Cayman Islands: A Quick Guide To Judicial Review In The Cayman Islands

Last Updated: 16 March 2016
Article by Simon Dickson, Hector Robinson and Charles Moore

What is judicial review?

Judicial review allows applicants with sufficient interest in a decision or action by a public body to ask the Grand Court (the Court) to review the lawfulness of:

  1. rules and regulations, or other subordinate legislation; or
  2. a decision, action or failure to act in relation to the exercise of a public function.

Judicial review is a remedy of last resort. It may be used where there is no right of appeal or where all avenues of appeal have been exhausted. Alternative dispute resolution (ADR) must always be considered and an applicant issuing judicial review prematurely without having explored ADR may be liable in costs.

Which decisions can be judicially reviewed?

Decisions of public bodies and other bodies exercising public law functions may be challenged.

There are a number of reported cases in the Cayman Islands dealing with an array of applications concerning many types of public function, such as: immigration, human resource management, development and resource consent, financial services regulators, licensing, education, and political and constitutional matters.

Who can make a judicial review claim?

The overriding rule governing the standing of an applicant to apply for judicial review is that, in order to have standing to progress an application, the Court must consider that the applicant has sufficient interest in the matter to which the application relates.

On what grounds can a claim be made?

The grounds are constantly evolving, but can be generally categorised under four heads:

  1. Illegality: arises where the decision maker misdirects itself in law, exercises a power wrongly or acts beyond its powers (ultra vires)
  2. Irrationality: arises where the decision maker took into account irrelevant considerations or failed to take relevant considerations into account or where no reasonable decision maker could have come to that decision
  3. Procedural impropriety: arises where the decision maker did not adhere to established procedures or failed to adhere to principles of natural justice
  4. Proportionality1: may arise where the decision was not proportionate

What is the procedure for making a judicial review claim?

The procedure relating to judicial review in the Cayman Islands is set out in GCR Order 53 (Order 53) and is materially supplemented by Practice Direction No 4 of 2013 entitled 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 Order 53 rule 4 which requires that any application for judicial review must be filed promptly and in any event not later than 3 months after the grounds to make the claim first arose.

The Protocol sets out a code of good practice and contains steps which parties should generally follow before making an application for judicial review. For instance, it requires the parties to consider whether some form of ADR procedure would be more suitable than litigation and also suggests a standard form for the applicant's letter before action (annex A) and the defendant's letter of response (annex B).

If proceedings are necessary, there are two procedural stages to judicial review. The first is the leave stage which must be made ex parte by filing a prescribed form and an affidavit which verifies the facts relied on. The applicant has to have a sufficient interest and demonstrate an arguable case. If leave is refused, the application for leave may be renewed within 10 days of the Judge's refusal.

If leave is granted then a substantive hearing will take place. The applicant will be required to serve the application 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 by oral argument and cross-examination is unusual.

What remedies may be sought?

  • Mandatory order (mandamus): to require a public body to carry out its legal duties
  • Prohibiting order (prohibition): to restrain the public body from acting beyond its powers
  • Quashing order (certiorari): to set aside the decision
  • Declaration: not imposed by the Court but sets out the rights or legal position between the parties
  • Injunction: often granted as an interim remedy to prevent a public body from acting on a decision
  • Damages: only available in limited circumstances in judicial review. The claim must be included in the statement in support of the application for leave and the Court must be satisfied, if the claim had been made in an action by the applicant, he or she could have been awarded damages.

The Cayman Islands Constitution Order 2009 (Constitution) and Bill of Rights, Freedoms and Responsibilities (BOR)

The Constitution came into force on 6 November 2009 and the BOR was introduced as Schedule 2 to the Constitution three years later on 6 November 2012. The BOR sets out the fundamental rights and freedoms of the individual and rules for their enforcement and remedies in the Cayman Islands.

Proceedings may be commenced under sections 23 (Declaration of incompatibility) and 26 (Enforcement of rights and freedoms) of the Constitution by petition or writ under GCR Order 77A (Order 77A).2 For instance, by section 26(1) any person may apply to the Court to claim that government has breached or threatened his or her rights and freedoms under the BOR within one year of the decision or act complained of (section 26(4)). Care should be taken when considering whether to bring claims under the BOR as, although such claims may be appropriate for breach of personal rights and freedom, judicial review remains the established procedure for review of administrative action.3

Footnotes

 1 Section 19(1) of the Cayman Islands Constitution Order expressly introduce a new ground of proportionality into Cayman judicial review, in providing: All decisions of public officials must be lawful, rational, proportionate and procedurally fair.

2 Order 77A was introduced on 6 November 2012 to give procedural effect to sections 23 and 26 of the Constitution

3 See Coe v Governor [2014 (2) CILR 465]

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions