Ongoing legal wrangle has far-reaching implications for judiciary
A Cayman Islands Grand Court judge at the center of a costly constitutional battle over the perceived independence of the local judiciary will almost certainly remain on the bench until he reaches full retirement age, 70, next year.
The court case involving Justice Alexander Henderson is a test case of both the legal retirement age for Grand Court judges and the constitutionally mandated impartiality of the Cayman Islands judiciary.
The legal dispute has so far cost Cayman more than $360,000, according to a Freedom of Information request filed by a private citizen earlier this year.
Until that dispute is resolved, which seems unlikely to occur prior to Justice Henderson’s turning 70 on Nov. 5, 2014, the judge will work under the terms of a provisional contract.
The case involving Mr. Henderson’s continued employment was heard before the Judicial Committee of the U.K. Privy Council last year, but was dismissed. The U.K. judges ruled the proper venue for sorting the matter out in the first instance was the Cayman Islands court system.
The matter has not yet been set for hearing in the Grand Court.
Former Cayman Islands Gov. Duncan Taylor, acting on advice from the Judicial and Legal Services Commission, had initially rejected an application from Justice Henderson to extend his term beyond his 65th birthday. However, according to the judicial administration’s response to the open records request, Justice Henderson’s $200,000-a-year contract was extended for one year on June 30, 2011, and then again on June 22, 2012 for a term to end by his 70th birthday.
The 2012 contract contained a clause that would allow the governor to end Judge Henderson’s term before that date, depending on the outcome of the court proceedings.
The FOI responses were passed to the Compass by local blogger Kerry Horek, who has argued that the large sums of money spent on the case, so far without resolution, could have gone to better use.
By all accounts, the case is far more substantial than a simple employment matter over one judge’s tenure. It raises key questions over whether the Cayman Islands Bill of Rights, which came into force in November last year, guarantees the impartiality of the judiciary in its current form.
The Cayman Islands Constitution Order, 2009, sets the retirement age for judges at 65, but allows the territorial governor discretion to accept or reject applications for a five-year-extension.
The thrust of the government’s case – brought to the Privy Council by Cayman Islands Chief Justice Anthony Smellie – is that a judge in his late 60s, who owes his continued employment to the governor, could have his impartiality questioned, potentially leading to his judgments being quashed at great expense to the territory.
Chief Justice Smellie said last year that the issues were so important that they needed to be dealt with by the U.K. court immediately. He argued that there should be no discretionary renewal of appointments, as in the U.K., where all judges are appointed until age 70.
In a press statement following the Nov. 12, 2012 ruling that the Privy Council would not take the case immediately, the chief justice argued that the guarantee of an independent and impartial court depended on “established tenure”. Judges must be, and must be seen to be, unconstrained by any potential influences – however unlikely that may seem today, he said.
“We took action now to avert any possibility of attempted rogue influences in the future, whether real or perceived,” Mr. Smellie said.
Until May 2013, The Cayman Islands Judicial Administration, funded by government, spent $360,799.22 pursuing the case. Much of that expense went toward preparing the case to be heard in the U.K. by the Privy Council, which is the highest court of appeal for any legal dispute in the Cayman Islands.
Should the local case, if and when it is scheduled before the Grand Court, find against Justice Henderson, it would almost certainly go to the Privy Council on appeal – a process which would likely extend the proceedings long after the judge’s 70th birthday.
Kevin McCormac, court administrator in the Cayman Islands, said Justice Henderson’s situation was merely the trigger for a matter that needed to be settled in the interests of proper administration of justice in the Cayman Islands.
“At the heart of this is a fundamental point about the impartiality of the judiciary and the way the constitution is set up,” Mr. McCormac said.