Few secrets in Cayman’s courts

Main Story:Cayman’s judiciary grows with the times 

Well more than half of the cases in Cayman’s Grand Court are related to the financial services industry.

Because between 70 and 80 per cent of the work on those cases takes place in chambers – out of the public’s eye – there’s a perception that there’s a lot of secrets in Cayman’s courts.

Cayman Islands Chief Justice Anthony Smellie says that just isn’t so.

“Nothing is further from the truth,” he says.

Although hearings held in chambers are generally not open to the public, Smellie says it is still court and therefore open to public scrutiny.

“The record of the hearing and the outcome and the matters that are put before the court are public record unless the court orders otherwise,” he says, adding that those orders are very rare.

“We are… asked to embargo publication on what happens in some of these proceedings, but seldom is it done that you can’t have access to the documentation or what the results are.”

All pleadings filed in Grand Court are available to the public, and this includes initial statements of claim and subsequent pleadings such as counterclaims, Smellie says.

“You can request them through the clerk of the courts.”

The Grand Court Practice Directions published in 1997 essentially state all matters are public unless there is an application made to close it and the court grants that application, Smellie says.
However, when cases are still being heard in chambers, elements of those proceedings remain confidential.

“While the record of the court is essentially a public record, that doesn’t necessarily mean that before a case is actually heard, and while it is being heard, everything about it must be public,” Smellie says. “There may be very good reasons why… it should be in private. But that doesn’t mean that ultimately everything about it must be secret.”

Smellie says there’s nothing unique about the way Cayman’s judiciary handles matters in chambers.

“Our practice here is virtually identical to the practice in the United Kingdom,” he says.

“We are a common law jurisdiction and so is the practice in every commonwealth country. We have a more specialised type of business than, say, what would be in Jamaica or elsewhere in the Caribbean, but the approach they would take to, for instance, a family trust dispute in Jamaica, is the same approach we’d take here.”

Smellie acknowledges that Cayman’s attorneys will sometimes say they cannot release documents pertaining to a particular case.

“[Lawyers] always have other reasons because they have to be concerned with their own relationship with their client,” he says.

Mr. Smellie also notes that lawyers will sometimes say they can’t discuss or release documents a case before the court, but that this isn’t necessarily true.

“The sub judicy rule… is a principle that says that proceedings that are current before the court should not be discussed in the media if, and here’s the thing, by so doing, the proper administration of justice could be impaired,” he says. “Now typically, that would relate to jury trials because jurors stand to be influenced by what is in the press.

 “I know of no case yet where that sub judicy rule has been enforced against any element of the media because of a concern that a judge, a trained judge, may have been influenced by what the media printed to the detriment of the proper administration of justice.”

Sometimes, court matters are dealt with from beginning to end in chambers and one or both parties involved in the case will apply to restrict the publication of a ruling, order or judgment given in camera. This is sometimes granted, but Smellie says that surprisingly, such applications are not made very often.

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Alan Markoff
Alan has been member of Cayman’s media since 2002 and has served in several media capacities over the years, including associate editor of Cayman Net News, deputy editor of the Caymanian Compass and editor of Flava Magazine. He also was the artistic director and assistant producer of seven episodes of the Cayman Sports Documentary Series television shows. Alan has been very active in the community, serving on the Cayman Islands Little League Board of Directors from 2007 to 2014 and running that organization’s adult co-ed softball program for 16 seasons. With a keen passion for the culinary arts, Alan took over the leadership of Cayman’s Slow Food chapter in early 2009.

Alan Markoff
Journalist
George Town
Cayman Islands

T. 345. 325. 6824
E. amarkoff@pinnaclemedialtd.com
W: caymancompass.com