Judicial review is a procedure by which the courts, at the request of a party with a sufficient interest, can review the decisions of public bodies to ensure that they are acting lawfully and fairly. In recent years, the Cayman Islands has seen a number of cases involving a range of public matters, including an appeal of a judicial review decision to the Cayman Islands’ highest court of appeal, the Privy Council . This guide examines the framework for judicial review procedures in the Cayman Islands.
What is judicial review?
Judicial review allows petitioners with a sufficient interest in a decision or action of a public body to apply to the Grand Court (the To research) to check the lawfulness:
- rules and regulations, or other subordinate legislation; Where
- a decision, action or omission in connection with the exercise of a public function.
Judicial review is a last resort. It can be used when there is no right of appeal or when all avenues of appeal have been exhausted. Alternate Dispute Resolution (ADR) must always be considered and a claimant proceeding prematurely to judicial review without having explored ADR may be liable for costs.
What decisions can be subject to judicial review?
Decisions of public bodies and other bodies performing functions under public law may be challenged. There are a number of reported cases in the Cayman Islands dealing with a range of claims relating to many types of public office, such as: immigration, human resource management, resource development and consent, regulators of financial services, licensing, education, and political and constitutional issues. .
Who can apply for judicial review?
The overriding rule governing a claimant’s standing to seek judicial review is that, in order to have standing to advance a claim, the Court must consider that the claimant has a sufficient interest in the matter to which the claim relates.
What constitutes a sufficient interest is a question of mixed law and fact and depends on the relationship between the plaintiff and the plaintiff. The notion of sufficient interest is extremely flexible and the Court has held that the more important the question and the more well-founded the request, the more the Court will be quick to grant the authorization. The essential idea is to exclude “occupied persons” without a direct or personal interest in the decision.1
On what grounds can a complaint be made?
Terrain is constantly changing, but can generally be classified into four categories:
(1) Illegality: occurs when the decision-maker errs in law, wrongly exercises power or acts beyond his powers (ultra vires).
(2) Irrationality: arises when the decision maker took into account irrelevant considerations or failed to take into account relevant considerations or when no reasonable decision maker could have made this decision (commonly called Wednesbury’s unreasonable decision).
(3) Procedural defect: Occurs when the decision-maker has not followed established procedures or has not respected the principles of natural justice.
(4) Proportionality: 2 may arise when the decision was not proportionate.
These reasons are not mutually exclusive.3
What is the procedure for applying for judicial review?
The procedure for judicial review in the Cayman Islands is set out in GCR Order 53 (Order 53) and is substantially supplemented by Practice Direction No. 4 of 2013 titled Pre-Action Protocol for Judicial Review (the Protocol).
The protocol applies to all proceedings in the Cayman Islands, but does not affect the strict time limit specified by Rule 4 of Order 53 which requires that any application for judicial review be filed promptly and in any event at the later three months after the grounds for making the claim first appeared.
The Protocol sets out a code of good practice and contains steps that parties should generally follow before filing an application for judicial review. For example, it asks parties to consider whether some form of ADR proceeding would be more appropriate than litigation and also suggests a standard form for the Plaintiff’s Pre-Action Letter (Appendix A) and Respondent’s Reply Letter (Appendix B).
If prosecution is necessary, judicial review involves two procedural steps. The first is the authorization stage, which must be made ex parte by filing a prescribed form and an affidavit verifying the facts invoked. The plaintiff must have a sufficient interest and demonstrate an arguable case. 4 If the authorization is refused, the request for authorization may be renewed within 10 days of the judge’s refusal.
If leave is granted, a substantive hearing will take place. The plaintiff will be required to serve the claim documents on the defendant and all other persons directly affected. The respondent may file evidence in response, although expert evidence is unusual. At a full hearing, the application proceeds through oral argument and cross-examination is unusual.
What remedies can be sought?
The Court has a range of powers and remedies with respect to an application for judicial review, including:
(5) Compulsory order (mandamus): require a public body to fulfill its legal obligations.
(6) Restraining order (prohibition): prevent the public body from acting beyond its powers.
(seven) Cancellation order (certiorari): cancel the decision.
(8) Statement: not imposed by the court but sets out the rights or legal position between the parties.
(9) Injunction: often granted as an interim remedy to prevent a public body from acting on a decision.
(ten) damage: only available in limited circumstances in case of judicial review. The claim must be included in the statement in support of the leave application and the Court must be satisfied that if the claim had been made in an action by the plaintiff, the plaintiff could have obtained damages- interests.
The Cayman Islands Constitution and Bill of Rights, Freedoms and Responsibilities
The Constitution of the Cayman Islands was introduced as Schedule 2 to the Cayman Islands Constitution Ordinance, 2009, and came into force on November 6, 2009 (the Constitution). The Bill of Rights, contained in Part 1 of the Constitution, came into effect three years later on November 6, 2012 (the BOR). The BOR sets out the fundamental rights and freedoms of the individual and the rules for their application and remedies in the Cayman Islands.
Proceedings may be commenced under Sections 23 (Declaration of Incompatibility) and 26 (Application of Rights and Freedoms) of the Constitution by petition or by writ under GCR Order 77A (Order 77A).5 For example, under section 26(1), any person can bring an action in court to claim that the government has violated or threatened their rights and freedoms under the BOR within one year of the decision or act the subject of the complaint (Article 26(4)). Care should be taken when considering whether to bring an action under the BOR because, although such actions may be appropriate for violation of human rights and freedoms, judicial review remains the established procedure. for the control of an administrative action.6