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Law
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However, as a committee member of the former Bar Council he’s concerned at “the situation that has been happening quite a lot over a long time, where cases in Gibraltar, on Gibraltar law, being not only led by English counsel, but also by English solicitors – and they are not regulated”.
From spring however, English lawyers will also need to be registered with the LSRA. “It’s not a matter of protectionism, but a matter of regulation”, Cardona insists. “Part of the problem is with smaller firms that may not have senior advocates of their own: instead of instructing local advocates, they may look elsewhere and it may be in part due to fear of losing their clients.”
UK and other EEA counsel can visit Gibraltar for specific cases and be called to the local Bar ad hoc, but from May they must be registered with the LSRA: six or seven overseas QCs have obtained permanent access.
No closed door
Caruana wants the LSRA “to consider the extent to which there is recourse to barristers from the UK and the extent to which that is having an adverse effect on the development of advocacy in the local Bar, and whether there is anything that should and could be done.
“On the one hand the case can easily be made that people should be free to bring in specialist counsel if they want to, but on the other we have to be sure that we are not thereby making it so easy and commonplace that local lawyers – young and old – are not able to cut their teeth so that eventually, the advocacy Bar in Gibraltar would simply die on its feet, becoming just part of the UK,” he held.
Small countries had faced similar access issues, but “very few have the open door policy that we still have”, Caruana observed. [In the Channel Islands for example, only locally qualified solicitors and advocates can appear in the courts.] “It’s not a question of shutting the door, but it is a question of regulating and permitting access in a way that does not kill the local Bar for the future”, Caruana opined.
Even so, Triay pronounced that because legal work in Gibraltar is so varied, practitioners tend not to specialise and “the level of knowledge is necessarily less in specialist fields: it naturally results in London Silks being instructed for complicated or other cases requiring a degree of expert specialization; it is impossible to be a specialist or expert in everything”.
Briefs review
Two barristers were appointed Silks last summer – Nigel Feetham, a Hassans partner specialising in insurance, was only the second
non-litigator to become a QC and Christian Rocca, who early in 2019 became Gibraltar's first Director of Public Prosecutions in charge of the day-to day running of the Criminal Prosecution Service.
But that fourth QC ceremony since 2011 raised another issue - how many Silks there should be – when Chief Justice Anthony Dudley, declared a limit of 24 QCs on the Rock had been reached, given that no more than 10% of lawyers in private practice can be appointed! He called for a "measured and constructive debate” on whether the rules remained appropriate.
Doyen of Gibraltar’s legal community, 90 years old Louis W Triay, QC, is believed to be the oldest practising lawyer in the world and is founder and now consultant at the jurisdiction’s fourth largest law firm, TSN (formerly Triay, Stagnetto, Nash), where he specialises in trust and tax law.
“There is a view that in a fused profession and with senior partners of some of our law firms not being litigators, they too should be able to become QCs,” Caruana noted. “I believe it should be only for practicing court lawyers, yet I see the force of those who say that you can’t appoint QCs as a percentage of all lawyers - whether they go to court or not - and then only appoint that percentage that go to court: it's polemic.”
Foremost authority
Barristers and solicitors wishing to practice in Gibraltar must first attend a 24 week, part-time Professional Certificate of Competence in Gibraltar Law course to ensure understanding of differences from English law. The 23 students on the current course bring the total to 95 since November 2015.
Gibraltar’s lawyers gained an unexpected work boost last summer when Port and Law Enforcement agencies detained a crude oil super tanker, the Grace 1, on the grounds it was believed to be acting in breach of EU sanctions against Syria. A day earlier (“rather fortuitously” as a local barrister remarked), the Gibraltar government published an enforcement Notice against the vessel and its cargo under the Sanctions Act Shipping Regulations. The Act, prepared by the government Law Office, came into force in March, but was instigated as part of BREXIT preparations.
After six weeks of diplomacy and international legal wrangling and with Triay & Triay representing the Attorney General (AG) Michael Llamas, at the Supreme Court, Gibraltar’s Chief Minister, Fabian Picardo, received assurances from Iran and the owners of the oil that the released tanker and its cargo
would not be taken to Syria; the vessel departed under the changed name, Adrian Darya, (however, media reports suggest that after some weeks, the cargo was eventually off- loaded to Iran)!
Nevertheless, as a result of the Grace I incident, the jurisdiction has become the foremost EU authority on implementation of sanctions-busting legislation. As pointed out by the AG at the opening in November of the 2019- 20 Legal Year: “Our jurisdiction came under the international spotlight like few times before. It was a truly intense month. We upheld the rule of law in difficult circumstances.” Hassans acted for the Captain of the Port and Phillips for two of the ship’s crew.
Gender focus
Llamas added: “The Grace 1 served as a further reminder of the importance of our geographical location and the exposure it gives us to world affairs of the highest order. It is one of the reasons why the Government has continued to pursue its programme for the enactment of legislation in the area of security.”
As part of International Women’s Day in March, Hassans held an event attended by 100 clients and staff, including Samantha Sacramento, Equalities Minister and [since the November General Election] also Minister for Justice, to discuss diversity, inclusion and general equality issues. She told Gibraltar International: “Gender equality is a new phenomenon in Gibraltar for the past few years and that has been a contributory factor to getting the conversation going and people feeling empowered to recognise situations that may not be fair and then doing something about it.”
Whilst in government, Sacramento, a qualified barrister, who has not practiced for six years, admitted there were comparatively few female lawyers – “just look around” [59 of 245 lawyers listed on Gibraltar Courts Service website] – and she said while information gathered last year on the gender pay gap identified all within organisations having more than 20 employees, “next time, I expect it to be broken down into professions and common work positions”.
Gibraltar’s most senior female lawyer is Gillian Guzman, a Hassans Partner specialising in employment law, who was appointed the first female QC in 2014 and aged 39 years, she was then also the jurisdiction’s youngest Silk.
Minister for Justice and legislative authority for the three years prior to standing down at the recent general election, Neil Costa, in October returned to private practice and joined ISOLAS litigation and dispute resolution team.
18 Gibraltar International
www.gibraltarinternational.com