The “precautionary principle” – when it is better to be safe than sorry
In an important judgment on the recusal of a judge for apparent bias, Justice Doyle of the Grand Court of the Cayman Islands considered the attributes of the ”fair minded informed observer” and discussed the relevant authorities in the Matter of Principal Investing Funds Ltd, Longview II Ltd and Global Fixed Income Fund Ltd, which reinforce what is known as the “precautionary principle”.
Longview II Ltd, a Cayman Islands exempted company and the second respondent in three sets of winding up proceedings, submitted an application requesting that Justice Doyle recuse himself on four grounds for alleged apparent bias. Justice Doyle dismissed grounds one, three and four, however he recused himself on the second ground (that he was involved, in a professional capacity, in discussions concerning the incorporation of Longview II, the purpose of which is at issue in the proceedings). Although he had no recollection of his involvement, he acceded to the respondents’ request for recusal relying on the precautionary principle. In the earlier case of Jian Yang Ourgame, the learned judge acceded to a request to recuse himself for apparent bias based on the test of a fair-minded informed observer. That test involved a consideration of 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.
The “precautionary principle”, as described by Lord Justice Mummery in the English authority of Morrison v AWG Group Limited, by Lord Justice Rix in JSC BTA Bank v Ablyazov (No9), and in the Cayman Judicial Code, reflects the general principle that although a judge cannot be sure how the issues relevant to the potential recusal may play out at trial, it is better for a judge to be safe than sorry, in particular, where the recusal issue becomes apparent well before the hearing (as in this case) and even where no good grounds for recusal exist. Justice Doyle examined, in considerable detail, the principles and Commonwealth authorities, textbooks, the Bill of Rights, the Code for the Cayman Judiciary and the Code of Judicial Conduct in England and Wales, relating to apparent bias in support of his decision.
In acceding to the request for recusal, Justice Doyle held that: “In small compact jurisdictions there is perhaps a need to take an even more cautious approach in respect of recusal applications. It is of fundamental importance, as I endeavoured to stress in Jian Ying Ourgame, that the local and international community’s trust and confidence is maintained in the administration of justice and that justice is not only done but is seen to be done. Perception in this context is just as important as reality.”
This blog post was written by Allison Gonsalves, Articled Clerk and Niall Dodd, Senior Associate.