In the recent decision of ArcelorMittal v Essar (which we previously blogged on here), Justice Kawaley confirmed that an order granting Norwich Pharmacal relief (NPO) is a “final order” and leave to appeal against an NPO is therefore not required. This decision is useful given the rise in the number of applications for NPOs before the Grand Court. The Cayman Islands Courts, like Courts in other common law jurisdictions, have the power to order third parties to reveal information about wrongdoing, even where that information would otherwise be confidential. An NPO can be a powerful tool to assist with tracing of assets and enforcement, requiring a third party, innocently mixed up in wrongdoing or otherwise, to disclose information and documents.
It was accepted by the parties that there was some ambiguity as to whether a NPO is a final order where leave is not required, or an interim order where leave to appeal would be required.
- Section 6(f) of the Court of Appeal Law provides that no appeal shall lie from an interlocutory judgment without leave of the Court, subject to certain exceptions.
- One then turns to rule 12 of the Court of Appeal Rules, which prescribes whether an order is final or interlocutory.
- Rule 12(3) provides that a judgment or order shall be treated as final if the entire cause or matter would (subject to any appeal) have been finally determined, whichever way the court below had decided the issues before it. Rule 12(5)(a) provides that an order for discovery of documents made in an action for discovery only is a final order.
- However, rule 12(6) provides that subject to rule 12(5)(a) an order relating to the discovery or inspection of documents is interlocutory; and an order refusing to set aside another order is also interlocutory. The NPO in this case, could also be viewed as an order refusing to set aside the initial ex parte NPO.
Justice Kawaley determined that the NPO was a final order pursuant to either rule 12(3) or rule 12(5)(a) of the Court of Appeal Rules. The Judge also drew analogies to interim injunctions (for which leave to appeal is not required) and noted with previous to the previous case of Braga v Equity Trust that an NPO may be regarded as “an action for [equitable] discovery only.”
It is of note that the Court of Appeal of the Eastern Caribbean Supreme Court took a different view on an appeal from the BVI High Court in Morgan & Morgan Trust Corporation Limited v Fiona Trust & Holding Corporation & Ors HCVA Civil Appeal No 24 of 2005, where the rules governing appeals are worded slightly differently to those in Cayman, and held that “the [Norwich Pharmacal] disclosure order against which the appellant purportedly appealed was an interlocutory order in terms of s.30 of the Supreme Court Act and could only have been appealed if leave to appeal had been obtained.
The Defendants have appealed the NPO and the jurisdiction can therefore expect appellate level guidance on Norwich Pharmacal relief in the near future.