Mayo Associates S.A. and Four Others v Finance and Economics Committee

JurisdictionJersey
CourtRoyal Court
JudgeHamon, Deputy Bailiff and Jurats Bonn and Vibert:
Judgment Date06 March 1996
Date06 March 1996
ROYAL COURT
Hamon, Deputy Bailiff and Jurats Bonn and Vibert:

P. C Sinel for the representors;

Miss S.C. Nicolle, Q.C., Solicitor General, for the respondent.

Cases cited:

(1) Associated Provncl. Picture Houses Ltd. v. Wednesbury Corp., [1948] 1 K.B. 223; [1947] 2 All E.R. 680; [1948] L.J.R. 190; (1947), 177 L.T. 641; 63 T.L.R. 623; 45 L.G.R. 635; 112 J.P. 5; 92 Sol. Jo. 26.

(2) Daisy Hill Real Estates Ltd. v. Rent Control Tribunal, 1995 JLR 176, considered.

(3) Hanby (Victor) Associates Ltd. v. Oliver, 1990 JLR 337, considered.

(4) Jersey Civil Serv. Assn. v. Establishment Cttee., Royal Ct., November 24th, 1994, unreported, considered.

(5) Mayo Associates S.A. v. Anagram (Bermuda) Ltd., 1995 JLR 190, considered.

(6) R. v. Civil Serv. Appeal Bd., ex p. Cunningham, [1991] 4 All E.R. 310; [1991] I.C.R. 817; [1991] I.R.L.R. 297; [1991] C.O.D. 478, followed.

(7) R. v. Environment Secy., ex p. Islington London B.C., [1992] C.O.D. 67, considered.

(8) R. v. Lancashire County Council, ex p. Huddleston, [1986] 2 All E.R. 941, not followed.

(9) R. v. Manchester Crown Ct., ex p. Cunningham, High Ct., April 19th, 1991, unreported, considered.

(10) Wiseman v. Borneman, [1971] A.C. 297; [1969] 3 All E.R. 275; [1969] T.R. 279; (1969), 45 T.C. 540; 113 Sol. Jo. 838.

Additional case cited by counsel:

R. v. Bar Council, ex p. Percival, [1991] 1 Q.B. 212.

Legislation construed:

Royal Court Rules 1992 (R. & O. 8509), r.6/16: The relevant terms of this rule are set out at page 51, lines 27-34.

Rules of the Supreme Court, O.24, r.2: The relevant terms of this rule are set out at page 51, line 38 - page 52, line 18.

Texts cited:

de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th ed., para. 15-031, at 670-671 (1995).

Lewis, Judicial Remedies in Public Law, at 226-252; at 255 (1992).

Supperstone & Goudie, Judicial Review, at 368-369 (1992).

Administrative Law—judicial review—discovery—application for judicial review gives no right per se to discovery against Committee—if applicant's locus standi not yet challenged, may adjourn question of discovery until ascertained

The representors sought an order for discovery in judicial review proceedings against the respondent.

The representors brought proceedings in the Royal Court for judicial review of the respondent Committee's decision not to intervene in the activities of a bank, which the representors alleged had, together with third parties, dealt improperly with its customers' investments, resulting in large-scale losses. Consequently, the representors (who were customers) had brought actions against the bank and the third parties.

The Royal Court adjourned the hearing of the representation to allow a copy to be served on the respondent and the Judicial Greffier subsequently set the matter down for hearing inter partes; however, he did not at that time make an order for discovery because of an objection by the respondent to his doing so. The respondent also questioned whether the representors had locus standi in the matter, although it had made no application to strike out the representation on that ground or to determine the issue of locus standi as a preliminary issue.

The representors then made the present representation for general mutual discovery and the Judicial Greffier made the order sought, subject to the requirement of confidentiality imposed by art. 41 of the Banking Business (Jersey) Law 1991 in relation to the bank's or its customers' business affairs. In particular, the Greffier held that in the absence of an application to strike out the representation, the representors would be considered to have sufficient locus standi to be entitled to discovery and, indeed, would be treated as being in the same position as an English applicant for judicial review who had already obtained leave to bring the application under O.53 of the Rules of the Supreme Court. These proceedings are reported at 1995 JLR 333. The respondent subsequently applied to strike out the representation for judicial review.

On appeal against the Greffier's order, the respondent submitted, inter alia, that (a) it was inappropriate to order discovery when it had not yet been determined whether the representors had sufficient interest to bring the proceedings at all; and (b) on the facts of the present case, the representors had no such interest and the Greffier had therefore erred in ordering discovery.

The representors submitted in reply that (a) the Greffier had been right to order discovery since in the absence in Jersey of any rules requiring the leave of the court to be obtained prior to an application for judicial review, the representors should be considered to be in the position of an English applicant who had obtained leave, and were accordingly entitled to discovery of all relevant material; and (b) they did indeed have sufficient interest to bring the representation but, in any case, no application had yet been made in which their interest had been questioned.

Held, making the following order:

(1) It could not be said that the representors were in the same position as an English applicant who had obtained the leave of the court to proceed with his application for judicial review and the Greffier had accordingly been wrong to order discovery on that ground. Nor could it be said that merely because at that stage no application had been made to strike out the representation, it was in the same category as an application that had been properly scrutinized by the court (although the Royal Court had already found at the ex parte hearing that the representation was prima facie suitable for trial). It could not simply be assumed that at this stage the representors had sufficient interest to seek judicial review and until that issue had been determined it would be wrong to order discovery, which would effectively force the Committee to give its reasons for its decision before the hearing of these issues at the trial (page 60, line 4 - page 63, line 3).

(2) However, on the present facts, it appeared that further information was required by both sides for the representation to be properly heard. The question would therefore be adjourned until the issue of the representors' locus standi had been considered by the court, following which, if the representation had not been struck out, the court would consider the appropriate extent to which it was prepared to order discovery (page 67, lines 16-30).

HAMON, DEPUTY BAILIFF: This is an application made on behalf of the Finance & Economics Committee ("the Committee") to have an order of the Judicial Greffier of December 7th, 1995 set aside in its entirety.

On December 8th, 1994, an application for judicial review was brought by five representors. of those five representors, Mayo is a Swiss corporation engaged in business (for these purposes) as an investment administrator, TTSI is a subsidiary of Mayo, Troy is a Liberian corporation engaged in business as an investment manager, Mr. Marsh is an investor and Mr. Stott is the sole principal and beneficial owner of Mayo. He is, according to Mr. Sinel, also an investor.

The representation is very detailed and contains the most serious allegations of misfeasance against Cantrade Private Bank Switzerland (C.I.) Ltd. ("Cantrade") and Dr. R.J. Young, who controlled and owned a company called Anagram Econometrics Ltd. ("AEC") with his wife, Maureen Lambert Young. Later this company was superseded by another company, Anagram (Bermuda) Ltd. ("Anagram"), still owned and controlled by Dr. and Mrs. Young.

Apparently because of the alleged misfeasance of Cantrade and Anagram, some 90 investors (including Mr. Marsh and Mr. Stott) have lost some $25m. The Committee has not investigated the matter to the satisfaction of the representors. Advocate Sinel did not mince his words.

This was, as he put it, fraud, institutionalized racketeering and "the most disgraceful, shameful and worst decision of a Committee in the Island's history." There was more emotive language. Let us see if we can examine the matter a little more dispassionately.

There are two complex actions, both started in 1994. They are complaints that Cantrade and others have acted deliberately and criminally to deprive investors by taking unwarranted commissions in investment programmes in the currency markets. A representation was brought before this court on December 9th, 1994. At that time, the court adjourned for consideration of the matter until December 23rd, 1994, in order that a copy be served on the respondent. In the representation, which was amended by the time it came for hearing before the Judicial Greffier, the Solicitor General points out that it is not pleaded that loss was caused to the representors by any breach of duty of the Committee. It is not pleaded that the representors have an interest in the investigation above that of a member of the public. It is not pleaded that the remedy would affect the representors personally or that it would affect them more than any other members of the public. The prayer of the representation seeks four remedies: (a) that the Committee's decision not to investigate the complaint of activities of Cantrade be quashed; (b) that the Committee be condemned to admit the complaints of the representors and to investigate the complaint of activities by Cantrade; (c) that the Committee be condemned to suspend the activities of Cantrade pending the completion of such investigation; and (d) that the defendants be condemned to exercise their powers pursuant to art. 10 of the Banking Business (Jersey) Law 1991 in such a manner as to prevent Cantrade or the aforementioned subsidiary of Union Bank of Switzerland from behaving in the future in the manner complained of by the representors.

We question whether the draftsman of those four prayers considered the implication of the court's compelling the Committee to perform acts which...

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