CBA President’s address at the opening of the Cayman Islands’ Grand Court

My Lord Honourable Chief Justice, Honourable Justices of the Grand Court and Magistrates of the Summary Court, my colleagues at the Bar, Ladies and Gentleman, I rise on behalf of the Caymanian Bar Association (CBA) to second the motion of the Honourable Attorney General to open the Grand Court for the year 2017.

With your indulgence, I will highlight some of the CBA’s initiatives.

The CBA in 2016

A majority of Caymanian attorneys have joined the CBA,
and the CBA currently represents the interests of more
than 245 Caymanian attorneys. The CBA also has a
Student Chapter with over 130 honorary student members
comprised of Caymanian law students and articled clerks.
The CBA is not a statutory body invested with powers, but
an association of members – who give freely of their time
and resources. The CBA has worked quietly and
effectively behind the scenes to promote the development
of our Law and the advancement of Caymanian lawyers.
The CBA Seminar-cum-Training Programme for young
lawyers and articled clerks is now in its second year. On
behalf of the CBA, I would like to thank each of the
presenters and their firms for freely giving of their time and
facilities for these seminars. Discussions are on-going
with the legal advisory council and the Truman Bodden
Law School, to develop a new online commercial law
seminar series targeting newly qualified lawyers practicing
in these Islands, Bermuda and the British Virgin Islands.
We hope during the course of this year to advance and
announce a structured advocacy training course for junior
lawyers.

The Legal Practitioners Bill

For well over a decade, the CBA has had to rue the
opportunities missed to modernize our Legal Practitioners
Law and improve the governance of the Profession,
including of overseas practitioners. During that period the
CBA has been heavily involved in trying to progress a
modern and balanced law.

We have, at last, the Legal Practitioners Bill, 2016 before
the Legislative Assembly that addresses the need for the
profession to succeed in a highly competitive global
market as well as the need to promote Caymanian
advancement within the profession. In my last year as
President I can now congratulate Government on grasping
the nettle and presenting a Bill that the CBA can support.
It promises a new era for the Profession.

In a survey of CBA members in good standing (from 25
law firms, 2 trust companies and solo practitioners), over
77% of those voting supported the LP Bill. In the past
there has been much ill-informed debate, sometimes
including those who neither read nor understood what was
proposed. We hope for an informed debate on the LP Bill.

The CBA has addressed queries and concerns raised by
members worked constructively with the Cayman Islands
Law Society (CILS), and collectively we have spent
thousands of man-hours doing so.

The new Legal Practitioners Law will not, and cannot,
resolve all the issues facing Caymanian lawyers. Some
involve questions of principle and do not offer easy
solutions. For example the CBA has long been concerned
about the lack of opportunity for Caymanian litigators to
gain experience and progress. The problem is aggravated
by an increasing dependence on the English Bar even in
cases where there are local alternatives and litigation
departments have sound and capable lawyers. Video
conferencing increasingly allows control to be overseas
with Cayman attorneys sometimes marginalized to the
point they can add little value. With no real price penalty,
Silks are doing from their chambers interlocutory matters
that could be done here by locals. There are widespread
fears that we are training a profession of solicitors and of a
self fulfilling prophesy of Cayman lawyers being unequal
to compete in advocacy. It has dire long term
consequences for the senior advocacy profession and the
local recruitment of judges. Although the Court pushed
back, I gather there has even been a case in which the
parties announced that their counsel would appear by
Video Link. This is symptomatic of a mindset here and in
London. Not so gradually that scenario is becoming
commonplace and, unless challenged, it may become the
norm. This is a public policy issue that will have to be
addressed in the near future.

The profession has been a key driver in the success of our
financial industry. There is now a critical mass of
Caymanians in practice, many of them very talented. With
the hoped for passage of the Legal Practitioners Bill, the
CBA may shortly, have to consider what role it could
usefully play in protecting Caymanians in our profession.
If the Bill passes, a new society called the Cayman Islands
Legal Practitioners Association (“CILPA”) will take its
place. It will at last present a professional body with the
tools to properly regulate the profession. I hope that all
CBA and CILS members will participate to make the new
CILPA regime a success. The CBA commits to do what it
can to ensure it. Let that be a most enduring aspect of the
CBA’s legacy.

Caymanian Protection and Immigration

The CBA was of course founded in part to seek to ensure
that local persons in the legal profession in these Islands
were not unfairly treated or marginalized in the perceived
increasing foreign domination of our profession. The
CBA’s efforts in that regard have had mixed results. We
cannot yet say that talent and hard work will take a
Caymanian to the pinnacle of legal career. In some
instances prospects are defeated simply because the
quality of post qualification training for Caymanian lawyers
may not be possible to the standards available elsewhere.
In other cases, the barriers may be even less palatable.
Arguments will continue over whether or not the limited
ascension of local lawyers into true equity partnership is a
natural consequence of a limited talent pool. Inadequate
enforcement of the immigration law to appropriately
regulate and ensure due opportunity for Caymanians will
be a factor in that debate. It is therefore ironic that I speak
this morning to decry the lack of success of that same
immigration regime in providing due recognition and
protection to the plight of many hundreds of expatriates.
The implications for them, their families, our society and
our wider economy are potentially extremely negative. It is
hoped that the New Year will find appropriate relief and
that the due functioning of our immigration regime and the
fulfilment of its difficult but very necessary task can
recommence.

The immigration regime itself needs drastic overhaul.
Unfortunately, today, it inadequatelely serves both the
needs and legitimate expectations of Caymanians and
those of the many foreign workers, be they in professional
services or otherwise, who contribute to the vibrancy of
our community, and success of our economy. The reality
today is that even Government departments appear to be
inconsistent in applying the definition of something as
fundamental as who is a Caymanian. The consequences
range from the issue of whether a child may benefit from
free medical treatment, to Caymanian ownership of local
businesses or to the most fundamental of constitutional
considerations.

Immigration is not a problem unique to the Islands.

Immigration has been at the forefront of political shifts in
both Europe and the United States in recent months. I
echo the remarks of Lord Carnwath in a recent decision of
the Supreme Court1 of England and Wales on an
immigration related matter: “The public, and particularly
those directly affected by immigration control, are entitled
to expect the legislative scheme to be underpinned by a
coherent view of its meaning and the policy behind them.”
The transition to the use of ‘Plain Language’ (now seen in
the Legal Practitioners Bill, 2016) in drafting all our laws
and regulations will also help – as legislation poorly
conceptualised and mired in overly technical language,
are a detriment to the development and effective
application of our laws.

1 [2016] UKSC 63 R(on the application of Mizra)(Appellant) v Secretary of State for the Home Department (Respondent).

Conclusion

I would also like to thank all professional and other court
staff in their various capacities for all the efforts they have
put in during the past year and for the preparations for this
annual ceremonial opening of our judicial year
Now it only remains for me formally to second the
Honourable Attorney General’s motion to open the Grand
Court for 2017 and, on behalf of the Caymanian Bar
Association, I would like to take this opportunity to wish all
Judges of the Grand Court, all Summary Court
Magistrates, all the Court Staff and fellow members of the
legal profession a very happy and prosperous 2017.

Abraham Thoppil
President, Caymanian Bar Association
11 January 2017

SOURCE: https://www.judicial.ky/wp-content/uploads/publications/speeches/CBA2017GrandCourtOpeningSpeech.pdf

IMAGE: Abraham Thoppil