CBA Gala Speech - 4 March 2017
Speech by Neil Timms QC, Secretary of the Caymanian Bar Association - CBA Gala - 4 March 2017
Your Excellency the Acting Governor, Honourable Chief Justice, My Lord President, Lord and Lady Thomas, Honourable Ministers and MLAs, Lord Justices of Appeal, Justices of the Grand Court and Magistrates, distinguished guests, ladies and gentlemen.
I am delighted to extend a warm welcome from the Caymanian Bar Association and the Cayman Islands Law Society to our guests, particularly our overseas guests, our Court of Appeal judges and their wives and Lord and Lady Thomas. We really hope you enjoy your evening. Lord Thomas I assure you it was not our purpose that you should have to sing for your supper.
The CBA annual Gala has become special to us –it is a chance for Caymanian lawyers to let their hair down. I would like to thank the Law Society for so generously contributing to this evening. This is a unique occasion. We have never before combined our annual Gala with a formal dinner for our judges or other guests from overseas. We are in new territory. We hope you will indulge us if we revert to informal type.
We are greatly honoured by this first visit to the Islands by a Lord Chief Justice of England and Wales and a Head of the English Judiciary. Our Chief Justice will put this historic visit into its legal and historical context but perhaps I may be permitted this observation.
As many of our guests may know, the Grand Court in its modern form was established 42 years ago. It had been given a statutory jurisdiction in 1877 but it is quite clear from statutory references that even before the Islands became a Jamaican dependency some 14 years before that, there had been a Grand Court sitting in these Islands. It is now some 360 years since Cromwellian and post Cromwellian settlors brought the common law with them to the Islands.
So we have waited a little time for this visit. Those who had the privilege of listening to Lord Thomas’ illuminating and challenging lecture on Thursday will agree the wait has been well worthwhile.
The CBA Gala sometimes has a more serious aspect. It is a forum in which to ventilate issues of interest and concern, so I hope our guests will forgive any discourtesy if I speak to some of those issues.
Our guests visit us in momentous times. In the next few weeks a new Legal Practitioners Bill will be debated in the Legislative Assembly. These Islands have one of the highest, if not the highest, number of lawyers per capita in the World. A third of them are Caymanian. The legal business model is one of the most successful internationally and underpins our financial services industry.
The profession’s governance and regulation, however, is lamentably inadequate to cope with inevitable changes that have occurred and must occur. This has been recognised for years.
To our embarrassment, it is 29 years since the first draft replacement of the existing law was discussed. For nearly the last decade and a half, various proposals have been mooted but without sufficient consensus to be brought into law.
The principal problem, of course, is marrying the imperatives of an international market with global competition- a business that is a major pillar of Cayman prosperity– with the need for Caymanians to have fair opportunity to advance, if capable enough to the pinnacles of reward and power– in their own profession and in their own country.
The debate has been passionate and sometimes intemperate. Old friends have fallen out and shared goals have been lost in the rhetoric and political enmity.
It is no secret that I strongly support the Bill. I have no political axe to grind. Your elected Council believes that the current situation cannot be allowed to persist. It’s damaging our jurisdiction and the interests of Caymanians in the profession. That profession’s centre of gravity is moving relentessly overseas. We have only limited time now to arrest this.
Doubtless the Bill, being the work of man, is not perfect but we judge it to represent a vital opportunity to protect the interests of Caymanian lawyers and the many whose livelihoods depend on a flourishing profession. Its benefits range from establishing a body resourced to investigate complaints to one able to negotiate block insurance to help Caymanian sole practitioners who struggle to meet premiums.
The Bill does not retrospectively pardon any past or current impropriety. In our view, historic injustice or perceived injustice should not distract from the opportunity, at last, to have sound, fair, practical and effective governance and regulation. Whatever the debate about the necessity of any investigation into particular conduct, it should not in our view be allowed to derail a Bill that promises a new era for the profession.
We seek a rational and informed debate on the Bill. Reasonable people can disagree reasonably about where the balance should lie. We urge men of goodwill to pause, prioritise their goals, recognise they are shared and face the urgent needs of the profession for new practical governance.
We believe history and a generation of Cayman lawyers will be unforgiving if the past is allowed to frustrate the future.
There is another area in which proposed Government amendment to the Bill will go a long way to redressing a balance. We mentioned it at our court opening. We have some of the least protected rights of audience in the world.
Our jurisprudence has undoubtedly benefited greatly from having the best of the English Bar before our courts. Most, but not all, recognize the value of this continuing. There is though now an Increasing groundswell of concern about the prospects of our young advocates. The position has now been reached in which English counsel are habitually and increasingly instructed on even routine matters. Able and ambitious Caymanian advocates are being squeezed out of court advocacy experience. The problem is particularly acute in the FSD Division. It becomes a vicious circle in which they cannot gain the experience with which to compete.
This has implications not only for their career advancement but also for the jurisdiction. This is the future talent pool from which we would hope to appoint local silks and local judges.
The issue has to be addressed. Legislation, short of prohibition, cannot alone solve the problem.Amongst other things, there needs to be the will within law firms to look beyond the short term. There are other measures we can take. One of them looks to the economics of the problem. We invite the Rules Committee to reconsider our costs rules in the Cayman public interest.
We must of course do more ourselves to redress the balance. So we hope in the near future to be able to announce another CBA training initiative. This year we would like to introduce in conjunction with the Inns of Court College of Advocacy and the Legal Advisory Council one or perhaps more structured advocacy courses to supplement the training available to local lawyers. If we are successful in this, it will be a continuing scheme.
For years a handful of volunteers have dealt with the myriad tasks involved in running a modern profession -without the benefit of statutory structure or administration. Hundreds and in many cases thousands of their hours could have been devoted instead to their practices. A handful of firms have permitted them the time and provided administrative backup, effectively subsidizing the profession. These lawyers have carried the profession, without reward, too often being met with cynicism and ill informed criticism, frequently from those unwilling to do the hard yards themselves. On the CBA side, I would now like to acknowledge, in particular, Abraham Thoppil and Nick Joseph, who over years have worked tirelessly, without recognition, to advance the mandate of the CBA.
The new Bill promises structured, resourced governance. There are a number of capable and committed Caymanians, willing to roll their sleeves up, who should stand for the new Council. It should not be at the expense of their careers. We have this plea for all our law firms. We recognize that effectively seconding lawyers for so many hours of work involves economic detriment but we ask law firms, in the public interest, to allow and encourage those lawyers to stand and to serve.
I would like to mention other CBA initiatives. On 22 March we will commence the 2017 training seminar program. It will begin with 4 seminars on various aspects of human rights. As always, they will be delivered by leaders in the field. They will be aimed at our usual target audience but should be of interest to lawyers of all PQE. We encourage all to attend and to pass on the word.
Again this program would not be possible without the efforts of our student members and articled clerks and this evening I would like to thank in particular Myfanwy Leggatt for all her help in running this program.
In the next couple of weeks the CBA together with the Judicial Education Committee will launch (with the approval of the LAC) a new judicial clerkship scheme available to all Articled Clerks. The scheme envisages a 1-month placement as directed by the JEC. Applications will be processed by a CBA Committee. As far as practicable, the JEC will arrange assignments to supervising judges and magistrates to provide a broad based experience so the clerk will see the Summary and Grand Courts, the FSD and the criminal Divisions from the inside. Satisfactory completion of the placement will count towards the participant’s 18 month of Articles.
I would like to thank Justices Mangatal and Williams, Chief Magistrate Hall and Erik Bodden for all their efforts to bring this initiative to realisation.
The details of the scheme will be published on the CBA website shortly and circulated to the law firms. It is not a compulsory element of Articles but it will offer candidates an invaluable experience. We believe this may contribute to leveling the playing field for all those beginning their careers and we hope that Clerks, wherever their Articles, will take advantage of this unique opportunity.
The CBA has no statutory power. It has always had to meet its mandate by public exhortation and, often more profitably, by private persuasion. In the light of current circumstances and impending changes now though, the CBA has to re-examine its role and whether its continued existence, best and most efficiently advances the interests of Caymanian lawyers. It is clear that a number of our legislators, who profess a wish to protect Caymanian lawyers, no longer recognize the legitimacy of the CBA as representing Caymanians and choose to ignore the support for the Bill of its elected Council and the majority of its members.
If there is new governance, we must consider whether those interests are better served by channeling our energies into a new governing body and working through that to enhance the opportunities and ensure the protection of Caymanian lawyers. We need not be afraid of this. The new body envisaged by the Bill will at last have the means to do so.
So it is not clear if there will ever be another CBA Gala. Lord and Lady Thomas you may be attending both your first Gala and your last. Whatever the outcome, we earnestly hope that this will not be your last visit. You are assured of the warmest welcome whenever you come.
Neil Timms QC, Secretary,
Caymanian Bar Association
For a copy of the full speech, click on link below:
CBA Gala Speech 4th March 2017