Cayman Islands Chief Justice dowses fire in "apparent bias" case
In the recent decision of Bodden v Civil Service Appeals Commission, the Cayman Islands Grand Court considered whether the Commission was required to expressly articulate and apply the test of apparent bias. If it was, and it failed to do so, as alleged by the Applicant, then it would have fallen into a reviewable error subject to correction by the Grand Court.
The Applicant, a long-serving fire officer, failed in his application for appointment to three senior positions in the Cayman Islands Fire Service. Less senior officers were appointed to each of these positions. He appealed to the Civil Service Appeals Commission under the Public Service Management Act, on the ground that the Chief Officer was biased against him and that the recruitment process was accordingly unfair. His appeal was dismissed and he moved for judicial review on the ground that the Commission had made an error of law in failing to articulate and apply the test for apparent bias when determining the question of whether the Chief Officer was biased, and therefore came to the wrong conclusion.
It was held by the Grand Court that the Commission had erred in law by failing to apply and consider the correct test of apparent bias, namely, whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased, as stated in the English administrative law case of Porter v Magill.
Notwithstanding that the Applicant was successful in establishing that the Commission had been in error, the Court declined to quash the decision of the Commission or to remit the matter back for reconsideration on the following grounds: (i) delay, with the appointment decisions having been made over 4 years ago; (ii) it would be detrimental to good administration and result in prejudice to third parties as it would raise the question of whether the three successful applicants were properly appointed; and (iii) no practical effect would be served as the Commission would be entitled to and would very likely reach the same decision again on the evidence before it.
It is important to note that the finding in this case is only that the Commission misdirected itself, not that there was bias or apparent bias. The decision confirms the principle of judicial review that remedies are discretionary and that even where there is a reviewable error, the Grand Court may refuse any relief depending on the circumstances of the case.
