, but the judiciary and the courts are supportive of ADR in principle.  

Claims against natural persons versus corporations

Are there different considerations for claims against natural persons as opposed to corporations?

Where an action is taken against a natural person rather than a corporate entity, a significant consideration for a plaintiff will be the available resources of the defendant to meet any judgment awarded in the plaintiff’s favour.  

Corporations could potentially have insurance policies which may be relied on to fund the defence of litigation or satisfy claims brought against it for damages. The existence of an insurance policy or the presence of an insurer which may have a right to conduct the litigation will affect the dynamics of the proceedings due to the reduction in the financial exposure assumed by the named defendant. 

Whether a defendant is a natural or non-natural person is also likely to affect the ease with which they may be found and served out of the jurisdiction.     

Class actions

Are any of the considerations different for class actions, multi-party or group litigations?

It is possible for representative actions to be brought in the Grand Court. However, a representative action is sustainable only where the interests of the participants to the action are aligned. Where that is not the case, a defendant could successfully challenge an action on the basis that the interests of the plaintiffs are not sufficiently aligned.   

The additional time required to formulate a class and establish a case in respect of each proposed member of that class places greater emphasis on correctly identifying the limitation period applicable to the proposed action.

Third-party funding

What restrictions are there on third parties funding the costs of the litigation or agreeing to pay adverse costs?

The laws of champerty and maintenance are currently still in force in the jurisdiction. Notwithstanding this, the Grand Court will permit third-party funding of litigation, provided that the terms of funding do not: 

  • corrupt public justice;
  • undermine the integrity of the litigation process; or
  • give rise to a risk of the abuse of process.

The Grand Court will consider the following factors before approving third-party funding arrangements:

  • whether the funder was able to control the litigation;
  • the extent to which the funder could terminate the funding agreement at will or without reasonable cause;
  • the prejudice which may be suffered by a defendant if the funder would not be liable to meet adverse costs orders;
  • the profit which may be made by the funder; and
  • whether the funder is regulated by a professional body with its own rules of conduct (eg, the UK Association of Litigation Funders). 

As regards funding arrangements between an attorney and their client, contingency fee arrangements are not permitted to fund litigation conducted within the jurisdiction. It is possible for an attorney to be engaged in respect of litigation conducted within the jurisdiction on a conditional fee basis.

The claim

Launching claims

How are claims launched? How are the written pleadings structured, and how long do they tend to be? What documents need to be appended to the pleading?

Proceedings may be commenced by the issuance of an originating process which may be any of the following:

  • a writ of summons;
  • a petition;
  • an originating notice of motion; or
  • an originating summons.

The appropriate originating process will depend on the type of claim or proceedings that are being initiated and the type of relief being claimed. In most instances, complex commercial litigation will be commenced by way of a writ of summons, which is the form of process applicable to actions where there is a dispute of fact that requires adjudication.             

Where the plaintiff commences an action by issuing a writ, the writ may be endorsed with the statement of case or appended as a separate document. If a plaintiff omits to plead a matter or fact essential to its claim, that omission may be fatal to the claim in its entirety. 

The length of pleadings filed with the Grand Court are not limited or prescribed by the Grand Court Rules or the applicable divisional rules.  

Serving claims on foreign parties

How are claims served on foreign parties?

The service of proceedings on parties outside the Cayman Islands normally requires the Grand Court’s permission. An application for leave to serve proceedings outside the jurisdiction is made by an ex parte originating summons and supported by an affidavit.

Service on a party outside the jurisdiction must comply with the rules of service of the jurisdiction in which the foreign party will be served.

Key causes of action

What are the key causes of action that typically arise in commercial litigation?

The nature of complex commercial litigation often means that proceedings before the Grand Court will involve multiple and complimentary causes of action. Commercial cases that are litigated in the Cayman Islands may involve allegations of dishonesty, including misappropriation of funds, fraud or deceit which involve contractual, tortious and equitable causes of action.

Claim amendments

Under what circumstances can amendments to claims be made?

A claim commenced by writ may be amended without leave of the court where the proceedings have not yet been served. Where the proceedings have been served, plaintiffs may amend their claim only with leave of the court. 

Plaintiffs must satisfy the court that the defendant will:

  • not suffer prejudice as a result of the amendment; or
  • be adequately compensated by a costs order reflecting:
    • any work that had been undertaken and which may no longer be required; or
    • any other additional costs incurred as a result of the amendment. 
Remedies

What remedies are available to a claimant in your jurisdiction?

The final remedies available from the Grand Court are wide ranging, extending to legal and equitable remedies of a personal and proprietary nature. Commercial litigation most frequently results in awards for damages.   

Recoverable damages

What damages are recoverable? Are there any particular rules on damages that might make this jurisdiction more favourable than others?

The assessment of damages depends on the cause of action that is asserted. 

Damages for both breach of contract and tort are compensatory from the point of view that they aim to put the plaintiff in the position that they would have been in had the contract been performed according to its terms or had the tort not been committed. The assessment of damages is subject to the whether the loss incurred was reasonably foreseeable, either at the time that the contract was made or when the breach of duty occurred. 

In proceedings where the defendant is found to have acted fraudulently, the assessment of damages will not be confined to what loss was reasonably foreseeable. The plaintiff will be entitled to all of the losses flowing from that fraud. In cases of conspiracy to defraud, those damages would include the cost of investigating the conspiracy alleged against the defendant. 

In all cases, plaintiffs must take steps to mitigate their loss, and a failure to mitigate loss can be used by defendants as a way of limiting the damages payable.  

Responding to the claim

Early steps available

What steps are open to a defendant in the early part of a case?

Defendants must file an acknowledgment of service with the court in the time prescribed in the originating process. In doing so, defendants must indicate whether the claim will be contested or uncontested.  

Where a defendant intends to dispute the court’s jurisdiction, they must file an acknowledgment of service stating that the claim will be contested and also issue an application contesting the jurisdiction of the Grand Court.  

Defendants may bring a counterclaim against plaintiffs or join a third party in defence of the proceedings (see ‘How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?’ and ‘How can a defendant establish the passing on or sharing of liability?’).

Defence structure

How are defences structured, and must they be served within any time limits? What documents need to be appended to the defence?

A defence should address the assertions made in the statement of claim on a paragraph-by-paragraph basis. The content of a defence is limited to material facts and not law or evidence. Those matters are properly reserved for skeleton arguments and affidavit or oral evidence, respectively. If the defendant intends to bring a counterclaim, this should be appended to the defence. 

Unless otherwise specified, defendants must serve a defence on plaintiffs within 14 days of the statement of claim being served on them or 14 days after the expiry of the time limit for acknowledging service of the writ, whichever is later.   

Changing defence

Under what circumstances may a defendant change a defence at a later stage in the proceedings?

Defendants may amend their pleaded defence before the close of pleadings without seeking the permission of the Grand Court. If plaintiffs amend their statement of claim, defendants will usually have up to 14 days to serve an amended defence without the leave of the court. 

Where pleadings have closed, leave is required for either party to amend their pleading. The Grand Court has a broad discretion to allow any party to amend their pleading at any time, including during trial, provided that there is no injustice to the other parties. 

Sharing liability

How can a defendant establish the passing on or sharing of liability?

Liability may be shared or passed on by a defendant by joining a third party to the proceedings or by filing a counterclaim against the plaintiff in the proceedings issued. 

Additional persons may be joined together as defendants without the leave of the court in circumstances where, between them, there exists a common question of law or fact and all rights and relief that are claimed in the action arose out of the same transaction or series of transactions.

It is also possible for defendants to bring third-party proceedings where they allege that the third party is partially or fully responsible for the damage asserted by the plaintiff.  

Avoiding trial

How can a defendant avoid trial?

Defendants may avoid trial by procuring the resolution of the claim through some form of compromise with the plaintiff, or otherwise having the proceedings disposed of in a summary way. 

Summary ways in which a defendant may avoid trial include:

  • disputing the jurisdiction of the Grand Court to hear the claim bought by the plaintiff;
  • applying for the claim to be struck out;
  • seeking summary judgment; or
  • applying for the court to dispose of the claim by making a determination on a question of law or point of construction of any document which is in dispute between the parties.
Case of no defence

What happens in the case of a no-show or if no defence is offered?

Failure to file an acknowledgment of service or a defence in the prescribed time after giving notice of intention to defend puts defendants at risk of being made the subject of a judgment in default. Judgment in default is not automatic and requires a plaintiff to apply for judgment against a defendant. 

Claiming security

Can a defendant claim security for costs? If so, what form of security can be provided?

Defendants to proceedings brought in the Grand Court may seek security for costs against the plaintiff where the plaintiff:

  • is a company registered in the Cayman Islands and there are grounds to believe that its assets will not be sufficient to pay the costs of the defendant, should the defendant succeed at trial;
  • is a person (natural or non-natural) resident outside the Cayman Islands which has no business or assets in the Cayman Islands;
  • is a nominee plaintiff acting on behalf of another person where there are grounds to believe that that person would be unable to pay the costs if the plaintiff is ordered to do so;
  • has not stated an address on the writ of summons or other originating process or where the plaintiff's address is incorrectly stated; or
  • has changed addresses during the proceedings with a view to evading the consequences of those proceedings.

The form of security for costs is usually determined by the party to which security has been awarded. However, a party cannot unreasonably withhold its consent to a proper form of security.

Progressing the case

Typical procedural steps

What is the typical sequence of procedural steps in commercial litigation in this country?

The following sequence of procedural steps is typical in the Grand Court:

  • issue and service of originating process;   
  • filing of acknowledgement of service by the defendant (and, if relevant, application disputing the jurisdiction of the Grand Court);
  • resolution of application to challenge jurisdiction;
  • filing of defence to the claim and any counterclaim against the plaintiff;
  • filing of any reply or applicable to defence to a counterclaim;
  • disclosure and discovery;
  • exchange of evidence and expert reports if necessary; and
  • trial.
Bringing in additional parties

Can additional parties be brought into a case after commencement?

Additional parties may be brought into a case after commencement through:

  • a counterclaim;
  • a joinder of the parties; and
  • the third-party procedure.
Consolidating proceedings

Can proceedings be consolidated or split?

The court may exercise its case management functions to order that proceedings be consolidated or split, as the circumstances require.

Consolidation may be appropriate where:

  • a common question of law or fact arise in each proceeding;
  • the rights or relief claimed are in respect of or arise out of the same transaction or series of transactions; or
  • for some other reason, it is desirable to make an order consolidating the proceedings.

The court may order separate trials if it thinks that any joinder of causes of action or parties thereto may embarrass or delay the trial or be inconvenient in some way.  

Court decision making

How does a court decide if the claims or allegations are proven? What are the elements required to find in favour, and what is the burden of proof?

As a rule, in commercial litigation the standard of proof is on the balance of probabilities – that is, the claimant must establish that, on the evidence, the claims or allegations are more likely than not to be proven. 

How does a court decide what judgments, remedies and orders it will issue?

The Cayman Islands is an adversarial system whereby parties plead and substantiate their respective cases. After hearing the evidence before it, the judge will consider whether the plaintiff has proven its case on the balance of probabilities. If so, the judge will make an award in favour of the plaintiff, having regard to the relief sought in the pleadings. 

Evidence

How is witness, documentary and expert evidence dealt with?

Witness evidence of fact or expert evidence will normally be the subject of detailed procedural directions. This is especially the case where there is expected to be a heavy reliance on expert evidence or where the evidence of fact is expected to be voluminous. 

Affidavits of a witnesses stand as evidence in chief and this arguably streamlines the proceedings. Both witnesses of fact and expert witness are liable to be called for cross-examination, which gives rise to the risk that a witness will not come up to proof when called to provide oral evidence.

How does the court deal with large volumes of commercial or technical evidence?

The level of documentary evidence the Grand Court is required to martial in these sorts of case continues to increase. It is for the Grand Court to give directions as to the timing of when evidence should be filed with it. In particular, where technical or expert evidence is required, the Grand Court will be asked to grant leave for that evidence to be filed in the proceedings on the basis of the evidence being necessary and proportionate to the claim in issue.

Can a witness in your jurisdiction be compelled to give evidence in or to a foreign court? And can a court in your jurisdiction compel a foreign witness to give evidence?

The process for the giving of evidence by a witness in the Cayman Islands to a foreign court is set out in the Evidence (Proceedings in Other Jurisdictions) (Cayman Islands) Order 1978. A witness can be compelled to give evidence to or for a foreign court, providing that they could have been compelled to give that evidence in civil proceedings in the Cayman Islands. Where a witness is outside the Cayman Islands, it is possible for an order compelling that witness to give evidence for use in proceedings before the Grand Court.  

How is witness and documentary evidence tested up to and during trial? Is cross-examination permitted?

Before trial, parties must serve on one another the evidence on which they intend to rely in order to make their case at trial. Each party may respond or reply in evidence to show the inaccuracies or inconsistencies of the case advanced by their opponent. This may lead to applications seeking that evidence be struck out.

At trial, all witnesses who have provided an affidavit in support of a parties' case may be called to attend trial for cross-examination.  

Time frame

How long do the proceedings typically last, and in what circumstances can they be expedited?

Complex commercial cases normally run for between three to five years. It would be unusual for a complex commercial case to run for fewer than three years in the Grand Court.  

Proceedings may be expedited if they do not concern disputes of fact. The Grand Court has a general case management power which it can use to expedite proceedings if required (eg, where relief will be rendered nugatory if the proceedings are not expedited).

Gaining an advantage

What other steps can a party take during proceedings to achieve tactical advantage in a case?

Parties can apply to strike out the case of another in whole or in part. Parties can also seek summary judgment where they consider that the matters pleaded demonstrate no reasonable prospect of success.  

Impact of third-party funding

If third parties are able to fund the costs of the litigation and pay adverse costs, what impact can this have on the case?

The issue of third-party funding of litigation in the Cayman Islands continues to evolve. 

Parallel proceedings

How are parallel proceedings dealt with? What steps can a party take to gain a tactical advantage in these circumstances, and may a party bring private prosecutions?

The court has a discretion to stay civil proceedings pending the outcome of related criminal or regulatory proceedings. The Grand Court must be satisfied that there is a real risk of serious prejudice which may lead to injustice if the proceedings were not stayed. The Grand Court will look to balance the competing interests of the parties before it.  

Tactical considerations to where parallel proceedings exist or are threatened include whether better evidence will come to light in the criminal or regulatory proceedings that may impact the civil proceedings. A broad consideration that ought to be taken into account in any case is whether the regulatory or criminal proceedings that have been brought against the defendant could result in the defendant no longer being in a position to satisfy a judgment in the civil proceedings.

Trial

Trial conduct

How is the trial conducted for common types of commercial litigation? How long does the trial typically last?

Trials before the Grand Court are adversarial rather than inquisitorial, with each party opening and presenting its case in turn.   

In complex commercial cases, trials will generally last a matter of weeks. In the most complex cases, trials have been extended for a number of months. The court will normally issue directions providing for the filing of written submissions before trial and set out a timetable for trial.

Use of juries

Are jury trials the norm, and can they be denied?

The Grand Court Rules (1995 Revision) do not provide for trials by jury in civil or commercial matters.  

Confidentiality

How is confidentiality treated? Can all evidence be publicly accessed? How can sensitive commercial information be protected? Is public access granted to the courts?

Proceedings in the Grand Court are matters of public record and court hearings are generally open to the public. The Grand Court maintains court files in respect of proceedings before it and those files are open to inspection by interested parties.

Where proceedings concern commercially sensitive or confidential information, court files may be sealed to prevent any party inspecting the documents that have been filed. Exhibits to affidavits are not filed with the Grand Court and are not placed on the court file. 

Trials are generally conducted in open court and members of the public may attend. However, the Grand Court will hold hearings in camera where there are reasons to ensure the confidentiality of the matters concerned in the proceedings.

Interim hearings are heard by the assigned judge in chambers. These hearings are closed to the public at large. However, if a party can demonstrate an interest in the proceedings, the Grand Court may exercise its discretion to grant that party permission to attend.   

Media interest

How is media interest dealt with? Is the media ever ordered not to report on certain information?

The Grand Court will not easily close its doors but, if matters are referred to in proceedings that may adversely affect the listing price of a property or the value of the shares of a company or on the outcome of proceedings elsewhere, the Grand Court may order reporting restrictions on those matters. In certain instances, the Grand Court may suspend the publication of its judgment until the passing of a certain event (ie, an initial public offering or a merger of companies). 

Proving claims

How are monetary claims valued and proved?

Plaintiffs claiming damages must prove on the balance of probabilities that there is a causal link between the alleged wrongdoing and the loss that has been suffered. 

In some instances, the valuation of the loss itself becomes a significant issue. In those instances, it is possible for the Grand Court to determine the question of liability first and for the issue of quantum to be litigated later, if required.   

In cases of commercial fraud, the principle of remoteness of damage does not apply in the same way, and plaintiffs are entitled to an award for all losses sustained as a result of the fraud. In practice, commercial fraud cases are often not limited to claims for monetary compensation but extend to claims for proprietary relief.

Post-trial

Costs

How does the court deal with costs? What is the typical structure and length of judgments in complex commercial cases, and are they publicly accessible?

Costs are a matter of discretion of the court. The exercise of that broad discretion will always depend on the facts and equities of the case. In certain limited circumstances, the court has the power to make costs orders against non-parties to litigation.

As a rule, a successful party to any proceeding should be able to recover the reasonable costs incurred by them in conducting those proceedings in an economical, expeditious and proper manner from the opposing party.

In most instances, Grand Court judgments will be made publicly available once they have been formally handed down. 

Appeals

When can judgments be appealed? How many stages of appeal are there and how long do appeals tend to last?

Appeals from the Grand Court are referred to the Cayman Islands Court of Appeal; and appeals from the Court of Appeal are made to the Judicial Committee of the Privy Council.

Appeals from the Grand Court to the Court of Appeal must usually be brought within 14 days of the judgment being filed (although extensions can be granted) by lodging a written notice of appeal with the Grand Court and serving that notice on the opposing party or their attorney.   

The length of any appeal depends on the availability of the relevant appeal court and complexity of the grounds of appeal.

Enforceability

How enforceable internationally are judgments from the courts in your jurisdiction?

The Caymans Islands is a well-respected jurisdiction internationally and is founded on the principles of the English legal system, which upholds the rule of law. These features lend themselves to the recognition and enforcement of judgments of the Grand Court in foreign jurisdictions. However, it is a question for the foreign jurisdiction as to whether it will recognise and enforce any judgment of the Grand Court. 

How do the courts in your jurisdiction support the process of enforcing foreign judgments?

Foreign judgments may be recognised either by the statutory recognition process under the Foreign Judgments Reciprocal Enforcement Law (1996 Revision) or, more frequently, under the principles of the common law process of treating the judgment as a debt, which may be sued on and enforced as a debt in the jurisdiction.

Enforcement at common law means that the judgment creditor can sue the judgment debtor for the judgment debt in new proceedings in the Cayman Islands.

Other considerations

Interesting features

Are there any particularly interesting features or tactical advantages of litigating in this country not addressed in any of the previous questions?

The Cayman Islands is an offshore tax-neutral jurisdiction. Litigating in the Grand Court allows parties to submit to a jurisdiction without putting tax arrangements at risk or having assets (including documentary information) made the subject of jurisdictions with particularly rigorous disclosure requirements.    

Jurisdictional disadvantages

Are there any particular disadvantages of litigating in your jurisdiction, whether procedural or pragmatic?

The Grand Court has a bench of capable and learned judges from a number of common law jurisdictions. Notwithstanding its breadth of experience, on occasion, the court experiences delays arising from the weight of applications pending in the Financial Services Division and the Civil Division.

Updates and trends

Updates and trends

Updates and trends

Third-party funding is currently a particular topic of interest and the judiciary has recently expressed the view that the interests of justice may be well served by ensuring that properly justiciable claims are not left unventilated due simply to the absence of funding or the willingness of a party to invest in the litigation. It will remain a matter for the legislative assembly to consider how litigation funding might be introduced in the Cayman Islands more broadly. 

A significant aspect of commercial litigation is the issue of discovery. In the past year the Grand Court has had cause to consider the scope and function of third-party disclosure orders (Norwich Pharmacal relief). In doing so, the Grand Court has made it clear that third-party disclosure orders are available, but that the disclosure sought must be clear, focused and confined to what is necessary in order for a party to evaluate its potential claim.