Jersey Unreported Judgments

2000/221

4 pages

ROYAL COURT

(Samedi Division)

 

9^th November, 2000.

 

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

                                                      Jurats  Rumfitt and Allo.

 

 

                              Between    Aftruck Holdings Limited

Aftruck Investments Limited

Africa Grain Limited

Airflex Limited

Ascot Properties Group Limited

Aurora Associates Limited

Borowdale Holdings Limited

Chisipitee Holdings Limited

Cloud Air Limited

Conrho Limited

Feeding North Limited

Ferme Park Developments Limited

Greendale Holdings Limited

Greenhythe Real Estate Limited

Gunhill Holdings Limited

Highlands Properties Group Limited

Karoi Holdings Limited

Korean Motor Corporation Limited

Leolyn Management Services Limited

Long Reach International Limited

Mangula Industrial Properties Limited

Marimba Industrial Properties Limited

Marimba Residential Properties Limited

Mtoko Holdings Limited

Nordic Enterprises Limited

Rhos Financial Services Limited

Ridgepointe Overseas Developments Limited

Sablewood Real Estate Limited

   Scandinavian Motor Corporation Limited

Southern Enterprises Limited

      Star International Group Limited

    Water Wheels Limited

Applicants

 

And                                             Her Majesty's Attorney General                            Respondent                                                                                                                                                                                                 

 

IN THE MATTER OF

a notice issued by Her Majesty's General, dated 31^st May, 2000 (the 'First Notice'), pursuant to the Investigation of Fraud (Jersey) Law, 1991, as amended (the '1991 Law');

 

AND IN THE MATTER OF

a notice issued by Her Majesty's General, dated 14^th June, 2000 (the 'Second Notice'), pursuant to the1991 Law

 

AND IN THE MATTER OF

two further notices issued by Her Majesty's General, dated 31^st May, 2000 (the 'Second Notice'), pursuant to the1991 Law

 

 

Application by the Plaintiffs for judicial review of Notices, dated 31^st May and 14^th June, 2000, issued to Sefta Financial Services Limited by the Attorney General pursuant to the1991 Law.

 

Advocate A.J. Clarke for the Applicants

Advocate J.A. Clyde-Smith for the Respondent

                                                                                                                                                                                                       

                                                                                                                                                     

DECISION

(reasoned Judgment to follow.)

 

THE DEPUTY BAILIFF:

 

1.    We have been asked to give our decision today if at all possible in view of the delay which has already occurred in this case and the fact that it relates to an ongoing investigation in South Africa.

 

2.    The case raises the issue of whether the Court should depart from the case of In re McMahon and Probets (1993) JLR 35 and rule that the Attorney General, when exercising his powers under the Investigation of Fraud (Jersey) Law, 1991, is subject to judicial review on the normal grounds of illegality, irrationality and procedural impropriety rather than on the narrower basis put forward in McMahon.

 

3.    We need to consider this issue at length in view of the complex and detailed submissions which we have heard and we are not in a position to give a decision on that aspect of the case today.  However, for the purposes of reaching a decision today, we have considered the Plaintiffs' complaints on the basis which is most favourable to the Plaintiffs; in other words on the assumption that the wider test of judicial review is applicable, as laid down in the case of Bassington & 5 others-v-H.M.'s Procureur (14^th December, 1998) Unreported Judgment of the Guernsey Court of Appeal and the Isle of Man decision referred to in that case.

 

4.    In our judgment, even applying this wider test, the Plaintiffs' application is hopeless and comes nowhere near enabling the Court to intervene on the grounds that the Attorney General has acted illegally, irrationally or with procedural impropriety in relation to the three Notices in question.  It is, we find, an application without merit.  The Plaintiffs have produced no evidence which would enable us to find that the decision of the Attorney General to exercise his powers or the manner in which he exercised those powers was unlawful, irrational, or procedurally improper.  Furthermore, we are quite satisfied that the form of the Notices was lawful and reasonable.

 

5.    We shall set our reasons for reaching these conclusions in our Judgment, but it will not be possible to prepare this for a little while.

 

6.    It follows that the applications of the Plaintiffs are dismissed.

 

[There followed an application for leave to appeal from Counsel for the Applicants.]

 

 

7.    The difficulty that the Court faces, Mr. Clarke, is that the Court of Appeal in the case of McMahon and Probets-v-Attorney General (1993) JLR 108 CofA ruled that there is no right or ability to appeal to the Court of Appeal in respect of cases which seek to judicially review the Attorney General's decision in such matters.  It seems to us that although the Court of Appeal of Guernsey in Bassington reached an opposite conclusion, we are bound by the decision in Jersey.  The Court of Appeal having ruled that it has no jurisdiction to hear an appeal, we do not think that we can properly grant leave to appeal.  We would, however, add, that even if it were open to us, our view of the merits of this case is such that we would refuse leave. And so, on both of those grounds, your application for leave to appeal is refused.

 

[There followed an submission from Counsel for a stay pending an application for leave to appeal to the Court of Appeal.]

 

8.    It might help if we indicate our views.  We have found that the matter is without merit on the facts even assuming the wider test.  Nevertheless we think it would be unfortunate if the Plaintiffs were, in effect, shut out from the opportunity of trying to get to the Court of Appeal because the documents had already gone to South Africa.  That would seem to us somewhat oppressive even if we may be of the opinion that there is no valid basis for the application to the Court of Appeal.  We think the right course would be for the Attorney to extend his undertaking until close of business tomorrow week at 5.30. pm. and that if, in the meantime, the Applicants manage to persuade a Single Judge of the Court of Appeal either to consider granting leave or to invite the Attorney General to extend his undertaking further, then that is a matter for the Single Judge of the Court of Appeal.  We are certainly not willing to extend it beyond close of business on Friday week because we think that this case has already been far too long delayed and therefore we would be inclined to ask the Attorney General to extend his undertaking for that limited period only.  So perhaps you would like to consider the matter with the Attorney General in the light of those views.

 

[There followed a discussion between Counsel and Counsel for the Attorney General agreed to the extension of the undertaking suggested by the Court.]

 

9.    Certainly so far as this Court is concerned, there will be no need for you to extend that undertaking unless and until a Single Judge of the Court of Appeal suggests otherwise, notwithstanding the views which we have expressed as to the merits of this case.

 

10.I think that the issue of costs should be dealt with when the parties have seen the reasons for our decision.  I shall naturally endeavour to draft the Judgment at the earliest opportunity.  However, I have to inform the parties that I am on leave for two weeks and, at the moment, when I return, my diary is extremely full with court cases.  However, I do appreciate the importance of this case and I shall certainly endeavour to draft the judgment for the consideration of the Jurats at the earliest opportunity.

 

Authorities.

 

In re McMahon and Probets (1993) JLR 35

 

McMahon and Probets-v-Attorney General (1993) JLR 108 CofA.

 

Bassington & 5 others-v-H.M.'s Procureur (14^th December, 1998) Unreported Judgment of the Guernsey Court of Appeal.