Commissioner Sir Michael Birt (who is also a Justice of Appeal of the Cayman Islands Court of Appeal) held that there was no requirement to obtain the leave of the court to obtain evidence from a single expert witness, but that in this instance the opinion was inadmissible, and used the occasion to call for the introduction of a rule equivalent to English CPR 35.4. His analysis of the absence of a requirement for leave raises questions that Cayman Islands attorneys will recognise, because it is not clear that the position under the Grand Court Rules is materially different.

The proceedings arise out of a shareholder dispute in which three Defendants applied for summary judgment and filed an opinion from English counsel (the Opinion) in support. The Plaintiffs sought to exclude the Opinion – the Master refused, and the Plaintiffs appealed.

Commissioner Sir Michael Birt, hearing the appeal afresh, addressed three issues:

1. whether leave was required;
2. whether summary judgment must be decided on admissible evidence; and
3. whether the Opinion was admissible.

He answered yes to the second and no to the first and third issues. It is the first issue – the requirement for leave – that has the most significance for the Cayman Islands.

The Plaintiffs argued that Royal Court Rule 6/20(2)(d), which allows the court to “order that not more than a specified number of expert witnesses may be called”, read with Practice Direction 17/09, created a leave requirement. The Commissioner rejected that submission. The rule merely empowers the court to limit the number of experts; it does not require leave. The wording is similar to, and Commissioner Birt decided has the same meaning as, the former English Supreme Court Rules Order 38, rule 4, which the English Court of Appeal in Sullivan v West Yorkshire Passenger Transport Executive  held gives jurisdiction only to limit numbers, not to exclude expert evidence entirely. The absence of language equivalent to the English CPR 35.4(1), which expressly requires leave, confirmed the position.

Commissioner Birt added that he had not reached the conclusion on leave with “any great enthusiasm”. He recommended the introduction of a provision equivalent to CPR 35.4, which would impose a simple requirement to obtain the court’s leave to submit expert evidence, and this would allow the court to consider admissibility and case management at an early stage.

GCR O38, r4 is the Cayman analogue, in materially similar terms to Jersey’s RCR 6/20(2)(d): it empowers the court to limit expert numbers rather than imposing a leave requirement. On a strict reading of the GCR, no express leave requirement appears to exist. O38, r36(1) restricts expert evidence unless one of four conditions is satisfied: (i) leave of the court; (ii) agreement of all parties; (iii) an application for a disclosure direction under r37 or r41; or (iv) compliance with automatic directions under O25, r8(1)(b). The third and fourth routes are procedural steps concerning the form and timing of disclosure; they are not applications for permission to call an expert. The party-agreement route is, in particular, difficult to reconcile with a blanket leave requirement.

FSD Guide B5.1(a) provides that “[a]ny application for leave to call an expert witness or to serve an expert’s report should be made at a case management conference or on a summons for directions”. The use of “any”  rather than “an”  is conditional: it addresses what should happen if such an application is made, not that one must be made. The Guide also uses “should”  rather than “must”, and as a practice guide issued under the inherent jurisdiction of the court (not a statutory instrument or rule of court made under the Grand Court Act), it cannot create a jurisdictional requirement that the rules themselves do not impose. Justice Parker stated in Re Qunar Cayman Islands  at [47] that “[t]he court in its discretion may give leave for a party to be allowed to call expert evidence”  and that “[t]he court may also limit expert evidence by O38, r4”. That language is permissive: it describes a power the court possesses, not a mandatory step.

Other provisions of the FSD Guide can be read both ways. B5.3(a)(iv) provides that the expert's report “must be limited to matters relevant to the issue or issues in the list of issues to which the relevant expert evidence relates and for which leave to call such expert evidence has been given by the Court”. That language assumes leave has been granted. But the standard pre-trial directions at B4.1(6) offer two alternative formulations: (i) where parties “are to be at liberty to call expert witnesses at the trial”  (with no apparent leave required), and (ii) where parties “are to be at liberty to apply to call”  expert witnesses, with a specified deadline for the application. The fact that the FSD Guide presents these as alternatives suggests the court has discretion to impose a leave requirement as a case management direction on a case-by-case basis, but that the requirement is not inherent in the rules.

The common assumption that leave is required in the Cayman Islands therefore appears to rest on inference and established practice rather than on positive law. Commissioner Birt’s analysis of the identically worded Jersey provision may apply equally to GCR O38, r4. Whether the Grand Court would reach the same conclusion remains an open question, but the textual case is strong.

There is, however, a realistic prospect that the Grand Court would not follow that analysis. A leave requirement would allow the court to manage expert evidence from the outset, controlling cost and relevance before reports are commissioned and served. A court minded to preserve that control might read O38, r36(1) purposively, treating the four conditions as aspects of a general restriction that is only lifted with court approval, rather than as true alternatives to leave. Whether the Grand Court would take that approach, or whether the case against a leave requirement would prevail, remains an open question.

The leave question in Cayman may be open

In Jersey, Commissioner Birt has confirmed that there is no leave requirement: the sole control is the admissibility test. In the Cayman Islands, the GCR contain no express leave requirement either. The common assumption that leave is required rests on FSD Guide B5.1 and established practice rather than on the rules themselves. The Grand Court may, however, prefer a purposive reading that preserves case management control from the outset.

Planning the evidential strategy early

Whether or not the leave requirement is freestanding, proposed expert evidence faces scrutiny before trial: whether through leave, case management directions, or an admissibility challenge. Attorneys in both jurisdictions should consider at an early stage whether each piece of evidence relied upon will survive that scrutiny, and plan accordingly.