In an unreported decision last month (FSD No. 30 of 2019), the Hon. Justice Kawaley provided an in-depth analysis of what documents will constitute an originating process in the Cayman Islands and, further, in what circumstances such originating processes may or may not be placed on the public register.

The decision came following an application for directions in connection with the withdrawal of an application for leave. Specifically, an Order was sought directing that:

1. The application papers relating to an application for leave to seek judicial review (which was being withdrawn) should not be placed on the public file;

2. To protect the confidentiality of some of the materials which had been filed, the file should be sealed in any event.

In respect of the first issue, Justice Kawaley identified the key question as “when is a document filed in Court to originate a legal action not an originating process required to be placed on the public file?”. 

The Judge candidly expressed his initial “discomfiture” about the nature of such an application in the context of a judicial review proceedings, i.e. public law proceedings which, in his view, “surely must engage the open justice principle”.

However, he was persuaded by the submissions from counsel 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 ruled not to be 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.

In respect of the second issue, counsel again persuasively argued that the principles of open justice had not been engaged if the relevant documents have not formed part of a judicial decision-making process and therefore the file, containing clearly confidential information, should be sealed.

Justice Kawaley cited two factors identified by counsel which supported the exercise of the Court’s discretion to seal the file, namely:

1. The fact that the Court had made no determination on the application for leave to seek judicial review; and
2. The fact that the proposed respondent had not been afforded an opportunity to advance its case in answer to the case made against it.

The decision shines a spotlight on fundamental principles of procedure and will be of interest to both offshore and onshore litigators. A further blog will be posted on Justice Kawaley’s interesting analysis of the ‘filter’ engaged in judicial review applications and the principle of ‘open justice’.