CODE OF CIVIL PROCEDURE IN THE CAYMAN ISLANDS
This article will provide guidance on the Code of Civil Procedure in the Cayman Islands. The legal system of the Cayman Islands is based on common law. A trial consists of written briefs and oral debates, both adversarial. The Legislative Assembly of the Cayman Islands enacts primary legislation, secondary legislation builds on primary legislation, and judicial precedent provides residual common law.
Since the Cayman Islands are considered a British Overseas Territory, the United Kingdom has the authority to extend the applicability of certain laws to the territory by an Order in the Council.
The Cayman Islands’ courts defer to precedents set by courts in other common law countries, including the United Kingdom, where there is no binding precedent from those courts in the matter at hand. Cayman Islands courts are unlikely to disagree with the UK Supreme Court on matters of common law unless there is a clear discrepancy between the two branches of government or a significant disagreement in public policy. The Judicial Committee of the Privy Council of the United Kingdom has the final say on appeals from the Cayman Islands courts.
This means that many areas of Cayman Islands law are identical to or very close to English law, notably regarding the most fundamental aspects of both systems: the law of contracts, torts, equitable principles, trusts, corporations, and insolvency. Despite the close relationship between the two legal systems, Cayman Islands law differs significantly from English law in a number of key areas. These include, in particular, the specialized areas of company and insolvency law that have evolved independently to help make the Cayman Islands a leading jurisdiction for international financial services.
The Grand Court Rules, which are in effect for most high-stakes cases in the Cayman Islands, are very similar to the Rules of the Supreme Court, which were in effect for High Court cases in England until the introduction of the Civil Procedure Rules in 1999.
THE COURT SYSTEM IN THE CAYMAN ISLANDS
The Summary Court has jurisdiction over petitions for affiliation and maintenance and civil cases with a value of up to KYD20,000. However, the Grand Court is the highest in the land and handles appeals from the Summary Court and other quasi-judicial bodies.
The Grand Court's Civil Division, Family Division, Admiralty Division, and Financial Services Division handle most of the court's civil caseload. The Financial Services Division handles most cases involving disputes over foreign financial services. Certain actions under the Companies Act (including all winding-up proceedings), all proceedings to enforce foreign judgments and arbitral awards, and most actions for breach of contract or duty by or against a professional services provider must be brought before the Financial Services Division.
In the Financial Services Division of the Grand Court, the judge assigned to a case at the start is often the same judge who hears the case through to trial. As a result, the trial and any interlocutory petitions will be presided over by the same judge. That way, you may become very well-versed in the case.
FILINGS AND PROCEEDINGS IN THE COURTS
The Grand Court keeps a public registry of all writs, originating summonses, originating motions, and originating petitions filed with the court. The court file for a given action contains all papers submitted by the parties to that proceeding, including summonses, pleadings, affidavits, witness statements, and written arguments. By default, the public cannot see this document. However, anybody in the general public may submit a request to the court for permission to see or copy any document in the court's file.
Any document or portion thereof submitted with the court may be sealed from public view at the request of a party to the proceedings. The decision to seal documents is not taken lightly and must be supported by evidence. However, the court has extensive expertise in sealing petitions and often seals important papers when the circumstances warrant.
PRE-ACTION CONDUCT IN THE CAYMAN ISLANDS
The court does not impose any standards of pre-action behavior on the parties save in judicial review procedures (concerning which a pre-action protocol exists). However, the parties should remember that the court has broad discretion on the question of expenses and may very likely take pre-action behavior into account.
The statute of limitations (Limitation Act, 1996 Revision) sets limitation periods that vary by kind of claim. Any contractual claims that an individual may have will time out six years from the date of the breach. There is a twelve-year statute of limitations on claims based on a specialty (including a deed). The statute of limitations for tort claims is six (6) years, counting backward from when the injury was sustained. However, the individual may only have three years to file a lawsuit for personal injury, libel, or slander.
JURISDICTION OF THE COURT
Jurisdiction is typically based on proper service of proceedings within the jurisdiction, and it is exercised on a geographical basis. If service of process is properly made, a lawsuit against a Caymanian resident or a Caymanian corporation may be filed in a court in the Cayman Islands. However, such a defendant may argue that the Cayman Islands courts should not exercise their jurisdiction over the claim since another foreign court is manifestly better suitable for hearing the case (forum non conveniens)
The courts of the Cayman Islands will often accept jurisdiction for issues that come within the scope of an explicit jurisdiction agreement between the parties selecting the Cayman Islands courts as the venue. Cayman Islands courts may also get jurisdiction if the defendant voluntarily submits to that jurisdiction by engaging in the proceedings (other than by disputing jurisdiction).
Suppose the court granted permission to serve the originating process outside of the Cayman Islands. In that case, a jurisdiction might also be created over defendants who do not reside or are not registered in the Cayman Islands.
SERVICE OF PROCESS IN THE CAYMAN ISLANDS
It is common practice to issue a writ of summons and formally initiate a civil case via its filing and service. The whole statement of claim may be indorsed on the writ from the beginning. A brief explanation of the claim's nature and the remedy sought may be included to the writ instead, but this is not required. A statement of claim must be submitted as an independent pleading in the latter scenario.
An originating summons may be used to initiate proceedings that are not likely to include any major dispute of fact, such as when the plaintiff seeks declaratory relief on matters of pure contractual interpretation or interpretation of the law. Statements or issues on which the plaintiff seeks resolution or remedy must be included in the original summons. Action causes must also be determined.
Standardized formats for writs of summons, originating summonses, and the applicable court regulations provide petitions. A writ of summons or originating summons must be served on the defendant within a particular time frame once they have been filed. If the originating process document is not served within these time frames (or if the document's validity is extended by order of the court), a new writ or originating summons must be filed. If a statute of limitations passes before something is resolved, it might have serious repercussions.
Documents that started the process may usually be revised. Before a writ is served on a defendant, it might be changed without the judge's permission. A writ may be changed once after service, before to the conclusion of pleadings, without leave of court, so long as the alteration does not include adding, removing, or replacing a party, changing the capacity in which a party is sued, or adding or substituting a new cause of action (these types of amendments required to leave).
The first burden of service of process is with the plaintiff. Any legal process against a natural person within the jurisdiction must typically be made in person. Companies with a Cayman Islands address may be served at their local address. Service may be rendered in conformity with the terms of the underlying contract if the action giving rise to the service is brought under the terms of that contract.
A plaintiff can get permission from the court to serve documents differently, such as via email, fax, or newspaper advertising, if there are legitimate obstacles to the traditional service methods. Obtaining approval to serve through a non-traditional method is not easy, but it is possible.
SERVICE OF PROCESS OUTSIDE THE CAYMAN ISLANDS
Outside of a few situations, the individual will need the court's permission to serve someone outside of the Cayman Islands. To obtain leave, the plaintiff must [A.]) establish that it has a good cause of action; [B.] identify the country where the defendant may be found; [C.] specify the proposed method of service; [D.] establish that the proposed method of service is in accordance with the law of the country where it is proposed to be effected; [E.] establish that the Cayman Islands is the most appropriate forum; and [F.] identify and satisfy the requirements of one of the ‘gateways’ for service out of the jurisdiction.
It is possible to get service of process outside of the Cayman Islands via various jurisdictional gateways. The gateway that allows service outside the jurisdiction when the claim is against a current or former director, officer, member, or partner of a Cayman Islands company or a partner of a Cayman Islands partnership and concerns that company or partnership, or the status, rights, or duties of the relevant director, officer, member, or partner, is arguably the most relevant given the international nature of the businesses formed in the Cayman Islands.
If the writ is served outside of the Cayman Islands, the defendant has two weeks to submit an acknowledgment of service to the court. After the defendant acknowledges service of the writ, they have fourteen more days to file and serve a defense, provided that the statement of claim was endorsed on the writ. A statement of claim must be submitted and served within fourteen days after filing the acknowledgment of service if it was not endorsed on the writ. The defendant must make a response within fourteen days of receiving a copy of the statement of claim.
If the party needs to serve a foreign court document in the Cayman Islands, they must follow the guidelines set out by the foreign court. Service in the Cayman Islands must be made in person to the intended receiver. It may be made by an attorney or a private process agent if the foreign court demands service in line with local regulations. Service must be made personally to an individual if that is the intended receiver. Service on a Cayman Islands corporation must be made by hand delivery to the corporation's registered office.
The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, 1965, governs Cayman Islands law. Any legal documents under this Convention must be sent to the court clerk with a documented service request from the appropriate authority in the other jurisdiction.
The procedure begins when an overseas court sends a letter of request to its Cayman Islands counterpart, asking for the latter's help in gathering evidence for use in an overseas civil action. The next step is to apply to the court in the Cayman Islands so that the written request may be implemented. Once the requested evidence has been gathered, it is sent to the asking court in a timely manner. No order should be entered that the court cannot enter in a civil process before it or before the asking court (such as an order to hand over legally confidential materials). Further, the court will not force a party to disclose what evidence it has that may be used in the overseas proceedings (there can be no ‘fishing expeditions’ for evidence). A valid application must specify the documents sought and explain how the responder is in possession, custody, or control of them.
The first step in getting a foreign judgment enforced is to file a writ of action based on the judgment's entry. Summary judgments are often appropriate in enforcing foreign judgments since the court will not have another opportunity to consider the dispute's merits that led to the foreign award. The court's decision in the Cayman Islands may be enforced in the usual manner after it has been rendered.
RETURN OF SERVICE IN THE CAYMAN ISLANDS
In the event that the defendant fails to acknowledge service of the writ and express an intention to defend, the plaintiff shall be entitled to enter final judgment for the principal amount sought, interest, and fixed costs if the writ is endorsed with a liquidated demand alone.
In the case of a claim for unliquidated damages, the plaintiff may obtain an interlocutory judgment against the defendant to have the defendant's losses evaluated. When a defendant accepts the service of the writ and signals a desire to defend but misses the deadline to submit a defense, the same results occur.
Judgments made against the defendant without an acknowledgment of service or defense are subject to being vacated or modified by the court. This is unlikely unless the defendant actively participates in the procedures again and convinces the court that revoking or altering the decision is warranted.
A lack of cooperation on the part of a defendant is usually not fatal to a plaintiff's chances of winning a case. The enforceability of any judgment rendered due to such failure may be affected, depending on the laws of the relevant foreign jurisdiction.
The court's time to rule on an application depends on its complexity and the number of scheduled cases. When petitioning the court, the parties must provide a proposed hearing date. The court then schedules a hearing on the application depending on the availability of the judge assigned to the case and the attorneys representing the parties.
Documents can be faxed at (800)-296-0115, emailed to email@example.com, mailed to 590 Madison Avenue, 21 Floor, New York, New York 10022, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.
Drop-offs must call and make an appointment ﬁrst to be added to building security to permit access to our ofﬁce. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; Our receptionist receives all documents.
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Washington DC: (202) 655-4450 - 1101 Pennsylvania Avenue, 4 Fl East, Washington DC 20004
FOR ASSISTANCE SERVING LEGAL PAPERS IN CAYMAN ISLANDS
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1. Six months if out-of-country duty is necessary, four months otherwise.
2. The plaintiff needs the court's permission to file an amended writ after the pleadings deadline (or before the pleadings deadline if the plaintiff wants to amend for a second time). Any such changes are subject to the court's discretion. All first summonses are subject to the same regulation.
3. Listed in Order 11, Rule 1 of the Grand Court Rules.
4. If the claim:
- Concerns A Contract Made Within The Jurisdiction Or Governed By Cayman Islands Law;
- Concerns A Trust Governed By Cayman Islands Law;
- Concerns The Enforcement Of Any Arbitral Award; And
- Concerns about a breach of contract committed within the Cayman Islands or in respect
5. Through the Evidence (Proceedings In Other Jurisdictions) (Cayman Islands) Order 1978, the HCCH Convention on the Taking of Evidence Abroad in Civil and Commercial Matters 1970 has applied to the Cayman Islands.
6. The Foreign Judgements Reciprocal Enforcement Act (1996 Revision) was passed in the Cayman Islands to provide a legislative system for enforcing foreign decisions. However, this regime has only been applied to Australian and Australian external territory judgments. Judgments rendered in any other country are enforceable in accordance with common law principles, which provide that a foreign decision is binding if and only if the following conditions are met.
7. The deadlines for submitting evidence and arguments vary depending on the estimated hearing duration. ‘Ordinary’ applications are those that are expected to require no more than three hours of hearing time, and the standard timetable for their disposal calls for evidence in answer within 14 days of the application, evidence in reply within seven days of that, and the filing of skeleton arguments and hearing bundles not later than three business days before hearing. This suggests an application processing period of at least 24 days. A lengthier schedule is required for applications with a longer projected hearing time.