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Balancing open justice and use of highly sensitive documents at trial

In the recent decision of Nord Anglia the Grand Court of the Cayman Islands considered how a highly sensitive document (HSD) should be dealt with at trial. The decision is a useful reminder of the need to strike a balance between the assumption that a fair and open trial requires litigants to have full access to documents referred to at trial, and the need to protect confidential commercial information. The decision will be of particular interest to practitioners involved in section 238 petitions in the Cayman Islands, but also to those dealing with trials involving confidential information more generally. 

In Nord Anglia Kawaley J had previously directed that access to unredacted HSDs for the purposes of discovery was restricted to a confidentiality club (the parties’ Cayman Islands attorneys, Leading Counsel, and experts), and only redacted versions of HSDs were to be referred to in the expert reports. The issue then arose as to how HSDs should be dealt with at trial. The dissenters identified various logistical problems of attempting to prepare for and conduct the trial if their clients were unable to see redacted portions of key documents. 

The Judge noted section 7 of the Bill of Rights provides a strong starting assumption in favour of a litigant enjoying a right to fully participate in a trial both in terms of (a) being present, even for hearings in private from which the public are excluded, and (b) being afforded full access to any documents referred to at trial and upon which the Court may base its ultimate decision. However, it is also recognised that fair hearing rights are not absolute and may be waived or lost in exceptional circumstances. 

The Judge determined that:

  • Some categories of HSDs referred to in the expert reports, which the Judge considered were likely to be material to the valuation question, could be provided to the dissenters’ key representatives and US attorneys;
  • There was no basis at this juncture for HSDs not referenced in the expert reports to be made available to the dissenters or their US attorneys; and
  • Unless otherwise agreed, the Court should sit in private when dealing with the HSDs to protect the confidential information from being published to the world at large. Counsel should prepare for trial in such a way so as to ensure that protected material is dealt with in clearly defined segments of time.
Balancing open justice and use of highly sensitive documents at trial

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