Judicial Independence: Upholding The Integrity And Robustness Of The Cayman Islands Judicial System

Published date23 January 2023
Subject MatterFinance and Banking, Litigation, Mediation & Arbitration, Financial Services, Trials & Appeals & Compensation
Law FirmOgier
AuthorMs Kelsey Sabine

Judicial independence is a core pillar of the Cayman Islands' legal system. The judges' ability to perform their duties free of influence or control by other actors, whether governmental or private, is integral to ensuring the proper administration of justice. A judge may exercise the duty to recuse themselves from sitting in a case when there is concern that they may not be able to fulfil their role as a fair-minded observer, free from actual or perceived bias.

In the last six months, we have seen two cases in which a judge of the Grand Court recused himself from sitting in order to preserve the integrity of the Cayman Islands judicial system, ensuring not only that justice is done - but also seen to be done. 1

The legal test for apparent bias

In the Cayman Islands, the relevant test for apparent bias in respect of recusal applications is well-established: whether the fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility the judge was biased. 2 This test involves a two-stage approach: 3

  1. first, the court must ascertain the relevant facts and circumstances. The authorities stress that the context and the particular circumstances are of supreme importance, and the process requires an intense focus on the essential facts of the case and the issues to be determined
  2. the court must then ask whether those facts and circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was (or would be) biased

In determining whether there is a "legitimate doubt as to the judge's impartiality", 4 the following principles should be considered:

  1. the need to guard against judge-shopping 5
  2. the need for timely applications on proper grounds to ensure if a judge is recused, it is done early in the proceedings to limit disruption, delay and additional costs to the parties
  3. their duty to sit absent grounds for recusal, particularly in small compact jurisdictions with limited numbers in the judicial pool 6
  4. attributes and presumed knowledge of the fair-minded and informed observer
  5. how it would look to a reasonable onlooker if the judge does not withdraw 7
  6. to err on the side of caution and recuse if there is a risk that apparent bias could arise at a later stage, otherwise known as the "precautionary principle" 8

Weighing up these factors, if the grounds for recusal are established, the judge must recuse themselves. But if the grounds for recusal have not been...

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