"Our game case" – when should an offshore judge recuse him/herself?
In the recent Grand Court case of Jian Ying Ourgame High Growth Investment Fund (In Official Liquidation), Justice Doyle considered an application by Powerful Warrior Limited, a BVI company, that the learned judge ought to recuse himself. He acceded to that request.
On 14 September 2021, Justice Doyle ordered that the Company be wound up and appointed joint official liquidators (JOLs). The learned judge also authorised the JOLs, without further sanction or intervention from the court, to exercise amongst others the power “to bring or defend any action or other legal proceeding in the name and on behalf of the Company.”
The application for recusal in summary was that, the judge had been made privy to certain ex parte filings by the Plaintiff’s liquidators that have never been provided to Powerful Warrior including the first report of the joint provisional liquidator and that the judge already appeared to have made a finding in his judgment (in the absence of Powerful Warrior, without notice to Powerful Warrior and without hearing any evidence or submissions on behalf of Powerful Warrior).
The relevant test in the Cayman Islands in respect of recusal applications on the ground of apparent bias is well-established (see for example paragraph 152 of the judgment of Sir Jack Beatson, JA, in Perry v Lopag Trust Reg. and others (CICA; unreported judgment 19 November 2021)). It is whether the fair-minded and informed observer, having considered all the facts, would conclude that there was a real possibility that the judge was biased. Recently Lord Malcolm in Smith v Attorney General of Trinidad and Tobago  UKPC 28 at paragraph one set out the well-known recusal test and added: “Sometimes it is asked whether there is a legitimate doubt as to the tribunal’s impartiality, a quality seen as indispensable to the fair administration of justice.”
In this case, Justice Doyle held that: “I am quite sure that I could deal with the summonses fairly and justly but that, of course, is not the relevant test. My own protestations that I am not and would not be biased against Powerful Warrior are not to the point and can be given no weight in this context. We are dealing with apparent bias rather than an allegation of actual bias. I have to look at the matter objectively through the eyes of a fair minded and informed observer. It is important to maintain the community’s trust and confidence in the administration of justice that justice must not only be done it must also be seen to be done...I feel that I am duty bound to conclude that the recusal test has been met in this case and I must recuse. I therefore recuse for the reasons stated in this judgment.”