Jun 2020
Remote Court hearings by video-link have now become common in the Cayman Islands, especially during Covid-19 lockdown. Alex Potts QC and Róisín Liddy-Murphy of Conyers discuss some of the pros and cons, and public policy concerns, associated with online justice in offshore jurisdictions.
Judges, lawyers, and litigants have suddenly had to implement, and become familiar with, the IT (Zoom or Skype for Business), as well as the legal issues, whether contained in primary or secondary legislation, court rules or practice directions.
There is now an enormous body of knowledge, and opinion, on the conduct of remote court hearings. Not a day goes by without another article or webinar offering advice based on yesterday’s remote court hearing.
Although the Cayman Islands is a small jurisdiction, in terms of its resident population and geographical area, it is a major international financial centre with a sophisticated legal system based on English law.
Cayman is fortunate to have, as part of its Grand Court, a specialist Financial Services Division for the conduct of international commercial disputes; a Court of Appeal made up of distinguished English and international appellate judges; and a final appellate court in the Judicial Committee of the Privy Council.
The Cayman Islands Court system is currently ahead of much of the rest of the world, when it comes to the conduct of remote court hearings by video-link in commercial disputes. This is for various reasons: since Hurricane Ivan in 2004, many Cayman Islands law firms have invested significantly in their IT infrastructure; the Cayman Islands’ legal profession is accustomed to interviewing clients, examining witnesses, giving advice, taking instructions, and participating in meetings, by telephone and video, across different time zones; there are a number of sitting judges of the Cayman Islands’ Grand Court and the Court of Appeal, who do not reside full-time in the Cayman Islands, but who are willing to make themselves available by telephone or video for urgent court hearings in commercial cases; and a large number of Cayman lawyers have trained and worked internationally, and there is a strong working relationship between the Cayman Islands Bar and the English Bar (with a number of English QCs, some of whom are resident in the Cayman Islands, appearing before the Cayman Courts on particularly complex, high-value matters).
As a result, the Covid-19 pandemic has had only a small adverse impact on the conduct of commercial litigation in the Cayman Islands. To a large extent, the past few months have been ‘business as usual’ for Cayman litigators and the Cayman Courts (although remote working practices have evolved very considerably).
Between February and May 2020, the Cayman Islands’ Government moved the jurisdiction into a state of full lockdown, with various ‘shelter in place’, social distancing, remote working, and confinement measures still in place as at June 2020.
As part of the lockdown process, the Chief Justice of the Cayman Islands immediately published the Cayman Islands’ judiciary’s response to Covid-19, stressing that “the use of video-conferencing and teleconferencing will be encouraged and implemented where possible”.
Various court practice directions have been published, giving guidance as to how remote court hearings should be scheduled and conducted, and dealing with important practical issues such as electronic court filings, electronic court bundles, substituted service of court documents by email, public access, remote court hearing timetables, and virtual notarial procedures.
Since March 2020, both the Grand Court of the Cayman Islands, and the Cayman Islands Court of Appeal, have conducted a large number of remote Court hearings in commercial matters, delivering a number of important Zoom judgments.
One example is the Grand Court’s recent decision to grant a stay pending appeal in the minority share appraisal litigation involving Nord Anglia Education Inc (unreported judgment of Mr Justice Kawaley delivered via Zoom on 26 May 2020).
The authors have recently been involved in a number of video hearings before the Cayman Islands’ Courts, and a number of hearings have been available for public viewing on the Cayman Court’s internet streaming facilities.
Although the jury is still out when it comes to full trials, and putting minor IT glitches and ‘screen fatigue’ to one side, video hearings have been very effective in the context of interlocutory applications and civil appeals. They have, however, required preparation and co-operation, and focussed oral advocacy.
Pre-Covid-19 Practice on Remote Court Hearings
Prior to the Covid-19 pandemic, the Cayman Court’s enthusiasm for remote court hearings would have been relatively controversial.
Section 7 of the Cayman Islands’ Bill of Rights provides that every litigant has the fundamental right to “fair and public” hearings within a reasonable period of time, subject only to limited exceptions.
Although there are certain local procedural differences, the principle of ‘open justice’ is just as important in the Cayman Islands, therefore, as it is in England and Wales.
Indeed, the Cayman Islands Courts are, by their judgments, keen to dispel any media misconception that commercial litigation in the Cayman Islands is not a reasonably open, transparent, and public process (and now publishes online a large number of judgments, as well as originating court documents and weekly cause lists, on a free basis).
One of the key features of open justice is that the physical courtroom must ordinarily be open and accessible to the public, as well as the parties themselves, in the Cayman Islands.
Order 33 rule 1 of the Grand Court Rules expressly provides, “that the place of a trial… shall be the Law Courts, George Town, Grand Cayman… unless for some special reason the Court orders that the trial… shall be heard either elsewhere in the Islands or in any place outside the Islands”.
The Grand Court Rules only contemplate a narrow set of circumstances in which Grand Court hearings may be physically held outside the jurisdiction of the Cayman Islands.
So too with the rules of the Cayman Islands Court of Appeal, although there have been cases (such as Goodman v DMS Governance Limited, unreported judgment of 30 April 2020) in which the Court of Appeal, and leading counsel, have convened in London, while transmitting their proceedings by video-link to the Cayman Islands courtroom.
Until Covid-19, the Grand Court’s rules and practice directions, and the Financial Service Division user’s guide made quite clear that video-hearings or remote hearings were the exception, not the norm. The Cayman Islands’ resident legal profession and judiciary, for the most part, would ordinarily prefer, and be expected, to attend court in person.
During Covid-19, however, social distancing and remote working has radically transformed the Court’s, and the legal profession’s, approach.
What of Trials and Hearings Involving Live Witness Evidence?
Although remote court hearings work well for interlocutory applications and civil appeals, their suitability for cases involving live witnesses, oral evidence, and cross-examination, is more uncertain.
It has been argued that in a physical courtroom, a judge can better examine the reactions of witnesses, their body language, tone and demeanour. It is also said that witnesses are better able to follow the court process by physical attendance.
The Grand Court’s Practice Direction No 1/2010 expressly provides that an application for a witness to be allowed to give evidence by video link will only be granted in exceptional circumstances. The practice direction notes concerns as to a judge’s ability to assess the witness, and to ensure that no one is prompting the witness.
Additionally, there are practical challenges associated with compelling a reluctant witness to attend court by video-link, as opposed to physical attendance.
There are arguments to the contrary, of course.
Enabling foreign witnesses to give evidence by video may improve their chances of attending (at proportionate cost); and high definition video may provide a better medium by which to assess a witness’s credibility. Younger witnesses might find it less stressful giving oral evidence by video-link than in person in a courtroom.
Judges often say that (except in cases involving dishonesty) most commercial cases are resolved by reference to contemporaneous documents, not the oral evidence of witnesses.
Judges also dislike over-lawyered witness statements. Video offers a cheap and simple method by which to interview witnesses in their own voice, and to record their evidence in chief for use at trial.
The Views and Preferences of Litigants
How do Cayman Islands litigants feel about online justice, conducted remotely by video-link? Absent a scientific poll, it is impossible to say that there is a consensus view. Everything will depend on the individual client, and the circumstances of the particular case.
Whatever the medium, the Cayman Islands’ judiciary continues to work hard to maintain the respect of the parties, the general public, and international business, as being fair, open, and transparent, both in its processes and in its substantive decisions.
Online justice in an offshore court needs not only to be done, but to be seen to be done.
Public Access to Court Hearings during Covid-19
In that context, the Cayman Islands courts have made considerable efforts to ensure public access to court hearings during the Covid-19 pandemic. In addition to online live streaming online, members of the public have been able to attend a public gallery, where video footage is also live-streamed. For the media, remote access has been provided through Zoom links, provided by email upon request.
The Future
What does the future hold? For as long as Covid-19 continues, remote court hearings will be the norm in the Cayman Islands.
When Covid-19 passes, however, and the Cayman Courts are physically reopened, a number of Cayman Islands lawyers and litigants, will be keen to re-enter the courtroom in person; whereas others (including members of the English Bar and international clients, for whom travel will present its challenges) will be keen to promote the ongoing use of video hearings.
Where will the appropriate balance lie? Only time will tell.
This article was originally published in Commercial Dispute Resolution Magazine.