The owner of Offshore Alert, David Marchant, used his annual conference in Miami on Monday to criticize Cayman’s Chief Justice Anthony Smellie over a change in court policy that restricted the photocopying of public records.
“[Chief] 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,” Mr. Marchant told 250 delegates at the event for financial services professionals, regulators and investigators concerned with offshore financial centers.
In a policy change, the Cayman court system, headed by the chief justice, limited access to court records to include only the taking of notes, in the absence of permission from the clerk of court. The move aimed to prevent the wholesale reproduction of court records for commercial purposes by organizations like Offshore Alert, which maintains a website that regularly publishes writs filed in the British Virgin Islands High Court, the Bermuda Supreme Court and the Grand Court of the Cayman Islands.
The Cayman Islands Judicial Administration claimed the new measures were rectifying “unintentional departures in practice over time” and alleged that the commercial use of photocopied records would infringe the copyright of the Crown, in the case of rulings, as well as the copyright of the parties that file writs and other originating documentation with the court.
Mr. Marchant said he does not see how copyright issues could apply to public documents. He said his conference is not “anti-offshore” and he had never received any complaints from the chief justice or the Cayman courts about the publication of articles or other information on Offshore Alert’s website.
In fact, “Cayman is a jurisdiction I love,” he said, adding that many of the delegates and sponsors of his conference are from Cayman and that he regularly recommends Cayman “as a great place to do business.”
In an apparent about-face, the acting clerk of the court issued a notice to attorneys last week, which said access to copying had been restored.
Curiously, the document was dated April 21, five days before it was sent. “But if you actually go into the property section of the PDF file, it shows it was created April 26,” Mr. Marchant said. This was one day after he contacted the chief justice and one day after the Cayman Compass highlighted the issue in a news article.
The Offshore Alert owner said he stands to be corrected if he is presented with any evidence to the contrary, but “you are now potentially looking at a court … falsifying documents …”
The notice explained it had come to the attention of the chief justice and the management of Judicial Administration “that some years ago there was an unintended and unauthorized departure” from the Rules of Court related to court searches and the photocopying of court documents.
“This practice has now been ceased with immediate effect, and the restoration of carrying Court Searches and requests for Photocopies will occur in line with the existing requirements of the Grand Court Rules and the Court Fee Rules.”
Whether this means that Offshore Alert, and the public, have unfettered access to public court documents is unclear.
In a joint statement, the Cayman Islands Law Society and the Caymanian Bar Association welcomed the confirmation and clarification by the Grand Court that certified copies of documents continue to be available to non-parties.
“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,” the statement said.
Access is granted to non parties to scrutinize the relevant judicial process itself, but there is no unrestricted right to access in the common law world, the organizations said.
“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,” they stated.
Mr. Marchant said Offshore Alert will again send a researcher to the court. “We will see what happens.” In any case, it will be far more expensive to make photocopies. According to the notice, the court will now charge an extra $20 per document, in addition to the, until now, usual 50 cents per photocopied page and a $20 search fee.
The Offshore Alert owner said he understands arguments about privacy, but available court records are at a very basic level of transparency. “We are talking about writs; this is not beneficial ownership.”
Mr. Marchant said he did not know why Offshore Alert was targeted. He speculated that the ban may have been connected to Offshore Alert’s publication of a writ involving a prominent Caymanian. Offshore Alert did receive a private complaint about publication of the writ on its website, but there is no evidence that the two incidents are related.
The court’s actions are the sort of activity, Mr. Marchant said, that took place in “the bad old days of the offshore world” of the 1970s, ‘80s and ‘90s.
“We are generally in the good new days of the offshore world,” he noted. However, he questioned the motives by the chief justice for targeting the Miami-based publisher.
“Why on earth would he choose to cause problems for Offshore Alert? We specialize in exposing serious financial crime,” Mr. Marchant said.
“I get death threats, we get sued a lot all over the world, we spend a fortune defending ourselves. Why would you want to be on the wrong side of that?”