Grand Court gets six divisions

Chief Justice Anthony Smellie announced plans for a commercial division of the Grand Court at the court’s ceremonial opening on Wednesday.

Chief Justice Anthony Smellie

Chief Justice Anthony Smellie

He said this division will take charge of the more complex civil cases in the Grand Court.

‘The division will be styled ‘The Financial Services Division’ and there will be five other divisions designated for the general work of the Court: civil; criminal; matrimonial/family; admiralty; and probate and administration,’ the Chief Justice explained.

Draft rules of court have been prepared and are to be finalised, with commencement expected early in the year.

The emphasis for the Financial Services Division will be on more dedicated and robust case management, the Chief Justice said. ‘This, it is hoped, will be achieved by the assignment of specific cases to specific judges who will be assured of having the time to deal in a more focused manner with these cases from beginning to end.

‘With the assistance of a cadre of acting or pro tem judges, these cases will come to be managed without the interruption and distraction of judges having to alternate, as in the past, between the commercial and other types of cases from day to day or week to week.

Plans for the Financial Services Division include the dedication of registry staff that will provide judges working in that division with the necessary administrative support to ensure the more effective management of those complex and often bulky commercial cases.’

He shared statistics on the numbers of cases dealt with in various courts. There were 850 civil and commercial cases filed in Grand Court in 2008, compared with 1,030 in 2007. The 850 included 215 divorces and 154 estate cases.

Criminal cases before the Grand Court in 2008 totalled 188, with 106 disposed of and the rest still pending.

In the Summary Courts there were 1,506 criminal charges – excluding traffic charges. This was an increase of 102 from the previous year. The Chief Justice was encouraged by the number of cases disposed of – 1,421, compared with the 1,013 in 2007. He expressed appreciation to the Legal Department, defence attorneys, magistrates and registry staff for their continued stalwart efforts in reducing the backlog of cases.

‘It must be observed, however, that despite these results, the sheer number of criminal cases coming before the courts continues to demand unrelenting response.’

The Summary Courts also dealt with 568 civil matters, including 101 cases of maintenance and affiliation.

The Chief Justice regretted having to report that the budget submission for legal aid had been cut in half again, with the result that the funds ran out halfway through the fiscal year, just as in the past.

‘Now that the Law Reform Commission, after a very exhaustive survey, has reported that the legal aid system represents good value for money, I trust the Finance Committee will be more sanguine about its acceptance of the budgetary submissions,’ he commented.

He closed his address with a renewed intention to break ground for a new Courts Building in July. He reported architectural plans to be at an advances stage with final approvals obtained and tendering for construction bids to come.

Attorney General Samuel Bulgin spoke first to move the opening of the new session. He called 2008 a daunting year for the legal profession, but one characterised by good work, cooperation and significant progress toward systemic improvements.

He noted important legislation in 2008: the Tobacco Law, Anti-Corruption Law and a revised Proceeds of Criminal Conduct Law.

Some of government’s proposals to be implemented by legislative measures in 2009 include:

‘The criminalisation of discrimination in connection with employment and the provision of goods.

‘Better regulation of the adoption of children.

‘Revision of the law relating to education.

‘Clarifying the law relating to the criminalisation of child pornography.

‘Introducing legislation in respect of miscellaneous financial matters, with a view to securing the position of the Cayman Islands as a top off-shore investment jurisdiction.

‘Reviewing legislation with respect to parole matters.

‘Improving the administration of the prisons.

‘Also legislation aimed at establishing an office of disaster preparedness and emergency management will be in place to cope with emergency situations affecting the Cayman Islands.’

Mr. Bulgin pointed out that the public has until 15 January to submit comments on the Legal Aid Report by the law Reform Commission. The Commission also concluded consultation work on the Residential Tenancies Bill and submitted its final report, which is to be considered by Cabinet shortly, he advised.

With the appointment of a Chief Magistrate, Mr. Bulgin said, there has been a sustained effort to change the Summary Court system with Tuesday mention courts and trial courts three days per week. Although this arrangement was still in its pilot stage, he had already seen a speedier disposal of cases.

President of the Cayman Islands Law Society Charles Jennings was off island and had his speech ready by Attorney Alasdair Robertson.

Mr. Jennings said Cayman in 2008 had to deal with extraordinarily volatile financial market conditions worldwide as well as local controversies. The US incoming administration is threatening so-called anti-tax haven legislation, while the OECD is producing ‘yet another list, this time of cooperative jurisdictions and green rather than black.

‘Cayman needs to try as hard as it can to be on that list, not off it, and indeed the Government has already taken swift legislative steps in that direction only a few weeks or so ago by allowing Cayman to establish a unilateral mechanism for the exchange of tax information with other jurisdictions. That was a bold step, but one I believe in the right direction,’ Mr. Jennings said.

He referred to the legal profession’s role of reviewing and helping the introduction of new legislation, both domestic and offshore.

‘As regards offshore financial matters, the legal profession contains a higher proportion of specialists in areas such as structured finance, investment funds, insurance, banking, trusts and corporate commercial matters than probably any other jurisdiction in the world, onshore or offshore…. Their expertise should never be ignored, but rather should be harnessed by Government for everyone’s good.’

He urged the passage of the Legal Practitioners Bill along with a Code of Conduct generated by the Law Society and Caymanian Bar Association.

CBA president James Bergstrom also referred to the bill and code of conduct. He said the two legal fraternities were frustrated by lack of progress. ‘Each day it is not dealt with is a day of continued reputational risk for these Islands and loss of revenue for the Government,’ he asserted.

Mr. Bergstrom outlined challenges for the financial industry. He suggested continuing negotiations for bi-lateral tax information exchange agreements with all jurisdictions with which Cayman has significant business relations; repealing the Confidential Relations (Preservation) Law and replacing it ‘with legislation consistent with previous common law and data protection regulations more akin to data protection legislation in the US and UK’.

He said Cayman should build on the recognition by the US Government Accountability Office’s report recognising Cayman as co-operative and willing to adopt international standards on cross-border exchange of information.

Mr. Bergstom said the logjam on commercial and financial services legislation must end and there should be a way of fast-tracking critical bills.

‘The Government must recognise the level of contribution of the financial industry to the economy of these Islands, which now significantly exceeds the contribution from tourism, and commit the necessary resources to sustain and grow the industry,’ he said. ‘The first step in this process is to have an elected Minister with the financial services industry as his or her primary portfolio.’

Attorney Colin McKie, consulting editor for the Cayman Islands Law reports, spoke on behalf of his colleague Ramon Alberga, who took a back seat. Mr. McKie said the courts in 2008 delivered 97 rulings, which he believed was a record. He said the Law reports now contain 1,400 reported judgments. Those from 1992-2007 are now available on-line; previous years will be available shortly.

The Grand Court ceremony closed with a moment of silence in memory of attorneys who died during 2008: Stephen Hall-Jones, Jonathan Tarboton, Warren Conolly and William Walker.

Along with attorneys, court staff and guests, attendees included Chief Secretary George McCarthy; Financial Secretary Kenneth Jefferson, Minister for Works Arden McLean and Acting Commissioner of Police James Smith.