Questions raised over Commercial Court

Chief Justice Anthony Smellie	Wayne Panton, President, CBA,

Monday,  February 7, 2006

When the Chief Justice of Bermuda, Richard Ground, recently lauded that country’s new Commercial Court as “possibly the first such specialist court in any offshore financial centre in the world,” President of the Cayman Bar Association (CBA), Wayne Panton, speaking about Bermuda’s move, said he regretted the fact “that Bermuda has taken the lead on Cayman with this.”

According to one member of the legal fraternity, offshore financial centres like the Cayman Islands have to deal with a range of financially complicated disputes and, a Commercial Court provides a system of specialized, dedicated judges to deal with such matters.

“A Commercial Court provides foreign investors as well as the banking and the business communities with a greater confidence about the country’s potential for high-quality dispute resolution in those areas,” said the legal expert.

According to Mr Panton, having such a specialized court system helps jurisdictions like ours that play a leading role in the area of offshore funds. 

“A Commercial Court is among the next possible, and most significant step that can be taken on the road to our maintaining that leading position,” Mr Panton added.

Lawyers here have expressed hope that there will be a Commercial Court. Charles Jennings, President of the Cayman Islands Law Society said, “Lawyers here have been asking for it.”

Another very senior member in the fraternity here explained that we don’t have a specific court for commercial matters and it is a subject that is being discussed.

“Commercial lawyers would say that it is advantageous to have judges who solely undertake commercial work and are highly experienced in this area,” he noted.

“I don’t know how far discussions have gone but I know that the Cayman Islands Law Society is in the process of putting something (views) together on the Commercial Court.”

The court in the British Virgin Islands (BVI) is “similar” to the Court in Cayman, according to one member of the legal fraternity there. And, even in that country the prospect of a Commercial Court is, according to another member of the BVI legal fraternity, “very much a matter of the moment.”

Speaking very clearly on the matter the BVI lawyer said, “Do we have a Commercial Court? No. Are we looking at it? Yes.

“Over the last two years there have been two reports, one from the Chief Justice and the other from the Government, and, based on the reports, there is clearly evidence that a cross-section of the business and commercial, along with the Government sectors, support the move for a Commercial Court in some form or another.”

Bermuda’s Commercial Court was formed on 1 January 2006 and its legal framework is modeled on the English Commercial Court – described by Bermuda’s Chief Justice Ground as “one of the best-respected specialist courts in the world.”

A Bermuda Royal Gazette report on that country’s new court stated, “Commercial lawyers had lobbied for years for the court system to be modernised to better serve international business.”

It also stated that Government pledged its support to the move towards the new Court – one that was engineered by an Attorney General-appointed Justice Review Committee.

However, based on Cayman’s Chief Justice Anthony Smellie’s presentation at the Opening of the Courts for the year 2006, and, on his other comments surrounding the question of a Commercial Court for Cayman – when positioned against CBA, CILS and other lawyers’ views – the matter may be up for considerable debate in the future.

Speaking with Cayman Net News, Chief Justice Anthony Smellie said that Cayman already has a system in place to deal with legal commercial matters.

“We have always had a Commercial Court here, it is just that we don’t call it that,” he said.

“When we appoint judges to the Grand Court we have always ensured that we appoint judges with sufficiently diverse backgrounds to handle commercial matters.”

Another point he made in defense of Cayman’s current system of dealing with commercial cases related to the length of hearings.

This was one point that underpinned Bermuda’s move to a commercial court to cut proceeding times.

Mr Ground said the use of specialist judges is designated to abbreviate the length of hearings and the time within which judgments are delivered.
Chief Justice Smellie inferred that as there have been no significant delays in the disposal of these cases here mean we don’t need a commercial court.

“Indeed, the absence of delays is a fact to be emphasized in the context of our continuing success as a financial jurisdiction. For the past several years I have been able to report on these occasions that a trial of a complex civil or commercial matter can be listed within six months of commencement of action,” he noted.

He said that the Cayman Islands had succeeded in keeping times down even though the courts have seen an average of more than seven hundred such cases each year. 

“In fact, since the beginning of 1998, a total of 5164 civil and commercial cases have been taken in the Grand Court. This is an extraordinary rate of disposal…taking account also of the scope and volume of the rest of our business,” said the Chief Justice.

He added that he felt considerations for the introduction of a commercial court have not been fully articulated.”

He did acknowledge, however, that the absence of delays was no reason not to do what “seems sensible” and put in place a structure that would “ensure our continuing ability to maintain or even improve upon our rate of disposal.”

He said that an experienced professional in courts administration had been engaged last year and the consultant found, “what we already know, which, is that our civil justice administration system is efficient.”

Mr Smellie noted that following on the consultant’s visit the conclusion reached was for the establishment of “administrative divisions, including a commercial division of the Grand Court.”

Justice Smellie told Cayman Net News that this move would only address the “better management at the administrative level” and be geared towards supporting the delivery of “continued high standards of judicial legislation.”

However, many members of the fraternity here underscored the importance of the “perception of highly specialized judges” for foreign investors and the financial community to continue their associations with Cayman.

The Chief Justice has however, acknowledged this point and said that he “discerned the sentiment” that such a court would “help to enhance our image as a sophisticated financial centre.”

However, what legal fraternity members here are focusing on is not so much the rate of disposal of cases but the high quality of the work inside a fully dedicated commercial court environment.

They further substantiate this point with the fact that the Chief Justice, himself, spoke recently about Cayman’s moves towards dedicated Gun and Family Courts.

As such one person said we are moving towards specialized Gun and Family Courts. That is not to say we have not been trying and dealing adequately with gun and family-related cases. But we have now seen the need for specialization in those areas.

“Specialization in any field has its benefits. It is the same way that we see benefits accruing with specialization in commercial matters here,” said the legal expert.

    Back...