Controversy continues over ban on copying public records by Cayman Islands court

Following a recent order approved by the chief justice of the Grand Court of the Cayman Islands, Anthony Smellie, prohibiting the public from making photocopies of court pleadings, three local organisations have responded to the order in what one financial commentator described as “Orwellian doublespeak”, while the publisher of a financial newsletter described the action “as disgraceful, indefensible and contemptible”.

In a significant departure from previous practice, a notice recently posted on the door of the clerk’s office, stated that the public can review the court files and take notes, but no method of copying or photographing will in future be permitted.

People can still access and take notes on court records after paying a $20 inspection fee. Obtaining photocopies – for an additional fee of $20 per document plus $0.50 per page – is allowed for “any legitimate purpose,” including investigative journalism, with prior approval from the clerk of court.

According to the court, publishing public court documents online could constitute a violation of copyright, an apparently questionable rationale given that the material in question comprises public documents in the first place.

On Tuesday, Cayman Finance, a private sector organisation established to promote the interests of the Cayman Islands financial services industry, issued a statement claiming that Cayman is a top quality transparent jurisdiction.

“We have a clear and strong commitment to transparency. We have been recognised for decades as a strong partner in combating global financial crime including money-laundering, terrorism financing, corruption and tax evasion and have gained the reputation of a transparent jurisdiction by meeting or exceeding globally-accepted standards for transparency and cross border cooperation,” said Jude Scott, Cayman Finance CEO.

“The jurisdiction, including our world class courts system, is committed to reviewing and evolving best practice. Cayman is receptive to appropriate input and recommendations on existing and new practices and policies to ensure effectiveness and balance, while continuing Cayman’s tremendous benefits to the global economy,” he added.

Also on Tuesday, in a joint statement, the Cayman Islands Law Society and the Caymanian Bar Association said that both associations are committed to the rule of law including open justice, a system the Cayman Islands administers, enabling public scrutiny of the judicial process by which litigants’ rights are adjudicated.

“The Grand Court has confirmed and clarified that certified copies of documents are available to non parties as they have always been. However, it should be noted that rights of non parties (including representatives of the media) with respect to the copying of court documents must not be confused with the principle of open justice. It is an element. Access is granted to non parties to scrutinise the relevant judicial process itself, but in the common law world there is no unrestricted right to access. There is a balance to be struck with other competing interests, both public and private, and this is the context in which access to court documents is given,” the statement said.

“More doublespeak; George Orwell would be proud,” a financial commentator remarked.

Meanwhile, on Monday, David Marchant, the publisher of the Miami-based Offshore Alert financial newsletter, renewed his criticism of the chief justice over the change in court policy.

“Justice Smellie basically needs to get his act in order because his actions or the actions of the court over the last three weeks have been disgraceful, indefensible and contemptible,” Marchant said.