Private Client Global Elite members mark their second discussion in Geneva, Switzerland in Hotel d'Angleterre's private Parquet Room

Are there any rules anymore? And if not, what should be done to restore trial by court and stop trial by media? This was the question on the tip of everyone's tongue at the Global Elite's private members dinner discussion on Sunday 28th April in Geneva, Switzerland. In attendance were lawyers from a range of jurisdictions, including Switzerland, Belgium, the UK, USA, Italy, Cayman and Bermuda.

As the first question posed by our incredible host, Elspeth Talbot-Rice QC: “Are we losing trial by court and seeing an increased amount of trial by media?” the discussion soon led to what was feeding this frenzy in supposed “justice” for private clients. Answers ranged from a shift in tax handling to ranging confidentiality approaches and the current impact of social media.

As the group looked at the recent developments in the tax world, it was noted that what seems to be the law one today, is not what the rulebook says tomorrow – but what the public says is fair. Ultimately, are binding judgments delivered by the media in 2019?

The discussion then swiftly turned to how confidentiality has changed over the past 5 years. In particular, the right to keep one's personal affairs private in trust proceedings (or at least anonymise judgments) versus the right to keep it open, in the public interest. After the initial case of V v T and A [2014] EWHC 3432 (Ch) and the resulting Court of Appeal decision, applicants now have to make a case for trust proceedings to be heard in private. This is in stark contrast to offshore jurisdictions such as Bermuda, where historical arguments such as the risk of kidnap if trust cases were publicly reported still hold strong. As supported by the former Chief Justice of Bermuda, who is now holding office in Cayman, we can only expect similar outcomes to follow in Cayman, too. As the group considered the different jurisdictional approaches in Switzerland, Belgium and the US, where public interest leads in its battle against confidentiality, participants began to consider the impact of social media on trial by media.

And what of social media? The impact is obvious. The public used to get their information from seemingly “independent” news stations, which has now shifted to an increased proportion of the public gaining their information from social media (which is largely unregulated.) The justice system has moved from clients being seen as “innocent until proven guilty” to “guilty until proven innocent” on social media. The resulting impact on “trial by media” is noticeable, particularly as information is more easily available with increased regulations and the posting of content is instantaneous. “Disruptors” have moved from being “intellectuals” to “Joe Bloggs on the street.”

Ultimately, stopping trial by media is dependent on regulating social media, much as advertising is regulated. Heavier regulation was also supported in regards to illegal dissemination of information from prosecutors during settlement negotiations – the famous “leak” to media outlets which forces the hand of many clients to come to an agreement (“negotiation by media.”)

As much as the preference is to keep trust proceedings private for clients, the discussion did turn to understanding the arguments in favour of keeping court proceedings public. In particular, the interest in stopping an unfair trial from taking place. However, countered with this was the fact that if both parties wanted proceedings to be held in private, then it's their choice to risk an unfair trial. On the other side of the fence was the argument that particularly in the USA, 99% of cases are rarely reported from public proceedings anyway and that when they are, today's news is tomorrow's fish and chips papers, so does it matter?

Two questions that attendees were left to ponder as they finished their dessert were as follows: 1. As the majority of wealth becomes owned by a smaller percentage of the population, do we need to consider who and what we are representing and supporting as their lawyers? Is “trial by media” necessary, as wealthy individuals are seen by some as “playing by different rules?” 2. Consider what the UK and USA gains from “trial by media”, information flow and “transparency,” in monetary terms.

We would like to thank Sam Cleps of Ciemme Trustees (The Cone Marshall Group) for helping to host the Geneva discussion dinner in partnership with the Global Elite.

We are looking forward to hosting our next Leadership Day for members on May 7th 2019, with input from The Rt Hon Dominic Grieve QC MP, The Rt Hon. the Lord Neuberger of Abbotsbury, Former President of the Supreme Court and The Rt Hon. the Lord Mance P.C., Former Deputy President of the Supreme Court.

If you are interested in becoming a member of the Global Elite and taking advantage of our 25+ global dinner discussions, please contact Angela Moran at [email protected].