Jersey Unreported Judgments

Orders consequent on dismissal of Appeals in respect of notices issued under Taxation (Exchange of Information with Third Countries)(Jersey) Regulations 2008 and Investigation  of Fraud (Jersey) Law 1991, and refusal of leave to apply for judicial review and appeal against judgment dated 5th January, 2016.

[2016]JCA176A

Court of Appeal

30 September 2016

Advocate A. D. Hoy for Volaw and Others.

Advocate J. Harvey-Hills for Larsen.

Advocate H. Sharp, Q.C. for the Respondents.

judgment

martin JA:

Introduction

1.        This is the judgment of the Court.

2.        On 15 August 2016 we handed down judgment in these three related appeals. In relation to the appeal concerning notices issued under the Taxation (Exchange of Information with Third Countries) Jersey Regulations 2008, we dismissed the appeal on the ground that we had no jurisdiction to determine it. In relation to the application for leave to appeal a notice issued under the Investigation of Fraud (Jersey) Law 1991, we treated the application as a renewed application for leave to seek judicial review of the notice and gave leave, but dismissed the application.  In relation to the appeal against a prior costs order, we dismissed the appeal. 

3.        This supplementary judgment deals first with applications for leave to appeal to the Privy Council.  Leave is sought in relation to all three appeals.  In addition, a stay is sought of the operation of the notices issued under the 2008 Regulations and the 1991 Law pending the hearing of the appeals by the Privy Council if leave is granted or, if it is not, until determination of an application by the Privy Council for special leave.  Finally, this judgment deals with the costs of the appeals before us. 

Leave to appeal

4.        The test applied by the Privy Council itself when deciding whether to give leave is whether or not the case raises "an arguable point of law of general public importance which ought to be considered by the Judicial Committee at that time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal": paragraph 3.3.3 of JCPC Practice Direction 3 supplementing the Judicial Committee (Appellate Jurisdiction) Rules 2009. 

5.        As this Court pointed out in Trilogy Management Ltd v YT Charitable Foundation (International) Ltd [2012] JLR 330, however, article 14 of the Court of Appeal (Jersey) Law 1961 - which provides that no appeal shall lie from a decision of the Court of Appeal without the leave of the Court or the special leave of Her Majesty in Council - allows this Court a wide degree of discretion as to whether or not to grant leave; and in FG Hemisphere Assocs LLC v Congo (Dem Rep) [2011] JLR 486 (reported substantively) this Court declined to set out a prescriptive test to be followed and observed that the question whether or not to grant leave was to be approached on a case-by-case basis.  It is nevertheless the case that in ordinary circumstances leave will not be given unless the case involves a point of significance not merely to the parties - who, as the practice direction points out, will usually have had their dispute determined judicially both at first instance and on appeal - but to the public at large. 

6.        Applying these considerations to the present matters, we decline to give leave to appeal in respect of any of them.  None of them seems to us to involve a point of sufficient general importance.  The 2008 Regulations are clear that an appeal from the first instance decision lies to the Privy Council, not to this Court, and the challenge made to the Regulations themselves is without substance.  We do not regard the fact that art 8(3) of the Human Rights (Jersey) Law 2000 on the face of it allows a longer time for a challenge than that prescribed by the Regulations as giving rise to a point of general importance - or, indeed, since no application was made under the 2000 Law, as having more than incidental importance to these proceedings.  So far as the appeal in relation to the 1991 Law is concerned, we do not consider that the statement in Beghal v DPP [2016] AC 88 was intended to apply to disclosure of pre-existing documents (see paragraph 25 of our judgment); and it follows that we do not consider there to be a conflict between Jersey and English Court of Appeal authority on the one hand and Supreme Court authority on the other that merits consideration by the Privy Council.  Finally, so far as the costs judgment is concerned, the application of the well-established principles set out in Mount Cook [2004] CP Rep 12 is plainly not a matter of general importance. 

7.        There is a further practical reason why we think it would be inappropriate to give leave.  The appellants have indicated that they intend to apply to the Privy Council for leave to appeal under the terms of the 2008 Regulations, and we were shown a formal application which raised all the substantive issues that were argued before us - including the issue relating to the privilege against self-incrimination, which has relevance both to the notice issued under the 2008 Regulations and to that issued under the 1991 Law.  The Privy Council will, therefore, have the opportunity to consider whether or not it wishes to hear the issues raised in these appeals.  In those circumstances, it seems to us that, rather than force the hand of the Privy Council by ourselves giving leave and so making it largely academic whether the Judicial Committee itself gives leave for the appeal under the 2008 Regulations, we should leave it to the appellants to make an application for special leave in relation to all matters determined by us if they so wish. 

Stay

8.        We will, however, grant a stay of further enforcement of the notices served under the 2008 Regulations and the 1991 Law provided that an application is made to the Privy Council for special leave by noon (BST) on Friday 14 October 2016.  If such an application is made, the stay will continue until after determination by the Privy Council of the application; if no such application is made within that time, the stay will lapse. 

Costs

9.        In relation to the costs of the appeals heard by us, we are asked by the appellants to defer making any order until the consequences have become clear of a change of circumstance that has occurred, or at least to reflect in any order we do make the fact of that change.  The change of circumstance is that Mr Larsen's conviction in Norway has been set aside since we heard the appeals, apparently undercutting the basis of the request on which the notices issued in Jersey were founded.  We accept that it is possible that the setting aside of the conviction will have an impact on the notices, although we see the force of the respondents' contention that the legality of the notices is to be determined by reference to the facts as they were at the date of issue of the notices.  In any event, it seems to us that the question of costs must be determined in light of the circumstances as they existed at the time of the hearing.  The fact of the matter is that the appeals were contested on a variety of grounds which have failed, and we consider that the respondents are entitled to the costs of their successful resistance of the appeals.  If there is to be any mitigation of that position, it must be as part of the process of working through the consequences, whatever they may be, of the setting aside of the conviction. 

Disposal

10.      Accordingly, we refuse leave to appeal in relation to all the appeals; we grant a stay of execution of the notices until after determination by the Privy Council of any application made to it for special leave to appeal, provided that such application is made by noon (BST) on 14 October 2016; and we order the appellants to pay the costs of the appeals. 

Authorities

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

Investigation of Fraud (Jersey) Law 1991.

JCPC Practice Direction 3 supplementing the Judicial Committee (Appellate Jurisdiction) Rules 2009.

Trilogy Management Ltd v YT Charitable Foundation (International) Ltd [2012] JLR 330.

Court of Appeal (Jersey) Law 1961.

FG Hemisphere Assocs LLC v Congo (Dem Rep) [2011] JLR 486.

Human Rights (Jersey) Law 2000.

Beghal v DPP [2016] AC 88.

Mount Cook [2004] CP Rep 12.