Recusal For Apparent Bias Is Not A New Frontier
Introduction
In a recent judgment in Re New Frontier Health Corporation,[1] delivered on 27 January 2026, Justice Doyle decided that he should recuse himself from that matter entirely, such that he would not hear the trial which was due to commence just a few weeks later to determine the fair value of the shares that dissenting minority shareholders held in the subject company prior to a statutory merger. The recusal was sought on the basis that the learned Judge had recently delivered judgment in a substantially similar matter, Re 51job Inc,[2] in which he had made findings as to the reliability and credibility of the same two valuation experts who would give evidence at the New Frontier trial, and strongly preferred the evidence of one of those experts whilst rejecting and severely criticising the evidence that had been given by the other. In such circumstances, the dissenting shareholders in New Frontier submitted that a fair-minded and informed observer would conclude that there was a real possibility that, when trying that matter, the Judge might unconsciously lack objectivity and prejudge issues against the expert of whom he had been so critical in Re 51job Inc. Applying settled English and Cayman Islands authority, Justice Doyle accepted that this was the case, and that it would thus be difficult for him to be seen to deal impartially with the dissenting shareholders and their appointed valuation expert in New Frontier. The New Frontier judgment thus represents a further endorsement by the Cayman courts of the fundamental maxim that justice must not only be done, but must be seen to be done. Although the circumstances which justified the recusal in that case will be relatively rare, the judgment should provide parties to litigation in the Cayman courts with confidence that the courts will carefully consider the risk of unconscious bias where it is a real concern, and that a judge may take the exceptional step of recusing where there is a real possibility that such bias will affect the outcome, and perceived fairness, of the proceedings.
[1] [2026] CIGC (FSD) 4
[2] [2025] CIGC (FSD) 112
The Test for Recusal
The authorities addressing the question of recusal show that the Court is required to consider whether a “fair-minded and informed observer”, having considered the facts, would conclude that there was a “real possibility” that the tribunal would be affected by bias. Justice Doyle reviewed several English, Cayman Islands and other Commonwealth authorities, including the decisions of the Privy Council in Stubbs v R[1] and the House of Lords in Lawal v Northern Spirit Ltd,[2] and observed inter alia that:
“The appearance of bias as a result of pre-determination or pre-judgment is a recognised ground of recusal”;
“The concept of bias… extends further to any real possibility that a judge would approach a case with a closed mind or, indeed, with anything other than an objective view; a real possibility… that he might in some way have ‘pre-judged’ the case”; and
“Public perception of the possibility of unconscious bias is the key” and “…the threshold is only a real possibility of unconscious bias”.
This test reflects the importance of maintaining the community’s trust and confidence in the administration of justice: the right to a fair trial by an impartial and independent tribunal is a fundamental principle of justice both at common law and under the Constitution. It follows that considerations of inconvenience and costs, or an expectation that the judge would nonetheless reach the right decision on the merits, are immaterial in circumstances where the perception of judicial impartiality is properly in issue.
However, the judgment also makes clear that the test is not easily satisfied. The fair-minded and informed observer will be taken always to reserve judgment until she has seen and fully understood both sides of the argument, and is not unduly sensitive or suspicious, but is also not complacent; and knows that fairness requires the judge to be, and be seen to be, unbiased, and that judges (like all people) have their weaknesses. Moreover, judges faced with the question of recusal must also have regard to their duty to adjudicate, absent good grounds for recusal, and must guard against the abuse of judge shopping.
The Circumstances in New Frontier
In New Frontier, the recusal was justified on the basis that Re 51job Inc was the same type of case (namely proceedings to determine the fair value of dissenting shareholders’ shares in the subject company), arising from a similar factual background, and in which the same valuation methodologies had been utilised by the same valuation experts on each side, and would be the subject of cross-examination at trial; and in the former case, in which judgment had been delivered just two months earlier, the Judge had described the approaches proffered by the dissenting shareholders’ expert as being inter alia “fundamentally flawed and totally unreliable”, concluding that “on a sliding scale of 0-10 I place [his] DCF analysis at a 0” and that the “$111.06 figure [he] has come up with is from another planet in another galaxy totally removed from the real world”. The dissenting shareholders submitted, and the Judge accepted, that these were not merely findings of fact, but a fundamental rejection of that expert’s credibility and professional method, by reason of which a fair-minded and informed observer would conclude that there was a real possibility that the same Judge would, even if only unconsciously, pre-determine the issues in the case. Accordingly, the Judge held that the “recusal line had been crossed” and that he was “duty-bound in accordance with his judicial oath” to recuse himself from the case.
Considerations for the Future Conduct of Cayman Appraisal Litigation
Whilst the facts of New Frontier were relatively unusual, in the particular context of appraisal litigation in the Cayman Islands, where several proceedings arise from similar fact patterns, thus requiring the same valuation methodologies to be employed, and involve many of the same investors as dissenting shareholders and oftentimes the same valuation expert on each side, and are being litigated in parallel, the risk of apparent bias and a consequent recusal for the reasons discussed in New Frontier must be much greater. The critical question in that context will be whether confidence in a particular valuation expert outweighs the risk of substantial expenditure being wasted if trial dates are lost, or the recusal creates other significant inefficiencies. Just as the courts are alive to the risk of judge shopping, they are also alive to the risk of expert shopping, and it is equally (if not more) difficult to justify changing an expert once such proceedings are well underway.
[1] [2019] AC 868
[2] [2003] ICR 856
