Open justice and privacy: Confidentiality orders in trust proceedings

The Grand Court of the Cayman Islands has provided a succinct restatement of the established principles governing confidentiality applications in Cayman Islands trust proceedings. A recent judgment confirms that, while the principles of open justice provide a starting point, the privacy considerations in internal trust disputes will often justify granting confidentiality orders.

The English tide (which the Grand Court commented some may describe as a potential tsunami) of open justice appears to be building up at a fast rate. However, insofar as private trusts are involved, the courts of the Cayman Islands have continued to do their best to ensure that they legitimately treat proper privacy and confidentiality concerns in private trust cases as an appropriate exception to the important principle of open justice.¹

In a recent judgment,² Chief Justice Ramsay-Hale considered an application by a trustee for anonymisation and related confidentiality orders in advance of proposed trust proceedings. The Court emphasised that open justice is a fundamental constitutional and common law principle, but one which is not absolute and may be departed from where it is ‘necessary or expedient in the interests of justice‘.³ This includes, in particular, cases involving the protection of private lives, the welfare of minors, and confidential financial or commercial information.

The Court reaffirmed that internal trust proceedings will often justify confidentiality orders where privacy interests are engaged and there is no countervailing public interest. Such proceedings typically involve inherently private material, including the financial affairs of individuals, the structure and administration of trusts, the identity and the status of beneficiaries (including minor beneficiaries).

The Court recognised that, particularly in an offshore trust context, there may be legitimate concerns around privacy and even personal security which support the grant of confidentiality protections, absent any wider public interest being engaged. Conversely, the Court reiterated that confidentiality will be more difficult to justify where there is a countervailing public interest in transparency, such as in cases involving allegations of misconduct, regulatory or tax issues, or other matters of broader public importance.

The Grand Court identified three key questions that the Court must ask when considering confidentiality applications:

• whether the case falls within a recognised gateway for derogation from open justice;
• whether the confidentiality measures sought are necessary and proportionate; and
• whether there exists any countervailing public interest sufficient to outweigh the privacy interests engaged.

Applying those principles, the Court was satisfied that the application concerned a private internal trust dispute, engaged significant privacy considerations, and raised no countervailing public interest. Confidentiality and anonymisation orders were therefore granted, including sealing of the court file, private hearings and anonymised publication of any judgments.

Conclusion

This decision provides a timely reminder that, notwithstanding the increasing emphasis on open justice in common law jurisdictions, the Cayman Islands courts continue to recognise the unique privacy interests that arise in the trust context. While confidentiality orders will not be granted automatically and must be justified by reference to necessity, proportionality and the absence of a countervailing public interest, the judgment confirms that appropriate protections remain readily available in genuinely private internal trust proceedings. Trustees and beneficiaries can therefore take comfort that the Cayman courts remain committed to balancing transparency with the legitimate confidentiality expectations that underpin private trust structures.