2 March 2021
Whilst imperfect in many ways, this solution comes with many advantages, particularly in the offshore world where parties, and sometimes their lawyers or even judges, are not resident in the territory where the case is to be heard. The ability of counsel, witnesses or experts to attend hearings from their home jurisdictions provides time and cost savings, not least for those of us based in Asia. In this feature we shall take a look at how our jurisdictions are managing the process.
Until relatively recently, the court process was based exclusively on printed originals, paper copies, physical attendance and traditional formalities (including appropriate dress – and wigs – and sitting, standing and bowing at the appropriate time).
Over the last ten years or so, the courts have allowed greater flexibility and, with the general move from physical to computerised records, allowed documents to be filed electronically, rather than requiring attendance with multiple copies at a registry counter. It became more common for hearings to be conducted wholly or partly remotely, or for observers (such as the parties themselves) to watch the proceedings by dedicated video-link.
In the offshore courts there have been some particular features that led to greater adoption of remote hearings. It is not uncommon in some jurisdictions for the parties to instruct Queen’s Counsel based in London to appear. For a short hearing, or one convened as a matter of urgency, it was not unusual for the courts to allow counsel to dial in by telephone. In the Cayman Islands, some of the judges in the Financial Services Division sat part-time, continuing with their legal practices in London. They might therefore hear cases remotely, sitting in London with counsel appearing from Cayman, or even sitting together with London-based counsel, with a remote link to the physical court in Cayman.
The substantial damage to infrastructure caused by Hurricane Irma in BVI in 2017 also led to a greater use of remote processes in that jurisdiction.
In these circumstances, the arrival of the Covid-19 pandemic in February/March 2020 was not the first time that the courts moved towards greater adoption of remote processes. As a result, the move happened quickly and effectively and in most jurisdictions with little impact on the ability of the courts to get through cases. In the following sections, we look in more detail at how the courts have been working in Bermuda, the British Virgin Islands and the Cayman Islands, in the Crown Dependencies of Guernsey, Isle of Man and Jersey, and in Mauritius.
For further information, please contact:
Eliot Simpson, Partner, Appleby
esimpson@applebyglobal.com