Globally, governments are taking measures to lessen pressures on over-stretched court systems. How is the Turks and Caicos Islands changing its approach to disputes?
The Constitution of the Turks and Caicos Islands (TCI) provides for a judiciary that is independent of the country’s government (in common with the United Kingdom and many other common law jurisdictions). As such, is it generally the Chief Justice, as the head of the judiciary, rather than the government that initiates any measures to improve the court system, though it is ultimately the government that funds any such changes.
In November 2020, the Chief Justice of the Turks and Caicos Islands (TCI) formed the Civil Procedure Rules Technical Team to review and overhaul the country’s procedural rules applicable to civil and commercial litigation. I was appointed a member of the team and over the course of November 2020 to January 2023, we drafted new civil procedure rules. They are currently being reviewed but their aim is to move away from the old system, which mirrored the civil procedure in England and Wales in 1999, and to modernise the whole system in the way that the Woolf reforms hoped to achieve in England and Wales, and which many Caribbean jurisdictions have subsequently followed and, to a large degree, improved upon.
Recognising the benefits of dispute resolution that were forced upon us by the Covid-19 pandemic, many of the ‘temporary’ reforms made in 2020 (such as remote hearings, and service by email) have remained and are likely to be incorporated in the new rules.
We also now have an electronic filing system for cases before the Supreme Court, which reduces paperwork and allows for more efficient collation of documents at the Supreme Court Registry.
Finally, though no less importantly, the TCI government has recognised the need for and has funded the recruitment of additional Supreme Court judges to hear cases.
Are you seeing an increase in hybrid, multi-tier and carve-out dispute resolution clauses – and what impact is this having on commercial agreements?
The simple answer to this is “no”. Domestic commercial agreements in the TCI continue, in general, to promote dispute resolution by informal means in the first instance and then either arbitration or litigation before the Supreme Court.
That said, as of 15 October 2021, the TCI’s Court Connected Mediation Rules 2021 came into effect and apply to disputes other than insolvency proceedings and non-contentious probate proceedings. Both magistrates and judges are encouraged to refer parties to mediation. As a firm, we too encourage clients to consider mediation, but regrettably, there continues to be a very real shortage of qualified mediators in the jurisdiction.
How is litigation handled in the Turks and Caicos Islands; both culturally and procedurally? Is ChatGPT being used in disputes, and what impact is this having on processes?
Litigation continues to be the dominant form of dispute resolution in the TCI, principally because the arbitration law here is so antiquated; there are no arbitration bodies; and a very real dearth of qualified arbitrators.
Culturally and procedurally, it is an adversarial system, based on the system followed in England & Wales that is generally used across the Commonwealth, with the vast majority of trials taking place before judges alone. Though there currently remains a right to a trial by jury in civil cases, it is almost never used.
Litigation in TCI is influenced by culture and procedure in several ways, such as:
- The parties are responsible for presenting their own case and challenging the other side’s case. The judge acts as an impartial arbiter who decides on the facts and the law.
- The law is based on precedents from previous cases, rather than codified statutes. This means that litigation can be unpredictable and complex, but also flexible and adaptable.
- The parties have a duty to disclose all relevant documents to each other, even if they are detrimental to their own case.
- Litigation can be expensive and time-consuming, especially in complex or high-value cases. The parties may have to pay for legal fees, court fees, experts, etc.
Litigation in TCI involves:
- Choosing a court: there are different courts for different types of disputes, such as the Labour Tribunal (for employment disputes), the Magistrate’s Court (for claims up to $10,000 and certain domestic proceedings, amongst other things) and the Supreme Court (which has the same jurisdiction as the High Court in England and Wales).
- Initiating proceedings: in the Supreme Court, the plaintiff currently issues a writ (which is supplemented by a statement of claim), originating summons, originating motion or petition, setting out the basis of the claim and the remedy sought.The defendant responds in different ways depending on the nature of the originating process, but usually admitting or denying the allegations made by the plaintiff.
- Disclosure: in cases begun by writ, the parties are required to disclose relevant documents to each other.
- Witness evidence: in cases begun by writ, the parties are usually required to exchange written statements from witnesses whom they wish to give evidence and expert reports (if any). In other cases, evidence is provided by way of affidavits.
- Trial: the parties present their arguments and evidence at trial to a judge, who then decides the outcome of the case and either dismisses the claim or awards the appropriate remedy.
- Costs: in TCI, the general rule is that costs follow the event, so the losing party usually pays the winning party’s legal costs of the winning party.
- Enforcement: in cases where a party has been awarded a remedy, that party may enforce it by various methods depending on the remedy. Judgements for the payment of money can be enforced by the seizure of assets, obtaining a charging order against real property, seeking the garnishment of debts, etc.
Top Tips for navigating a dispute in TCI
- Be organised during the performance of your contract. It is often said that “documents win cases” or “if it isn’t in writing, it didn’t happen”. Maintaining a clear and complete record of communications with the other party or parties to your contract can be invaluable in the event of a dispute.
- Keep all lines of communication open. Open and frank communication can often be key to avoiding a dispute as well as finding an amicable solution. If the key persons with the day-today relationship can no longer communicate without hostility, consider moving up the discourse to more senior personnel. If that fails…
- Consider mediation or other non-litigious dispute resolution. Involving a professional, trained, neutral third party (or parties) can bring an independent and objective view to bear on the dispute and allow both sides to air their views without necessarily directing hostility at each other.
- Take legal advice early. Ensure you understand your obligations under the contract in question, how disputes should be dealt with and how to preserve your rights. Do not be put off by an attorney’s hourly rate. Experienced attorneys often take less time to handle issues and can be more cost-effective than someone charging a lower rate.
