IN THE GRAND COURT OF THECAYMANISLANDS BETWEEN (1)BDO CAYMAN LTD. (2) DELOITTE AND TOUCHE (3) ERNST & YOUNG LTD (4) KPMG (5) PRICEWATERHOUSECOOPERS Applicants AND (1) THE GOVERNOR IN CABINET (2) THE ATTORNEY GENERAL Respondents ## IN CHAMBERS Appearances: Mr, M Imrie, Mr. C McKie Q.C. and Mr. C La-Roda Thomas of Maples and Calder on behalf of the Applicants Ms. J Wilson, Solicitor General, and Ms. M. Brandt of the Attorney General's Chambers on behalf of the Respondents Before: The Hon. Justice Ingrid Mangatal Heard: 2 November 2016 Ruling Delivered: 2 November 2016 Transcript Circulated: 4 November 2016 CAUSE NO G 168 of 2016 <!-- image --> <!-- image --> ## EX TEMPORE RULING Governor in Cabinet to dismiss appeals made under S.17 of the Trade and Business Licensing Law (2007 Revision) which was in force at all material times, and as communicated to the Applicants by letters received on or after 10 June 2016.
The Relief sought is set out in the Statement at page 2 of the application, and consists of an order of certiorari and a number of declarations and further or other relief as the Court sees fit.
The Applicants are all accounting firms carrying on the business of accountancy in the Cayman Islands.
The application was initially in September 2016, placed before my brother Williams J for consideration ex parte on the papers, without a hearing pursuant to GCR O.53, Rule 3(3). Williams J took the view that the application was not suitable for being dealt with on the papers, that the matter should be listed for a hearing, to come before any Judge if he was not available, and that the Applicants should ask the Attorney General/Respondents to attend the hearing.
The Applicants were so directed by the Listing Officer and were also referred to the decision in Morrison and Bodden-Cowan v Work Permit Board & Chief Immigration Officer - [2014(2) CILR Note 4.
Consequently, the application was listed for hearing and was listed before me for hearing today. The Attorney General's Chambers have come before the Court and have opposed the application for Leave on a number of bases.
One preliminary point taken, which has been consented to, or conceded, is that in fact the Attorney General ought not to be named in this application for judicial review. It is agreed that the Attorney General's name is to be removed.
Another point taken is that the 1"t, 2"d, 4"h and 5th Applicants have not filed affidavit evidence in support of the applications and therefore O. 53 Rule 3 of the Grand Court Rules (1995) Revision has not been complied with.
In my view, this is a very technical point, since Ms. Nelson, who has indicated in paragraph 1 of her affidavit that she is authorized by the 3"d Applicant to make the affidavit in support of the application for permission, has exhibited to her affidavit, letters from each of the 1", 2"d, 4 and 5" Applicants indicating their support of the application.
The evidence is that all of the Applicants are in similar positions in that they all filed appeals pursuant to S.17 of the relevant Law and their appeals were all dismissed on the same day on the same basis.
However, Order 53 Rule 3 (6) does require that an affidavit which verifies the facts relied upon be filed and O.53 Rule 3(7) provides that the Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.
I am satisfied that all five Applicants have a sufficient interest. However, Judicial Review is a quite technical area of the law and I am of the view that I should take Mr. Imrie up on his offer/undertaking to have verifying affidavits filed by the 1s", 2nd, 4h and 5th Applicants and I am prepared to accept an undertaking for him to do so by 3:00 p.m. on Friday 4"h November 2016.
The Grounds on which the Relief is sought are stated to be as follows:-
Unlawfulness: the decision maker made an error of law in making the Decision. - i. On the plain and ordinary meaning of the language in sections 12 and14oftheLaw(theninforce),and theScheduleoftheLaw,the only fee payable in respect of an application for a trade and business licence for accountancy firms, such as the Applicants, is thePerFirmFeeunderitem2of theSchedule. <!-- image --> <!-- image --> - ii. There are a number of different ways the legislature could have two sets of fees.1 within the Law (then in force), or including a specific reference to the Per Firm Fee being payable in addition to the Per Accountant Fee. - ili. This Law was subsequently changed on 1 January 2016, when the definition of "Accountancy Firms" in the Schedule was amended toincludean expressrequirementthat thePer AccountantFeeis payable in addition to the Per Firm Fee. This amendment changed the ordinary meaning of the Law, which previously required the Applicants to pay only the Per Firm Fee. - iv. The Decision amounts to a breach of the principle of doubtful penalization pursuant to which laws that interfere with or restrict economic interests including the carrying on of a trade or business (and which are unclear) should be construed in favour of thefee payer. ## 2. Unreasonableness/irrationality: - i. The wording of sections 12 and 14 of the Law (then in force) and the Schedule to the Law is so clear and unambiguous, - i.e. that only one fee is payable in respect of a trade and business license Suoum Quod si uoisiaa oy apy - uaf Koununonoy, un dof andnoreasonabledecisionmakercouldhavemadethesame decision. ## 3. Breach of Natural Justice: - Naturaljusticerequiresthateverytribunalisrequiredtofollow basic principles of procedural fairness, which includes: - a.（ Givingeachparty anequalandreasonableopportunityto presentits case;and - b. Ensuring that each party is fully apprised of any arguments against it and is given a reasonable opportunity to comment. - ii. In refiusing the express requests of the Applicants to be heard, and/or to makelegal submissions through their representatives and/or attorneys-at-law,( Cabinet infringed upon the basic principles of procedural fairness and the Decision amounts to a breach of natural justice."
I am satisfied that there is no alternative remedy available to the Applicants, for example, by way of further appeal. I am also satisfied that that there is no discretionary bar, such as delay, applicable herein. Indeed, the Respondent has not sought to argue that there has been any delay on the part of these Applicants.
gatekeeper. Its role at this stage is to eliminate frivolous or vexatious claims. As stated in Smith v Commissioner of Police [1980-83 CILR 126], cited by Mr. Imrie, by the Cayman Islands Court of Appeal, per Carberry J.A.: "At this stage all that it is necessary to show is that there is some arguable case or claim which is not obviously untenable, vexatious or frivolous." Other more recent authorities, such as the Privy Council's decision in Sharma v Antoine [2006] UKPC 57, demonstrate that the applicant must show that it has arguable grounds <!-- image --> - 17.1 It is plain to me that the Applicants have met the required threshold. The grounds of Unlawfulness and Unreasonableness/Irrationality are plainly arguable with real prospects of success. In essence, the applicants say that there have been errors of law in the Governor in Cabinet's interpretation and understanding of the relevant Law. These are plainly matters susceptible to judicial review, by what is referred to in Fordham's wellknown work Judicial Review Handbook, 6t# Edition, paragraph 16.3, cited by Mr. Imrie, as "hard-edged review". - 18.S See also paragraphs, the Chapter 48 headed "Error of Law. A body must not make a material error of law."
With all due respect to the Respondents, there is nothing to the point in claiming that the Applicants are in essence seeking to appeal from the decision of Cabinet. They are not; they are seeking to activate this Court's important supervisory judicial review powers. See also in particular paragraph 16.1 of the Fordham which provides a full answer to the Respondents′ arguments addressed to the forbidden substitutionary approach, where the learned author points out that ""hard-edged"' questions represent an important exception to the rule against the forbidden substitutionary approach. - 20． As to the ground claiming that there has been a breach of natural justice, that is also clearly arguable, is not obviously untenable, and the Applicants in my view ought to be allowed to advance this ground also.
The Respondents have raised argumients about the conduct of the Applicants but these are clearly matters, if they are to be considered at all, that should be addressed at the substantive hearing stage. In this case, it cannot reasonably or justifiably be held by this Court that, as Ms. Wilson sought to argue, with reference to paragraph 9-063 of Sir Clive Lewis' Work on Judicial Remedies in Public Law, that there is no point in granting permission as the Court would not ultimately grant any remedy in any event. It's an interesting subimission, but finds no applicability on the facts and circumstances of this case.
Accordingly, I grant Leave to apply for judicial review as sought.
The Applicants have applied for costs, arguing that costs should follow the event, or at any rate, there should be costs in the cause. However, as Ms. Wilson points out, the Respondents' Counsel attended the hearing at the Court's invitation. In the circumstances, I felt it appropriate that there be no order as to costs. <!-- image --> THE HON.JUSTICE MANGATAL JUDGE OF THE GRAND COURT <!-- image -->