Smellie CJ
IN THE GRANT COURT OF THE CAYMAN ISLANDS CAUSE NO: D 132 of 2007 BETWEEN SIDY ALFARO RODRIGUEZ PETITIONER AND EYORT EBANKS RESPONDENT IN CHAMBERS THE 2ND SEPTEMBER 2011; 24TH JANUARY 2012 BEFORE THE HON. CHIEF JUSTICE Appearances: Miss Kate McClymont of Broadhurst Barristers for the Petitioner Mr. Anthony Akiumi of Stuarts for the Intervenor RULING ON APPLICATION FOR THE RECUSAL OF THE HON. CHIEF JUSTICE
I have been invited by the counsel for the Intervenor to consider whether I should recuse myself from the continued hearing of this matter.
The concern is that, in my capacity as Chief Justice, I referred for disciplinary enquiry, among many others, a complaint raised by the Petitioner against a former judge who was, at the time, seized of this action. That referral resulted in the removal of the judge on the advice of the Disciplinary Tribunal and later recommendation of the Privy Council.
As Chief Justice, I was not required to and made no findings as to the truthfulness or otherwise of the Petitioner’s (nor as to that of any other) complaint. My function involved the administrative assessment only of whether the complaints, taken together, justified the referral to the Governor for disciplinary proceedings. Having made that referral, the Disciplinary Tribunal was convened by the Governor for the very purpose of conducting that assessment. That is the background against which the invitation to consider recusal must be considered, an invitation which comes, not from a “fair-minded and informed observer” as that expression has come to be defined in the case law, but it is said, from the Intervenor who, because of her partisan interest in the case, can hardly be regarded realistically in that way.
As Lord Hope observed in Helow v Secretary of State for the Home Department [2008] 1 WLR 2416: “The fair minded and informed observer is neither unduly sensitive nor suspicious yet he is not complacent. He is assumed to have taken the trouble to acquire full knowledge of all the relevant information before coming to a conclusion.”
The fair minded and informed observer is also expected to be aware of the law and the functions of those who play a part in its administration: See Lawal v Northern Spirit [2003] UKHL 35 at paras. 21 and 22.
The objective test by which I decide whether to recuse myself is, however, stated to be from the point of view of whether a fair minded and informed observer might perceive that there is a real danger that I may be biased in relation to this case. In Porter v Magill [2002] 2 AC 357 the House of Lords reaffirmed the appropriate test as follows: “The Court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger, the two being the same, that the tribunal was biased."
The intervenor appears to have conceived of the concern that a danger of bias exists because, by having dealt with the Petitioner's complaint in the context of the disciplinary proceedings against the former judge: (a) A business association was thus formed between myself and the Petitioner; and (b) I must have formed an opinion of the credibility of the Petitioner, credibility being an issue for determination in this case.
Both of these premises are, in my view, not only factually incorrect, but also so misconceived as not to be attributable to a fair-minded and informed observer of my involvement in the disciplinary proceedings as explained above.
They may not, in my view, amount to a basis for concern that there is a danger that I may be biased in favour of the Petitioner, or at all, in relation to this case. They do not present grounds for recusal. Hon. Anthony Smeathie Chief Justice 24th January 2012