Smellie CJ
IN CHAMBERS
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CAUSE 665 OF 1998
BETWEEN: HAMPSHIRE COSMETIC LABORATORIES
AND: DOREEN GRAY
AND: CAYMAN NATIONAL BANK
Appearances:
Mr. Diarmond Murray of Walkers for the plaintiff
Mr. James Chapman of Boxalls for Mrs. Gray, the first defendant
Mr. Phillip Boni of Truman Bodden & Co., for the second defendant
RULING
This is a novel application by the plaintiff Mrs. Doreen Gray for an order directing the plaintiff to return confidential information which was discovered in these proceedings and subsequently disclosed by consent for use in the English proceedings.
The disclosure in the English proceedings allowed onward disclosure to many other parties besides the plaintiff then.
The plaintiff accepts that this court has no jurisdiction to order those other parties there to return the information.
She remains primarily concerned about the information in the hands of the plaintiff, less so about it being in the hands of the defendants in the English proceedings whom Mr. Chapman representing her described as being "on her side".
The English proceedings have since been settled but without any provisions being made for the return of discovery material.
I conclude that I may not make the order which the plaintiff seeks.
Mr. Murray for the plaintiff has mentioned practical difficulties in recovering the material from the warehouse where it is stored with all the other discovery material in the case and of identifying it and collating it from amongst the many thousands of other documents in the case and then, of course the costs of returning it to Mrs. Gray in Cayman.
However, I consider the matter to be governed by the implied undertaking not to use discovery material for any purposes except that for which it is given; ie: in this case in the Cayman proceedings and in the English proceedings where it has been disclosed by an order made with the consent of Mrs. Gray.
The plaintiff is enjoined by the undertaking implied by rules of Court and the common law and is liable in contempt for any breach of it. This is a matter of trite and settled law and the subject of several decisions of this court.
See, for instance, Codelco v Duetsch – Sudameri Kanische Bank A.G. 1999 CILR N.4 and Laager v Krueger 1997 CILR 311
There is no suggestion that the plaintiff has acted or intends to act in breach of the undertaking.
By way of compromise of Mrs. Gray's concerns Mr. Murray on the plaintiff's behalf has offered to confirm the plaintiff's understanding of its obligations to the court by giving an express undertaking. He would agree to this provision being held in the consent order by which the Cayman proceedings are to be dismissed now that the English proceedings have been settled.
I intend to direct that that written undertaking be given.
I must specifically note that I do not accept Mr. Murray's earlier suggestion that the discovered material became the property of his client because they paid for the costs incurred in obtaining it.
The information in it remains the confidential information of the party who provided it; ie: Mrs. Gray.
This is notwithstanding that the actual costs of reproduction would have been paid by the plaintiff (and others) who obtained copies.
Even more important to my mind to the consideration that the implied (now to be expressed) undertaking must take effect so as to operate upon the very material which has been discovered and to which it relates.
Any suggestion of a proprietary interest in the material in favour of the party obtaining it under the conditionality of the undertaking would be contrary to that principle.
The ownership or custody is irrelevant and the duty to the court is paramount.
ANTHONY SMELLIE
CHIEF JUSTICE
DATED THE 12TH DAY OF JUNE 2000.