If It Looks Like An Attorney

• Published date: 08 July 2022
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Trials & Appeals & Compensation
• Law Firm: Appleby
• Author: Mr David Lee and David Lewis-Hall

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...