The Grand Court Reaffirms the Foundational Importance of Pleadings in Civil Litigation

Highlighting a recent case in the Cayman Islands, [2025] CIGC (FSD) 44 – Re Rasmala Trade Finance Fund (2) (“Re: Rasmala Trade Finance Fund (2)”), HSM Partner and Head of Litigation Kerrie Cox covers an important and often overlooked distinction between court pleadings and affidavits.

Court pleadings are formal legal documents filed by each party to set out their claims, defences, and overall positions in the litigation. They define the issues in dispute and establish the framework within which the court will determine the case.

By contrast, affidavits are formal evidentiary documents intended to support each parties case as defined in the pleadings. Their primary function is to provide factual evidence relevant to the issues already pleaded. They should remain within the scope of the pleadings, adhere strictly to matters of fact, and are not the appropriate vehicle for introducing new claims or allegations that have not already been formally pleaded. Their role is to support the case – not to ambush the opposing party by raising new allegations for the first time.

Occasionally, affidavits stray beyond the scope of the pleaded issues, and in some cases may introduce serious, unpleaded allegations such as fraud or dishonesty. This is procedurally improper. Such conduct risks exceeding the permissible evidential boundaries of the case and may give rise to procedural unfairness, particularly where the opposing party has not been given adequate notice through the formal pleading process.

Exception

By virtue of Order 18, rule 12(2) of the Grand Court Rules (GCR), the court has discretion to order that an affidavit stand as a pleading. The rule provides:

“…the Court may order a party to serve on any other party particulars of any claim, defence, or other matter stated in that party’s pleading, or in any affidavit of that party ordered to stand as a pleading, or a statement of the nature of the case on which the party relies…” [emphasis added]

This means that an affidavit, in and of itself, does not constitute a pleading. However, if the court expressly orders it, an affidavit can be treated as such, effectively elevating its contents to the same procedural and legal status as a formal pleading.

This power is typically exercised in exceptional or procedural circumstances where, for example, the affidavit is being used to define a party’s case in lieu of (or in addition to) a formal pleading. Importantly, unless such an order is made, allegations raised in an affidavit that are not already pleaded carry no procedural weight and cannot expand the scope of the issues before the court. This principle helps to preserve fairness and clarity in litigation by ensuring that the parties are bound by the issues formally raised and notified in the pleadings.

Conventional remedy available

Absent of the exception above, a party who is the subject of new and unpleaded allegations introduced through an affidavit may seek relief by applying to the court to strike out the offending portions under Order 41, rule 6 of the GCR. This rule empowers the court to strike out from an affidavit:

“any matter which is scandalous, irrelevant or otherwise oppressive.”

This ensures that the evidential record remains confined to properly pleaded issues and protects the opposing party from procedural unfairness. Such an application should be brought promptly and ideally well in advance of trial to allow the court to address any potential prejudice or imbalance in the proceedings.

Re: Rasmala Trade Finance Fund (2)

The case concerned a winding-up petition brought on a just and equitable basis against the Rasmala Trade Finance Fund (Fund), for which the trial was scheduled to begin on 21 May 2025.

On 23 April 2025, the Fund filed a summons seeking to postpone the trial, citing new and serious allegations – some bordering on dishonesty – raised by the Petitioner in a late affidavit (4^th affidavit of Mr. Trikha).

The Fund’s Position

The Fund argued that these allegations, which were not pleaded in a previously amended petition, would unfairly ambush it at trial without giving it adequate time to respond. The Fund sought to vacate the trial and applied that the Petitioner be directed to file a re-amended petition to formally plead all new allegations – particularly those involving fraud, negligence, misrepresentation, and willful default – citing O.18, r.12(2) (as set out above) and O.20, r.8(1), GCR:

“A party must in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality –

(a) which the party alleges makes any claim or defence of the opposite party not maintainable; or

(b) which, if not specifically pleaded, must take the opposite party by surprise; or

(c) which raises issues of fact not arising out of the preceding pleading.

The Fund maintained that fairness demanded clarity and an opportunity to answer the new claims properly before trial.

The Petitioner’s Response

The Petitioner resisted the adjournment and challenged the court’s jurisdiction to make the type of order sought by the Fund. Principally, it was submitted that O.18, r.12(2) GCR was not applicable since the affidavit had not been ordered to stand as a pleading.

As for GCR O.20, r.8(1), the reported submissions of Counsel – whilst acknowledging the broad requirement for the content of pleadings – were grounded in a fundamental procedural principle: namely, that it is the role of the Judge to determine the issues identified and framed by the parties, not to compel a party to pursue a case they have chosen not to plead.

The Court’s findings

The Judge sided largely with the Petitioner on legal principle, concluding:

• The court lacks jurisdiction to compel a party to amend its case merely to reflect evidence that has not been previously pleaded.
• The proper route for the Fund would have been to apply to strike out irrelevant or scandalous parts of the 4^th affidavit of Mr. Trikha under GCR O.41, r.6. No such application had been made.
• While the Fund’s desire for procedural clarity was understandable, the solution did not lie in a court-ordered adjournment or compelled amendment.

Importantly, the Judge clarified that any attempt to introduce new or unpleaded allegations – whether found in the 4^th affidavit of Mr. Trikha or elsewhere – would not be permitted.

Conclusions

The ruling in Re: Rasmala Trade Finance Fund (2) reaffirms the foundational importance of pleadings in civil litigation. It warns litigants against attempting to raise serious and complex allegations (such as fraud or dishonesty) for the first time in late-stage affidavits, without appropriate amendments to their pleadings. Additionally, this decision reflects a firm stance by the Cayman Islands’ court on procedural integrity and the discipline of litigation.

Interestingly, although the Fund’s application was dismissed on procedural grounds, it ultimately achieved a more favourable outcome. Instead of simply obtaining an order requiring the Petitioner to re-amend its pleadings, the Petitioner was effectively prohibited from advancing the new allegations set out in Mr. Trikha’s fourth affidavit altogether.