Lawyer’s clubs voice concerns as new legal year starts

(CNS): The Chief Justice was not only the only one to raise his concerns about plans by government to change the legal aid system during the opening session of the Grand Court this week. Both the Cayman Bar Association and the Law Society said they were concerned about the decision and the failure to consult the profession. The two bodies also raised concerns about delays in important legislation, the need for a new court house, as well as the lingering issue over the judiciary from Operation Tempura, the UK special police investigation.  

James Bergstrom President of the CBA said the exclusion of the local bar over the legal aid issue was a matter of grave concern and said it had endorsed the recommendations of the Law Reform Commission as noted in their Final Report from July 2008 at the opening of the Grand Court in January 2009.

“We are not sure what is being proposed, other than what we have read in our local newspapers,” Bergstrom said.”What is clear is that the recommendations in the LRC report have not been followed.  Despite letters of protest, the CILS and the CBA have not been invited to participate in a hastily formed committee set up to consider the new proposals.”

He said that while the CBS had been given the opportunity, along with the public, to provide comments in the absence of any proposals to review, the position could only be to support the recommendations of the LRC whose members he said had done considerable research before producing their original report.

“Ensuring that all defendants receive a fair trial is part of the basic fabric of any modern society.  We must ensure that whatever we end up with in Cayman meets international standards and does not result in convictions being subject to challenge and the very serious consequences that could have,” Bergstrom added.

Alasdair Robinson from the Law Society who presented a speech on behalf of Charles Jennings the president said the society endorsed all of Bergstrom’s comments on the subject but Jennings also added further concerns and stated that the profession was extremely surprised and disappointed not to have been directly represented on the new committee.

“The Law Reform Commission recommended the preservation of the present system, albeit with suggestions for its modification and enhancement. Both the Cayman Islands Law Society and Caymanian Bar Association endorsed those recommendations,” Jennings stated adding that fair access to legal representation was fundamental to the principles of justice.

“We would respectively ask the committee to consider carefully and thoughtfully all options open to them and we stand ready to provide comments and input on any alternative proposals put before them. We would also respectively request that the profession be provided with a draft version of the Committee’s report to the Cayman Islands Government in advance of its delivery,” Robinson said on behalf of the president.

During his presentation for the CBA Bergstrom also noted the increase in crime and its impact on the justice system. “It is vital that the concerned authorities, including the Commissioner of Police, the new Director of Public Prosecutions and the Director of Prisons, as well as senior members of the criminal bar, meet regularly and coordinate the necessary modernisation and smooth operation of our system so that we are in the best position to tackle the changing face of crime in these Islands,” he said. “It is especially important that weaknesses in the investigation and prosecution of serious cases be recognised and addressed and that the Judicial Administration is provided with the resources it needs to ensure that cases are disposed of in a timely and just manner.  This, of course, includes the new Court building which is very badly needed and which has been promised for so many years now.”

Bergstrom said there was a pressing need to pass the Legal Practitioners Bill the revised version of which had been approved by the profession and submitted to Cabinet. “Although we have not had a response from the Government, we are hopeful that we will see the revised Bill brought into force in the first quarter of 2010.  Our reputation as an international financial centre remains at risk until this is done,” he added.

Jennings focused his concern on the need for legislation to help Cayman’s offshore sector compete in tough times. “It is not an exaggeration to say that the offshore financial industry is presently the mainstay of the Cayman Islands economy, and the legal profession, charged as it is with advising on the structuring of the vehicles required by the industry, is at the very forefront in our efforts to maintain the Cayman Islands as a pre-eminent, reputable offshore jurisdiction,” he said. “The laws of the financial industry, just like those governing domestic matters on the island are never set in stone. “

He explained the sector need laws quickly to find solutions to new problems.

“The sad fact is, that is simply not what is happening at the moment,” he said. “During the course of 2009, there were 3 important pieces of legislation introduced that had a material impact on the financial services industry: The amendments to the insolvency regime under the Companies Law; the introduction of "merger" provisions to our Companies Law and the amendments to the Exempted Limited Partnership Law. All of the legislative changes were initiated by the private sector, however what is concerning is the length of time it took for these initiatives to see the light of day. In the case of the insolvency changes, these were first proposed in September 2005, with respect to the merger provisions, December 2004 and in the case of the partnership law, February 2006.”

He compared Cayman to its competitors and said in the last 5 years Cayman introduced 14 pieces of new financial services legislation while Jersey introduced 27 and BVI, 18. “Atpresent we have 3 other key pieces of proposed financial services legislation, some prepared by government and some by the private sector, but all vital to the jurisdiction, awaiting enactment,” he added.

Jennings said the Amendments to the Companies Law would give Cayman a modern law at the forefront of international financial centres, amendments to the Insurance Law were called for by the IMF and the repeal of the criminality provisions of the Confidentiality Relationships Preservation Law was needed as that had long outlived its usefulness. “A draft bill was produced but again this has not seen the light of day,” Jennings lamented. He also explained there were a number of other proposals that the private sector had made but with the existing backlog of critical financial services legislation, they had not made it as far as draft Bill stage. Without a "fast track" approach to get new ideas considered, drafted and adopted, he said there was little motivation for the sector to be innovative in this area and help improve Cayman’s fortunes.