THE TURKS & CAICOS ISLANDS Law and Practice Contributed by: Stephen Wilson KC, Dominique Gardiner and Lovelie Luxama, Wilson Wells
If a successful party has obtained judgment for a sum of money, that party may nevertheless be deprived of its costs – and in some cases forced to pay the losing party’s costs – if the amount awarded is less than or equal to a payment into court made by the defendant. 11.3 Interest Awarded on Costs Once the amount payable to a party in respect of costs has been determined (whether by agreement or following taxation), the costs form part of the judg- ment, and interest may be awarded thereon at the judgment rate (6% per annum). Interest runs from the date of the judgment until the costs are paid. 12. Alternative Dispute Resolution (ADR) 12.1 Views of ADR Within the Country Although some domestic contracts include media- tion and/or arbitration clauses, the arbitration agree- ments are usually inadequately drafted and a culture of ADR is only now becoming established in the Turks and Caicos Islands. Unfortunately, the Arbitration Act (Chapter 4.08) came into force ten years before the UNCITRAL Model Law was adopted by the United Nations Commission on International Trade Law and is as sparse in its provisions as the Arbitration Act 1889 of England and Wales. The law in the Turks and Caicos Islands regarding arbitration therefore remains much the same as it was in England and Wales before the Arbitration Act 1934, and is greatly in need of reform. 12.2 ADR Within the Legal System Traditionally, the legal system in the Turks and Caicos Islands did very little (if anything) to promote ADR, although parties to divorce or other family proceed- ings often agreed to seek to resolve their differences through informal mediation. The Court-Connected Mediation Rules 2021 (the “Mediation Rules”) came into operation on 15 Octo- ber 2021. The Mediation Rules were issued by the Chief Justice with the stated overriding objective of “dealing with cases justly” and recognising the “duty of the court to promote settlement or reconciliation wherever possible”. The Mediation Rules apply to all proceedings in the Magistrate’s and Supreme Courts,
except for insolvency proceedings, non-contentious probate proceedings and such other proceedings in the Supreme Court as may be identified by the Chief Justice not to be suited to mediation from time to time. Parties may be referred to mediation by the registrar, magistrate or judge. In making a referral, the following matters may be considered: • the relationship between the parties; • the willingness of the parties to resolve their dis- pute by a collaborative process; • the number of parties; • the complexity of the issues in the suit; and • whether mediation, rather than litigation, will be more beneficial to the parties as they seek to resolve their dispute. Suitably qualified mediators may apply to the Regis- trar of the Supreme Court for appointment as court- connected mediators by the Mediation Committee. In order to be considered for placement on the roster, applicants need to provide evidence: • of having satisfactorily completed the training for mediators leading to certification by the University of the West Indies; • that they are a fit and proper person; and • that they do not hold a criminal conviction involving fraud or other dishonesty. Mediators whose training and certification were obtained in another jurisdiction may apply to the Chief Justice for inclusion in the roster. The Chief Justice shall refer the application to the Mediation Committee with her advice. Mediators are bound by a Code of Conduct set out in the First Schedule to the Mediation Rules, and must be wholly independent and impartial. Parties or counsel in a complex case may apply for their case to be mediated by co-mediators. Referral by Registrar##TNRsub## Any party to the proceedings may request a refer- ral after the filing and service of the claim/defence, as the case may be, and the Registrar may make a referral order to send the file to the ADR administra- tor. A Registrar’s referral order will be made before
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