According to a judgment delivered by The Hon. Justice David Doyle on November 21, 2022, he agreed to have several cases assigned to another judge after the parties raised arguments under four separate grounds, including a possible conflict of interest and apparent bias.
In doing so, the judge emphasized that while he is “not satisfied that taken separately or together Grounds One, Three and Four relied upon by the Second Respondents are good grounds for recusal,” he said that he noted “the helpful guidance contained at paragraph 19 of the Cayman Judicial Code” which contains a caution that he was minded to take into account of.
The caution under paragraph 19, according to the judgment, is as follows:
If the issue of apparent bias is raised before the judge has embarked on the hearing, it may be sensible for the judge to decline to sit in order to avoid adding that issue to the other contentious issues in the case.
The judge noted that he was also deciding to step down because “It is of fundamental importance… 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,” he continued.
The judge warned, however, that there is also a “need to guard against the abuse of judge-shopping” where parties may seek to have a judge appointed to hear their case who may be seen as sympathetic to their case.
Regarding this, the judge said that when consideration is being given to having a judge excused, therefore, at least three other factors must be analyzed.
These factors were outlined by the judge as follows:
First, in small compact jurisdictions there is a limited pool of specialist judges dealing with financial services litigation.
Second, the litigation in such courts, perhaps because of the amounts and issues at stake, is frequently (as Moses JA touched upon in this case) hard fought. The temperature and hostilities run high on occasions and the parties take all conceivable (and indeed some inconceivable) points which they think may assist their respective cases. Judges dealing with recusal applications in such a context must carefully bear this in mind. To put it mildly, the words mediation and settlement do not unfortunately appear to be at the forefront of the minds of the combatants or their well-resourced legal teams in such cases.
Third, special regard must be had to the contents of the relevant local judicial codes of conduct. In this case the applicable Cayman Judicial Code reinforces and gives particular weight to the precautionary principle.