An Application for Leave to Seek Judicial Review
| Jurisdiction | Cayman Islands |
| Judge | Justice Kawaley |
| Judgment Date | 29 May 2019 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. 30 OF 2019 |
The Hon. Justice Kawaley (in Chambers)
CAUSE NO. 30 OF 2019
IN THE GRAND COURT OF THE CAYMAN ISLANDS
Application for leave to seekjudicial review — application filed for protective purposes-interim confidentiality order-settlement of underlying dispute and withdrawal of leave application prior to judicial consideration — application for direction that leave application should not be placed on Register of Writs — whether application for leave to seek judicial review qualifies as “originating process character and function of judicial review leave filter — application for order permanently sealing file — confidential information-parameters of open justice principle — whether open justice principle engaged-Grand Court Rules Order 53 r.3, Order 63 r.3(4), 7–8 and Order 5 r.1
Mr Kyle Broadhurst And Ms Sally Bowler Of Broadhurst Llc On Behalf Of The Applicant
Mr David Lee Of Appleby (cayman) Ltd. On Behalf Of The Proposed Respondent
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 review Respondent jointly applied for directions in connection with the withdrawal of the application for leave. An Order was sought directing that:
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(a) the application papers relating to an application for leave to seek judicial review which was being withdrawn should not be placed on the public file; and/or
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(b) to protect the confidentiality of some of the materials which had been filed, the file should be sealed in any event.
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.
At the beginning of the hearing, I had a nagging sense of discomfiture about the application. Firstly, 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.
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 Order 53 rule 3 should not be placed on the public file and that, in any event, the file should be closed and not open to inspection without further leave of the Court.
These are the reasons for that decision.
Firstly, Counsel for the Applicant, Mr Broadhurst, submitted that 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 Order 62 rule 8. It was not a “writ, originating summons, originating motion or petition”. He conceded that another rule was potentially inconsistent with this, but argued that Order 62 rule 8's clear terms, read in light of Order 53 rule 3, should prevail.
GCR Order 5 rule 1(1) defines “originating process” as a mode of beginning civil proceedings in the Court “by writ, originating summons, originating motion, petition or written application”. Order 5 rule 1 (5) obliges the Clerk to place originating process “on the Register of Writs maintained in accordance with Order 63, rule 8”. (Order 63 rule 8(1) in fact requires the Clerk to create a “Register of Writs and other Originating Process”). Counsel very properly conceded that this definition of originating process could be read as expanding that found in Order 62 rule 8 to include an application for leave to seek judicial review, which potentially (on superficial analysis clearly) falls within the words “written application”. The latter term, counsel also pointed out, was defined in Order 5 rule 1(2) as including applications under Orders 50 rule 11, 85 rule 8, 102 rule 18 and “(d) any other application which is required by the Rules to be made and determined in writing without an oral hearing”.
Mr Broadhurst sought to leap over this potential technical hurdle with a more elevated yet fundamental submission. This was, in effect, that an application for leave to seek judicial review was not a civil proceeding at all but an administrative application serving as a filter to determine whether the applicant should be permitted to commence a civil proceeding. He relied in this regard on the commentary in the English 1999 White Book at paragraph 53/14/15, and passages from the House of Lords decision in Inland Revenue Commissioners -v- National Federation of Self-Employed and Small Businesses Ltd. [1982] A.C. 617 C-E (Lord Wilberforce) and 642F-643A (Lord Diplock).
Further and/or alternatively, the Applicant's counsel submitted that the principles of open justice had not been engaged and so the file, containing as it clearly did confidential information, should be sealed in any event. Order 63 rule 3(4) expressly empowers the Court to seal a file or any particular documents on a file. Reference was made to the authoritative guidance on the exercise of this jurisdiction laid down by the Cayman Islands Court of Appeal in Sasken Communication Technologies Limited v Spectrum Communications Incorporated [2016] 1 CILR 1 per Rix JA at paragraphs 17, 19. As regards the principles of open justice, in a somewhat wider canvass, reliance was placed on the English Court of Appeal decision in Cape International Holdings Limited v Dring [2018] EWCA Civ 1795. Mr Broadhurst in his Skeleton relied upon the judgment of Hamblen LJ at paragraphs 27 and 28, and in his oral submissions counsel referred me to paragraphs 120–128 in the same judgment.
It was further submitted that this Court has affirmed the same principles of open justice in Ahmad Hamad Algosaibi and Brothers Company -v- Saad Investments Company Limited [2017] (2) CILR 788 at paragraph 98 (Anthony Smellie, CJ), and in Re Sphynx, FSD 16 of 2009, Judgment dated January 30, 2017 (unreported) at paragraphs [11]-[13] (Anthony Smellie CJ). These cogent arguments, on the facts of the present case, had echoes of the primary argument that the leave application was not a civil proceeding at all. The nub of this nuanced argument was that when considering whether particular documents ought to be sealed, the open justice principle is not even engaged if the relevant documents have not formed part of a judicial decision-making process.
Mr Lee for the proposed Respondent supported these submissions both on overlapping legal and additional practical grounds. The most important practical reason he advanced for confidentiality actually supported the primary legal argument that a leave application should not (at least unless or until leave is granted) be placed on the public file at all. An application for leave will typically make criticisms of public authorities, which may be wholly unfounded and to which the proposed respondent will never have the chance to answer if leave is refused. It is undesirable that such allegations, the merits of which will never be adjudicated and to which the proposed respondent cannot effectively respond, should be publically aired.
Two critical and essentially generic factors identified by Mr Lee which were relied upon as being relevant to and supportive of exercising the discretion to seal the file were:
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(a) the fact that the Court had made no determination on the application; and
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(b) the fact the proposed Respondent had not been afforded the opportunity to advance its case in answer to the case made against it.
These factors also served to fortify the Applicant's primary submission that, prior to the grant of leave, the character of an application for leave to seek judicial review is wholly distinguishable from an originating application which commences civil proceedings which can be pursued as of right.
GCR Order 63 rule 8 is the primary rule governing making originating process available for public inspection. It provides:
“(1) 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
(2) The Register of Writs and other Originating Process shall be open to public inspection upon payment of the prescribed fee.
(3) Any person shall be entitled, upon payment of...
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