This is the final installment of a three-part letter to the government’s Disaster Recovery Coordinating Committee providing suggestions for restoring and improving the territory’s Commercial Court.
In addition to other topics mentioned in the previous instalments of this commentary, the review of the territory’s Commercial Court should consider and make recommendations as to the appropriate approaches to judicial staffing of the institution.
The Court was established in 2009 with a single judge, Justice Edward Bannister, who served for about six years. The Commercial Court building was designed accordingly, to accommodate only one judge.
Commencing before about 2014, both Mr. Bannister and the VI commercial bar had been saying that the court would benefit from additional judicial capacity. Mr. Bannister’s oft-quoted observation was that it was a “one-and-one-half-person job,” but leading commercial litigators in the VI and London came to the view that it was a two-person job.
I succeeded Mr. Bannister in March 2015. It became clear to me quite quickly that those observations were correct.
Commencing in the fall of 2015, the Judicial and Legal Services Commission began appointing temporary acting judges mostly for terms of approximately two to four months. These judges included leading VI barrister Gerard Farara QC, Mr. Bannister, former English Chancery and commercial judges, prominent English Chancery and commercial Queen’s Counsels, a former Bahamian judge, and an active Caribbean practitioner who served several stints, Gerhard Wallbank.
As I have said publicly, including in my address as the presiding judge at the special sitting in September 2016 for the new law year, we benefitted from the services of these short-term acting judges. It has been a privilege for me to work with, and share ideas with, each of them. Each brought his own special contribution to the Commercial Division and the jurisdiction as a whole.
The review should consider the appropriate approach to judicial staffing of the Commercial Court.
The benefits of temporary acting judges include the regular addition of fresh ideas and approaches to the Commercial Court, the provision of “surge capacity,” and the broadening of the number of former judges and senior barristers who are familiar with VI and its Commercial Court and can “spread the word” in the United Kingdom and elsewhere.
On the other hand, there may be benefits of having Commercial Court judges who serve longer terms, such as the three-year terms served by Mr. Bannister and to which I was appointed.
Among those benefits may be the development of a more consistent Commercial Court jurisprudence; the building of the Court’s capacity; the more effective management of cases; the reduction of opportunities for “judge shopping;” the reduction of multiple judges needing to become familiar with the factual and procedural background of ongoing cases; and having judges who get to know the VI and its society and legal community and who the VI gets to know (particularly as the Commercial Court judge can be part of the visible presence of the judiciary in society, and part of the implementation of the constitutional role of the judiciary). Also, there may be cost implications for the VI, which funds the Commercial Court, as among the range of options for judicial staffing.
To be clear, there are not just two models but a range of models that could be implemented, and I am not advocating for any particular model(s). What I am recommending is that the review obtain stakeholder input in a transparent manner and formulate recommendations that can be considered by both the Judicial and Legal Services Commission and the VI government.
There also could be a comprehensive approach taken to the advancement of Virgin Islanders in commercial legal matters, both contentious and non-contentious.
What appears to be needed to be effective is a comprehensive, coordinated and concerted longer-term programme, with committed support from the government, the Bar Association, commercial law firms and the Commercial Court.
Nothing like that appears to be in place, despite worthy efforts by some law firms and others to bring more Virgin Islanders into commercial legal work in the VI.
The starting point could be to establish a task force to plan and develop the best possible programme.
The programme might begin with career mentoring/counselling/coaching to assist potential law students with their planning, including law school choices and then course choices. It could go on to provide the necessary elements of mentoring/counselling/coaching at each stage of the lawyer’s early career, enabling him or her to chart an effect employment path and obtain the best possible commercial law training and experience.
Qualified younger lawyers could be afforded opportunities for experience in the UK, Asia and elsewhere so that they obtain the necessary training and experience to reach their potential and to maximise their opportunities for recruitment into commercial law firms.
‘New and higher level’
In conclusion, all stakeholders should seize the opportunity to take the VI Commercial Court to a new and higher level — with imagination, creativity and innovation — so that the VI continues to be at the forefront of commercial courts in the world and all the people of the VI benefit.
The Recovery and Development Plan should incorporate the review outlined above as one part of what needs to be done to secure the future of the territory.
Mr. Leon served as a justice of the territory’s Commercial Court for a three-year period that concluded last month.