Jersey Unreported Judgments

Business - reasons in respect of appeal application for discovery made by U V and W.

[2014]JRC202

Royal Court

(Samedi)

23 October 2014

Before     :

Advocate Matthew John Thompson, Master of the Royal Court, sitting alone.

 

Advocate S. A. Hurry for U.

Advocate W. A. F. Redgrave for V.

Advocate P. C. Sinel for W.

Advocate B. H. Lacey for the Respondent.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1
2.	Background	2-3
3.	The respondent's process	4-6
4.	The appellants' arguments	7-11
5.	The respondent's arguments	12-21
6.	Decision	22-48
7.	Conclusion	49-50

judgment

the MASTER:

Introduction

1.        This judgment represents my reasons in respect of applications for discovery made principally by Advocate Sinel for W and Advocate Redgrave for V. 

Background

2.        The appeals of U, V and W ("appellants") all relate to decisions by the Jersey Financial Services Commission ("respondent") to issue public statements in respect of the appellants and related directions.  In view of the fact that each of the appellants have appealed against the respondent's decisions, I have prepared this decision on an anonymous basis so that the identities of the appellants remain confidential until the appeal is determined.  My summary of the background is therefore limited. 

3.        U and W were principal persons in a financial services business and V was a category B employee.  All challenge the respondent's decision on various grounds including challenging findings of fact to assert that the respondent has acted unreasonably and unfairly.  Unfairness is complained about both in the sense of procedural unfairness and that the sanction proposed be imposed is disproportionate.  Appellant W also challenges a decision to issue public statements in respect of other individuals as being unlawful and also causing prejudice to W. 

The respondent's process

4.        In relation to the applications before me, I consider it helpful, briefly, to refer to the decision making process of the respondent.  This is set out in a guidance note dated August 2011.  Attached at Appendix A to the decision making process is a schematic diagram showing a five stage process in relation to decisions taken by the respondent.  It is right to note that the guidance note issued is a general guide to the way in which the respondent normally approaches the exercise of its statutory powers so it can be varied.  By reference to affidavits filed with the court in each of the above appeals on behalf the respondent, it is clear that the process set out in Appendix A to the guidance note has been followed. 

5.        The five stages the respondent normally follows are described as:-

(i)        Preliminary Review;

(ii)       Stage 1 - disclosure & verification of information;

(iii)      Stage 2 - Review Committee;

(iv)      Stage 3 - Board of Commissioners - First meeting;

(v)       Stage 4 - Board of Commissions - Second meeting.

6.        In the present case, the main thrust of the appeal of each of the appellants is against the substantive decision reached by the Board of Commissioners ("Board") at Stage 4 of its process.  The right of appeal being exercised is therefore primarily against a decision of the Board.  However, to the extent that procedural unfairness is complained about, criticisms may also be made against the executive of the respondent.  By referring to the executive I use it as a convenient shorthand description to refer to full-time paid directors and employees of the respondent in contrast to those who act solely as Commissioners and who are members of the Board.  An affidavit has been filed for each appellant providing that appellant with full details of the process followed by the respondent for that appellant, together with all materials seen by the Board for that appellant.  The appellants also have a copy of the interview bundle for when they were interviewed by the respondent. 

The appellants' arguments

7.        The principal argument in relation to the application before me was advanced by Advocate Sinel on behalf of W.  Advocate Sinel argued that W cannot contest the findings of the Board without access to all the material the respondent had in its possession pursuant to two production orders issued by the respondent on 27^th February, 2012, and 2^nd May, 2012, save in respect of documents produced to paragraphs 1(b) and (c) of the 2^nd May, 2012, order.  He complains, forcefully, that without access to the same material, W is unable to properly respond to criticisms of W before the Board in a document known as an Individual Complaint Paper ("ICP") or why the Board 's conclusions in respect of the proposed public statement.  It was simply not sufficient to see what was put before the Board of the respondent because he argued there was 'cherry picking' by the executive.  Advocate Sinel further wished to see all the material in respect of the other appellants, and other individuals in respect of whom public statements had been issued and wishes to see what they were saying about his client and whether a fair approach had occurred.  Finally he sought copies of the notice of appeals of the other appellants and all affidavits filed in relation to the appeals. 

8.        Advocate Sinel further argued that I had power to require the respondent to produce documents by reference to Rule 15/3(1)(b) of the Royal Court Rules 2004, as amended, (the "Rules"), which provides as follows:-

"15/3 Documents for use of the Court

(1) Within 28 days after receiving notice of appeal, the respondent must lodge with the Greffier and serve on the appellant an affidavit setting out -

 (b) the facts material to the decision and the reasons for it and exhibiting all documentary evidence relating thereto."

9.        It is also right to note that Advocate Sinel criticised the affidavits filed by the respondent in respect of his client as not setting out the facts material to the decision and the reasons for it.  In particular he complained that the decision did not set out why arguments made on behalf of W in his Stage 4 process had been rejected. 

10.      In relation to V Advocate Redgrave sought the final versions of public statements issued by the Board in respect of each of the appellants and other persons in respect of whom a public statement had been made.  He also sought copies of the ICP for each of the above persons.  He did not want disclosure of transcripts of interviews by V or copies of submissions made by V to be disclosed to the other appellants.  He also did not want disclosure of notices of appeal or affidavits filed in respect of V's appeal to be disclosed to the other appellants.  To the extent however that disclosure was granted in W's favour, he sought the same disclosure.  In addition he sought documentation setting out the reasons why the respondent had decided not to make public statements in respect of certain other individuals. 

11.      Advocate Hurry for U was content for public statements to be disclosed but did not want ICP's disclosed.  He also indicated he was likely to ask the respondent for a small number of distinct categories of underlining documents. 

The respondent's position

12.      The position of the respondent firstly was that any information obtained by the Commission was restricted information by reference to Article 37 of the Financial Services (Jersey) Law 1998 ("FSJL").  Article 37 provides as follows:-

"37 Restricted information

(1) Subject to paragraph (2) and to Article 38, a person who receives information relating to the business or other affairs of any person -

(a) under or for the purposes of this Law; or

(b) directly or indirectly from a person who has so received it,

shall be guilty of an offence and liable to imprisonment for a term not exceeding 2 years or a fine, or both, if he or she discloses the information without the consent of the person to whom it relates and (where sub-paragraph (b) applies) the person from whom it was received.

(2) This Article does not apply to information which at the time of the disclosure is or has already been made available to the public from other sources, or to information in the form of a summary or collection of information so framed as not to enable information relating to any particular person to be ascertained from it."

13.      There are equivalent provisions in other legislation giving the respondent regulatory powers. 

14.      Unless the disclosure falls within Article 38 of the FSJL or the entity who has made disclosure consents, a breach of Article 37 gives rise to a criminal offence. 

15.      The relevant exception found in Article 38 of the FSJL is at sub-paragraph (1)(f) which provides as follows:-

"38 Permitted disclosures

(1) Article 37 does not preclude the disclosure of information -

 (f) in connection with any other proceedings arising out of this Law."

16.      It was accepted by the respondent that the reference to "any other proceedings" includes an appeal against a decision of the Board or the respondent. 

17.      As to how that power should be exercised, the respondent accepted the court had discretion to order disclosure of information.  The respondent argued that not only should such documentation be relevant but its disclosure should also be necessary, reasonable and proportionate to resolve the matter fairly and justly.  I was therefore referred to the decision of Science Research Council v Nasse [1980] AC 1028.  In considering how any tribunal should order disclosure of confidential documents Lord Wilberforce at page 1065 line D to 1066 line F stated as follows:-

"1. There is no principle of public interest immunity, as that expression was developed from Conway v Rimmer [1968] AC 910, protecting such confidential documents as those with which these appeals are concerned. That such an immunity exists, or ought to be declared by this House to exist, was the main contention of Leyland. It was not argued for by the S.R.C.; indeed that body argued against it.

2. There is no principle in English law by which documents are protected from discovery by reason of confidentiality alone. But there is no reason why, in the exercise of its discretion to order discovery, the tribunal should not have regard to the fact that documents are confidential, and that to order disclosure would involve a breach of confidence. In the employment field, the tribunal may have regard to the sensitivity of particular types of confidential information, to the extent to which the interests of third parties (including their employees on whom confidential reports have been made, as well as persons reporting) may be affected by disclosure, to the interest which both employees and employers may have in preserving the confidentiality of personal reports, and to any wider interest which may be seen to exist in preserving the confidentiality of systems of personal assessments.

3. As a corollary to the above, it should be added that relevance alone, though a necessary ingredient, does not provide an automatic sufficient test for ordering discovery. The tribunal always has a discretion. That relevance alone is enough was, in my belief, the position ultimately taken by counsel for Mrs. Nassé thus entitling the complainant to discovery subject only to protective measures (sealing up, etc.). This I am unable to accept. *1066 4. The ultimate test in discrimination (as in other) proceedings is whether discovery is necessary for disposing fairly of the proceedings. If it is, then discovery must be ordered notwithstanding confidentiality. But where the court is impressed with the need to preserve confidentiality in a particular case, it will consider carefully whether the necessary information has been or can be obtained by other means, not involving a breach of confidence.

5. In order to reach a conclusion whether discovery is necessary notwithstanding confidentiality the tribunal should inspect the documents. It will naturally consider whether justice can be done by special measures such as "covering up" substituting anonymous references for specific names, or, in rare cases, hearing in camera.

6. The procedure by which this process is to be carried out is one for tribunals to work out in a manner which will avoid delay and unnecessary applications. I shall not say more on this aspect of the matter than that the decisions of the Employment Appeal Tribunal in Stone v. Charrington & Co. Ltd. (unreported), February 15, 1977, per Phillips J., Oxford v. Department of Health and Social Security [1977] I.C.R. 884, 887, per Phillips J. and British Railways Board v. Natarajan [1979] I.C.R. 326 per Arnold J. well indicate the lines of a satisfactory procedure, which must of course be flexible.

7. The above conclusions are essentially in agreement with those of the Court of Appeal. I venture to think however that the formula suggested, namely [1979] Q.B. 144, 173, 182:

"The industrial tribunals should not order or permit the disclosure of reports or references that have been given and received in confidence except in the very rare cases where, after inspection of a particular document, the chairman decides that it is essential in the interests of justice that the confidence should be overridden: and then only subject to such conditions as to the divulging of it as he shall think fit to impose - both for the protection of the maker of the document and the subject of it."

may be rather too rigid. For myself I prefer to rest such rule as can be stated upon the discretion of the court."

18.      Secondly, it was contended, insofar as Advocate Sinel was seeking to challenge the adequacy of the affidavits filed by the respondent, that pursuant to Rule 15/3(1) of the Rules further and better particulars could be sought (see Finance and Economics Committee v Bastion Offshore Trust Company Limited [1994] JLR 370). 

19.      Thirdly, and what was at the heart of Advocate Lacey's submissions, was that Advocate Sinel was trying to carry out a trawl through confidential information and material to see if a basis could be establish to challenge the decision of the Board.  This was ultimately a 'fishing expedition' and should not be allowed where information was given to the respondent in confidence.  She expressed concern that, if an appellant could gain access to information supplied in confidence to the respondent, the Board's and the respondent's regulatory powers and the respondent's ability to discharge its functions ran the risk of being seriously undermined.  She rejected Advocate Sinel's argument that the conduct of the regulator was a quasi-criminal process with the respondent acting as a prosecutor and therefore disclosure should be made because the respondent was subject to the same obligations of disclosure as applied to the Attorney General in relation to criminal proceedings. 

20.      Advocate Redgrave's application was much more limited in scope.  He sought the final versions of the public statements for all appellants and the ICPs for the appellants and other persons in respect of whom public statements had been issued.  The rationale for this was for him to be able to assess the consistency of the respondent's decision as far his client was concerned. 

21.      Advocate Hurry was content for public statements for all the appellants and other persons to be produced but did not consider it necessary to disclose the ICP for his client or any other person.  He also reserved his position to make small disclosure requests.  He considered that the disclosure of public statements for appellants and other persons where public statements had been issued were sufficient to enable U to assess the respondent's overall findings and whether not the respondent's decision was unreasonable including whether or not it showed unfairness. 

Decision

22.      In reaching my decision, I consider the starting point to require an assessment of the nature of an appeal against a decision of the respondent.  Regrettably no party chose to refer me to any decisions of the Royal Court in relation to the nature of an appeal against a decision of the respondent. 

23.      It is implicit in Interface Management Limited, Interface Trustees, Interface Secretaries Limited & Rosenthal v Jersey Financial Services Commission [2003] JLR 524 that the basis of the approach of the Royal Court was that it was dealing with an administrative appeal.  It was in this context that the Royal Court firstly found that there is a duty to act fairly (see paragraphs 8 to 13).  In particular, at paragraph 13 the Royal Court stated as follows:-

"Taken in the abstract, the procedure established is one which complies with the legal requirements for fairness. It informs the applicant at all material stages of the case he has to meet and gives him an opportunity of convincing the relevant part of the Commission (i.e. the Executive in connection with its recommendation and the Board in connection with its decision) that it should reach a decision favourable to the applicant. However, whether the requirements of fairness are actually met in a particular case will of course depend upon how the system is put into operation."

24.      The Royal Court also accepted there was a duty on the respondent to give reasons for its decision.  Given that Advocate Sinel for W was critical of the approach taken in relation to reasons, I set out paragraph 64 of the decision in Interface Management Limited as follows:-

"It is a matter for the Board as to how much detail it gives when initially announcing its decision but we see nothing unlawful in its choosing to give only brief reasons at that time along the lines of those provided in this case. However, the purpose of art. 10(2) is to enable the applicant to know exactly why he is refused a licence and to decide whether he has grounds upon which to appeal. The statement must therefore be in satisfactory form and in sufficient detail to achieve this purpose. (See de Smith, Woolf & Jowell, Judicial Review of Administrative Action, para 9-049, at 465-466 (1995).) The applicant is entitled to know which matters relied upon by the Executive were accepted by the Board and which were not. To the extent that findings of fact were necessary to the Board's decision, those findings should be stated. So, for example, where a ground of decision is that the applicant has failed to comply with Codes of Practice, the statement under art. 10(2) should set out which provisions of the Codes of Practice were breached and the exact respects in which they were breached. Where financial resources are said to be inadequate, sufficient detail must be given so that it can be understood in what respect this was so. Where the "span of control" is said to be insufficient, the statement should explain how this is so. Where, as here, the issue is whether the applicant should be granted registration conditional upon proposed changes to cure the various deficiencies, the statement must set out why the Board has decided that that would not be appropriate."

25.      The obligation to give reasons in relation to administrative decisions was also considered in Bastion which related to a refusal by the then Finance and Economics Committee to grant Bastion a licence to carry on business.  This is a power now vested in the respondent.  At page 383 lines 29 to 33, giving the Court of Appeal's judgment Neill J. A. stated:-

"In the case of appeals against administrative decisions, such as the one in question here, there is a strong policy in the Island in favour in ensuring that the aggrieved subject who wishes to appeal knows the basis of the decision and the process of reasoning by which it was arrived at."

26.      The court also endorsed the remarks of the Bailiff at first instance in the same case (page 383 lines 38 to 384 - line 17. 

27.      Although the powers of the Finance and Economics Committee are now vested in the respondent, and the powers of the respondent are governed by the FSJL, no authority has been produced to me by any appellant to show why an appeal against the decision of powers exercised by the respondent is not an administrative decision, just as in Bastion. 

28.      In Anchor Trust v Jersey Financial Service Commission [2005] JLR 428, Birt, Deputy Bailiff, in relation to an appeal against a decision by the respondent to refuse to register the appellant as a trust company, at Part B of the judgment (paragraphs 6 to 15), considered what test was to be applied on an appeal under FSJL, in particular, what was meant by unreasonable.  In reaching his conclusion that unreasonable meant the decision was wrong to such an extent that the Jurats would categorise it as unreasonable (paragraph 14 of the Anchor Trust judgment), nowhere was it argued that an appeal was anything other than an administrative appeal. 

29.      Also in Anchor Trust at paragraph 114, Birt, Deputy Bailiff also considered the extent of the obligation to give reasons and whether the reasons should address why arguments of an individual were not accepted by the Board.  Paragraphs 112 and 113 of the Anchor Trust judgment state as follows:-

"112.   The level of reasoning required will vary substantially according to the nature of the decision under review and we accept that a decision to refuse registration of a trust company under the 1998 Law is likely to require a greater level of detail than a decision to refuse a sex shop.  However, the essential test remains the same, namely, that the reasons should carry sufficient information to enable the applicant to understand why he has failed.  

113.    Mr Scholefield submits that the letter of reasons explains how the Board has reached its decision but not why.  He argues that it is silent as to why the Board preferred the views of the Executive and the inspector to those of Anchor.  In our judgment, this submission requires too much.  The Board is not sitting as a judge to give a reasoned judgment.  We consider that the reasons set out in the Board's letter fulfil the requirements imposed by art. 11(2) and those of fairness.  Anyone reading that letter can understand exactly why Anchor has been refused registration.  The Board states the findings of fact which it has made and explains the material upon which it has reached those findings (e.g. which passage in the inspector's report).  It then goes on to relate those findings of fact to the criteria for refusal specified in art. 9(3) of the 1998 Law.  We do not think that an administrative body such as the Commission is under a duty to descend into the level of detail suggested by Mr Scholefield and explain in relation to each finding of fact exactly why it has chosen the view of the Executive or the inspector rather than that of Anchor.  As we say, one must stand back, look at the letter and ask whether the recipient of the letter would know why the Board refused the application.  In our judgment, the letter explains why very clearly."

30.      The Court of Appeal upheld the Royal Court: decision reported at Anchor Trust-v-Jersey Financial Services Commission [2006] JCA 040. 

31.      These paragraphs fly in the face of the contentions put forward by Advocate Sinel that the reasons provided by the Board were inadequate because they did not set out why his client's arguments were rejected.  Although the adequacy of reasons is a matter for another day (if Advocate Sinel wishes to bring an application challenging the adequacy of the reasons), one of the main criticisms he advanced was that because the reasons did not explain why W's submissions had been rejected, this was why Advocate Sinel was seeking disclosure of all materials supplied to the respondent.  However, by reference to Anchor Trust, the starting point of this ground relied upon is not a justification for ordering full disclosure. 

32.      The other reason why Interface and Anchor Trust decisions are relevant becomes clear by reference to the recent decision of the Court of Appeal in Volaw & Corporate Services & Anor v Comptroller of Taxes [2013] 2 JLR 499.  While Volaw concerned an appeal against the decision by the Comptroller of Income Tax to exercise the powers vested to him under the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008, the judgment contains statements of principle relevant to administrative appeals more generally.  At paragraph 46 the Court of Appeal stated as follows:-

"In summary, while the grounds for a statutory administrative appeal may be wider than the grounds for a judicial review of an administrative decision, the adjectival machinery in this jurisdiction appears not dissimilar. Fairness, notoriously context-specific in its application, does not always require the full panoply of natural justice such as oral testimony or cross-examination; an attempt to read across without modification classic dicta on the reach of natural justice from the paradigm case of a trial is inappropriate (see the discussion in Wade & Forsyth, Administrative Law, 10th ed., at 432-434 (2009); Fordham, op. cit., para. 60.2, at 625)."

33.      At paragraph 54 the Court of Appeal also stated:-

"If an appeal is instituted, the next step will be for the Comptroller to swear an affidavit. The Royal Court should then conduct a case management hearing. We recommend that the court should, absent truly exceptional circumstances, discourage any attempt for the appeal to be turned into a trial, with full deployment of lay or expert witnesses, whether testifying orally or on affidavit. The court's function, when hearing the appeal, will be to concentrate on whether the material in front of the Comptroller at the time he issued the notice provided him with reasonable grounds for his belief, and not to be drawn, as happened in the instant case, albeit given the novelty of the situation understandably, into permitting adduction of an extensive volume of such evidence (see the Acts of Court of March 8th, 2012; October 22nd, 2012; November 15th, 2012; and May 16th, 2013). Any affidavit evidence from the appellant should be concise and only entertained if it purports to contain some truly dispositive point. Cross-examination should only be permitted if the appeal (recollecting the limited nature of the issue involved) truly turns on some point that can only be resolved by such method. It must be borne in mind by the court that the Comptroller has issued his notice as part of an investigation and that he himself is not obliged to conduct any sort of mini-trial. Nor, in our view, should a court be tempted down that slippery path."

34.      I accept Advocate Lacey's submissions that an appeal against the decision of the respondent, which is undoubtedly an administrative decision, should not be turned into a trial.  That includes whether or not to order discovery which is essentially what was being sought by Advocate Sinel from the respondent.  Rather the approach to be taken by the Royal Court is to consider whether or not the Board or the respondent has acted unreasonably, by reference to the applicable principles discussed in Interface Management and Anchor Trust.  I also agree that the respondent is not subject to the duty of disclosure applicable to a prosecutor in a criminal case or in civil proceedings.  While the powers of the respondent as a regulator are extensive, the legislature has adjudicated that appeals are to be determined against the exercise of such powers by use of the test of unreasonableness which is well known as a basis for administrative appeals.  The legislature is therefore taken to have accepted that such an appeal, as with administrative appeals more generally, does not create a general discovery mechanism.  The appellant's protection is found in the obligation to give reasons supported by material documents.  If there is an overlapping criminal process, the appellant's position can be safeguarded by the application of the maxim le criminal tient le civil en etat, if the Court is persuaded it is appropriate to do so.  

35.      What I do consider to be significant to the approach I should take, by reference to Volaw, is that the Royal Court in Volaw did consider what material was in front of the Comptroller at the time he issued his notice.  By analogy, I consider the Royal Court, in respect of a decision by the Board, has to consider what information was in front of the Board, when the Board made its decisions.  In this case, the decisions made, in respect of each of the appellants and other persons in respect of whom public statements were issued were all taken by the Board, as far as I am aware, on the same day.  The process followed, as set out at paragraph 4 above, for the most part also took place on the same day.  The Board therefore had before it draft public statements in respect of each of the appellants and the other persons about whom public statements were recommended as well as the ICPs in respect of each of these persons. 

36.      When the Royal Court comes to consider these appeals, although the appeals are to be heard separately, at present it is intended the are heard consecutively immediately after each other and by the same judge and jurats to ensure consistency.  While consistency is obviously desirable, it also means that the Royal Court will be in possession of more material than the appellants.  While I have no reason to doubt that both the Board when it made its decisions, dealt with each appeal on the merits separately from any other decision, and the Royal Court when it hears the appeals will also do so, I am of the view that neither individual commissioners nor members of the Royal Court can separate out their knowledge of material they have read relating to appeals concerning the same financial services business and the roles of various individuals within it.  It is clear that an extensive investigation has taken place covering a number of years and the roles of individuals in that business.  The decisions taken cannot be said to be anything other than complex.  In my judgment it is potentially unfair, given that this is an appeal 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.  I therefore have reached the view that there should be disclosure to each of the appellants of minutes of each stage of the respondent's decision making process, minutes and notes of deliberations of the Board of any relevant Board decisions relating to any of the appellants or other persons, the ICP for each appellant and other persons where public statements have been made, and the final statement to be issued.  I accept that disclosure of notes of deliberations may lead to disclosure of some information supplied in confidence.  I consider this is outweighed in this case by the importance of allowing each appellant to be aware of what the Board took into account when reaching its decision in this complex case. 

37.      Given that this is information produced to the respondent under the obligations of confidence contained in Article 37, I ordered expressly that any information so produced can only be used for the purposes of these appeals and for no other purpose.  Any breach of this order by any entity may mean that entity is in contempt of court. 

38.      I also ordered that the information to be disclosed be the subject of reporting restrictions when the matter comes before the Royal Court, subject to any order the Royal Court may make otherwise.  This is to protect the confidentiality of other individuals about whom statements have been made.  While those public statements are themselves in the public domain, the ICPs and other internal memoranda about those individuals are not. 

39.      Thirdly, before disclosure is made by the respondent to each of the appellants, the respondent was to notify the other persons about whom confidential information is going to be disclosed of the terms of the order I made so that they are allowed an opportunity to apply to stay disclosure of all or part of the information relevant to them.  If such an application is made, disclosure of the information, where a stay is sought, is suspended until determination of any such application. 

40.      However, that was as far as I was and 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 services 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 appears 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. 

41.      My decision does not mean that Advocate Sinel cannot make a further application for specific categories of documentation on a much more limited and precise basis once he has had a chance to consider the material I have ordered be produced.  In that regard he will also have the benefit of documentation provided to W for interviews carried out by the respondent as well as material currently in the possession of W.  I was informed during argument that W had provided significant quantities of material to the respondent.  Any such application however should be justified on the basis of the approach set out in Science Research Council cited above and should be supported by an affidavit explaining what is required and why it is relevant, necessary and proportionate to the appeal. 

42.      To the extent that W does not have access to the records of the financial services business where W was a principal person there are also other remedies open to W.  While these are a matter for Advocate Sinel to consider with W, it is possible for W to apply to the Royal Court to issue a separate subpoena against the persons holding the records.  Indeed, during submission Advocate Sinel referred to the fact that in a dispute between W and a third party, a subpoena, enabling W to obtain records of the financial services business had been obtained by W, although it was not pursued because the claim involving W was resolved had been before the subpoena could be executed.  It might also be possible for W to seek an application for Norwich Pharmacal Relief from those that hold the records of the financial services business. 

43.      It is also open to W to apply for further reasons and for documents in support of those reasons by reference to Rule 15/3 of the Rules and Bastion.  The fact that such an application can be made does not justify ordering general disclosure at this stage.  I also consider that any disclosure required pursuant to Rule 15/3 of the Rules is limited to the specific material relied upon in support of a finding of fact by the respondent.  I do not therefore accept that Rule 15/3(b) of the Rules is a basis to order the much wider discovery sought. 

44.      In short, if W wishes to review all the records of the financial services business in order to prepare his response to the appeal, then he has the means to obtain that information without involving any release of information supplied to the respondent in confidence above and beyond the material I have ordered to be disclosed. 

45.      In relation to V, I accept that it is appropriate to disclose the ICP and the public statements to strike an appropriate balance between the respondent's obligations of confidentiality and the right of V to pursue an appeal.  This is for the same reasons that I have ordered disclosure of such information to W. 

46.      I also accept Advocate Redgrave's submissions that documents showing the reasons not to pursue other individuals, although occurring at the preliminary review stage of the respondent's decision making process, should also be disclosed.  This is because one of the grounds put by Advocate Redgrave to the Board was a submission of inconsistency between those in respect of whom public statements were to be issued and those where no statements were issued.  While I accept that the Board may not have been privy to the reasons why public statements were not to be issued in respect of other individuals, it is still an argument that can be pursued as to why the Board's decision was unreasonable. 

47.      In respect of U, I disagree that disclosure should be limited to the final version of public statements only.  This is because the public statements are based on ICPs.  From my understanding of the process, the core document considered by the Commissioners for each appellant is the ICP which leads to the public statements.  I therefore consider that the fair balance to be struck to enable all appellants to pursue their appeals is to require disclosure of the ICPs as well as the final statement the respondent wishes to issue. 

48.      In relation to Advocate Sinel's request for disclosure in relation to the reasons for issuing public statements in respect of other individuals, I consider this is an application pursuant to Article 15/3(1)(b) of the Rules for better reasons.  As this request was brought without notice to the respondent, I consider, if Advocate Sinel wishes to pursue this part of his request, a properly formulated application should be made on notice to the respondent.  As the request was made in the course of argument only, I do not consider that the respondent had adequate time to respond to this request and so it is unfair to deal with such an application at this stage.  This request is therefore refused at this stage. 

Conclusion

49.      In summary, for the reasons set in this judgment, I ordered disclosure of the final version of the proposed public statements, the ICPs for the appellants and other persons in respect of whom public statements have been issued, and minutes of meetings produced at each stage of the decision making process as well as notes of the Board's deliberations for the appellants and other persons in respect of whom public statements have been made.  I consider this is 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. 

50.      Finally, I gave further directions to progress the appeals to a hearing as soon as can realistically be achieved.  This is both in the interests of the appellants, and because the respondent's decision is suspended until any appeal is determined.  The appeal process should therefore take no longer than is necessary. 

Authorities

Royal Court Rules 2004.

Financial Services (Jersey) Law 1998.

Science Research Council v Nasse [1980] AC 102.

Finance and Economics Committee v Bastion Offshore Trust Company Limited [1994] JLR 370.

Interface Management Limited, Interface Trustees, Interface Secretaries Limited & Rosenthal v Jersey Financial Services Commission [2003] JLR 524.

Anchor Trust v Jersey Financial Service Commission [2005] JLR 428.

Anchor Trust v Jersey Financial Services Commission [2006] JCA 040.

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

Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008.