W v Jersey Financial Services Commission

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Matthew John Thompson
• Judgment Date: 01 November 2016
• Neutral Citation: [2016] JRC 199
• Date: 01 November 2016

[2016] JRC 199

ROYAL COURT

(Samedi)

Before:

Advocate Matthew John Thompson, Master of the Royal Court.

Between

W

Appellant

and

Jersey Financial Services Commission

Respondent

Advocate P. C. Sinel for the Appellant.

Advocate B. H. Lacey for the Respondent.

Authorities

W v JFSC [2016] JRC 184.

Volaw & Corporate Services & Anor v Controller of Taxes [2013] 2 JLR 499.

Cummins v Howlands (Furniture) Limited [2014] (2) JLR Note 18.

Human Rights (Jersey) Law 2000.

Business — reasons for granting of adjournment of final hearing.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1–7
2.	The parties' contentions	8–23
3.	Decision	24–38

THE MASTER:

Introduction

1 This judgment represents my written reasons for granting an adjournment of the final hearing for this matter listed for Monday, 17 ^th October, 2016, with a time estimate of three days. This judgment follows on from my judgment dated 11 ^th October, 2016, reported at W v JFSC [2016] JRC 184 when I refused an earlier application for an adjournment. However, in my earlier decision, permitted the appellant liberty to renew his application for an adjournment at paragraph 46 as follows:-

“46. I further gave Advocate Sinel liberty to apply to me to renew his application for an adjournment before the date set for trial to allow his client an opportunity to address the concerns about the medical evidence set out in this decision. In particular, I made it clear that any renewed application should deal with the ability of the appellant to give instructions and to attend any final hearing but without giving evidence. The giving of instructions should be in the context of the primary responsibility falling on Advocate Sinel to prepare written and oral submissions with the appellant's role being to approve the approach taken or to answer any specific matters not covered by the material already in Advocate Sinel's possession. I further indicated I would hear such an application on two hours' notice.”

2 Subsequent to my decision I received from Advocate Sinel, on behalf of the appellant, letters from Dr Rees dated 11 ^th October, 2016, and from Dr Powell also dated 11 ^th October, 2016.

3 Dr Rees suggested that the Court appoint an independent reviewer because he was the appellant's consultant with on-going responsibility as of care and was concerned he had no expertise and was going to be placed in a position of making judgments.

4 The letter from Dr Powell in the final paragraph states as follows:-

“Regarding the specific question raised in your previous letter I do not feel that he has the cognitive ability necessary to instruct a solicitor on complex matters of a legal nature, in addition I don't think he is physically capable for attending court for whole days at a time, given that he currently needs to sleep every afternoon. From a neurologist perspective I would hope that his drug side effects would be minimised when he has switched medication and stabilised on a single antiepileptic drug which should be done by the end of 2016. I would therefore support the application for an adjournment of the legal proceedings until this time.”

5 It was primarily on the basis of this letter, that an adjournment was sought by Advocate Sinel.

6 An unsworn but approved affidavit with an undertaking to swear and file the same in due course was also provided by the appellant's wife. Paragraph 3 of that affidavit states as follows:-

“3. This Appeal and the involvement of the Jersey Financial Services Commission (“JFSC”) have had a devastating effect on our lives, we both want it concluded but W is not in a position to deal with it at present. He is keen for all parties to understand that should this adjournment request be successful then he is adamant that when the new court date comes around his options are very simple, i) he will be well enough to partake and will do so ii) he is not well enough to partake but will ignore medical advice and continue the case iii) he is not well enough to partake and with much regret and frustration will withdraw his appeal. He recognises that his health can only take so much and hopes this latest challenge is just bad timing rather than anything more significant. Clearly the above will also impact his ability to “instruct lawyers” and therefore option (ii) comes with the risk of his legal team needing to stand down, as they have previously, as they may not have a client that is able to instruct them.”

7 At paragraph 7 Mrs W also deposed that provision had been made to place Sinels funds and to pay the adverse costs of the respondent awarded to date. Advocate Lacey confirmed these costs had been paid just before the hearing, which sum was a not insubstantial figure.

Parties' contentions

8 Advocate Sinel contended that he could not take forward a strategy in relation to this case without input from his client. This was in the context of this case being a complex dispute. This was not a case of his client simply suffering from stress. His client had serious medical issues which meant that he was unable to give instructions. The situation was therefore very different from the analysis in a number of different English cases where adjournments were sought. In this case his client lacked cognitive ability to give instructions.

9 This lack of a cognitive ability was said to be significant because if the appeal is dismissed, it will have a significant effect on the professional and personal life of the appellant. He would never be able to work in financial services again. Any such finding might also affect his ability to raise funds either for any other services future venture or for his personal needs. Given the serious nature of any findings against the appellant, his client had a right under Article 6 of the European Convention of Human Rights to be present in court and to follow what was happening.

10 Advocate Sinel also criticised the adequacy of the reasons filed by the respondent and indicated that one of the issues he wished to explore with his client was whether to make an application for better reasons; his client might also wish to make an application for specific discover, or to file further affidavit evidence. Those decisions could not be made until the affidavit of Lord Eatwell had been received. Now that the affidavit had been received, Advocate Sinel could not take instructions on the affidavit because of the appellant's health.

11 He also reminded me of the serious nature of the criticisms of the appellant in the proposed public statement.

12 The affidavit of Lord Eatwell also gave rise to new issues in relation to the ANLA calculations of the financial services business and a particular company which I will refer to as “H” which issues Advocate Sinel stated he could not address without input from his client.

13 Advocate Sinel also argued that every appeal case was fact specific which is why in this case the hearing had been set down for three days. It was therefore a hearing far removed from the standard administrative appeal. He therefore sought to distinguish the observations found in paragraph 54 of Volaw & Corporate Services & Anor v Controller of Taxes [2013] 2 JLR 499 referred to in my previous judgment, because every case was different. Ultimately, in view of the serious criticisms of the appellant what was required here was effectively a rehearing. He also drew to my attention the fact that in England a specific trial tribunal have been established where appeals in a decision of the Financial Services Authority were reheard by a tribunal.

14 His client was serious about the appeal having engaged and produced his affidavit and having paid fees and costs.

15 Finally Advocate Sinel was personally concerned about his own position and whether he would be acting unethically including in breach of the English bar, code of conduct if he proceeded when his client could not give him instructions. He stated that he could not go any further and it was not appropriate to require him to act without instructions.

16 Advocate Lacey in response was critical of how late in the day both adjournment applications were brought. The lateness of the application was therefore an attempt to present the respondent with a fait accompli which was not the appropriate way to proceed. Any problem in terms of not being able to proceed should have been raised much earlier and as soon as possible and should not have been left as late as the present application.

17 She expressed real surprise that no draft skeleton or outline submissions had been produced. She also repeated the submissions made in the course of the previous hearing that she felt that what was required largely fell on Advocate Sinel rather than on the appellant. Advocate Sinel had his instructions to appeal and had received major input by reference to the appellant's substantive affidavit. She reminded me that the appellant had also addressed the respondent at length before the Board's decision and had answered all questions put to him as well as being taken through the proposed public statement on a line by line basis. All this was recorded in a transcript available to Advocate Sinel. The public statement had also had been altered and modified in light of the appellant's submissions to the Board.

18 In relation...