An Application for Leave to Seek Judicial Review and an Application for A Confidentiality Order

• Jurisdiction: Cayman Islands
• Judge: (Kawaley, J.)
• Judgment Date: 29 May 2019
• Court: Grand Court (Cayman Islands)
• Date: 29 May 2019

IN THE MATTER OF AN APPLICATION FOR LEAVE TO SEEK JUDICIAL REVIEW

IN THE MATTER OF AN APPLICATION FOR A CONFIDENTIALITY ORDER

(Kawaley, J.)

Grand Court (Cayman Islands)

Administrative Law — judicial review — leave to apply — application under GCR O.53, r.3 for leave to apply for judicial review not originating process — not placed on public file

Held, granting the order sought:

(1) The court directed that the application under GCR O.53, r.3 should not be placed on the public file. An application for leave to seek judicial review was not an originating process for the purposes of GCR O.63, r.8. Despite the apparently very broad definition of “application” in O.5, r.1, an application for leave to seek judicial review under O.53, r.3 was not brought within the ambit of O.63, r.8 via O.5, r.1. GCR O.5, r.1, which was a later provision, defined originating process so as to include a “writ, originating summons, originating motion, petition or written application,” with “any other application” defined in r.1(2) to include “(d) any other application which is required by the Rules to be made and determined in writing without any oral hearing.” However, for “any other application” to fall within O.5, r.1(1) so as to be subject to being entered in the Register, it must be an application which commenced a civil proceeding for a substantive legal remedy the entitlement to which would be adjudicated by the court. An application under O.53, r.3 for leave to seek judicial review was not such an application. Moreover, an application under O.53, r.3 was not “required by the Rules to be made and determined in writing without any oral hearing.” There was a fundamental distinction between a substantive application for judicial review made under O.53, r.1 by originating motion, and an application for leave made under O.53, r.3 by notice (paras. 17–26).

(2) There were good substantive reasons of legal and public policy underpinning the recognition of a critical difference in character between applications for leave to seek judicial review and substantive applications for judicial review. The dominant purpose of the remedy of judicial review was to promote the interests of good public administration. The requirement of leave was designed to ensure that the process of judicial review did not itself undermine the interests of good administration. The leave filter protected the courts and public bodies from obviously unmeritorious applications. A public body would usually be unaware at the leave stage that an application for leave to seek judicial review had been made. If applications for leave were to be placed on the public file, they would likely come to the attention of the public body, potentially interrupting their work. It would also be undesirable if allegations which a public body might never have the legal opportunity to refute should enter the public domain (paras. 27–32).

(3) The court also directed that the file should be sealed and not open to inspection without further leave of the court. Although in many cases an application to seal a file (or to refuse an application by a non-party for access to it) might require the court to balance the interests of open justice with countervailing confidentiality or privacy rights, the open justice principle was not engaged in the present case. The application for leave was not only a precursor to a substantive civil proceeding but it had not even been judicially considered. Even if the open justice principle had been engaged, the confidential nature of much of the material on the file would have justified a sealing order in any event. The one caveat was that counsel agreed that it was appropriate for the present judgment to be made public, albeit in anonymized form (para. 36; paras. 46–47).

Cases cited:

(1)Ahmad Hamad Algosaibi & Bros. Co. v. Saad Invs. Co. Ltd., 2017 (2) CILR 788, considered.

(2)Cape Intl. Holdings Ltd. v. Dring, [2018] EWCA Civ 1795; [2019] 1 W.L.R. 479; [2019] 1 All E.R. 804; [2019] EMLR 11, considered.

(3)Inland Rev. Commrs. v. National Fedn. of Self-Employed & Small Businesses Ltd., [1982] A.C. 617; [1981] 2 All E.R. 93, considered.

(4)Sasken Communication Technologies Ltd. v. Spreadtrum Communications Inc., 2016 (1) CILR 1, followed.

(5)Scott v. Scott, [1913] A.C. 417; [1911–13] All E.R. 1, considered.

(6)SPhinX, In re, 2017 (1) CILR 176, considered.

Legislation construed:

Grand Court Rules 1995 (Revised), O.5, r.1(1): The relevant terms of this paragraph are set out at para. 7.

O.5, r.1(5): The relevant terms of this paragraph are set out at para. 7.

O.53, r.3: The relevant terms of this rule are set out at paras. 20 and 24.

r.5(1): The relevant terms of this paragraph are set out at para. 25.

O.63, r.3: The relevant terms of this rule are set out at para. 33.

r.8: The relevant terms of this rule are set out at paras. 14 and 23.

O.85, r.8(1): The relevant terms of this paragraph are set out at para. 18.

An application was made for leave to seek judicial review.

The applicant filed an application for leave to seek judicial review under GCR O.53, r.3, which was subsequently withdrawn. There had been no judicial consideration of the application. The applicant and the proposed respondent sought an order directing that (a) the application papers should not be placed on the public file; and/or (b) to protect the confidentiality of some of the materials which had been filed, the file should be sealed in any event.

GCR O.63, r.8(1) provided that “the Clerk of the Court shall create a file containing, in chronological order, an office copy of every writ, originating summons, originating motion or petition issued by the Court, which shall be referred to as ‘the Register of Writs and other Originating Process.’” GCR O.5, r.1(1) defined “originating process” as a mode of beginning civil proceedings in the court “by writ, originating summons, originating motion, petition or written application.”

The applicant submitted that (a) an application for leave to seek judicial review, as opposed to an application for judicial review once leave had been granted, was not a document which was required to be placed on the public file pursuant to GCR O.63, r.8, as it was not a “writ, originating summons, originating motion or petition”; (b) although the definition of originating process in GCR O.5, r.1(1) could be read as expanding that in O.63, r.8 to include an application for leave to seek judicial review, an application for leave to seek judicial review was not a civil proceeding but an administrative application serving as a filter to determine whether an applicant should be permitted to commence a civil proceeding; and (c) further or alternatively, the principles of open justice were not engaged and the file, which contained confidential information, should be sealed.

The proposed respondent supported the applicant’s submissions, submitting inter alia that (a) it would be undesirable that an application forleave to seek judicial review, which would typically contain criticisms of a public authority which might be wholly unfounded and to which the authority would have no chance to answer if leave were refused, should be publicly available; and (b) two factors supporting the exercise of discretion to seal the file were the fact that the court had made no determination on the application and the fact that the proposed respondent had had no opportunity to answer the case made against it.

K. Broadhurst and S. Bowler for the applicant;

D. Lee for the proposed respondent.

1 KAWALEY, J.:

Introductory

When is a document filed in court to originate a legal action not an originating process required to be placed on the public file? When it is not a document filed in court to originate a legal action. That, in a nutshell, is the question which was posed and the answer which was posited when the leave to seek judicial review applicant and the proposed judicial reviewrespondent jointly applied for directions in connection with the withdrawal of the application for leave. An order was sought directing that—

(a) the application papers relating to an application for leave to seek judicial review which was being withdrawn should not be placed on the public file; and/or

(b) to protect the confidentiality of some of the materials which had been filed, the file should be sealed in any event.

2 The question was raised against the background of the court having previously granted interim orders that the file should be sealed. The application for leave had been filed for protective purposes pending settlement discussions and no judicial consideration of the application had taken place. By the date of the hearing of the application for a confidentiality order it was clear that no consideration of the leave application would ever be required.

3 At the beginning of the hearing, I had a nagging sense of discomfiture about the application. First, my instinctive sense was that public law proceedings more than any other must surely engage the open justice principle. Secondly, I had myself previously (in another jurisdiction) decided administratively that an application for leave to seek judicial review was indeed originating process which should be available for public inspection. And, thirdly, I had a natural reticence about being invited to depart from the established local practice. For the avoidance of doubt, nothing in the present judgment is intended to affect how the Clerk of the Court deals with such applications for other administrative purposes unrelated to the requirement to record such applications in the Register of Writs.

4 By the end of the hearing, however, counsel persuaded me through their careful and cogent arguments that the legal case for granting the preferred version of the order which they sought was sufficiently strong to justify me acceding to the application. I accordingly directed that the application under GCR O.53, r.3 should not be placed on the public file and...