Following a nebulous period of about two months when it appeared the Cayman Islands court system had tightened restrictions on public access to local court records, it now seems officials may be preparing to make those records freely available online.

The Grand Court Rules Committee – composed of Chief Justice Anthony Smellie, Attorney General Samuel Bulgin and two local attorneys – met this week to consider revising the procedures involved in searching and publishing the contents of open court records.

Court Administrator Suzanne Bothwell said the court could begin making registries available electronically on its own website.

“I can confirm that steps are currently under way to make available online, on the Judicial Website, free of cost, the inspection of all public registers, including unreported judgments,” said Ms. Bothwell. “This is aimed at expanding the public’s access to court records.”

In late April, the Cayman court system had begun limiting access to court records to include only the taking of handwritten notes, and prohibited photocopying records unless the clerk of court had given permission. The move aimed to prevent the wholesale reproduction of court records for commercial purposes by organizations such as U.S.-based online publication OffshoreAlert, which specializes in the exposure of international financial crime.

Under the previous policy, members of the public had been allowed to access the physical court documents (which are kept in a room on the third floor of Kirk House) for a search fee of $20, and then were able to photocopy records for a fee of 50 cents per page.

Under the policy enacted in April, in addition to the new requirement for permission from the clerk of court, members of the public who wish to make photocopies of court documents now must pay the $20 search fee, the 50-cent-per-page copy fee, and a new $20 fee for each document that is to be copied.

After an interruption in being able to photocopy records, OffshoreAlert recently resumed publishing Cayman court records online.

OffshoreAlert Publisher David Marchant said he sent a new researcher down to access court records, and he was able to update successfully the contents of his website’s public records database last week.

Mr. Marchant, when reached by email, said he was unclear on what had changed in the interim.

“I have little or no interest as to why the court decided to ban the copying of documents, an act that to me, seemed illegal and demonstrated egregiously poor judgment on the part of the court,” he said of the court’s open records policy. “That’s in the past. My immediate concern was that the ban was overturned, which it was. Going forward, I hope it doesn’t happen again because it made Cayman look like a third-world jurisdiction, not the first-rate jurisdiction that I generally know it to be.”

Back in April, when the court’s policy shifted, the Cayman Islands Judicial Administration maintained that there had been no change in rules, but the new measures would rectify “unintentional departures in practice over time,” and were intended to protect Crown copyright in court rulings, as well as the copyright of the parties that file writs and other originating documentation with the court.

Ms. Bothwell, the court administrator, told the Compass via email, “Whilst inspection to Public Registers continues to be permitted, reproduction beyond uses prescribed under the Grand Court Rules continue to be relevant to the protection of Crown Copyright in respect of some public registers.”

She said the Rules Committee will soon finalize its recommendations.

“Once the Rules have been finalized regarding the ability to reproduce any given document on a public register (whether hard copy or electronic), these will be communicated to the public at the appropriate time,” Ms. Bothwell said.

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16 COMMENTS

    • Given that OffshoreAlert specializes in exposing serious financial crime while it’s in progress, your apparent glee at the Court’s attempt to affect our profitability is revealing about your character and values.

      The last thing the world needs is a professional and highly-effective investigative news service having sufficient funds to expose criminal activity, right?

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      • David
        The free publication online of court records would allow EVERYONE who wishes to monitor serious financial crime.

        Bearing in mind the steps the Cayman Islands takes to be squeaky clean I very much doubt that there is wrong doing going on. Of course there are law suits in every country in the world. The Cayman Islands is no different.

        Apart from the fact that it would cost you money what exactly is your complaint?

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        • I doubt that the Court will publish, for free or on a paid-for basis, copies of writs and other originating documentation. Doing so, according to the Court’s own claims, would be a breach of copyright. At best, I would expect any publication by the Court to be limited to the Register of Writs and judgments, and the latter only on a selective basis.

          The Court’s recent, and potentially future, actions are clearly aimed at preventing OffshoreAlert from publishing writs and, in doing so, assisting the general public when conducting due diligence or engaging in asset recovery activity. ‘Better to keep them in the dark’ is the apparent attitude of the Chief Justice.

          Re. “Bearing in mind the steps the Cayman Islands takes to be squeaky clean I very much doubt that there is wrong doing going on.”

          Such an opinion is borne out of ignorance and bias, not enlightenment and impartiality. To genuinely believe there is no wrongdoing in Cayman is silly beyond belief.

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  1. One thing about governments and especially courts is that they have rules that determine policies for EVERYTHING. It should be very easy for the Compass to verify whether the policy to charge $20 for each photocopy was already in place back in April as the Court said then and is now saying. All you need to do is to check the existing Grand Court Rules!! Looks like sloppy reporting.

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    • As clearly stated in the story, the policy of the court (for several years) was not to charge an additional $20 for each document. So this is a case of sloppy reading on your part, not sloppy reporting. The Court recently changed that policy, stating that it’s previous policy was in contravention of its own rules.

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      • Not quite, Mr. Marchant, from what I gleaned from above and from my sources: the “policy” had not changed — rather the policy was not being put into effect in day to day practice. Over the years there had been departure from the policy based on existing rules. There is a difference between policy (based on rules) and practice.

        As the report above states: ‘Back in April… the Cayman Islands Judicial Administration maintained that there had been no change in rules, but the new measures would rectify “unintentional departures in practice over time….”‘

        So the Compass is wrong in stating that the policy had changed in April (“the policy enacted in April,” as stated above). What happened was that the departure from policy in day to day practice had been corrected by then bringing the practice in line with the implicit policy based on the existing rules.

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        • In other words, in the government environment, policy is enshrined in law, regulations, and rules. No one, not the Chief Justice, not the line workers, can change policy without first changing the rules. And if the Compass were to check, they would find that the rules did not change.

          What happened here is that there was over time an erosion of policy in day to day practice.

          The Courts said in April that it was bringing its practice in line with its policy.

          And that is a good thing — far too often civil servants fail to observe law, regulations, rules, and that creates the type of confusion and chaos that we saw in April when recognition is finally given that practice was ultra vires.

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          • Re. “No one, not the Chief Justice, not the line workers, can change policy without first changing the rules.”

            Yet the Chief Justice, Court Administrator or, at a stretch, someone else did indeed do that, as can be proven with documentary evidence from the Court itself.

            On April 18th, the Court produced a document stating that “Photocopies or the capture of documents by other means other than notation is not allowed”. I can email you a copy of this ban notice that appeared at the court-house if you want.

            This was in direct conflict with O. 63, r. 8 (3) of the Grand Court Rules, which states that “Any person shall be entitled, upon payment of the prescribed fee, to obtain from the Clerk of the Court a certified copy of any writ, originating summons, originating motion or petition contained in the Register of Writs and other Originating Process.”

            After OffshoreAlert and the Compass called the Court out on its apparently illegal act, ironic for a court of law, the Court sent out a Notice to “All Attorneys” notifying them of “the current policy regarding Court Search and Copying matters”, i.e. copying had been reinstated. The date of this notice was April 21st, yet, if you inspected the properties section of the pdf document, you will see that the document was actually created on April 26th, which raises the question of whether the court backdated the document to create the appearance that it had corrected its apparently illegal copying ban five days earlier than it actually did.

            Any way you want to slice and dice it, including arguing over semantics, the Court’s behaviour leaves a lot to be desired and the buck falls squarely with the Chief Justice.

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  2. Just one more thing — as a lawyer, though not practicing in this jurisdiction, it seems to me a little debatable as to whether a website has the right to expropriate documents from another source and publish them wholesale without explicit permission from the source to do so.

    If Offshore Alert wants to acquire the documents to reference them in its reporting, that is one thing, but claiming the right to make money off publishing a primary source’s documents without explicit permission seems rather debatable. I would be interested to see a test case on this.

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    • If any copyright exists, it could be argued that rights are waived when a document is voluntarily filed with a publicly-funded court that allows any member of the public to receive a copy without any payment to the purported copyright owner. What financial harm is occurring? What are the damages?

      In the bigger picture, do you honestly think it’s in the interests of the Cayman Islands – a country widely-ridiculed around the world for its perceived secrecy – to try to ban the publication of court filings? What message do you think this would send out to the international business community? The massive negative publicity would cause untold damage to the country’s international financial community.

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  3. It’s interesting that the Grand Court has gone from “We’ve banned the copying of all documents” to “We’re expanding the public’s access to court records” in just a few months. The phrases ‘U-Turn’, ‘headless chicken’ and ‘lack of leadership’ all easily come to mind.

    The only consistent message appears to be ‘Let’s get OffshoreAlert’.

    Which begs the question: ‘Why?’.

    Since OffshoreAlert was launched in 1997, we have an unblemished track record of exposing serious financial crime while it’s in progress. We’ve caused several criminal schemes to collapse prematurely, including many in Cayman, and helped put bad people in prison.

    In doing so, I’ve had my life threatened on more than one occasion and OffshoreAlert has been sued for defamation many times around the world, including the Cayman Islands. These lawsuits have cost OffshoreAlert hundreds of thousands of dollars to successfully defend.

    Now to our list of foes we must apparently add the Grand Court of the Cayman Islands. I never saw that one coming. Does the Grand Court – or the Cayman Islands in general – really want to identify as being anti-OffshoreAlert? Do you think that’s a good ‘look’ for the jurisdiction?

    The Court’s decision to suddenly cause problems for OffshoreAlert after several years of us copying documents without any problems is misguided, indefensible, and inexplicable.

    For the record, OffshoreAlert welcomes and encourages the court to make its cause list entries and judgments freely available online to the general public. We were clearly the catalyst for this proposed change and it’s another feather in our cap.

    However, we will fight any further attempt to block us from publishing copies of writs and other court documents, which clients of Cayman entities rely on for due diligence and asset recovery.

    The Grand Court has already made a fool of itself once on the international stage. Doing so again would be an unusual example of poor leadership.

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  4. I think that most people misunderstand the purpose of David Marchant’s website. It is there to keep the public aware of fraud that is taking place largely in all financial centers but most especially offshore centers. Amazingly he has identified major fraud long before the regulators have spotted it and taken action in their usual dilatory manner.
    Amongst others he was ahead of the Harris Panama fraud and more recently warned all about the Alan Stamford fraud emanating from Antigua long before any one hand a clue about it.
    His firm is a serious cog in fighting financial crime and he should be respected for it. In this day and age transparency is vital and in my opinion certain court documents should be made gratis to the public by the court. Fighting financial crime is the duty of both the financial community and the court and government. It is ironic that Government now wishes so much disclosure on clients of the financial community yet do not wish the public to know much about details of financial crime , details of which lie with the Grand Court.
    We need change this attitude.

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  5. Mr. Marchant, in your comment at 3:48 pm, you simply reflect the often resulting confusion that I spoke about when an agency tries to reverse a departure in practice from set policy. Now you get the old bug bear raising its ugly head — failures in communication.

    My sources tell me that is exactly what happened. Someone on the lower level issued a memo which was not properly vetted and then the second memo corrected the first one.

    No conspiracy at all “to cause problems for Off Shore Alert” — just a failure in communication and in proper administrative oversight.

    Again, the reporter can very easily determine the truthfulness of the Court’s “claim” that the reversal was to bring its practice in line with policy. Check the Grand Court Rules — the Rules determine policy — the Rules are policy.

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  6. You are misinformed.

    My sources of information include the Chief Justice himself, who sent me an email in which it was clear that the copying was aimed at OffshoreAlert, whom he accused of breaching copyright.

    This is what’s known in the journalism industry as ‘hard evidence’ and, generally in society, as ‘straight from the horse’s mouth’.

    Whoa are your sources? A friend’s second cousin once removed who knows someone who works in the Court’s mail sorting department?

    And the “Notice to Attorneys” dated April 21st was to inform them that changes had been made and that these changes represented “the current policy” of the Court, as opposed to the previous policy of not charging $20 per document.

    On another matter, I Googled ‘maizie burton lawyer’ and ‘maizie burton cayman islands’ and found no relevant hits, which is surprising if you did indeed practice as a lawyer, as you have claimed. Is that a pseudonym? Can you provide any evidence that you have ever worked as a lawyer?

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