W v The Jersey Financial Services Commission
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | J. A. Clyde-Smith |
| Judgment Date | 11 March 2015 |
| Neutral Citation | [2015] JRC 54A |
| Date | 11 March 2015 |
[2015] JRC 54A
ROYAL COURT
(Samedi)
J. A. Clyde-Smith, Commissioner, sitting alone.
Advocate P. C. Sinel for the Appellant.
Advocate B. H. Lacey for the Respondent.
W -v- Jersey Financial Services Commission [2015] JRC 017.
JFCS v Black [2007] JLR 1.
C -v- P-S [2010] JLR 645.
Leeds United Football Club v Weston and Levi [2012] JCA 088.
Dalemont Limited v Senatorov and Ors [2013] JRC 209.
Business — costs judgment in relation to appeal on indemnity basis.
On 23 rd January, 2015, the Court dismissed the appeal of the appellant (“W”) against the decision of the Master given on 13 th October, 2014, to decline to make certain orders for disclosure against the respondent (“the Commission”) for the reasons set out in its judgment of that date ( W -v- Jersey Financial Services Commission [2015] JRC 017). The Commission now applies for its costs in relation to that appeal on the indemnity basis.
Advocate Lacey for the Commission submitted by way of general background that the Commission is a public body bound to manage its financial resources responsibly. In this regard, it is responsible in the context of an administrative appeal to obtain costs orders on the appropriate basis whenever it is reasonable to do so. The Commission is not a private litigant with vast financial resources with which to do as it pleases.
During the appeal hearing, Advocate Sinel, for W, informed me that he was in possession of three disks of data that had been received from the joint liquidators of the trust company concerned (“the trust company”) which his firm was starting to analyse (paragraph 28 of the judgement). The Commission was unaware that W had obtained information from the joint liquidators and immediately after the appeal hearing made inquiry of the joint liquidators as to what had been disclosed.
It transpired that Sinels had written to the joint liquidators on 20 th November, 2014, requesting access to W's email correspondence (sent and received) during his time as a director of the trust company. That was provided to Sinels on 26 th November, 2014, by way of three disks. The receipt signed by Sinels confirmed that they contained the “inbox” of W. The joint liquidators had charged Sinels £150 for this exercise. The joint liquidators also confirmed that Sinels had been given access to the minutes of the trust company during the period that W was a director.
Advocate Lacey's recollection of the appeal hearing, not challenged by Advocate Sinel, was that the Court had been informed in the morning submissions that Sinels were struggling to open up the contents of the three disks. Immediately before the Court rose in the afternoon, at the end of the hearing, it was further informed that Sinels had, since the morning's hearing, managed to open the content of the disks in question, but they had not had the chance to review or assimilate the disks' contents prior to the afternoon's hearing. The impression given to the Court, she said, was that Sinels had only come into possession of the disks before Christmas when copies were sent to W, who had been ill over Christmas and who, as a result, had been unable to review the disks' contents.
Advocate Lacey was very critical of Advocate Sinel's conduct in this respect. Contrary to the impression given to the Court, Sinels had been in possession of the three disks since 24 th November, 2014 — over a month prior to the appeal hearing and were aware of the nature of the contents — namely W's inbox, which would no doubt include numerous documentary attachments. Bearing in mind that the parties and the Court were concerned with discovery, these disks should have been accessed as a matter of priority. They contained data which was highly pertinent to the appeal and they potentially rendered the appeal a waste of time. The Commission and the Court should have been informed of the receipt of these disks prior to the hearing and at the very least, the appeal adjourned whilst the contents were reviewed. They purported to cover at least one of the substantive discovery orders sought and may have gone to some, if not many, of the other requests. In all, she said, there had been a lack of candour on the part of Advocate Sinel with the Court as to the true position in relation to these disks.
An additional complaint made by W in the appeal was that the Commission should have been ordered by the Master to disclose copies of all of the trust company minutes held by it. The Commission's position was that it had made disclosure of minutes during the course of its investigation, yet no disclosure or mention was made to the Court or to the Commission during the appeal that the joint liquidators had permitted Sinels full access to the trust company minute books throughout the period that W was a director.
Advocate Lacey went on to argue that W's conduct in relation to the appeal was an abuse of process. In addition to appealing the decision of the Master, W had issued a further summons before the Master dated 3 rd December, 2014, which somewhat confusingly extended to the more general discovery already declined by the Master and which was the subject of the appeal (paragraph 13 of the judgement). At a hearing before the Master on 10 th February, 2015, in relation to discovery sought by one of the other appellants, the Master, noting that the joint liquidators had supplied data to W at a very reasonable cost, adjourned the application, with an indication that an approach should be made to the joint liquidators before the discovery summons was proceeded with any...
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