Jersey Unreported Judgments

2000/138

4 pages

ROYAL COURT

(Samedi Division)

 

17^th July, 2000

 

     Before:     M.C. St. J. Birt, Esq., Deputy Bailiff and

                                                      Jurats  Querée, and Allo.

 

 

Between                                        Acturus Properties Limited

Africa Grain Limited

Aftruck Holdings Limited

Aftruck Investments Limited

Airflex Limited

Ascot Properties Group Limited

Aurora Associates Limited

Borowdale Holdings Limited

Chisipitee Holdings Limited

Cloud Air Limited

Conrho Limited

East Anglia Holdings Limited

Eastlea Holdings Limited

El Hara Trust

Ely Holdings Limited

Feeding North Limited

Ferme Park Developments Limited

Greendale Moldings Limited

Greenhythe Real Estate Limited

Gunhill Holdings Limited

Highlands Properties Group Limited

Hyundai Motor Distributors Limited

Hyundai Plant Distributors Limited

Karnak Properties Limited

Karoi Holdings Limited

Korean Motor Corporation Limited

Leolyn Management Services Limited

Lion Group Services Limited

Lomagundi Holdings Limited

Long Reach International Limited

Luxor Properties Limited

Mangula Industrial Properties Limited

Marimba Residential Properties Limited

Mazowe Holdings Limited

Mtoko Holdings Limited

Nimbus International Limited

Nordic Enterprises Limited

Rhos Financial Services Limited

Ridgepointe Overseas Developments Limited

Rivonia Holdings Limited

Royce Worldwide Limited

Sablewood Real Estate Limited

   Scandinavian Motor Corporation Limited

 

Sinai Trust

Southern Enterprises Limited

      Star International Group Limited

    Water Wheels Limited

Applicants.

 

And                                           Her Majesty's Attorney General                                 Respondent                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  Respondent                                                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                          )              Respondent

 

 

Application by the Respondent for an Order that the Court, in the exercise of its inherent jurisdiction, should dismiss an application by the Applicants for judicial review of the decision of the Respondent, under the Investigation of Fraud (Jersey) Law 1991, to require Sefta Financial Services Limited to answer questions and furnish information regarding the Applicant's affairs.

 

Advocate P.C. Sinel for the Applicants

Advocate J.A. Clyde-Smith for the Respondent

                                                                                                                                                                                                       

                                                                                                                                                     

JUDGMENT

 

THE DEPUTY BAILIFF:

 

1.    This is an application for leave to apply for judicial review pursuant to Rule 12A/2 of the Royal Court Rules 1992,   It is brought by Acturus Properties Limited and 47 other entities.

 

2.    The application is brought in respect of a notice dated 14^th June, issued by the Attorney General under Article 2 of the Investigation of Fraud (Jersey) Law 1991.  By that notice the Attorney General ordered the production of a variety of documents in relation to the affairs of the applicants from Sefta Financial Services Limited.

 

3.    The Attorney General has taken a preliminary point.  He has referred to the heading of Part 12A of the Royal Court Rules, which says "Application for Judicial Review in civil proceedings."  He has also referred to Rule 12A/1, paragraph (3), which says expressly:  "This part of the Rules applies only to applications for judicial review in civil proceedings."

 

4.    He then referred the Court to the case of  McMahon -v- Attorney General (1993) JLR 108 CofA,  where the Court of Appeal held that proceedings for judicial review of a decision of the Attorney General under the 1991 law were not  "a civil cause or matter,"  and there was therefore no ability to appeal from  the Royal Court to the Court of Appeal.

 

5.    In doing so, the Court had regard to English cases such as Amand -v- The Home Secretary (1943) A.C. 147, where it was held that you must have regard to the character of the decision being challenged, not to the procedure used to challenge it.   In this case, so the Court of Appeal said,  the Attorney General's powers were exercisable in connection with an investigation into whether a criminal offence had been committed, and therefore the whole procedure had to be characterised as being of a criminal nature.

 

6.    Free from authority I might well have been attracted by the submission made by Advocate Michel in the McMahon case,  referred to at page 114 namely:

 

"that a decision as to the validity of the exercise of a power is a civil matter decided in a civil Court, even if the power itself was exercised in the context of criminal proceedings."  

 

7.    In addition I note that in Bassington -v- H.M. Procureur, (2^nd December, 1998) the Guernsey Court of Appeal distinguished McMahon and held that proceedings to challenge the exercise of the Attorney's General power in relation to the equivalent in Guernsey of the 1991 Law, were civil so as to enable an appeal to be taken to the Court of Appeal.

 

8.    Nevertheless, McMahon -v- The Attorney General  is binding upon me.  If these proceedings are not a civil cause or matter for the purposes of the Court of Appeal (Jersey) Law 1961, they cannot be civil proceedings for the purposes of Rule 12A.

 

9.    Mr Sinel has accepted the strength of the authority of McMahon but has reserved his right to argue that it was wrongly decided.    In the circumstances I hold that the present application does not fall within Rule 12A and I therefore refuse leave to bring an application under that part of the Rules.   The effect is that the applicant may present a representation under the inherent jurisdiction of this Court.

 

 

 

Authorities

 

In re McMahon and Probets (1993) JLR.35.

McMahon & Probets -v- A.G. (1993) JLR.108 CofA.

In re Sheikh Mahfouz (17^th February, 1994) Jersey Unreported CofA.

Amand -v- Home Secretary (1943) AC.147.

R -v- Secretary of  State for Home Department & Ors, ex p. Finivest S.P.A. and Ors. (1996) 1 WLR 743.

 

R -v- Secretary of State for Home Department & Ors Exp. Propend Finance Property Ltd &  Anor (1996) 2 Cr. App. R. 26.

 

Century Holdings Ltd -v- H.M. Procureur (15^th April, 1997) Guernsey Law Journal.

Bassington -v- H.M. Procureur (2^nd December, 1998) Guernsey Court of Appeal.