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ADJUDICATION OF CORPORATE AND COMMERCIAL DISPUTES – ARE OUR COURTS EQUIPPED? 1

INTRODUCTION A firm commitment to law and the rule of law is an integral part of the foundation for economic development together with creation and maintenance of strong and effective markets, business and commerce 2. A necessary underpinning to the rule of law is an effective justice system that is constituted of accessible courts presided over by an independent and highly qualified judiciary which delivers quality justice and commands public confidence.

Effective courts give life and teeth to the framework of law as it provides a sound structure for just dispute resolution by enabling businesses to resolve their dispute through a just timely and fair process. In short, effective courts are essential to economic prosperity. Entrepreneurs can be confident that they can develop business, promote and market products and develop new products secure in the knowledge that their rights will be respected, vindicated and enforced.

A sound legal framework is characterised by clear, readily accessible and understandable substantive law that facilitates settlement of disputes and where that is not attainable, there is speedy and just decisions by accessible courts, whose judgments are readily enforceable. The court is the part of the legal framework that facilitates with main function of resolving disputes between the immediate parties to a dispute. Their judgments also provide the the benchmark for others in the market. In common law jurisdictions, the method for developing law is through precedent. Courts innovate in response to innovation. This is done incrementally and consistently within established principles; this ensures that the law does not lose its predictability. This Tavia Dunn, Partner, Nunes, Scholefield, DeLeon & Co Commercial Justice in the Global Village: The Role of Commercial Courts by the Right Honourable The Lord Thomas of CWMCIEDD Lord Chief Justice of Wales at DiFC Academy of Law Lecture (AoL) Dubai February 6, 2016 1 2

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framework remains stable as courts aim to meet the changing needs and nature of society.

The development of law by the courts can be described as reactionary as it responds as disputes arise. As a consequence, there has in general been the absence of any concerted, considered, strategic reform of our court system to better enable it to enhance the legal framework. Given the speed at which our world is changing, the advent of the internet and the ever developing global village, together with the effect these changes have on society and businesses, the role and function of the courts cannot be underestimated. It is not intended to underestimate the role of government and the legislature to develop the law. However, the court can provide the requisite blend of speed, flexibility and certainty required by the law generally, and more particularly where the needs of business, commerce and the markets arise.

THE CREATION OF THE COMMERCIAL DIVISION

In most common law jurisdictions, there were traditionally, two divisions of the Court: civil and criminal. Civil matters were heard in the civil division, while all criminal matters were heard in the criminal division. If a matter was not of a criminal nature it was deemed to be a civil case. This gave the civil division wide latitude of jurisdiction to deal with civil cases. Claims related to tort, land, family, contracts, company, financial institutions, intellectual property and others all are heard before the civil judge.

Statements as to the alarming delays and backlog of cases contribute to a perception among domestic and international business communities of significant delays in the administration of justice and unfairness within the judicial system. The commonly held view is that even routine commercial debt recovery cases take on average four to five years to be resolved in the general civil division and, that cases involving more complicated issues of commercial or contract law can take much longer. As part of the Page | 2

process of judicial reform, there has been a move to create specialised courts to deal with commercial transactions. In keeping with this movement, the Commercial Division was created in the Supreme Court of Judicature of Jamaica with the advent of the Civil Procedure Rules 2002.

The development of the commercial court is one key area of “business climate reform� as it serves to unbundle business disputes from civil and criminal ones. There are contrasting views as to the need for specialized courts. The theory for specialization is a judge sitting in a specialized court will develop a greater knowledge and expertise in the subject matter and in their procedural management. This will permit the specialist judges to make more reliable and informed decisions and do so with greater efficiency.

The Commercial Court is built on the pillars of: i)

The expertise of the decision makers

ii)

Expedition in decision making

iii)

Predictability in process

iv)

Management and outcome; and

v)

Sufficient flexibility to ensure that the processes can be moulded to the needs of each individual case 3.

The idea of a Commercial Court (or Division) is not novel. The Commercial Court in England was set up in 1895 following demands from the City of London and the business community for a tribunal or court manned by judges with knowledge and experience of commercial disputes which could determine such disputes expeditiously and economically, thereby avoiding tediously long and expensive trials with verdicts given by judges or juries unfamiliar with business practices 4. It should be noted that the then Commercial Court in England was not a distinct court of the English High Court but rather a particular judge was dedicated to handling commercial business. The main

3

3

The Role of the Modern Commercial Court Supreme Court Commercial Law Conference 12 November 2009 G.T. Pagone, Judge in charge of the Commercial Court, Supreme Court of Victoria, Professional Fellow University of Melbourne pg. 4 Commercial Court (England and Wales), http://en.wikipedia.org/wiki/commercial_court_(England and Wales)

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purpose of the commercial list at the time was to bring a speedy determination to such cases.

The driving force behind the creation of a Commercial Division is the desire to facilitate the resolution of business/commercial disputes in a quick efficient and effective manner that ensures economic growth 5. The need for a specialized court dedicated to the resolution of commercial disputes is not justified by commercial law or commercial disputes having a privileged position in the legal system. Especially, when regard is had to the paramount importance of the liberty of a citizen to appreciate that there are other claims which may be more important than civil disputes about money, trade and commerce. Nevertheless, there is an aspect of commercial disputes that requires an institutional, systematic and structured response by the courts 6.

In AON Risk Services v ANU 7, Heydon J stated “Commercial life depends on the timely and just payment of money.

Prosperity depends on the velocity of its circulation. Those who claim to be entitled to money should know, as soon as possible, whether they will be paid. Those against whom the entitlement is asserted should know, as soon as possible, whether they will have to pay. In each case that is because it is important to both the claimants and those resisting claims are able to order their affairs.

How they order their affairs affects how their creditors, their debtors, their suppliers, their customers, their employees, and, in the case of companies, their actual and potential shareholders, order their affairs. The courts are thus an important aspect of the

Geoffrey Kiryabwire, The Development of the Commercial Judicial System in Uganda: A study of the Commercial Division, High Court of Uganda, 2 J. Bus. Entrepreneurship & L. Iss. 2 (2009) Availabe at: http://digitalcommons.pepperdine.edu/jbel/vol2/iss2/3 6 The Role of the Modern Commercial Court Supreme Court Commercial Law Conference 12 November 2009 G.T. Pagone, Judge in charge of the Commercial Court, Supreme Court of Victoria, Professional Fellow University of Melbourne at pg. 3 7 (2009) 83 ALJR 951 cited ibid at pg 3

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institutional framework of commerce. The efficiency or inefficiency of the courts has a bearing on the health or sickness of commerce” The Honourable Ms. Justice Mangatal in Supreme Ventures Ltd v Camiele Bisseney (t/a Camiele’s One Stop) 8 stated that “Commercial Enterprise in whatever form has been an essential part of our existence. It is the force which drives development and prosperity within our boundaries. It is the element which gives us the competitive advantage over our neighbours. Increasingly, countries are promoting themselves as having an attractive investment climate, in a bid to lure investors to their frontiers. Policy makers throughout the world including Jamaica, have been feverishly designing an enabling environment outfitted with all the right necessities. One of the most critical components of this enabling environment is ensuring that there are effective legal processes in place to effectively deal with disputes.

As ultimately it is the courts which facilitate ordered commercial activities by enforcing bargains and resolving disputes which arise in on-going commercial activity. Business dealings need certainty, predictability and enforcement of deals. Commercial activity therefore needs the courts and looks to the courts, to create an ordered environment within which to operate. The commercial community has come to expect and is entitled to expect that commercial disputes be resolved by judges who are familiar with commerce and who appreciate the commercial realities of their decisions. It also expects, and needs, commercial disputes to be resolved quickly, predictably, consistently and economically. Business needs quick, efficient, affordable and predictable outcomes for business and the economy to run smoothly 9.

[2013] JMSC Civ. 71 “The Role of the Modern Commercial Court Supreme Court”, Commercial Law Conference 12 November 2009 G.T. Pagone, Judge in charge of the Commercial Court, Supreme Court of Victoria, Professional Fellow University of Melbourne at p.3

8 9

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The Commercial Court, is viewed as a speedy and reliable vehicle for commercial dispute resolution which can play an important role in a country’s economic development by facilitating private sector development and improving investor confidence. The court can be used as a tool to attract companies, business, investors and investments to a given jurisdiction or to prevent them from leaving. 10 Prime Minister Anthony, the former Prime Minister of St. Lucia at the inauguration of the Commercial Court in that jurisdiction 11 stated: “The… court will also result in the increased competitiveness of Saint Lucia, defining competitiveness as the key set of factors, institutions and activities that enable a country to offer services and products to sustain itself among itself among its competitors and to earn a high level of income. Therefore to increase competitiveness it is essential to establish a critical institutions to provide support services to business and other sectors of the economy. While it may seem that the business and legal sectors are” 12 While it may seem that the business and legal sectors are separate, legal systems cannot afford to fail their business communities and must provide a system of dispute resolution that takes account of the context in which disputes arise and the need to resolve them as business continues to be carried on. A weak commercial judicial system undermines the confidence of investors. The legal system, to that extent, is a necessary adjunct and facilitator of efficient business activities. The system of dispute resolution must, to that extent, be moulded to business needs and exigencies 13.A Commercial Court was necessary to interpret the rules of business environment and protect the rights of businessmen and women. An efficient and transparent court system encourages new business relationships and expansion as businesses know that they can rely on the court for redress, should legal proceedings become unavoidable. The

10 11 12 13

Kroeze, Maarten J., The Companies and Business Court as a specialised court January 2016 http://thevoiceslu.com/2016/01/commercial-court-boost-for-business-says-p-m/ Supra fn. 9 at p. 4

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establishment of the Commercial Court encourages investors to make greater use of domestic courts to resolve disputes, investors are attracted to courts that are fair, transparent, efficient and timely in resolving disputes. 14 The Honourable Ms. Justice Mangatal in Supreme Ventures Ltd v Camiele Bisseney (t/a Camiele’s One Stop) 15 concluded that This is where the Commercial Court has a critical role to play. The Commercial Court was established to provide a forum in which there would be greater familiarity with commercial disputes. Its operations were meant to enable these disputes to be determined expeditiously, efficiently and without unnecessary formality…”

16

What type of matters can be brought before the Commercial Division?

Part 71 of the Civil Procedure Rules 2002 establishes the Commercial Division of the Supreme Court of Judicature of Jamaica. Part 71.3 provides that: In this Part “commercial claim” includes any case arising out of trade and commerce in general and any case relating to – (a) admiralty proceedings; (b) contracts relating to ships and shipping; (c) contracts relating to aircraft; (d) the international carriage of goods by land, sea, air or pipeline; (e) the exploitation of oil and gas reserves; (f) insurance and re-insurance; (g) banking,

negotiable

instruments,

financial

services

and

international credit;

14 15 16

Supra fn. 12 Supra fn.7 Ibid at para. 3

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(h) the purchase and sale of commodities; (i) hire purchase transactions; (j) the operation of international markets and exchanges; (k) the construction and performance of business documents and contracts including agency; (l) questions

connected

with

or

arising

from

commercial

arbitrations; (m) franchising agreements; and (n) any other matter or any question of facts or law which is particularly suitable for decision by a judge of the Commercial Division The Honourable Ms. Justice Mangatal in Supreme Ventures Ltd v Camiele Bisseney (t/a Camiele’s One Stop) 17 expressed the view that it would have been foolhardy for the makers of the rule to narrow down exactly the type of matters which could be described as being commercial. The use of the word “includes” and the use of the catch-all phrase at paragraph (n) of in Part 71.3 suggest that the rule makers were of the view that the definition of what is a commercial claim is not limited by or exhausted within, the categories listed in the Part. Commercial law itself is very divers and consistently evolving area of the law 18.

The learned judge provided the following guidance as to the type of matters that can be filed or transferred to the Commercial Court: In deciding whether a matter should be heard by the Commercial Court, the nature of the dispute would have to be looked at to see whether: a. the parties are engaged in trace or commerce and the issue is one which arises out of a business dispute; OR b. the dispute falls within one of the enumerated category (a) – (m): OR 17 18

Supra fn. 8 Ibid at para. 8

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c. the substance of the matter is sufficiently specialized to justify being heard by a judge with expertise in that area [as contemplated by the umbrella clause at (n)] 19 When considering whether a claim is one which arises out of trade and commerce, the court will have regard to the commercial reality of the issues in question. It will involve the judge looking at the practical application of what is being claimed 20.

There are some matters which by their nature could not be described as commercial claims even though the parties or one of them may have a commercial objective.

Corporate status is not determinative of whether a matter is to be filed in the Commercial Court; it is the nature of the dealing between the parties and the resultant dispute that will be decisive 21. What needs to be ascertained is whether there is a commercial issue of import that necessitates the expertise of the Court.

To determine whether a case is one which arises out of trade and commerce, the Court will have to look at the commercial picture as a whole. Regard will be had to what is being claimed and whether it advances the essence of commercial realities. It would require the Judge to step into the position of a “business man” to appreciate the significance of the issue. It is for this reason, Lord Goff in commenting on the role of the Commercial Court stated: “We are there to help businessmen, not to hinder them, we are there to give effect to their transaction, not to frustrate them; we are there to oil the wheels of commerce, not to put a spanner in the works, or even grit in the oil” 22 If the matter is one that does not arise out of trade and commerce or does not fall within the categories specified at Part 71.3 (a) – (m), the judge is given a discretion to allow matters which in his or her opinion require the specialist assistance from the judges of 19 20 21 22

Ibid at para. 6 Ibid para. 6 Ibid at para. 10 Sir Robert Goff, “Commercial Contracts and the Commercial Court” (1984) LMCLQ 382 cited in Supreme Ventures Ltd v Camiele Bisseney (t/a Camiele’s One Stop) Supra fn. 8 at para. 9

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the commercial court at Part 71.3(n). The judge has the power to hear matters which are complicated and which are of importance of commercial life. 23

The Existing Commercial Court Structure It is to be noted that the jurisdiction of the Commercial Division is not exclusive, in that it shares jurisdiction over commercial matters concurrently with the Civil Division of the Supreme Court. A claimant must choose the division in which to file his/her claim. A claim filed in the Civil Division may be transferred to the Commercial Division pursuant to Part 71.6.

At present there are four judges serving in the Commercial Division each responsible for a share of the Division’s caseload. Although formally established as a specialized division of the Supreme Court, the Commercial Division operates, in practice, as a distinct and stand-alone court. A Commercial Court registry, with its own Registrar, has also been established independent from the Supreme Court. The Commercial Court registry is necessary to provide full-time administrative support to the commercial court.

Case Management of all commercial matters is carried out by the commercial registry whereby dates are fixed for the matters to be heard by the Commercial Court Registry.

This process ensures that cases are allotted an appropriate share of the court’s resources and are dealt with expeditiously.

In addition to having its own registry, the Commercial Court has its separate scale of fees for the filing of claims which is ad valorem.

The procedure in and progress of a commercial action is under the direct control of the commercial judge. The control, of judicial proceedings by the Commercial Judge improves efficiency and allocation of judicial time to any particular claim. For example, Part 27.7 of the Civil Procedure Rules creates an important distinction between civil and commercial claims. The Part provides that:

23

Ibid at para. 12

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The judge or master who conducts the case management conference may not try the claim except‌ (c) claims tried in the Commercial Division under Part 71 This provides the commercial division with a distinct advantage over the civil division as judges manage their own cases. The expectation is that judge managing the case will be the one to hear the case at trial and will decide the dispute. An advantageous consequence, from the point of view of parties, is that they have immediate access to a judge able to deal with all issues which may arise in a dispute before its ultimate trial and determination. Interim orders may need to be made and can be made by the one judge who is aware of the facts and is able to control the whole of the proceedings and the relations between the parties until the trial and determination of the matter. .

The allocation of a judge creates efficiency through continuity given that the judge managing the case is familiar with the facts and issues in the proceeding. Another consequence, from the point of view of the parties, is that the preparation of a case for trial can be made by the legal practitioners knowing the practices and preferences of the judge expected to conduct the trial. The significance of this cannot be underestimated for reducing costs and reducing delays. Interlocutory disputes that bear upon the conduct of a trial or otherwise likely to be decided cautiously where the judge deciding the interlocutory dispute may not be the trial judge. This is because the judge deciding the interlocutory stage may be reluctant to decide issues that might bind the trial judge.

There may be a tendency for a judge hearing interlocutory disputes bearing upon the conduct of a trial to leave as much as possible open for the decision at trial. Having the managing judge as the trial judge will minimise if not remove that tendency with the benefit (at least in theory) of reducing costs, time and delays. 24 A concern about the judicial management of cases has sometimes been that the decision maker may be inappropriately influenced by matters raised in earlier interlocutory disputes concerning “The Role of the Modern Commercial Court�, Supreme Court Commercial Law Conference 12 November 2009G.T. Pagone, Judge in charge of the Commercial Court, Supreme Court of Victoria, Professional Fellow University of Melbourne at pgs. 10-12

24

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disputed facts as this may impact the confidence which the parties can have in the final decision of the judge at the trial. 25

Performance of Commercial Courts For the Commercial Court to realise its true potential its aim must be to ensure that the legal framework is properly adapted to and responsive to the market place and the emerging ways of doing business which has resulted in the global village 26.

The Right Honourable Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales in his address on Commercial Justice in the Global Village: The Role of the Commercial Courts identified the following four areas as being necessary for the Commercial Court to realise its full potential to meet the needs of modern commerce: a. Market-motivated, but judge led, reform; b. Personnel i. The Judiciary ii. The legal profession iii. The Court Administration c. The process i. Rules ii. Technology d. The product i. Keeping abreast of commercial change ii. Determining unresolved market issues 27

25 26 27

Ibid at p. 8 Supra fn. 2 at para 17 Ibid at paras. 18 and 19

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arket-motivated, judge led, reform The approach to be adopted, and any reforms, must be developed in keeping with what those engaged in the markets and commerce, including regulators consider may assist the needs of the market and commerce. 28 Lord Thomas expressed the view that: There is little point in a committee of judges designing reform according to some abstract principle and in isolation from their perception of the need for development of the law and modern day realities of dispute resolution, particularly cost as perceived by the market user. And I should stress, I do not mean by market user, the lawyer or the professional litigant, but those in the market in its widest sense and those in international commerce. Judges must ascertain those needs with the widest possible discussion and then lead the reform‌ courts must be bold in the way in which they devise reform, bold in practical application, and bold in addressing issues of principle that may arise. But they must heed the market in properly understanding the demand. As I hope I have made clear, such considerations should however not be limited to discussions between judges or with government, or with the legislature or with the legal profession; its essential focus must be the commercial community as a whole. Its objective must be not only to improve the way the courts can better deliver justice in the particular dispute but also to make the courts work for the entire commercial community particularly through the wider task of developing the law to keep pace with change.� 29

28 29

Supra fn. 1 at para. 19 Ibid at paras. 19 and 22

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Within the Jamaican context, this kind of reform would have to be carried out by the Rules Committee of the Supreme Court.

A recent example of the approach suggested by Lord Thomas in the Jamaican context is the inclusion of the rules on Insolvency in the Civil Procedure Rules in September 2016. 30

Personnel

(i)

Judges

The key personnel of the Commercial Court are the judges. What the Commercial Court requires are judges of the highest calibre who understand the needs of business. It is essential for the posterity of the Commercial Court that it continues to attract the highest quality of judges.

The engendering of continued confidence and trust in the judiciary, their probity, judgment and expertise must be the highest priority, so as to maintain the relevance of the commercial court in modern commerce and the ever changing global village.

31

The

Commercial Court staffed by trained and experienced judges provide litigants access to a court equipped to competently address their unique substantive and procedural needs. 32

30 31 32

The rules were drafted by a Working Committee created by the Ministry of Science, Technology , Energy and Mining and submitted to the Rule Committee Supra fn. 2 at para. 25 Tucker, Anne (2007) “Making a Case for Business Courts: a Survey of and Proposed Framework to Evaluate Business Courts� Georgia State University Law Review: Vol 24: Iss 2, Article 4.

Available at http://readingroom.law.gsu.edu/gsulr/vol24/iss2/4

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(ii)

The legal profession

The full potential of Commercial Courts cannot be realised without a legal profession that is innovative and excellent. 33 The view of the profession is that it is conservative, resistant to change and protective of its interest. In some instances it is right to do so but in other instances the profession has been innovative.

The continuous improvement in knowledge and skill is a necessity. A key component is integrity and advocacy. Maintaining the integrity expected of the profession, no doubt speaks for itself. The ability to present complex cases skilfully to assist the court in reaching the right decision within a clear legal structure and understanding of markets and commerce is imperative. High oral and written advocacy standards must be maintained and improved by commercial litigation practitioners. 34

To a business the employment of the best advocate is a self-evident necessity. It is not always appreciated that the advocate for each party is equally needed by the judge, if the law is to be developed. The role of legal practitioners is to further their client’s interest in dispute resolution by assisting the judge in reaching a decision to the dispute.

It would be useful to see the judge as the consumer of their services in aid of the client’s interest. To that end, the aim is to identify and clarify the issues which need to be decided, to sharpen the ambit of dispute by precise identification of what the dispute depends on and by reducing to a humanly manageable size both the evidence (oral, written and documentary) and the submissions upon which the outcome depends. The focus must be on what will make decisions more efficient, expeditious and economical. 35

Ibid at para. 26 Ibid at para. 29 35 “The Role of the Modern Commercial Court”, Supreme Court Commercial Law Conference 12 November 2009 G.T. Pagone, Judge in charge of the Commercial Court, Supreme Court of Victoria, Professional 33 34

Fellow University of Melbourne at p. 14

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The promotion of the highest standards for legal practitioners who practise before the court is a pre-requisite for meeting the needs of business. The judiciary has therefore the greatest interest in ensuring the highest professional and ethical standards. 36

(iii)

Court Administration

Court administration is an essential component in the continued development of the Commercial Courts. The proper functioning of the Commercial Division is enhanced by a dedicated and knowledgeable complement of administrative staff, including the Registrar, who provides the court and its users with a very high level of service.

The maintenance of high standards will increasingly require court staff to have continuous training. Steps should be taken to ensure that digital systems are kept up to date. Training staff in the use of current technology and ensuring that technology is up to date are things that can, and perhaps are all too often forgotten in some jurisdictions as a priority. It is an absolute priority for users of the court, who need to have their claims dealt with, not only with the highest quality of justice but at a speed and cost appropriate to modern standards.

Process

(i)

Rules

It is must never be a position that the Rules of the Court, in particular those of the Commercial Division are never in need of review and change, if necessary. There is an

36

The Right Honourable, The Lord Thomas of Cwmgiedd Lord Chief Justice of England and Wales, “Giving Business what it wants – a Well Run Court for Commercial and Business Disputes ”Grand Court of the Cayman Islands Guest Lecture 2017 at para. 58

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ever present need for improvement in order to achieve the objective of providing the highest quality justice in commercial disputes more proportionately and cost effectively.

(ii)

Technology

The words: courts, service and innovation are hardly, if ever mentioned in the same sentence. After all Courts are generally places where persons are compelled to attend, while for the most part, proceedings would not be that unfamiliar to someone looking on from a century ago. However, customer service and technological innovation are hallmarks of the best modern commercial court systems.

The Civil Procedure Rules 2002 empowers the court at Part 2.7 (3) and (4) to:

(3)

‌ [conduct] ‌any hearing in whole or in part by means of a telephone conference call, video-conference or any

other

form

of

electronic

communication.

(4)

give directions to facilitate the conduct of a hearing by the use of any electronic or digital means of communication or storage or retrieval of information, or any

other

technology

it

considers

appropriate.

Additionally, by virtue of Part 29.3 of the Rules, the Court may allow a witness to give evidence without being present in the courtroom, through a video link or by any other means. At the time of the coming into effect of the Rules, these developments were viewed as radical steps.

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In enhancing the court’s ability to deal with matters of a commercial or corporate nature, it may be useful to address one’s mind to the possibility of an electronic registry system to facilitate e-filing and e-service 37 of documents. Additionally, consideration should be had to the creation of online access to files and the provision of public Wi-Fi.

It is essential for court room technology to be enhanced to include the electronic recording of court proceedings thereby moving away from the traditional method of recording evidence by long hand writing or the use of a court reporter 38.

Product (i)

Keeping abreast with commercial change

Effective judges, lawyers and court administration, court rules and technology are all building blocks; a means to an end. The end is high quality justice which develops the law in tandem with change. It cannot be stressed enough that commercial courts must be practical courts, not courts tied to abstract principles but courts committed to enhancing the prosperity of markets and commerce through the delivery of justice and the development of law. 39 A commercial court must understand the markets and the commercial world. The judiciary must remain abreast of changes in the market. Without such a judiciary, a court cannot meet the needs of business and cannot get the balance right between certainty and the development of the law. 40 This is dependent on high quality judicial education and seminars.

The Civil Procedure Rules only permits the service of documents other than a claim form by means of electronic communication if permitted by a relevant practice direction unless a rule otherwise provides or the courts orders otherwise [Part 6.2(d)]

38 39 40

] Mention must be made of the Digital Recording Pilot Project launched on May 4, 2015.

Supra fn. 1 at para. 40 The Right Honourable, The Lord Thomas of Cwmgiedd Lord Chief Justice of England and Wales, Giving Business what it wants – a Well Run Court for Commercial and Business Disputes Grand Court of the

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One of the tenets of a sound judicial system is the quality of its judicial officers. 41 The Honourable Mrs. Justice Zaila McCalla O.J. alluded to the need for the creation of a Judicial Education Institute under the judicial branch of government. 42 The learned Chief Justice said that judges have to reinvent themselves

“…to adapt to the changing needs of our society as well as the developments in the law and the many issues arising therefrom.

The establishment of a Judicial Education Institute is part of ongoing plans to reform the justice system. Programmes will include mandatory training courses and orientation for newly appointed judges. The public’s confidence will inevitably be affected by its perception of the competence of judges. It is necessary therefore that continuous and specialized training should be readily available… (judges) have to be masters of the law which (they) interpret and apply” 43.

(ii)

Determining unresolved market issues

Courts have long been positioned to develop the law with the aim of providing a procedure through a transparent court process for the resolution of issues whether or not there is judicial precedent in relation to same.

The Irish court has taken a broad view of what constitutes a commercial dispute and has held that

Cayman Islands Guest Lecture 2017 41 42 43

The Honourable Mrs. Justice Zaila McCalla O.J., Address to the Kiwanis Club of North St. Andrew June 19, 2014 Ibid at p. 19 Ibid at p. 18

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“if it can be demonstrated that a commercial development or process or substantial sums of money whether by way of profit, investment loan or interest are likely to be jeopardised if the case is not given a speedy hearing or is denied the case management procedures which are available in the Commercial Court. 44

It was stated in the Irish Commercial Court case of IIB Services Limited v. Motorola Limited 45 stated that the purpose of setting up the Commercial list was to achieve the objective of "speedy, efficient and just determination of commercial disputes". This should not be confined to disputes in the traditional sense. There may be complex questions of law which are of significant commercial importance, but which may not initially, necessarily involve a dispute between parties but may require close case management in the fixing of timetables so as to take into account transactional timing requirements. 46. Parties are enabled to commence proceedings where there may very well be no known cause of action before the court to seek declaratory relief. The Court will return a decision that may enable parties to resolve a market uncertainty before it has reached the stage where damage is accruing as a consequence of that uncertainty.

The Parish Courts

In considering whether our courts are equipped to adjudicate on corporate or commercial disputes, it would be remiss not to mention the Parish Courts. Since the implementation of the Civil Procedure Rules in 2002, the jurisdiction limit for the Parish Court has been increased.

44

McCannFitzgerlad, A Guide to Ireland’s Commercial Court A Decade of Innovation and Commercial Litigation www.mccannfitzgerald.com

45

[2012] IEHC 374 cited ibid Supra at fn 44

46

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The jurisdictional limits of the RM Court in Civil Matters (under the Judicature Resident Magistrates) Act ("JRMA") and other statutes) 47 are as follows

Type of Matter Common law claims (contract and/or tort) - sections 71(a), 73(2), 74, 75 of JRMA Claims in which distress or replevin or property or goods is sought- section 79 of JRMA Claims by caveator to restrain land being brought under the RTA-section 84 of JRMA

Current Limit $1,000,000

$1,000,000

$2,000,000

Claims for rent or mense profits by a landlord who is seeking recovery of possession from tenant holding over after tenancy has expired or has been terminated by notice to quit-section

$1,000,000

86 of JRMA Maximum annual rental of real property in respect in respect of which landlord can sue tenant for arrears of rent or damages for breach of covenant (without formal demand or

$1,000,000

re-entry) section 87 of JRMA Maximum "annual value" or real property in respect of which disputes as title can be heard and an order for possession

$500,000

granted- section 96 of JRMA Maximum value of property (real and personal), or secured debt, which may be subjected to a claim or other action seeking equitable remedies or other proprietary relief- section

$3,000,000

105 of JRMA

47

http://parishcourt.gov.jm/content/jurisdiction

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Maximum value of deceased's estate (real and personal) for probate and administration jurisdiction - sections 108, 116 of

$3,000,000

JRMA Maximum amount of claim (for debt or damages) which may be removed from the RM Court to the Supreme Court if the

$100,000

court thinks fit- section 130 of JRMA Level Below which awards in the Supreme Court, in claims in contract or tort, may result in successful claimant only recovering costs on the scale applicable in the RM Court-

$850,000.00

section 131(1)(a) of JRMA

With the increase in the jurisdictional limits of the Parish Courts, it is possible that claims which may qualify as commercial disputes will fall within the limit. Provisions of the Civil Procedure Rules 2002 permit the Commercial Division Judge to transfer such matters to the Parish Court.

Part 8.10 of the Civil Procedure Rules states:

(1) In any claim in which

(a)

the quantum of damages alone determines whether the claim should be brought in the court or the Resident Magistrate’s Court; and

(b)

where the amount of any damages claimed is not specified, the claim form must include a certificate by the claimant that the damages claimed exceed the civil jurisdiction of the Resident Magistrate’s Court.

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(2) The court may transfer any claim in which the amount claimed does not exceed the civil jurisdiction of the Resident Magistrate’s court to that court.

The Court may also pursuant to its power under Part 26.1(2) transfer proceedings to the Resident Magistrate’s Court.

Additionally, should a Commercial Division Judge not transfer the matter pursuant to the abovementioned and the judgment sum awarded is up to Eight Hundred and Fifty Thousand Dollars ($850,000.00), the costs to be recovered, are the costs payable at the Parish Court level by virtue of section 131 of the Judicature (Resident Magistrate’s) Act 1928, . These are substantially less than the costs recoverable in the Supreme Court.

Section 131 of the Judicature (Resident Magistrate’s) Act 1928 states: (1) If any action or suit is commenced in the Supreme Court for any cause for which an action might have been instituted in any Court and the plaintiff– a. in an action founded on contract or tort recovers a sum less than one hundred and fifty thousand dollars 48; or b. in action for recovery of land recovers the said land and it is found by the jury in the action (and the presiding Judge is hereby authorized and required to submit the issue to the jury, if any) or, if there is no jury, by the Judge, that the land in question is of an annual value, not exceeding ninety thousand dollars; or c. subject to subsection (2), recovers a judgment in any action, suit or proceedings brought for any cause for which a plaint might have been

entered in the Court

under its equitable jurisdiction 48

Note increase to Eight Hundred And Fifty Thousand Dollars ($850,000.00) ibid

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that plaintiff shall recover no more costs than he would have been entitled to had he brought his action in a Court unless in any such action, suit or proceedings a Judge of the Supreme Court certifies that there was sufficient reason for bringing the action, suit or proceedings in the Supreme Court (2) For the purposes of paragraph (c) the Judge before whom any such action, suit or proceedings as is mentioned in that paragraph is heard shall ascertain and determine the value of any estate, fund, mortgage, lien, charge, property, stock, credits or land in respect of which any such action is brought.

Section 132 of the Judicature (Resident Magistrate’s) Act 1928 also provides: The provisions of sections 131 shall extend to every form of proceeding in the Supreme Court by which any person seeks any relief ... (unless it be by way of counterclaim as a defendant), which might have been taken in the Court, and the term “plaintiff” as used in the said section shall extend and apply to any person taking any such proceeding.

It may need to be explored whether a Commercial Division (or list) should be implemented at the Parish Court level so as to address the needs of small and medium size entities thereby ensuring that the positive effect of a specialized commercial division on commerce and the promotion of business an investment is experienced at all levels of the economy.

Conclusion The commercial court should not be used to secure a practical advantage for claims which bear no real commercial interest. If such matters were allowed to cloud the list, it

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would ultimately defeat the very essence of what the commercial court represents and the vital role it was designed to perform 49.

The Commercial Division has made great strides in the adjudication of commercial disputes. The division has demonstrated a high degree of efficiency in handling and resolving cases, particularly as compared to the civil division. In the civil division at present, trial dates are being set in 2020. In contrast, trial dates are being set in the commercial division of the Supreme Court in 2018.

A number of factors explain the reason the commercial court has a higher degree of efficiency over the civil division. Firstly, the commercial division started with a clean slate it did not inherit commercial cases that were pending in the civil division. As a result there was no deluge of cases on the commercial division. A combination of the court’s novelty, the ad valorem filing fees and the civil division’s concurrent jurisdiction over commercial matters has resulted in a manageable case load to date.

The two main purposes for the creation of the Commercial Court: i.

is to serve the administration of civil justice; and

ii.

attract and retain business within a state.

The five primary goals that embody the concept of the administration of justice are: i.

access to judicial resources

ii.

timely action

iii.

ruling and operating with equality and integrity

iv.

maintaining judicial independence; and

v.

instilling public trust and confidence in the judicial branch.

It can be argued that the Commercial Court has advanced these goals.

With regard to purpose of attracting and retaining of business, this has been often cited as the main reason for the creation of a Commercial Court. However, there is no empirical evidence to support a direct correlation between the establishment of a 49

Per Mangatal J in Supreme Ventures Ltd v Camiele Bisseney (t/a Camiele’s One Stop) Supra fn. 8 at para. 15

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Commercial Court and the number of company incorporations and/or investments thereafter. Regard would need to be had to other considerations, such as the socioeconomic status, for example crime. Attracting corporations to the state is not a function or consideration for the judiciary, but rather one for governments. The better contention would be for the attracting and maintaining of legal business associated with complex business and commercial litigation as another proposed advantage of establishing a Commercial Court.

Whilst there is the need for technological advances, in reality that is only a part. Service matters greatly. Research shows that the settlement rates in commercial cases are higher where courts provide a good user experience. 50Fast, efficient and professional services, whether enabled by technology or by the actions of the registry can make a real difference to outcomes. Courts are fundamentally people-first organisations with customer service being an absolute prerequisite for success of our courts, both now and in the future. Judicial excellence and a user-centric court are the ultimate destination for the Commercial Court of the future.

The success of the Commercial Court is dependent on the interaction of the physical structure of the court, the quality of the judicial process and the resources put into the system including the level of cooperation from parties.

50

H.E. Justice Ali Shamis Mohamed Shamis Al Madhani DIFC Courts Chair of IACA’s Middle East Board, Technology should enable not define, Modern Commercial Courts http://difcourts.ae/technology-enable-not-define-modern-commercial-courts/

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