in the Cayman Islands
Judicial review – the process by which a person who is aggrieved by administrative action may, under certain conditions, seek review by a court of the lawfulness of such action – is a concept that has in recent years attracted much attention throughout the common law world. As the grounds upon which judicial review may be sought have evolved and the legal profession has honed its interest in what has in many jurisdictions now become a discrete practice area, the propensity for challenges to administrative action has increased considerably.
This phenomenon has not been universally welcomed. One high profile critic has been British Prime Minister David Cameron, who has warned of the need “to get a grip on” this “massive growth industry.” Sounding this clarion call in a speech to the Confederation of British Industry, the underlying but nonetheless apparent message was that judicial review has become not just a burden on public services, but also an impediment to efficient business.
These sentiments are echoed in his government’s latest proposals for reform (Ministry of Justice, Judicial Review – proposals for reform: the Government response, February 2014), not least where efforts to stem the growth in applications for judicial reviews are in part justified on the basis of “a number of cases where planning judicial reviews had delayed development projects – increasing costs for developers and delaying the economic benefits.”
In response, many senior members of the judiciary, including the president of the Supreme Court, Lord Neuberger, have publicly defended the importance of judicial review as a means for holding the executive arm of government to account and thereby upholding the rule of law. Accordingly, any efforts to reform judicial review and limit the funding available to applicants must be weighed carefully against the dangers of inadvertently unsettling fundamental constitutional checks and balances and inhibiting access to justice.
As a jurisdiction, the Cayman Islands has not been immune to this growth in judicial review. In 2012, and again in 2013, there were some 20 or more applications to the Grand Court for leave to apply for judicial review. Not all of these applications managed to overcome the leave hurdle and fewer still have reached or will ultimately arrive at a full hearing. However, the numbers are still worthy of note. With the publication of Practice Direction 4 of 2013 on Dec.12, 2013, it would seem that the chief justice has indeed taken note.
This practice direction provides for a pre-action protocol for judicial review, which sensibly directs potential parties to a judicial review to consider whether some form of alternative dispute resolution would be more suitable than litigation; prescribes the information required in an applicant’s letter before action, which must be copied to the attorney general; and, similarly, specifies the information required in a defendant’s letter of response.
What is also interesting to note are the types of administrative action that are increasingly becoming susceptible to challenge in the Cayman Islands. For many a year, to the extent that judicial review has been sought locally, they have tended to be dominated by immigration issues. From the pioneering reviews pursued during the 1980’s in cases such as In re Roper [1980-83 CILR 181] and In re Fedele [1988-89 CILR 155], through to the landmark judgment in Warren v. Immigration Board [2002 CILR 188] in which the moratorium on the grant of Caymanian status was held to be ultra vires and void, immigration has been the principal subject around which the concept of judicial review has been defined in local jurisprudence.
This is perhaps not surprising given the importance of immigration in the development of the Cayman Islands and the associated protection of local interests.
While leave to apply for judicial review continues to be sought in a significant number of immigration matters, several new trends are also discernible from the array of applications made in recent years. These include a spike in the number of disputes arising from public sector human resource management decisions, especially those relating to the removal of public servants from office (Cause No: 124 of 2013; Cause No: 148 of 2013; and Cause No: 362 of 2013) and an increase in prospective challenges to the process by which government has tendered and subsequently sought to award contracts, particularly in respect of important infrastructural projects (Cause No: 107 of 2013; Cause No: 145 of 2013; and Cause No: 159 of 2013).
In addition, every major developmental project seems to be attracting attention (Cause No: 85 of 2013; Cause No: 87 of 2013; and Cause No: 102 of 2013; and with the decisions of financial services regulators now also a target for judicial review (M.H. Investments and J.A. Investments v. The Cayman Islands Tax Information Authority (Cause No: 391 of 2012, Judgment of Quin J, delivered Feb. 28, 2014)), no sector of the economy appears immune.
It should be acknowledged that there are very likely a range of factors that have influenced these trends and driven the number of applications upwards and that, where necessary, some of these factors may well be amenable to remedy, so as to reduce the susceptibility of certain types of administrative decisions to review and lower the number of challenges in future years. On the other hand, the inclusion of a right to lawful administrative action in the new Cayman Islands Constitution could provide an environment in which judicial review could undergo further development in the Cayman Islands. This will be so, especially if this new Constitutional reference point for administrative action in section 19 of the Bill of Rights, Freedoms and Responsibilities is interpreted such that it does not simply replicate what existed previously in the common law.
There would seem to be the potential at least for significant jurisprudential departures based on the construction of section 19, as compared with what has previously pertained under the common law. In section 19(1), for example, all decisions and acts of public officials are required to be not just lawful, rational and procedurally fair; as Lord Diplock categorized the grounds of judicial review in his seminal judgment in Council of Civil Service Unions v. Minister for the Civil Service  3 All ER 935 (the “GCHQ Case”); but also proportionate. The prospective addition of proportionality is noteworthy because it would likely permit greater intrusion by the courts into the merits of decisions taken than the common law has traditionally afforded under the restrictive doctrine of Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation  1 KB 223) and, in so doing it also offers the promise of administrative bodies being held to even higher standards in their decision-making.
In his speech in the GCHQ Case, Lord Diplock foreshadowed the recognition of proportionality as a ground of judicial review in English administrative law. However, 30 years later, there remain differing views as to whether, and if so the extent to which, proportionality exists as a stand-alone ground. In the interim, the applicability of European Union law and the incorporation of the European Convention on Human Rights have obliged English judges to utilize proportionality in cases where these European treaties are relevant. Yet, in purely domestic cases, the availability of proportionality and its interplay with Wednesbury unreasonableness remain a matter of real conjecture and even the most recent expositions on point by various members of the United Kingdom’s Supreme Court in Kennedy v. The Charity Commission  UKSC 20 fail to settle these issues conclusively.
In contrast to the lack of certainty in the common law, the inclusion of proportionality as an additional, separate and distinct ground upon which all administrative action may be challenged in section 17(1) would appear to have signaled the way forward for the Cayman Islands. If this is so, then section 17 would not simply be declaratory of the pre-existing common law. It will be interesting to watch developments in this regard, as there are arguments that will undoubtedly be marshaled to reconcile section 17 with the common law and thereby limit the impact of section 17. Indeed, some of these were advanced on behalf of the Crown in Coe, Multon, Smith and Ebanks v. The Governor of the Cayman Islands,
The Attorney General of the Cayman Islands, Minister for Finance, District Administration, Works, Land and Agriculture and National Roads Authority (“Coe et al”) (Cause No: 62 of 2013, Judgment of Henderson J, delivered Feb. 17, 2014). However, given that the disposition of this case did not ultimately turn on the applicability of proportionality, it is unlikely to be the last word on the subject and the scene is now set for further engagement on the impact and ramifications of section 17.
Moreover, in Coe et al, the basic principle of exclusivity, by which challenges to governmental acts and decisions are required to be advanced by way of judicial review, with all of its attendant rules and restrictions that regulate this process, was also called into question. As the claim in Coe et al was ultimately found to be out of time, irrespective of what process and associated timeframe was applicable, Justice Henderson effectively sidestepped having to come to a “settled conclusion” on the question of whether there had been an abuse of process resulting from a violation of the exclusivity principle. Justice Henderson did, however, expressly acknowledge in his judgment that “the force of the exclusivity principle has been somewhat eroded by the adoption of our new constitution and the catalogue of rights found within it.” Accepting that “the law is in an undeveloped state at present,” the clear inference was that this may very well be an issue that the court will also need to revisit in due course.
With added impetus for further developments in judicial review on the horizon, the underlying question facing the jurisdiction is whether this is something to be feared and curtailed, as the British government appears to have concluded; or whether, on the contrary, it ought be welcomed and embraced?
The naysayers place great store by the argument that judicial review represents an additional and unnecessary layer of bureaucracy and that this, in turn, serves to stifle the economy. However, while there is undoubtedly a superficial attraction to this contention, it fails to do sufficient justice to the particular circumstances and needs of the Cayman Islands. If the current economic goals for the islands include protecting its financial services industry, promoting new development and suppressing the size of government, then a robust and accessible system of judicial review, which values law above politics and places the courts at the center of the constitution, has much to recommend it.
In financial services, adherence to the rule of law has always been a cornerstone of the local industry, while good governance and tailored regulation have proven to be a driver for growth in this sector. Rather than depart from this recipe for success, it should serve as a template for other sectors of the economy. Greater accountability and transparency in government, which the Cayman Islands Anti-Corruption Commission has recognized would be enhanced by the promotion of “lawful, rational, proportionate and procedurally fair operations and decision-making processes” (2011-2012 Annual Report), should also attract precisely the type of quality and sustainable investment that the jurisdiction is calling out for.
Moreover, as red light administrative law theorists have asserted, judicial review should be welcomed for the assistance it can provide in facilitating and fashioning an efficient and agile administrative arm of government. Rather than relax the judicial check on the executive in the misguided hope that this will facilitate growth in the economy, the development of judicial review should be embraced in the Cayman Islands as far more of a friend and less of a foe.