This article was first published in Vannin Capital, March 2019.
A recent decision of the Grand Court has opened the door to litigation funding in the Cayman Islands, which is now poised to be among the first offshore jurisdictions to welcome the industry and benefit from the opportunities it presents. During a recent visit to the STEP Cayman Conference, Managing Director, Paul Martenstyn, spoke to Sebastian Said, Partner at Appleby in the Cayman Islands to find out more about the development of third party funding in the jurisdiction and the other factors affecting commercial litigation in the offshore world.
Paul Martenstyn (PM): How has your career at the Bar prepared you for offshore legal practice? Have secondments from your former set helped this process?
Sebastian Said (SS): Practising at the Commercial Bar, in particular at Fountain Court, meant that from the get-go I was fortunate to work as a junior barrister on large-scale, significant, financial services litigation and trials. That has now proved to be invaluable experience given the nature of our practice here in Cayman.
Practising at the Commercial Bar quickly builds an awareness of the importance of the commercial drivers and setting in which the litigation or dispute on which you are instructed is taking place. It has also helped me confidently provide advocacy services to clients where that is required, as well as instilling an ability to work extremely hard when required, and to focus on delivering results under considerable time pressure.
The one area the Bar obviously cannot prepare you for is the day-to-day conduct of a file, and the greater level of direct client contact. I have had to focus on developing those aspects of practice in particular since I left the Bar, in order to work most effectively in a fused-profession here in Cayman. Thankfully, I have had great guidance, examples to follow and mentors here at Appleby who have helped me develop those critical offshore legal skills during my time with the Firm. What that process has helped me understand is
- how important being commercial with legal services is, and
- how much more rewarding it can be to manage a dispute from start to finish for a client - I've found you get a greater sense of your services being of real benefit. As for secondments from Fountain Court, I was fortunate to get the chance to undertake a series of them in the Channel Islands before I moved into offshore practice full-time: this helped hugely with the initial transition to offshore practice. I was far more directly exposed to it - and saw more of what it actually entailed day to day - than I would have been had I merely worked on offshore cases in my room in Chambers. I would also say that working in a number of different Appleby offices has also been extremely helpful to the process of developing good experience, and a sense of offshore legal practice as a whole; as well as developing a good network of contacts in our key jurisdictions. As "offshore" has matured into a global market (rather than remaining a disparate collection of hermetically sealed jurisdictions) experience and awareness of practice in other offshore jurisdictions has become increasingly valuable in providing the best service for our clients - who themselves invariably also operate across multiple offshore jurisdictions.
PM: How important is it to maintain a good team ethos both with US and UK law firms, and with local and UK counsel?
SS: US and UK law firms are some of our major referrers of work, so building and maintaining good relationships (both when we're working together, and when we're not), is a major part of practice here in Cayman and offshore generally. The major pieces of offshore litigation in which we act are so often one piece of a wider litigation strategy executed across multiple jurisdictions that the proper co-ordination of all efforts is critical. In my experience, the best way to build and maintain that is by quickly developing a team ethic across all the firms and counsel acting as part of that strategy. That often involves making a concerted effort to get to know all of the individuals working on the wider matter - I try to ensure we speak regularly on calls in the early stages to build a good level of contact and trust, rather than only communicating by formal lawyerly e-mails (which from my perspective can often have the reverse effect).
Having good pre-existing relationships with particular local and UK counsel is extremely helpful as it means we can put an effective wider team together quickly, with trust and a good team ethic in place from the outset. Anyone involved in litigation knows that in the heat of battle you need everyone pulling in the same direction, often at times of very intense pressure. That's when the time spent building those connections, and that trust, pays dividends if it has been done properly. It's no exaggeration to say that, all else being equal, the team that's done the best job of this generally wins - it's that important. We've found that making a point of having team and client socials as a phase of work on a case has been completed helps maintain the right kind of team ethic, in particular in the largest pieces of litigation continuing over many years where the team has to keep re-forming to continue to deliver for the client over an extended period of time. Luckily, we're very well placed here in Cayman to have opportunities for some quality down-time with our teams once a phase of work is over (boat trips on the North Sound, or getting everyone out to one of the many great restaurants we're fortunate to have right on our doorstep). When we're on-shore we try to make a point of touching base with former or current members of our wider network and teams to help maintain these valued relationships so that we keep delivering on current matters, or we're ready to hit the ground running together on anything new on which we're instructed.
PM: What positives do you see in the way Cl courts are managing and judging significant commercial litigation?
SS: The Financial Services Division of the Grand Court in Cayman has, in particular post the A HAB v. Saad litigation, proven itself capable of dealing with trials of the largest. most significant commercial and financial disputes. The Court's management and resolution of those proceedings was a great advertisement for the jurisdiction, and much of the credit for that is due to the Chief Justice.
There is a real commitment on the part of the Judges and the profession to working to continue to develop Cayman as a jurisdiction that can be trusted with the most significant commercial litigation - one example of that is the lecture, organised by the Chief Justice, by LCJ Thomas on the historical development of the Commercial Court in London in order to draw parallels with the FSD's development in Cayman (highlighting the importance of having an active and respected users' committee which feeds back areas for improvement to the Court itself, something which is in place in Cayman in respect of the FSD). The FSD has a settled bench of respected and long-standing Judges, to which have been added some impressive relatively new recruits - Justices Segal and Parker (both former Freshflelds' partners) as well as Justice Kawaley, the former Chief Justice of Bermuda.
In addition to this judicial depth at first instance, when you review the names of the current Judges of the Cayman Islands Court of Appeal (Goldring, Birt, Beatson, Field, Martin, Moses, Newman and Rix, it is clear that the Cayman Courts have a quality of judicial experience which is virtually unparalleled in the major offshore jurisdictions.
I've noted three other main positives developing over the last few years:
- the flexible and accommodating approach of the Court and its staff to trials and applications running long (additional days are regularly made available where possible to conclude a hearing), as well as to the use of video links where possible
- an increasing focus on the need for speedy turnaround of judgments and
- the approval by government of funding for a new modern Court building in the former premises of Scotiabank, immediately behind the current main Court building. The need for this had become a recurring theme of the speeches at the opening of the Grand Court each New Year, and the fact approval has now been given shows, the Islands' government's recognition of the importance of the work going on in the Cayman courts to the local economy.
PM: What trends do you see in the way in which the courts offer interim remedies in offshore claims?
SS: There have been some very recent decisions in Cayman on Norwich Pharmacal applications for pre-action disclosure from local companies' registered offices that show that the trend in Cayman at least is for such disclosure to take place without the added costs of an application under the local confidentiality legislation (which was previously assumed by practitioners to be necessary on the wording of that legislation). This is a welcome development which highlights the Court's willingness to be practical, since there was a degree of judicial creativity required to produce that result.
That recent development is consistent with substantive developments in the BVI case law in 2016 which widened the Norwich Pharmacal Jurisdiction, beyond the position in the relevant English law. Both these related trends suggest a greater willingness of offshore Courts to provide assistance (rather than set up road-blocks) to potential claimants in need of information and evidence to bring claims. We also expect to see further use being made of, and judgments on, applications for free standing freezing orders against Cayman assets, where there are no substantive proceedings in Cayman, but the order is made in support of litigation in another jurisdiction (under a 2014 statutory amendment made to clarify the availability of such interim relief). There have been a steady stream of judgments on section 1 1A since its introduction, culminating most recently in the Batista judgments freezing Cayman assets derived from an alleged fraud committed by the owner of a Brazilian oil exploration company, in support of substantive proceedings in Florida.
PM: What do you feel 2019 holds for the way in which significant commercial litigation will develop - will litigation funding become better used?
SS: We have been consistently hearing from our onshore counterparts that financial regulators are becoming markedly more active and aggressive in their jurisdictions. That is likely to lead to significant commercial litigation, including in offshore jurisdictions. I would say there is a far greater awareness now among offshore litigators of the practical benefits of litigation funding, its processes. and its key players, than when I moved offshore seven years ago. That is partly due to the increased number of entrants to the market, and their business development drives in our jurisdictions. At the same time, the legal framework in offshore Jurisdictions for the use of funding is maturing, giving more certainty to firms and clients in using it. So in 2017 and 2018 in Cayman we had two significant decisions which set out the factors which the Court would take into consideration in deciding whether to approve a third party funding arrangement as not involving unlawful maintenance or champerty. There have previously been a number of similar significant decisions on the principles applicable to funding arrangements in our other jurisdictions - in particular Jersey, Guernsey and Bermuda - and the marked trend is towards the approval of reasonable funding arrangements. In 2018, the Cayman Islands Law Reform Commission also produced an interim report proposing a draft bill and regulations for the private funding of legal services in Cayman. If enacted in due course, it is expected that the regulations would further clarify the requirements for the terms of permissible litigation funding. All the signs are. therefore. that litigation funding is extremely likely to become more frequently used in Cayman (and offshore generally), following its rapid evolution in other jurisdictions around the world.
PM: What are your personal aspirations in practice for the next 12 months?
SS: Over the next year I'm going to be building on the existing relationships I have with my clients, by focusing on delivering a great service and results as cost effectively as possible. My personal aim is to continue to be the go-to trusted adviser for clients I repeatedly work with, whenever they find their business faces a challenging situation or a dispute may be developing. It's particularly important for me that clients feel that picking up the phone for a quick view on something is an absolutely fundamental part of the service we provide as their attorneys - and that we'll always respond quickly to any contact or request for assistance, whenever it comes in, and whether it requires opening a file or not.
I'll also be working on winning new clients, preferably by reputation and word of mouth referrals, but also through getting back to our key onshore markets to meet more referrers and clients to broaden out my contact list. On Island, I want to work on enhancing my own reputation in the Cayman disputes market as being a tough but straightforward opponent who will fearlessly protect my client's interests, while at the same time (from both my clients' and colleagues' perspectives) being easy to work with.
I've had some great mentors and personal examples over the years of how these somewhat opposed objectives can be met simultaneously (both here at Appleby and, before that, at Fountain Court). Finally, as I still love representing clients as their advocate in Court, I'll be aiming to get into Court as much as possible, trying to clock up some more good results and judgments, hopefully significantly advancing my clients' interests in the process.
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