Jersey Unreported Judgments

Business - application for extension of time in which to file affidavit.

[2015]JRC087

Royal Court

(Samedi)

30 April 2015

Before     :		Advocate Matthew John Thompson, Master of the Royal Court
Between	U		Appellant
And	Jersey Financial Services Commission		Respondent

Advocate P. D. James for the Appellant.

Advocate B. H. Lacey for the Respondent.

CONTENTS OF THE JUDGMENT

		Paras
1.	Introduction	1
2.	Relevant procedural history	2-18
3.	An extension of time	19-26
4.	The hearing on 22 April 2015	27-33

judgment

the master:

Introduction

1.        This judgment contains my detailed written reasons for granting U an extension of time to file an affidavit in response to affidavits filed on behalf of the respondent produced as a result of U's appeal.  This judgment also contains my reasons for adjourning determination of an application as to whether U should be required to file an affidavit with the respondent in light of my decision in the matter between W v JFSC [2014] JRC 250. 

Relevant procedural history

2.        The general background to this matter is set out at paragraph 3 of my earlier judgment reported at U V and W v JFSC [2014] JRC 202.  In light, however, of the development of the present dispute, it is appropriate to set out the procedural history of this appeal and the appeal of W. 

3.        U's notice of appeal was served on the respondent on 17^th July, 2014.  In addition, in that month notices of appeal on behalf of V and W were also served on the respondent. 

4.        The respondent's affidavits in response to U's appeal and the appeals of V and W were filed by the end of September 2014.  Rule 15/3(1) of the Royal Court Rules 2004, as amended ("the Rules") requires an affidavit in response to an administrative appeal to be filed within 28 days.  Such appeals are also usually determined within 4 months unless the Bailiff agrees otherwise.  In the present case the respondent requested more time to respond recognising that this appeal and those others brought in relation to the same financial services business, were more complicated than was the case for most administrative appeals. 

5.        On 13^th October, 2014, I gave various directions including requiring the respondent to produce documents listed in an appendix to the Act of Court of 13^th October, 2014.  What I ordered to be produced and the reasons for that were set out in my judgment reported at U V and W v JFSC [2014] JRC 202 to which I have already made reference.  It is relevant to this present judgment to note that at paragraph 36 of my decision, I stated that it was intended that the appeals were to be heard consecutively immediately after each other and by the same Judge and Jurats to ensure consistency.  The same assumption was noted at paragraph 9 of the Royal Court's decision reported at W v JFSC [2015] JRC 017 upholding my decision.  Paragraph 9 was set out in the Court of Appeal's judgment reported at W v JFSC [2015] JCA 060.  I have referred to this because it appears that, although no order has been made to this effect, all Courts seized of this matter have proceeded on the assumption that the appeals of U and W and any other appeals will be heard consecutively to ensure consistency. 

6.        In the Act of Court of 13^th October, 2014, I also directed that U had until 5pm on Friday, 16^th January, 2015, to file an affidavit containing the substantive response to the affidavits filed by the respondent at the end of September.  I also directed that, if U wished to apply to stay proceedings on the basis of le criminal tient le civil en état, such an application should be issued forthwith for hearing on 6^th November, 2014, which was the date that had been listed to determine W's application for a stay.  The application by W was ultimately determined in his favour as reported at [2014] JRC 250 in a judgment dated 15^th December, 2014.  U did not issue a similar application.  The stay granted was to stay determination of W's appeal for an initial period of 6 months with the possibility of the stay being extended but no order was made staying any interim procedural steps required whenever the final hearing of W's appeal was to take place.  This judgment has been appealed by the respondent. 

7.        Finally, in the Act of Court of 13^th October, 2014, I directed that any application for specific discovery should be issued by no later than Friday, 28^th November, 2014.  I should note here that V's administrative appeal has subsequently been discontinued. 

8.        Notwithstanding the timetable set out in the Act of Court of 13^th October, 2014, matters were delayed because of W's appeal against my judgment of 23^rd October, 2014, reported at [2014] JRC 202.  This meant that applications for specific discovery did not come before me until 27^th January, 2015.  By this time it had emerged that information was potentially available to U from the liquidators of the financial services business where U formerly worked and which had been investigated by the respondent.  Accordingly U's application for specific discovery was adjourned sine die because, if U could obtain documents from the liquidators, it was not necessary for the Court to determine a specific discovery application and, assuming such an application was successful, to require the respondent to search for particular documents amongst the extensive information it had obtained in the course of its investigation. 

9.        It is right to record that U's application for specific discovery related to emails between U and other certain individuals in June 2010 in relation the affairs of a company which I shall refer to as H, documents relating to certain loans made by a company I shall refer to as C and information about the accounts of a particular fund and related correspondence to those accounts. 

10.      When adjourning U's specific discovery application sine die, I also required U to file U's substantive affidavit by 20^th March, 2015.  As however the obligation on W to file his affidavit was extended by an Act of Court dated 10^th February, 2015, to 17^th April, 2015, the same extension of time was also granted to U. 

11.      During the hearing on 27^th January, 2015, because of the stay granted in respect of W on the basis of le criminal tient le civil en état, an issue arose as to whether or not any substantive affidavit I directed U (and W) to file, should be filed with the respondent or not.  This issue arose because the respondent has the statutory power to provide a copy of such an affidavit to the Attorney General and the States of Jersey Police and the Law Officers' Department has confirmed that a criminal investigation is underway.  Accordingly it was possible that an affidavit filed for U's (or W's) appeal could be disclosed to the Attorney General and the States of Jersey Police and then be used against U (or W) in a criminal investigation or prosecution.  The key question for determination in January was, therefore, on what basis the respondent should receive a copy of the affidavit to be filed in the administrative appeal.  This is an issue of general importance and so I gave directions for a hearing to take place to decide the point.  As a result of these directions a hearing was set down for 22^nd April, 2015. 

12.      Although U had not filed an application for a stay, given it was still assumed that the appeals of U and W were to be heard consecutively, because the criminal investigation might include U as well as W and because it was still open to U to issue an application for a stay (albeit out of time by reference to the directions I issued in October 2014), I directed that U be permitted to take part in the hearing scheduled for 22^nd April, 2015, to determine the basis upon which any affidavits filed by either U or W were to be provided to the respondent. 

13.      On 31^st March, 2015, Sinels for W wrote requesting an extension of time for W to file his affidavit on the basis the fact that W was undergoing medical treatment.  Ultimately I accepted that the time for the filing of affidavit should be extended to close of business on Friday, 29^th May, 2015.  I also adjourned W's application for specific discovery for a hearing to take place in the week commencing the 11^th May, 2015. 

14.      It also followed that the application to determine the basis W's affidavit should be provided to the respondent also had to be adjourned which I directed was to be fixed for a date in the week commencing 8^th June, 2015.  This was because, at the hearing on 27^th January, 2015, I had reached the view that I could not determine whether or not to order substantive affidavits to be provided to the respondent, without seeing the contents of the affidavits themselves. 

15.      In light of this decision, given that I had also determined that any application of U concerning the basis upon which an affidavit should be provided to the respondent, was to be heard at the same time as W's application, I decided as a consequence that, U's application also listed for 22^nd April, 2015, was to be adjourned.  I should make it clear that this order was a consequential order made because of the previous order made relating to W and that the respondent did not have a chance to address me on whether or not I should make such a consequential order in relation to U. 

16.      By a letter dated 31^st March, 2015, I explained my reasons for the consequential order as follows:-

"However, I consider that any arguments as to whether U should be required to provide a copy of the affidavit to the respondent should be heard at the same time as any arguments W wishes to advance on this issue; otherwise there is a danger of inconsistent findings or alternatively I determine the issue on the basis of U's application without hearing from W."

17.      It is this decision that the respondent challenged and wished me to reconsider afresh on the basis of submissions from the respondent. 

18.      At the same time I was also asked by U for more time to file a substantive affidavit in response partly because U had been delayed in preparing a response due to the death of U's father on 15^th February, 2015, and partly because information had not been forthcoming from the liquidators. 

An extension of time

19.      In relation to the application for an extension of time, the decision I made was to grant U an extension of time to 15^th May, 2015, but on the basis of this being a final order.  This is notwithstanding the fact that U had requested an extension of time until the end of May 2015. 

20.      However, in exercising the discretion vested in me to extend time, I considered it right to take into account that U has been in possession of the respondent's substantive affidavits since the end of September 2014 and would have been required to have filed a substantive affidavit in reply much earlier, but for the developments I have set out above.  I also considered it appropriate to take into account that U had been afforded the opportunity to take part in the respondent's decision making process referred to at paragraphs 4 to 6 of the judgment reported at [2014] JRC 202.  In my judgment therefore U was familiar with the respondent's complaints and the detail of this matter to prepare the affidavit in response and should have already taken steps to do so. 

21.      The respondent also emphasised that it was appropriate for this appeal, which is an administrative appeal (as the Court of Appeal confirmed in its recent judgment referred to above), should be dealt with promptly and, notwithstanding any stay as far as W was concerned, U should not be allowed to drag out the provision of an affidavit in response. 

22.      This was particularly important because U continues to work in the finance industry, albeit not in a regulated position.  U is able to do this because, under the relevant regulatory laws, the issuance of an appeal against the respondent's directions, and any associated public statement, operates to suspend the coming into force of those directions and public statement.  Steps should therefore be taken to progress U's appeal as expeditiously as could be achieved. 

23.      Against these submissions which have force, I have accepted that what has led to the delays by and large, by reference to the chronology set out above, was not of U's own making and had arisen out of related decisions concerning W.  I have also accepted that U cannot control the speed in which the liquidators might respond to requests for information. 

24.      I however observe and have taken into account in reaching my decision that U's requests for information U had sought from the liquidators appeared to go far beyond and be much wider than the limited specific discovery request made in January and which I have set out paragraph 9 above.  To that extent U may have contributed to the delays that have occurred in the liquidators responding. 

25.      Ultimately, weighing all these factors in the balance, I directed that U's affidavit in response should be filed by 15^th May, 2015, such an order to be a final order.  I made it clear that my order meant that U must file a substantive affidavit with the Court by that date.  If information has not been forthcoming from the liquidators by the time the affidavit is due to be filed, U's substantive affidavit should still be lodged with the Court, addressing, as far as possible, all the points U wished to make. If further relevant information is ultimately forthcoming from the liquidators after 15^th May, 2015, U will have to make a further application to file a supplemental affidavit.  Delay by the liquidators in responding, however, in my judgment was not justification to prevent provision of an affidavit in response, given when the appeal was issued and how much time has since elapsed. 

26.      I also ordered that a copy of the affidavit to be filed with the Court be supplied to the respondent because the respondent has undertaken not to disclose the content of such an affidavit to any other party pending the determination of the issue of the basis on which the affidavits of U and W are to be provided to the respondent.  In providing this undertaking the respondent has made it clear that, if there is any material in the affidavit, which the respondent considers requires immediate disclosure to a third party under one of the respondent's statutory gateways for making disclosure, the respondent should have liberty to apply to make such disclosure.  This qualification was accepted by me.  No objection was taken in reply or when I gave my decision by Advocate James for U to the affidavit being produced to the respondent on the basis of this undertaking.  This undertaking was only offered at the hearing and had not previously been offered.  The fact of it being offered meant that the respondent was on an interim basis prepared not to exercise any powers to reveal the affidavit to a third party.  As a consequence I was not aware or made aware of any reason not to release the affidavit subject to the undertaking. 

The hearing on 22nd April, 2015

27.      In relation to whether the application listed for 22^nd April, 2015, should continue to be adjourned, (concerning the issue of whether the respondent's statutory power to disclose information to third parties should be restricted or restrained in relation to the affidavits filed by U and W), a preliminary point was taken.  Advocate James contended, relying on Brazil v Durant International Corporation [2012] JCA 025, that, because on 30^th March, 2015, I had determined that U's application should be adjourned, the matter could only be reconsidered either where a change of circumstances had occurred (see paragraph 6 to 7 of Brazil v Durant) or by way of an appeal against my decision. 

28.      Advocate Lacey contended in response that such an approach was unfair when the respondent had not been given any opportunity to make observations on the Act of Court dated 30^th March, 2015, or to respond to the relevant part of my letter of 31^st March, 2015, to which I have referred to at paragraph 16 above. 

29.      In my judgment the position is not analogous with Brazil v Durant.  That case concerned two fully argued summonses before the Royal Court involving all parties where the Court of Appeal was clear that some form of change of circumstances was required for the Royal Court to reconsider an issue which it had already determined.  By contrast what occurred here was a consequential order made by me in respect of U's appeal, following orders made in the related case of W. 

30.      I, therefore, agreed with Advocate Lacey that she did not have to show either a change of circumstances or have to appeal a consequential order made where the respondent had not previously addressed me on the terms of that order and where no hearing had taken place prior to the order being made. 

31.      However, having accepted Advocate Lacey's submission for the respondent that she was entitled to address me on the order made on 30^th March, 2015, and that I was entitled to re-visit my earlier order, I was not persuaded that the concerns set out in my letter of 31^st March, 2015, did not remain.  The submissions expressed to me by Advocate Lacey ultimately went to the issue of requiring U to file the affidavit in response as soon as possible.  I was not addressed directly on the dangers of inconsistent findings or whether it was appropriate to determine the issue on 22^nd April, 2015, by hearing from U without hearing from W.  As Advocate James put it, if I had determined the same question in respect of U's application in the absence of W that would have produced a significant reaction from W and his adviser and further procedural applications. 

32.      In my judgment, therefore on this issue, namely the issue of the basis on which U and W should provide copies of their respective affidavits in response to the respondent, U's and W's applications should still be heard at the same time as I had previously directed, which will now take place in June. 

33.      Finally, it is right to record that while at present I and other Courts have proceeded on the assumption that the appeals will be heard consecutively, that is only an assumption and at some time in the future I or the Royal Court may have to determine whether that is how the appeals will be conducted. 

Authorities

W v JFSC [2014] JRC 250.

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

Royal Court Rules 2004.

W v JFSC [2015] JRC 017.

W v JFSC [2015] JCA 060.

Brazil v Durant International Corporation [2012] JCA 025.