Chief Justice of the Cayman Islands v The Governor and The Judicial and Legal Services Commission (Cayman Islands)

Section 4 of the Judicial Committee Act 1833 does not compel the Judicial Committee to answer every referred issue substantively. It may advise that a petition should not be determined on its merits where that is legally correct or appropriate on the facts. Where an issue can properly be determined through the territory’s ordinary first-instance courts and appellate route, it is wrong in principle, absent special factors, to use section 4 to make the Judicial Committee a first and last resort. Constitutional importance, judicial availability, appellate composition, the petitioner’s wishes, and time or cost savings did not justify bypassing that process.

The Chief Justice petitioned Her Majesty under section 4 of the Judicial Committee Act 1833 concerning two Cayman Islands constitutional issues. The first concerned the extension of a Grand Court judge’s appointment under section 96(1)(a) of the Cayman Islands Constitution Order 2009 (SI 2009 No 1379). The second concerned whether section 106(1) conferred disciplinary powers short of removal.

After the Queen referred the petition, the Governor applied for advice that the Judicial Committee should not determine the merits. He argued that the issues should first be raised by judicial review in the Grand Court and that the second issue was moot. The central questions were whether the Committee could decline to give substantive advice and whether it should do so in the circumstances.

Disposition. Lord Neuberger delivered the judgment of the Board, which advised Her Majesty that the petition should be dismissed. The Board therefore gave no substantive advice on the two underlying constitutional questions.

1. Power under section 4. The language requiring the Judicial Committee to hear or consider a referred matter and advise thereon did not require a substantive answer to every issue. The Committee could advise that a petition or issue should not be substantively addressed where that was the advice it considered correct in law or appropriate on the facts. This remained so even if the issues, rather than the petition as a whole, had been specifically referred.
2. Ordinary local process. Where an issue concerning the Cayman Islands could properly be determined by the Grand Court, with appeals through the Court of Appeal and then to the Privy Council, it would be wrong in principle, absent special factors, for the Committee to act under section 4 as a court of first and last resort. Section 4 was intended for matters incapable of determination through ordinary judicial proceedings. The ordinary route also allowed the facts and issues to be refined, enabled local courts to express their views, and made better use of the tiered appellate structure.
3. Alleged special factors. No sufficient exception was established. A temporary judge could be appointed under section 97 to hear judicial review proceedings. The suggested difficulty in constituting an appellate panel was not exceptional, since only the President of the Court of Appeal was disqualified. The constitutional importance of the issues reinforced the desirability of local first-instance consideration. The Chief Justice’s wish to proceed under section 4 attracted respect but was counterbalanced by the Governor’s opposing position. Time and cost savings were an argument available in almost every such petition and were not decisive here.
4. Mootness and costs. The Board declined to decide whether the disciplinary-power issue was moot, considering that question unsuitable for abstract determination. It should await a case in which the issue was fairly and squarely raised in ordinary proceedings. The Board invited written submissions on costs, with a provisional view that there should be no order.

1. Referral to the Privy Council. Her Majesty referred the Chief Justice’s petition to the Judicial Committee under section 4 of the Judicial Committee Act 1833.
2. Privy Council. In [2012] UKPC 39, the Board dismissed the petition at the preliminary stage and declined to determine the underlying constitutional issues substantively.