Section 7 of the Cayman Constitution says that everyone has a right to have their legal rights and obligations determined by a court. But it could as well have said that only people who have a lot of money have that right.
This is because the rule in Cayman (as in the U.K.) is that if you lose a case, you have to pay the legal costs reasonably incurred by the winning party, in addition to the fees to your own lawyer.
This general rule is somewhat ameliorated by certain discretions which allow a court to order that the parties bear their own costs or that particular costs be disallowed. However, you cannot bank on these discretions since, after you lose, you have to give acceptable reasons to the court as to why you should not pay all or some of the costs of your opponent. Niceties aside, from a practical perspective, if you lose, expect to pay.
This rule can be very unfair especially as it relates to cases where the Attorney General is a party, which is pretty much every proceeding against core government. The reason is that the rule does not apply to the Attorney General in the same way it applies between private litigants.
The cumulative effect of at least three court rulings in Cayman dating back to 1999 is that a court cannot award costs against the Attorney General unless he has brought or defended a case that is clearly unarguable or which amounts to an abuse of process. In plain English, it is virtually impossible to get an order for costs against the Attorney General even if he loses, but he can get a full order for costs against you even if you had an arguable case. In a sense, you are being punished for having failed to predict that you would lose.
By the way, attorneys charge according to a graduated scale, based on the number of years of experience. The maximum rates range from US$280 per hour for the least experienced lawyers, rising to US$540 per hour for the most experienced. Some QCs have been known to charge in the region of US$800 per hour. Attorneys’ charges for matters that go to the Financial Services Division and the Admiralty Division are even higher, ranging from US$320 to US$900 for every 60 minutes. As a result, if you want to bring judicial review proceedings, you must in general have at least US$75,000 to pay your own lawyer. Double that if you lose.
This is most unjust. Despite the discretions that the courts in Cayman can exercise, it seems to me that they are particularly loath to order that each party bear their own costs even where the losing party had an arguable case.
The ultimate solution, however, is a legislative measure that will change the default position so that costs can also be awarded against the AG if he loses. After all, he is expected to have better knowledge of the law than most lawyers, let alone litigants. To borrow from George Orwell’s Animal Farm, why should he be more equal than others? Besides, at least in cases brought against the AG, I think costs should only be awarded where a party suing the AG never really had a chance of winning.
Attorney at Law, Formerly Senior Legislative Counsel, Portfolio of Legal Affairs