W v Jersey Financial Services Commission

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Matthew John Thompson
• Judgment Date: 25 November 2015
• Neutral Citation: [2015] JRC 241
• Date: 25 November 2015

[2015] JRC 241

ROYAL COURT

(Samedi)

Before:

Advocate Matthew John Thompson, Master of the Royal Court

Between

W

Appellant

and

Jersey Financial Services Commission

Respondent

W did not appear and was not represented.

Advocate B. H. Lacey for the Respondent.

Authorities

Financial Services (Jersey) Law 1998.

Royal Court Rules 2004, as amended.

UV and W -v- Jersey Financial Services Commission [2014] JRC 202.

W -v- Jersey Financial Services Commission [2015] JRC 017.

W -v- Jersey Financial Services Commission [2015] JCA 060.

W -v- Jersey Financial Services Commission [2014] JRC 250.

Jersey Financial Services Commission -v- W [2015] JRC 094.

W -v- Jersey Financial Services Commission [2015] JCA 135.

W -v- Jersey Financial Services Commission [2015] JRC 156A.

Business — reasons for granting further stay of appellant's appeal.

THE MASTER:

1 This judgment represents my detailed written reasons for granting a further stay of the appellant's appeal against a decision of the respondent to issue directions under Article 23(1) of the Financial Services (Jersey) Law 1998 (“the Law”) and to make a public statement pursuant to Article 25 of the Law.

2 This matter has already been subject to a number of judgments before me, the Royal Court and the Court of Appeal. Without setting out the procedural history in detail the respondent has filed its affidavit in response to the notice of appeal served by the appellant as is required by Rule 15/3(1) of the Royal Court Rules 2004, as amended. To date the appellant has not filed an affidavit.

3 Part of the reason for this not happening related to arguments about the scope of discovery to be provided by the respondent which were reported at UV and W -v- Jersey Financial Services Commission [2014] JRC 202, W -v- Jersey Financial Services Commission [2015] JRC 017 and W -v- Jersey Financial Services Commission [2015] JCA 060.

4 There were also issues about whether or not the appeal should be stayed pending a criminal investigation. I granted a stay for the reasons set out in my judgment at W -v- Jersey Financial Services Commission [2014] JRC 250. Commissioner Clyde-Smith allowed an appeal by the respondent against that decision reported at Jersey Financial Services Commission -v- W [2015] JRC 094. An extension of time for leave to appeal was refused by W. J. Bailhache, Bailiff sitting as a single judge of the Court of Appeal reported at W -v- Jersey Financial Services Commission [2015] JCA 135. This judgment is material to the matters before me because they refer to the appellant having been seriously ill since mid-March 2015.

5 Paragraph 2–4 of the Bailiff's judgment state as follows:–

“2. On 5th June, 2015, Messrs Sinels, on behalf of the applicant, sought an extension of time within which to appeal. The application for an extension was filed on the same day upon which the time for an application for leave to appeal had to be filed. The reasons for seeking an extension of time are that the applicant has been suffering ill health. He has been seriously ill since mid-March 2015 and undergoing a number of medical tests. A medical report dated 25th March, 2015, from a hospital in England and Wales accompanied the application by Messrs Sinels, and was itself supported by a further hospital report dated 27th April, 2015, and by a letter from the Applicant's general practitioner dated 8th May, 2015. The basis of the application from Messrs Sinels is that that firm had been unable to obtain instructions from the Applicant who was said to be on medication including strong pain relief medication.

3. The application was not accompanied by any sworn affidavit, although I have accepted for the purposes of this decision the medical information as presented in the hospital and general practitioner reports as being accurate.

4. I note that in the general practitioner's letter of 8th May, he indicates that the applicant has medical conditions which “have had a severe impact on his everyday function. He will certainly be unable to sit for any prolonged periods that allow him to conduct any meaningful review of any documentation. His mental ability I am sure is also affected by the ongoing background of pain as well as the concerns regarding the possible causes of his seizure. I am quite sure that the physical discomfort and stress caused by having to prepare reports and review documentation at this stage would be very detrimental to his psychological and physical well-being. I trust that the above information will be taken into due consideration, in considering the request from the patient to defer court proceedings until he is enjoying a better state of health.”

6 In relation to whether or not the appellant was able to give instructions to his lawyer to pursue an appeal, Bailhache, Bailiff concluded as follows:–

“Having reviewed the medical reports and information put before me by Messrs Sinels, I am not satisfied that there is anything sufficient to justify an extension of time being granted. There is clearly no doubt that the applicant has some medical problems which require attention. One can have every sympathy with the applicant in that connection, but I do not think they are sufficient for me to reach the conclusion that he was unable to give instructions to his lawyers as to whether or not to enter an appeal.”

7 On 24 ^th July, 2015, Commissioner Clyde-Smith determined the costs of the appeal before him as to whether not the appellant's appeal should be stayed pending a criminal investigation. Paragraphs 3 to 9 of that judgment are also material to the appellant's health and stated as follows:–

“3. The Court has now received an affidavit from Mrs W, the wife of W (“Mrs W”) in which she sets out the recent history of the medical problems that have beset W and she concludes at paragraph 8:–

“The appellant remains in serious poor health such that he has been and is unable to liaise with his lawyers and provide proper instructions in respect of this litigation. As a result Sinels are unable to continue to act for the appellant.”

And at paragraph 10:–

“Upon the evidence produced it can clearly be seen that the appellant is unable through ill-health to give instructions on this matter to Sinels and unable to attend or be represented at the Hearing.”

It would seem from the Meta data extracted from the affidavit that Sinels had involvement in producing the document that became Mrs W's affidavit, although the extent of that involvement is unknown .

4. Attached to the affidavit is a short letter from W's General Practitioner, in which he confirms only that “he is currently not well enough to attend future Court hearings until his symptoms are more stable.” In a lengthier letter of 6th July, 2015, he says this:–

“We understand that this patient is involved with complex legal matters in Jersey. Currently his medical condition is not stable, not adequately treated and not adequately investigated.

We would be very grateful if we could be given extra time to allow this to happen.”

In neither letter does the General Practitioner advice upon the ability of W to give instructions. It would seem from the Meta data extracted from the affidavit that Sinels had involvement in producing the document that became Mrs W's affidavit, although the extent of that involvement is unknown.

5. Since then, the Court has also received a report from Professor M C Walker, a consultant neurologist, dated 9th July, 2015, following a consultation in London to which W was clearly able to travel. It goes into detail about his medical condition and gives advice as to his treatment but nowhere does it opine upon the ability of W to give instructions to his lawyer.

6. The issue of costs arising out of the application for a stay and the appeal before the Royal Court is not complex. There is no requirement for W to attend in Jersey physically, but simply to give instructions. The order sought by the Commission is manifestly reasonable, namely that the costs of the hearing before the Master and of the appeal before the Royal Court should be costs in the cause, and this in recognition that it was not unreasonable for W to have brought his application for a stay which was successful before the Master.

7. Advocate Lacey, for the Commission, wrote to Sinels on 19th May, 2015, proposing orders to this effect in order to save further costs and that proposal was rejected.

8. I was not satisfied on the medical evidence before me that W was unable to give instructions on what is a very discrete and straightforward issue and concluded that the original order sought by the Commission should therefore be made. Yet another adjournment and the incurring of yet more costs were not justified.

9. In view of W's rejection of the proposal put forward by the Commission in relation to costs, I also granted the Commission its costs of and incidental to the...