Cayman Grand Court reaffirms the high threshold for any derogation from the principle of open justice

Open justice is a fundamental cornerstone of Cayman Islands law and derogation from it will only be permitted in exceptional circumstances in commercial litigation.

This has been reaffirmed in the recent Court decision published on 23 July 2026 in the case of Fundbank Ltd v Accurso [2026 CIGC (Civ) 9] (Fundbank Ltd v Accurso), where the Court considered an application for various sealing and confidentiality orders.

The guidance given in Fundbank is consistent with that given in previous Cayman jurisprudence, including in a decision published on 25 July 2025 in Jafar v Abraaj Holdings and others [2025 CIGC (FSD) 69] (Jafar v Abraaj Holdings), where the Court considered an application to prevent publication of a trial judgment pending appeal.

Case overview: Fundbank Ltd v Accurso

In Fundbank v Accurso, Fundbank (the Plaintiff) issued a claim against its former employee alleging breach of contract and fraud. Laura Accurso (the Defendant) denied the claims and issued an application seeking orders to seal the Court file to prevent public access to the pleadings, and / or anonymisation of the parties.

The Defendant argued that publication of the proceedings would:

1. cause the Defendant serious reputational harm

2. undermine contractual confidentiality obligations contained in a settlement agreement

3. potentially affect the interests of a minor referred to in the pleadings

Hon. Justice Walters (Actg.) dismissed the application and held that the Defendant had not demonstrated exceptional circumstances sufficient to override the fundamental principle of open justice. In relation to each of the three grounds upon which the application was based, the Court held the following.

Damage to reputation

Citing previous Cayman authorities, including Re Silicon Valley Bank (Cayman Islands Branch) (FSD 0163 / 2023 (DDJ) at [23]-[38]) and In the Settlement of the Julius Baer Trust Co. Ltd (FSD 0054 / 2018 (IKJ)), the Court held that the prospect of damage to reputation as a result of litigation is unlikely, of itself, to justify a derogation from open justice, even where serious allegations of fraud are made.

Referring to China Index Holdings (FSD 0201 / 2023 (IKJ) at [89]-[113]), Justice Walters held that the size of the jurisdiction does not increase the risk of reputational harm to justify confidentiality orders.

Confidentiality agreements

The Court held that parties cannot contract out of open justice and the contract in question contained no arbitration clause. To justify sealing on the grounds of confidential information, the information must be identifiable, important and not itself the subject matter of the proceedings (AHAB v Saad Investments Ltd [2011 (1) CILR 326]). The terms of the settlement agreement in Fundbank Ltd v Accurso formed part of the substantive dispute and therefore sealing or confidentiality orders to prevent disclosure were not justified.

Welfare of minors and proportionate remedies

The Court acknowledged that Section 7 of the Cayman Islands Constitution provides for protection of the welfare of minors. The Court found that the inclusion in the endorsed writ of summons of multiple references to a minor was undesirable and should have been avoided, particularly in circumstances where the third party had only passive, circumstantial involvement, was not a witness, was not accused of wrongdoing and whose identity was wholly irrelevant to the case.

While refusing to seal the entire file and anonymise the parties, the Court ordered the:

• redaction of references to the minor in the pleadings

• publication of the redacted pleadings

• sealing of the original unredacted pleadings and associated materials

The approach serves as a useful reminder that derogation from the principle of open justice is exceptional and even when there is a legitimate interest to protect (such as the protection of the welfare of a minor under section 7), the Court will generally favour a measure which protects the interest in question but is least intrusive to open justice.

Case overview: Jafar v Abraaj Holdings

In Jafar v Abraaj Holdings, the Plaintiff issued claims against four Defendants - one of whom was represented by Ogier - for deceit and enrichment without cause. Following an extensive eight-week trial, the Court dismissed the Plaintiff's claims.

Read more about the comprehensive judgment here: Ogier successfully defends multimillion dollar Abraaj fraud claim.

The Plaintiff argued that the publication of the liability judgment, the first half of a 938-page trial judgment, would cause irreparable reputational, commercial and financial harm.

The Plaintiff advanced two jurisdictional grounds for the prohibition on publication:

1. that a real risk of irreparable harm to himself and non-parties, balanced against a limited and short-term restraint, justified an exception to the open justice principle.

2. that the Court had an inherent (case management) jurisdiction to stay publication pending appeal, analogous to maintaining an injunction pending appeal.

The Court addressed the grounds advanced by the Plaintiff in the following manner:

Risk of irreparable harm

The Court held that allegations of reputational damage and adverse publicity are generally ordinary incidents of litigation. Parties who choose to litigate publicly must ordinarily accept the risk of adverse findings being published, subject to the corrective function of the appellate process. If a judgment is later overturned, the Court of Appeal's public decision will ordinarily provide the appropriate remedy.

The Court accepted that a real risk of severe commercial or financial harm can be relevant and carry weight, but only where the risk is sufficiently established and cannot be said to have been reasonably expected. As the Plaintiff had not been able to meet this threshold, the application on this ground was dismissed.

Staying the publication of a judgment

Citing Maples Corporate Services Limited and another v Cayman Islands Monetary Authority (2023 (1) CILR 467), the Court reiterated the strong presumption in favour of publication, especially of judgments following public trials. While the Court accepted that it possesses a limited jurisdiction to postpone publication in exceptional cases, restrictions on publication require clear and compelling justification.

Although the Court granted permission to appeal its decision dismissing the application and imposed a 35-day prohibition on publication pending that appeal or any interim measures granted by the Court of Appeal, the Plaintiff did not ultimately proceed with any appeal from this decision. Therefore, the temporary stay was automatically lifted once the appeal was withdrawn.

Key takeaways

Fundbank v Accurso and Jafar v Abraaj Holdings demonstrate a consistent judicial approach. In summary, the starting point is that open justice is a fundamental principle which is enshrined in the Constitution. To override this important principle, the burden rests on the applicant to establish that the form of confidentiality order sought is necessary and in the interests of justice.

Allegations of fraud, reputational harm and embarrassment will rarely be sufficient on their own to justify confidentiality orders.

When it comes to sealing orders:

• on their own, confidentiality and non-disparagement clauses will not provide the requisite justification

• where protection of an interest is justified, the Court is likely to adopt measures that are the least intrusive to open justice

In the context of orders prohibiting publication of judgments, applications following public trials will be carefully scrutinised and will rarely be granted absent exceptional circumstances.

These decisions confirm that the Cayman Court remains committed to upholding the principle of open justice while being prepared to protect genuinely sensitive interests where the administration of justice requires it. They serve as a useful reminder that parties seeking confidentiality orders should carefully consider whether they can demonstrate a compelling basis for departing from the fundamental principle that justice should be administered in public. 

Litigants seeking confidentiality protections face a substantial evidential burden. Parties who anticipate that publicity may be commercially or otherwise damaging should be advised to incorporate appropriate alternative dispute resolution mechanisms (such as arbitration clauses) into any agreements which are designed to govern future conduct, although as Justice Segal observed in Jafar v Abraaj Holdings arbitration may often not be an acceptable and practicable option in large fraud cases.

How Ogier can help

Ogier has one of the largest Dispute Resolution teams in the Cayman Islands, advising on technical, strategic and procedural aspects across the spectrum of contentious commercial issues and disputes. For more information on this topic or to find out how the firm can advise you in this area, contact your usual Ogier contact or one of the authors of this article.

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Disclaimer

This client briefing has been prepared for clients and professional associates of Ogier. The information and expressions of opinion which it contains are not intended to be a comprehensive study or to provide legal advice and should not be treated as a substitute for specific advice concerning individual situations.

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