CAYMAN ISLANDS Law and Practice Contributed by: Sam Dawson, Peter Sherwood and Denis Olarou, Carey Olsen
addition to the company’s liquidator, the entire court file may be inspected by: • any former liquidator or controller of the company; • any person who was a director or professional ser- vice provider of the company immediately before the commencement of liquidation; • any person claiming in writing to be a creditor or contributory of the company; and • in cases of regulated businesses, the Cayman Islands Monetary Authority. Any other person may inspect the court file by special leave of the court. The court may, having regard to the overriding princi- ple that justice should be done, order the sealing of a document on the court file of an insolvency proceed- ing for a specific period of time or until the happening of a specified event (usually the final dissolution of the company). However, it must be shown that the infor- mation in question is confidential and will not enter the public domain unless the document is filed with the court and the publication of this information will harm the economic interests of the creditors or con- tributories of the company. Any document sealed on this basis may be unsealed on the application of the liquidator, creditor, or contributory. Trials and winding-up petitions are generally heard in open court, unless the court directs, for some special reason, that they should be heard in chambers. Inter- locutory summonses, both in insolvency proceedings and in general litigation, are usually heard in cham- bers, unless the court directs a hearing in open court. Proceedings in chambers are generally considered private, although the judge may allow members of the public to attend. The courts are guided by the principle of open justice but are also prepared to conduct hearings (or parts of hearings) in private where this is properly justified. 1.4 Legal Representation in Court Natural persons may represent themselves and con- duct court proceedings as litigants in person. How- ever, save in exceptional circumstances, companies must always be represented by an attorney-at-law.
Only persons admitted to practice as attorneys-at- law in the Cayman Islands have unrestricted rights of audience before the courts. The legal profession in the Cayman Islands is not divided between solicitors and barristers in terms of rights of audience, as is the case in England. All local attorneys have equal rights of audience. Foreign Lawyers Foreign lawyers have no rights of audience and can- not conduct cases before the Cayman Islands courts. To the extent that foreign lawyers are engaged to act in connection with Cayman Islands proceedings, their fees will not generally be recoverable from the losing party as disbursements (save where they are engaged to give an opinion on a point of foreign law) or as part of an award in respect of attorney fees, save where costs have been awarded on the indemnity basis (see 11.2 Factors Considered When Awarding Costs ). However, this is only a rule of thumb: the court has a wide discretion, when it comes to the taxation of costs, to direct that any item of work be allowed, dis- allowed, restricted or qualified. However, a foreign lawyer may be granted “limited admission” to appear before the Cayman Islands courts for the purposes of a specific proceeding, if instructed to do so by a local attorney. In principle, such limited admission may be granted to any suitably qualified overseas senior advocate and, in practice, it is regularly granted to English King’s Counsel in pro- ceedings that are sufficiently complex or high value to justify the appointment of such expert advocates. Junior counsel and solicitors might be granted “lim- ited admission” in only very unusual circumstances.
2. Litigation Funding 2.1 Third-Party Litigation Funding
On 1 May 2021, the Private Funding of Legal Services Act, 2020 (the Act) came into force in the Cayman Islands. The Act repealed any distinct offences under the common law of champerty and maintenance and provided for third-party funding agreements to be used in civil litigation without court sanction, subject only to a small number of formalities and well-defined conditions.
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