W v The Jersey Financial Services Commission

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Sir Hugh Bennett,Sir Richard Collas,Anthony George Bompas
• Judgment Date: 26 March 2015
• Neutral Citation: [2015] JCA 60
• Date: 26 March 2015

[2015] JCA 60

COURT OF APPEAL

Before:

Sir Hugh Bennett., President; Sir Richard Collas., and Anthony George Bompas, Esq., Q.C.

Between

w

Appellant

and

The Jersey Financial Services Commission

Respondent

Advocate P. C. Sinel for the Appellant.

Advocates B. H. Lacey and E. M. Layzell for the Respondent.

Authorities

U V and W -v- JFSC [2014] JRC 202.

W -v- JFSC [2015] JRC 017.

Financial Services (Jersey) Law 1998.

Anchor Trust Company Ltd v Jersey Financial Services Commission [2005] JLR 428.

Royal Court Rules 2004.

Crociani, Foortse, BNP Paribas Jersey Trust Corporation Ltd and Appleby Trust (Mauritius) Ltd v Crociani and others [2014] JCA 089.

Science Research Council v Nasse [1980] A.C. 1028.

Alhamrani and others v Alhamrani and others [2009] JLR 301.

Business — application for leave to appeal the decision of the Commissioner dated 8th January, 2015.

THE PRESIDENT:

THIS IS THE JUDGMENT OF THE COURT.

1 This is an application on behalf of the proposed appellant, W, for leave to appeal from the decision of Commissioner Clyde-Smith dated 8 ^th January 2015 whereby he dismissed W's appeal from the decision of Master Thompson dated 23 October 2014 ( U V and W -v- JFSC [2014] JRC 202). The Commissioner's judgment giving his reasons for dismissing W's appeal was handed down on 23 January 2015, ( W -v- JFSC [2015] JRC 017) when he formally dismissed the appeal and refused leave to appeal.

2 The background to this matter is succinctly contained in the judgments of the Master and the Commissioner which we largely repeat with particular reference to W. On 17 July and 21 August, 2014 W, as he was entitled to do, issued Notices of Appeal in the Royal Court in relation to the decisions of the Respondent on 19 June, 2014, whereby the Respondent issued a public statement pursuant to Article 25 (a) of the Financial Services (Jersey) Law 1998, as amended (“the Law”) and directions under Article 23 (1) of the Law prohibiting him from undertaking certain functions, which are set out in the Notices of Appeal, without having successfully applied to the Respondent for the variation or withdrawal of the direction. W was a principal person in a financial services business which was a trust company. W wishes to challenge the Respondent's decisions. This challenge is by way of an administrative appeal to the Royal Court.

3 On an administrative appeal against the decision of an administrative body (in the present case the Respondent) the court has to satisfy itself (a) that the proceedings of the administrative body were in general sufficient and satisfactory, (b) that the decision was one which the law empowered the administrative body to make, and (c) that the decision reached was one which the body could reasonably have come to having regard to all the circumstances of the case. The requirement at (a) includes, materially, that the proceedings were fair to the appellant. The requirement at (c) is that the decision should not be one which the court considers to be unreasonable: the decision may not have been one which the court would have itself come to, but still be a decision which was not unreasonable. These principles are those which were explained by the Royal Court (Birt, Deputy Bailiff, with Jurats Le Cornu and Morgan) in Anchor Trust Company Ltd v Jersey Financial Services Commission [2005] JLR 428, in particular at paragraphs 7, 13 and 14. That was of course a case in which the relevant administrative body was the Respondent in the present case.

4 In the present case the grounds relied upon by W in his challenge to the Respondent's decisions are set out in the Notices of Appeal. These include challenging findings of facts to assert that the decisions were unreasonable and unfair. Unfairness is alleged in respect of the procedure adopted by the Respondent and in respect of the sanction imposed. W also challenges a decision of the Respondent to issue a public statement in respect of other individuals as being unlawful and also causing prejudice to W. Finally, W challenges the sanctions imposed on him by the Respondent.

5 Production notices were issued by the Respondent to the trust company and its affiliates pursuant to Article 32 (1) (a) of the Law covering a wide range of matters. At para 5 of his judgment the Commissioner records that, as a result, the Respondent received over 10,000 documents for review. It conducted interviews with some 15 individuals. There were two interviews of W lasting some two days. Beforehand W was provided with an interview bundle of documents extracted by the Respondent from the documents received pursuant to the production notices. A draft of the final report into the trust company, in so far as it related to W, was provided to him before finalisation. The decision making process of the Respondent followed that set out in paras 6 and 7 of the Commissioner's judgment. During the process before the Respondent W was requesting sight of all documentation held by the Respondent pursuant to the production notices and transcripts of the interviews of all the other individuals involved, which the Respondent regarded as restricted information and therefore was unable to provide. That was the position of the Respondent before the Master. W applied to the Master for discovery of documents over and above that provided by the Respondent in the two affidavits sworn by John Clark Averty, Deputy Chairman of the Respondent, pursuant to Rule 15/3 (1) of the Royal Court Rules 2004.

6 The matter is then taken up by the Commissioner in paras 9 to 13 of his judgment, which we set out fully:–

“9 It is intended that the appeal of W and the appeals of the other two individuals should be heard by the same Court consecutively immediately after each other in order to ensure consistency, but as the Master observed at paragraph 36 of his judgment, this would result in the Court being in possession of more material than the individual appellants. In his judgment, that was potentially unfair, given that these are appeals alleging unreasonableness on the part of the Board's decision, including unfairness and inconsistency, for the appellants not to be placed in the same position as the Board and the Royal Court as far as can be achieved. The Master therefore ordered, subject to a number of safeguards, that there should be disclosure to each of the appellants of the minutes of each stage of the Commission's decision-making process, minutes and notes of deliberations of the Board of any relevant Board decision relating to any of the appellants or other persons, the Individual Criticism Papers for each appellant and other persons where public statements have already been made and the final statement to be issued.

10 The Master was not prepared, however, to order discovery beyond that. Quoting from paragraph 40 of his judgment:–

“40 However, that was as far as I was and am prepared to go. I do not consider that notices of appeal, affidavits filed by the Commission, interview transcripts, objections filed by any of the appellants to draft of the ICPs or drafts of the public statements or submissions made to the Board should be disclosed. This includes notes of meetings between any of the appellants, or the other persons where public statements have been made and the Board. All those documents are confidential to those parties and the respondent. The information contained in them goes far beyond how the Board exercised its powers against an appellant, what it took into account, understanding the factual matrix known to the Board, or the Board's deliberations. In my judgment, the orders I have made provide an appellant with sufficient information to evaluate the findings made against other individuals involved, in the financial service business the Board is concerned about, and to assess whether the findings made against a particular appellant are unreasonable. I also accept that some of the material I have ordered to be produced will contain information supplied in confidence. This is inevitable, if an appellant is to know what the Board had in mind when deliberating its conditions. However this does not mean that disclosure as sought by Advocate Sinel should be produced. Advocate Sinel's approach in that regard again appeals to me to be looking for something to support his case. In reaching this view I accept that there may be some material not disclosed that is possibly relevant which might assist an appellant. However in my judgment the possibility of something being found that might assist an appellant is outweighed by preserving confidentiality.”

He went on to conclude at paragraph 49 that he considered this was:–

“sufficient to enable each appellant to evaluate the full factual matrix known to the Board at the time as well as the Board's thinking contained in its deliberations and therefore to advance arguments as to why the Board's decisions were unreasonable.”

11 The Master made it clear that his decision did not mean that W could not make a further application for specific categories of documentation on a much more limited and precise basis once he had had a chance to consider the material that he had ordered to be produced, but any such application should be justified on the basis of the approach set out in Science Research Council v Nasse [1980] AC 1028 which Advocate Lacey, for the Commission, had referred to him and should be supported by an affidavit explaining what is required and why it is relevant, necessary and proportionate to the appeal.

12 The Master also pointed out that it was open to W to apply for further reasons for the Board's decision and for documents in support of those further reasons by reference to Rule 15/3 of the Rules, following Finance and Economics Committee v Bastion Offshore Trust Company Limited [1994] JLR 370.

13 In addition to appealing the decision of the Master not to...