Justice On Display

Not that long ago, personal records were written by pen or typewriter. Copying them required more handwriting, carbon paper or a time consuming and occasionally messy process involving a machine called a spirit duplicator.

For third parties, obtaining copies of personal documentation would not have been straightforward. And, over time, the documentation would often be destroyed, misplaced or thrown away.

How times have changed. Technological developments, national security concerns, political pressures, changing business practices and generational factors have combined to create a wealth of accessible personal information, and, at the same time, to gradually erode traditional notions of privacy and confidentiality. Legislation is being passed in a bid to keep up with technological advances and our response to them - e.g. to force social media sites to allow children to erase online records so that their indiscretions do not come back to haunt them as adults.1

There is now widespread acceptance that respect for personal privacy must be balanced with notions of public justice; the necessities of the war against international terrorism and crime; a developing belief in the 'right' to access information on the web; press freedom; freedom of information; and the drive to increase nations' domestic revenue base by tracking down tax evaders. Transparency has become key to compliance with international legal and regulatory standards.

This is a developing area of the law that has profound implications for private clients and those who advise them. Our personal information has never been so accessible by so many. Clients, not surprisingly, can have numerous concerns, one of which is: if the family's trustee has to go to court, how public will those proceedings be?

Open justice

While duties of fidelity and confidentiality have long been central to the relationship between trustees and benefi ciaries, the starting point in any civil, criminal or public law proceedings in the Cayman Islands is open justice. The principle is enshrined in the Bill of Rights, Freedoms and Responsibilities, s7(1) providing that everyone has the right to a fair and public hearing in the determination of their legal rights and obligations. As is widely acknowledged, open justice helps to maintain public confidence in the administration of justice - not only is justice done, but it is seen to be done.

Case law in the Cayman Islands reflects this fundamental principle. As the...