Bermuda: Musical Chairs And The Offshore Judiciary

Last Updated: 14 June 2018
Article by Alex Potts

2018 has already seen a number of important judicial appointments, and retirements, at the courts of the major offshore financial centres. The new appointments, however, contain many familiar names.

Bermuda and the Cayman Islands

In Bermuda, Chief Justice Ian Kawaley and Mr Justice Stephen Hellman have both announced their retirements from the Commercial Court Bench, as of June and July 2018 respectively, after many years of service and hundreds of reported judgments.

Both judges have, however, already accepted part-time positions as Judges of the Grand Court of the Cayman Islands, with effect from April 2017, and they have each presided over cases in the Cayman Islands in recent months. It is anticipated that they are each likely to accept judicial and arbitral appointments in other jurisdictions, after their retirement from the Bermuda Bench.

At the time of writing, the Governor of Bermuda has not yet announced the appointment of their full-time judicial replacements, although the posts were advertised to local and international candidates in January 2018.

At the Bermuda Court of Appeal level, the current President, Sir Scott Baker, is due to retire in December 2018.

The Governor has recently announced the appointment of two new Bermuda Court of Appeal judges:

  • Chief Justice Anthony Smellie, the current Chief Justice of the Grand Court of the Cayman Islands, whose appointment has also been approved by the Governor of the Cayman Islands.
  • Dame Elizabeth Gloster, currently the Vice-President of the Court of Appeal for England and Wales and previously the first female judge of the Commercial Court of England and Wales.

Judicial musical chairs between Bermuda and the Cayman Islands has also taken place at the Magistrates' Court level. It was recently announced that Bermuda's Senior Magistrate, Juan Wolffe, will preside over a road traffic case involving a Cayman Islands judge, Mrs. Justice Ingrid Mangatal, to ensure independence in the trial process.

British Virgin Islands

In the British Virgin Islands, the Eastern Caribbean Supreme Court has recently seen the appointment of Mr Justice Neville Adderley for a year. Adderley J has also served as a Supreme Court and a Court of Appeal judge in the Bahamas and as a Court of Appeal judge in the Turks & Caicos Islands.

Other recent judicial appointments in the BVI on a part time basis have included a chancery silk from England, David Chivers QC, as well as Mr Justice Gerhard Wallbank.

Isle of Man

In the Isle of Man, Jeremy Storey QC, a commercial silk from England, has recently been appointed as the jurisdiction's first full-time Judge of Appeal.

Gibraltar

In Gibraltar, Mr Justice Adrian Jack's judicial appointment to the Supreme Court was not renewed in late 2017, after his initial three year contract expired. The Gibraltar government's decision not to re-appoint Jack J on budgetary grounds was the subject of considerable attention in the Gibraltar media, and it also provoked criticism from the Gibraltar Bar Council and Chief Justice Anthony Dudley. The Gibraltar Court of Appeal has subsequently set aside one of Jack J's final judgments (Lavarello & Hyde (as estate representatives of Marrache & Co) v Jyske Bank (Gibraltar) Ltd [15.01.2018]), finding that he made material errors in his findings of dishonest assistance and knowing receipt on the part of the bank account manager.

Comment

Despite the potential advantages and synergies associated with experienced judges accepting appointments from multiple offshore jurisdictions with similar legal systems, regard should be had to the specific provisions contained in each jurisdiction's constitution regarding the appointment and independence of judges, as well as the Privy Council's recent decision in the case of Almazeedi v Penner [28.02.2018], on appeal from the Cayman Islands Court of Appeal.

The Privy Council held, by a 4-1 majority, that Mr Justice Peter Cresswell, when sitting as a Grand Court judge, would have been regarded by a fair-minded observer familiar with the Cayman Islands legal scene as 'unsuitable to hear proceedings' in a case involving Qatari state interests, on grounds of apparent bias. As Lord Mance noted, the allegations of apparent bias arose in unusual circumstances - the Cayman litigation involved a Cayman Islands company owned by Qatari interests with strong state connections and Cresswell J had not fully disclosed the fact that he had himself been appointed as a Supplementary Judge of the Civil and Commercial Court of the Qatari Financial Centre.

It is sometimes jokingly suggested that a 'good lawyer knows the law, but a great lawyer knows the judge'. There may be times, however, when it is better for the lawyers and the parties not to know the judge at all.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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