Chief Justice’s Remarks on the Opening of the Courts
January 4th 2006
On behalf of the Judiciary and the Judicial administration, I welcome and thank each
of you for showing us the courtesy of taking time to share in this occasion.
I first of all thank Pastor Al Ebanks of the Agape church for his inspiring prayer
which so appropriately reminds us of the higher calling to which we must all respond.
And to his wife, Mrs. Ebanks, welcome.
I note in particular, the presence of the Hon. Leader of Government Business, the
Hon. Chief Secretary and Mrs. McCarthy, the Hon. Ministers McLaughlin, McLean, Eden,
and Clifford, and the Hon. Financial Secretary, and thank each of you for the support
for the administration of justice which your presence so importantly symbolizes.
I must also immediately welcome the Commissioner of Police (and Mrs. Kernohan) to
this, which we expect will be the first of many openings of the court. Through you,
Commissioner, please allow me also to convey on behalf of the administration and
indeed, the public on whose behalf we all serve, gratitude and appreciation to your
fine men and women in uniform for their resplendent guard of honour. Everyone will
understand the importance also of their demonstration of support for the role of
the administration of justice in the rule of law.
I now invite the honourable Attorney General to make the motion for the opening of
the legal year and other counsel to give their support in turn to the motion.
Ex temporare responses were made to the speeches of
1. The Hon. Samuel bulgin, Q.C., Attorney General
2. Mr. Wayne Panton – President of the Caymanian Bar Association
3. Mr. Charles Quin, Q.C. (on behalf of Mr. Charles Jennings, President of the Law
Society)
4. Mr. Ramon Alberga, Q.C. (at the invitation of the court)
The Report
As our society continued its remarkable recovery in the aftermath of the hurricane,
activity in the courts in various ways reflected, as it always does, the social
milieu.
But while there were some property disputes as between landlord and tenant, buyer
and seller, chargor and chargee and some highly publicised actions – such as the
Dyoll and Indies Suites matters; there happily was not the deluge of insurance or
other storm related actions which were widely anticipated.
Instead, as the statistics to be cited later will demonstrate, it was in the main
a typical year for litigation in all categories across the board, save one – the
number of applications for the general and limited admissions of attorneys at law
to practice in the jurisidction. There were 70 general admissions up from 49 in
2004, and 77 limited admissions, up from 39 in 2004 – in each category the largest
single annual increase ever recorded. As a result, there are now 472 attorneys generally
admitted to practice in the Cayman Islands.
I think the continuing expansion of the legal profession is a welcome sign of the
growth of our offshore services industry, as the applicants almost invariably attest
to the intention to work in the capital markets sector. This is a point well made
in Mr. Quin’s presentation on behalf of the President of the Law Society, Mr. Jennings.
The same forces of demand and supply would, however, also suggest a growing demand
for locally trained attorneys in that sector of the industry; but this, unfortunately,
is not represented in the number of them being employed there. As Chairman of the
Legal Advisory Council having oversight of the excellent training programme being
delivered by our law school and oversight of certain other aspects of the profession,
I believe that earnest and objective consideration needs to be given to the reasons
for this tendency.
Also, from the point of view of the Judiciary as a whole, we believe that thought
needs to be given to the reason why so few of the large numbers being admitted to
practice are coming to practice at the criminal bar.
While we are perennially appreciative of the sterling service given by our few and
able criminal practitioners, we must renew the appeal for more of you to do this
vitally important work. The statistics referencing the number of criminal cases
will clearly demonstrate the need.
At 77, the even larger number of limited admissions to the bar, tells a different
but equally interesting story. These, as the attorneys who practice at the bar will
know, reflect the increasing number of leading counsel who are brought in to argue
the more difficult and complex civil and commercial cases which as a distinct category,
are themselves always increasing in number. While this also positively reflects
upon the increasing sophistication of the jurisdiction and its recognized ability
to resolve important disputes in a timely and acceptable manner, it also, of course,
translates into greater demand for court and judges’ time and greater administrative
responsibility for court staff. It also directly contributes to the need for bigger
infrastructure.
In respect of many of these cases which create such disproportionate demands upon
the justice system, very modest fees are paid to the public coffers. This is a disparity
which we anticipate will shortly be redressed by a new fee structure which has been
recommended to cabinet.
The further matters to be reported on will by now be regarded as recurring subjects
of note. This year however, and with some basis in reality, I think they are to
be seen as coming to fruition. As the person year after year responsible for renewing
the pledge embodied in these initiatives, I trust that in time, my optimism will
be vindicated as something more than merely “hope resting eternal in the human breast”.
New Courts Building Project and Family Court
Recently, in his contribution to the budget debate, the Hon. Leader of Government
Business informed the public that the funding for the courts building project will
be included in the capital acquisitions for the restoration and new development
of government buildings.
As I explained last year, the site for the building is already largely acquired and
the remainder soon to be acquired. That acquisition process is not yet complete,
but I am assured soon will be.
There is one further aspect of this project which should be mentioned now: Experience
before our courts has shown that the cases involving the care and protection of
our children and young adults are by no means as effectively dealt with as they
should be. From my own observations and experience, one major cause of this is the
lack of continuity and focus in the treatment of such cases.
By putting these cases into a segregated administrative and Judicial system which
is dedicated to dealing with them, I believe that such shortcomings can be made
a thing of past. Their consequences can be very harmful: Too often have we seen
cases involving children under care and protection or even wardship orders, being
dealt with year after year in the system without the benefit of the regular oversight
or mandate of the courts.
It has been said before, but worth emphasising time and again, that early and continuous
intervention in the lives and treatment of children who are in trouble or in need
or care and protection, is the only effective way of helping them to become competent,
self reliant individuals. I am persuaded that from the courts’ point of view, that
kind of early and consistent intervention and involvement can best be achieved by
a dedicated family court. It is timely to say this now, because the physical accommodations
for such a court can conveniently be included within the new courts project.
The legal structure and jurisdiction are further matters of policy to be carefully
considered and that process will begin immediately. Happily we will not need to
be completely innovative: the concept of a family court is well known in other Commonwealth
jurisdictions in Jamaica, Barbados and other Caribbean states which share so much
in common with our legal and juridical systems. As a matter of the first order of
business in the New Year, I intend to invite the Hon. Attorney General and other
interested parties of government to meet to consider the matter.
At the same time, the yet to be implemented Children Law will need to be addressed
in this new context.
Drug Court and other Sentencing Reforms
As the Hon. Attorney General announced earlier, the latest draft of the white paper
bills in respect of the Drug Court is expected to reach cabinet any day now. So
too, the draft of the more general bill to introduce the other sentencing reforms.
We anticipate that these measures will have the kind of fundamental impact upon
the reform of the criminal justice system which he also mentioned.
Legal Aid
As anticipated at last year’s opening, discussions did take place with the Hon. Attorney
General around a proposed draft bill to reform the Legal Aid system.
The bill, which is in its third draft, will be the subject of renewed and immediate
attention this year. An important early concern is to avoid adopting a new scheme
which itself would prove too cumbersome and expensive to administer. The answer
may be an enhancement on the existing system which does not involve significant
administrative expense and specific recommendations have been made in that regard.
Commercial Division of the Grand Court
Over the last two years or so, informal suggestions have been made to the effect
that we should consider the introduction of a Commercial Court. The reasons for
this have not been fully articulated but I discern the sentiment, in the main, is
that such a court would help to enhance our image as a sophisticated financial center.
Implicitly, if not expressly, the fact that there have been no significant delays
in the disposal of these cases has meant that such concerns have not formed part
of the rationale.
Indeed, the absence of delays is a fact to be emphasised 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 and of any involved interlocutory
matter, within only six weeks. This although we have seen an average intake over
the same years of more than 700 such cases each year. In fact since 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 by virtue of the size of our establishment
and taking account also of the scope and volume of the rest of our business.
That said, we may not become complacent by seeking to rest on our laurels and it
seems sensible that we should put in place a structure that will ensure our continuing
ability to maintain or even improve upon our rate of disposal. But even this is
not a new thought: Some of you may recall my mentioning last year that we had engaged
Mr. Lipscher – a man of wide experience in courts administration specializing in
the establishment of commercial courts, having done so in many countries. He also
lectures on the subject at Princeton University.
Mr. Lipscher visited last year but because of his prior commitments in other jurisdictions,
the necessary further visits have not yet happened. His initial findings did however
confirm what we already know; which is that our civil justice administration system
is efficient and that our dedicated registry and other court staff do in the main,
provide the level of support which the judges need to perform their functions. Moreover,
we already have a fully computerised court at Court 5, in which complex cases can
and have been tried with remarkable facility because all documents are accessible
in digital format.
The conclusion reached is that Mr. Lipscher should be engaged to advise with the
objective of establishing administrative divisions, including a commercial division,
of the grand court.
This will of course be done in consultation with the rules committee whose membership
includes representatives of the civil and commercial bar, and through whom some
of you will no doubt wish to make your individual views known.
Computerisation and Information Technology
The long wait in getting this project off the ground will I am told, redound to our
advantage by virtue of the benefits we will now reap from improved technologies
and the lessons to be learned from the experiences in other jurisdictions. This,
while also bearing in mind that a specialized Judicial and Legal website of the
kind we envisage is still a novelty even in the most technologically advanced courts
such as those in New York, Singapore, Hong Kong and Jersey.
The full specifications for the web site are now being finalised and will be one
of the first postings on the site, which in its first static stage, will be operational
by end of March. We invite all the firms to study this document and give us your
responses. Hard copies will also be available by end of this month. In particular
we will need to settle the protocol for encrypted on-line access which is intended
for the dynamic phases of the site and which is to be implemented over the next
12 months.
Those of you following the announcements about the project over the past years, will
recall that at the dynamic interactive stages, the website which is being developed
jointly with others including primarily, the Attorney General’s portfolio; will
allow for hyper-linked access to the laws and law reports; and to the court’s computer
systems for the searching of the registry of actions; for the electronic filing
of pleadings and other documents; for encrypted access to case files; and ultimately;
for the payment into court of fees, fines and other payments.
Please keep in close contact with our Courts Administrator about this project.
In the meantime, the JEMS programme for the computerised management of the Civil
Registry, is well underway and this will be streamlined with the website.
Statistical Overview of Case Disposal
There were 79 indictments filed in 2005 in the Grand Court and we will be taking
forward 64 indictments this year, the bulk of which represent intake from last year
and some remnants, a few going back as far as 2003. This large number of pending
indictments is an immediate cause of concern and so immediate action is to be taken.
If we take in as many in 2006 as we did in 2005, we will be experiencing severe
delays in bringing criminal cases to trial.
To prevent that unacceptable state of affairs, we will be taking two trials simultaneously
in the Grand Court commencing on the 9th instant, with listings already in place
through June of this year. This will continue until the troubling trend has been
arrested.
I am assured that arrangements for these trials have been made by the listing officer
with the Crown and defence attorneys and everything is in place to proceed.
I have already touched upon the civil cases and need here only report that there
were 594 of such actions filed last year up from 495 in 2004.
For those of us who may attach some significance to the fact, divorces were at an
all time high of 200 in 2005, up from 171 in 2004.
The Summary Court
The work in the Summary Court continued largely in keeping with the commendable trend
of the past several years. However there is now a discernable number of last year’s
cases still pending. The reason for this is not yet clear as this information was
confirmed for me only overnight, thanks to the extra efforts of our Deputy Clerk
of Courts Mrs. Collins and two of her dedicated staff members. It is a matter which
I will be examining with the Hon. Magistrates at the earliest opportunity. I can
say however that there were 5202 new charges filed in 2005 – 3074 of which were
traffic charges and 2131 of the more serious and usual kind, in the ordinary criminal
division of the court.
In the Youth Court, it might be worthy of note that there were filed 86 charges,
down from 105 in 2004 and 163 in 2003. This is an encouraging trend which one can
only hope will continue. 116 cases in Cayman Brac were dealt with in particular
because of an extended session conducted there by Magistrate Ramsay-Hale.
In the Juvenile Court, there were 29 cases involving children in need of care and
protection down from 40 in 2004 and 34 in 2003.
Justices of the Peace
In this context it is particularly appropriate to mention our Justices of the Peace
who continue to bring their insights to bear in the treatment of some of our children
in the Juvenile Court. This is an involvement which is to be encouraged as we continue
to recognise and develop the benefits to be realised from a justice system which
is community based. This is at the heart of what is meant by restorative justice
- the objective of the modern thinking that will drive our alternative sentencing
and treatment programmes, not only for our youth offenders and those in need of
care and protection, but also those adult offenders who present as being amenable.
This will be so even while those less amenable - those who offend at a very serious
level or present social problems of a different order - must be dealt with according
to the more severe strictures of the law.
In respect of the involvement of the justices of the peace in the process - and there
are now 109 on the roll for Grand Cayman and 27 for Little Cayman and Cayman Brac
– my dialogue with the current president of the JP’s Association, Mr. Chisolm, has
been ongoing as it was with his predecessors and as a result, I am pleased to announce
that a training programme for the justices of the peace is being developed and will
be delivered by Magistrate Donalds.
Court of Appeal
In the Court of Appeal there were 24 criminal appeals and 31 civil appeals last year,
up from 18 and 31 respectively in 2004 and, as a matter of comparison, less than
one-third the all time high of 76 and 73 respectively taken in 1998.
Privy Council
In 2005 there were two criminal appeals and three civil appeals taken to the privy
council – an average number when compared to the past several years.
Conclusion
That concludes my review of the business of the courts for 2005. I wish to extend
on behalf of everyone in the Judicial Administration – the Judges, Magistrates and
Court Staff - to all of you, our very best wishes for the New Year. I now formally
declare open, in acceding to the motion, the business of the courts for the year
2006.
Before we adjourn for our usual reception, I remind everyone that we are to assemble
on the front steps of the building for a group photograph which will be a fitting
reminder of the 30th Anniversary, completed this past year – and already mentioned
by the Attorney – of the Grand Court in its modern form. See law 8 of 1975.
The photograph, the designers tell me, will also serve as a suitable welcome to the
public at home and abroad, to the home page of our website.