If It Looks Like An Attorney

In a recent judgment the Grand Court of the Cayman Islands confirmed that in-house counsel are "attorneys" under the Grand Court Rules for the purposes of taking steps on behalf of a body corporate

In the recent Judgment of the Grand Court in Intertrust Corporate Services (Cayman) Limited v Cayman Islands Monetary Authority (Unreported, 27 May 2022, Segal J), the Court grapples with the meaning of the "attorney" in the Grand Court Rules ("GCR") and more specifically with the question of whether in-house attorneys are "attorneys" for the purpose of taking steps in proceedings on behalf of their employer. References in square brackets are to paragraph numbers in the judgment of Segal J which can be downloaded here.

Whilst for some the question of "what is an attorney?" will always bring to mind the infamous viral video of a hearing of the 394th Judicial District Court in Texas in February 2021 giving rise to attorney Rod Ponton's 15 minutes of fame ("I'm here, live, I'm not a cat"), the issue arising for determination in this case was a "narrow but important" [1] point of construction of GCR O.5 r.6(2) and O.12 r.1(2) ("Rules"). Together, these rules set out the manner in which a body corporate can commence, defend or otherwise take steps in proceedings and expressly prohibit it from doing so "otherwise than by an attorney".

The issue arose as, although CIMA had instructed external attorneys of record to act for it in the proceedings, it chose to use its in-house legal team for the purpose of advising on and conducting discovery (see [3]). CIMA's in-house legal team filed two affidavits in opposition to an application made by Intertrust for further and better discovery. The filing of these affidavits constitutes a step in the proceedings and therefore could only be carried out by "an attorney".

Intertrust argued that the reference to "an attorney" should be construed as meaning only attorneys working in external law firms and does not include attorneys working in-house at the relevant body corporate (see [2] and [13]-[21]). CIMA argued that there was no basis for this qualification of the plain language and that both in-house and external attorneys were covered (see [2] and [22]-[25].

The Court held that there was "no basis" for Intertrust's claim that an admitted attorney employed by [CIMA] and instructed to act for it in relation to relevant proceedings is not to be treated as "an attorney" for the purpose of the Rules" (see [26]). After holding that there was no difference for the purposes of the Rules between a properly admitted attorney with a current practising certificate working externally or in-house, the Court concluded by citing the comments of Lord Denning in relation to in-house lawyers in the English Court of Appeal in Alfred Crompton Amusements Machines Ltd v Customs and Excise Comrs. (No2) [1972] 2 QB 102, including:

"They are regarded by the law as in every respect in the same position as those who practise on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and of etiquette. They are subject to the same duties to their client and to the court."

This judgment of the Grand Court confirms that body corporate litigants, including statutory authorities, acting as parties in in proceedings in the courts of the Cayman Islands are able to so act via in-house attorneys. Although perhaps not quite as readily apparent as Mr Ponton's faux feline status, the judgment gives effect to the natural and obvious meaning of "an attorney" in the Rules. This is particularly given the fact that, as noted by Lord Denning in the passaged cited by the Court, in-house attorneys are subject to the same duties as external lawyers. Perhaps most importantly in this context, they are subject to the same duties to the Court. Further, to have held otherwise and insist that external attorneys always be utilised would likely have served to escalate costs and reduce efficiency. Whilst not explicitly set out in the judgment, the decision of the Grand Court here is thus firmly in line with furthering the overriding objective, particularly in terms of proportionality. This approach is to be welcomed and serves to demonstrate once again the approach of the jurisdiction to providing a modern and efficient framework for litigation.

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.

Mr David Lee
Appleby
71 Fort Street
Grand Cayman
KY1 1104
CAYMAN ISLANDS
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
URL: www.applebyglobal.com

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