W v Jersey Financial Services Commission
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | Sir Michael Birt,Birt |
| Judgment Date | 07 March 2017 |
| Neutral Citation | [2017] JRC 40A |
| Date | 07 March 2017 |
[2017] JRC 040A
Royal Court
(Samedi)
Sir Michael Birt, Commissioner, sitting alone.
Advocate P. C. Sinel for the Appellant.
Advocate B. H. Lacey for the Respondent.
W -v- JFSC [2016] JRC 231A.
W v Jersey Financial Services Commission [2015] JRC 017.
Volaw Trust and Corporate Services Limited v Comptroller of Taxes [2013] (2) JLR 499.
W -v- JFSC [2015] JCA 060.
Bubb v Wandsworth LBC [2011] EWCA Civ. 1285.
R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2115.
Financial Services (Jersey) Law 1998.
Business — decision on various matters raised at pre-trial review.
This judgment represents my decision on a number of matters which were raised at the pre-trial review (“PTR”) held on 23 rd February, 2017.
The background to these proceedings has been set out in a number of previous judgments of the Master, this Court and the Court of Appeal. For convenience, reference can be made to the recent judgment of the Master, W -v- JFSC [2016] JRC 231A (“the December judgment”) at paras 3–24. It is not necessary to repeat these for the purposes of this judgment.
In the December judgment, the Master made decisions in three separate areas:
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(i) He directed the Respondent to file an affidavit by 27 th January, 2017, giving further and better particulars of the reasons for its decision as set out in detail in para 121 of the December judgment.
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(ii) He granted the Appellant leave to amend the grounds of appeal in certain respects.
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(iii) He rejected the Appellant's application for wide ranging discovery but did agree to order discovery of communications between the Respondent and the Trust Company prior to the commencement of the investigation and which arose out of supervisory visits carried out in the ordinary course of the Respondent's supervisory role.
The Chairman of the Respondent, Lord Eatwell filed an affidavit dated 2 nd February, 2017, in response to the order referred to at (i) of the preceding paragraph.
Although no summons seeking any order was filed in anticipation of the PTR, Advocate Sinel supplied a draft order shortly before the hearing which set out what he was seeking. That document read as follows:
“1. In consequence of the Respondent's failure to comply with paragraph 1 of the Act of Court dated 19 December 2016 (“Act of Court”), the Respondent is to comply with the Act of Court and in any event is to provide reasons for its decision (“Decision”) to issue a public statement in the terms that it did in respect of the Appellant;
2. The Respondent provide a detailed, composite stand-alone statement setting out:
(i) What is alleged to have been done wrong by the Appellant either by omission and/or by way of commission and when and how;
(ii) How the Appellant's conduct lacked competence and integrity; and
(iii) The basis of the findings of fact which it has made relative to the Appellant and which it relies upon;
3. The Respondent comply with Royal Court Rule 15/3(1);
4. The Respondent provide a list verified by affidavit of all the documentation and testimonies which it has relied upon in making its Decision including the correspondence with [Ms P] referred to in Advocate Lacey's letter dated 22 February 2017;
5. Pursuant to Practice Direction RC 05/25 leave be granted to cross-examine Mr John Averty, Lord Eatwell and Mr Paul Le Marrec on the contents of their affidavits.”
I shall consider the topics raised by the draft directions and further matters raised by Advocate Sinel at the hearing in turn.
Advocate Sinel submits that Lord Eatwell's affidavit does not comply fully with the Master's order. The Appellant was entitled to know the reasons for the decision and Lord Eatwell's affidavit still did not give him the reasons to which he was entitled. The Court should therefore make orders in terms of draft directions 1–3.
Having considered Advocate Sinel's oral submissions to me in support of this request, I do not think it right to make any order for the production of further reasons. I would summarise my reasons for so concluding as follows:
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(i) The Master gave detailed directions at para 121 of the December judgment as to the matters where further reasons were required. However, he emphasised (correctly) at para 114 that the Respondent was not being asked to come up with new reasons to support its decision. Thus he said at para 114:–
“.… I am not asking the respondent to formulate now any additional reasons or conclusions above and beyond those already reached. How far the respondent is able to address the matters where I have found that reasons need to be explained and the facts relied upon set out is a matter for the respondent and its advocates. To the extent that the respondent at this point in time is unable to provide any further reasons, then this should be made clear in its affidavit, including setting out why it is unable to expand any further at this point in time. It will then be for the Royal Court at the substantive hearing of the appeal to evaluate the response contained in the affidavit.”
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(ii) It is clear that the Respondent (through Lord Eatwell) has understood and accepted this point. Thus Lord Eatwell emphasised in the affidavit that, although the final report on the Trust Company (“the Trust Company Report”) and the Individual Criticism Paper (“ICP”) concerning the Appellant were fully in the minds of the Board at the time as were the written and oral submissions made by or on behalf of the Appellant, that was two and a half years ago and the Board's recollection now of its decision making process would inevitably diminish. He emphasised at para 6 that he was not seeking to give any new or supplemental reasons. This point was repeated at para 23 where, with reference to the public statement, he said as follows:
“… The public statement does not particularise breaches of particular sub-sections of the TCB Code by [the Trust Company] and does not seek to link them to each finding against [W] personally, beyond the breach of all seven fundamental principles by [the Trust Company] which was relied upon generally. At the time it took its decision, the Board did not conduct an exercise in relating each finding that it made against [W] personally to an underlying breach by [the Trust Company] of a particular section of one of the seven fundamental principles. Given that it did not conduct this exercise at the time it took its decision, to do so now would be artificial and inappropriate and would mean entering into an exercise of seeking to construct further, fresh and additional reasons and attributing them to the Board retrospectively.”
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(iii) The affidavit goes on to address each of the sub-paragraphs of paragraph 121 of the December judgment in turn and to give any clarification of reasons that the Respondent felt able to give. Advocate Sinel was very critical of the affidavit and submitted that in a number of respects, it gave no further information about the Respondent's reasons than had been given previously.
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(iv) I do not accept that the Respondent has failed to comply with the Master's order. The Master was very clear that he did not wish the Respondent to come up with further and better reasoning after the event and the affidavit of Lord Eatwell complies faithfully with that guidance. To the extent that Advocate Sinel considers the reasons of the Respondent to remain deficient, he will be able to develop these points on the hearing of the appeal; and if the Court agrees with him, this will be a matter for the Court to take into account when deciding whether to allow the appeal. In my judgment, the matter of reasons has been taken as far as it can. As Advocate Lacey said ‘it is what it is’ and the appeal will be considered on the basis of the reasons so far put forward by the Respondent with such consequences as may follow if the Court agrees that the reasons are inadequate.
For these reasons, I decline to make any order along the lines of draft directions 1–3.
I have to say that I originally understood draft direction 4 to be seeking disclosure of the documentation and testimonies referred to. I would not have been willing to make an order for such disclosure. The Appellant has made a number of applications for wide ranging discovery which has been rejected up to the level of the Court of Appeal. A more limited application was made before the Master but, for the most part, rejected by him in the December judgment. No appeal was brought against that judgment and I would not have been willing to reconsider the matter at such short notice (and without a summons or skeleton argument) as part of a PTR. However, Advocate Sinel emphasised that all he was seeking was a list of such documents and testimonies, not the documents or testimonies themselves.
Advocate Lacey submitted that it was already clear what the Board of the Respondent had relied upon. A full list of documents had been annexed to one of the affidavits of Mr John Averty, the Deputy Chairman, and Lord Eatwell's latest affidavit had emphasised that the Board had been relying upon the Trust Company Report, the ICP and the responses of the Appellant.
In my judgment it is not necessary and would not be proportionate to require the Respondent at this late state to prepare the list required by Advocate Sinel and I therefore...
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