Application for leave to appeal to the Judicial Committee of the Privy Council
Before : |
James McNeill, Q.C., President; John Martin Q.C., and Sir David Calvert-Smith |
Between |
Doraville Properties Corporation |
Appellant |
And |
Her Majesty's Attorney General |
Respondent |
Advocate P. G. Nicholls, for the Appellant
Advocate M. T. Jowitt Esq Crown Advocate for the Respondent
judgment
McNeilL JA:
1. On 22nd February, 2017, we gave our judgment Doraville Properties Corporation v AG [2017] JCA 029 dismissing the appeal in this matter. Doraville Properties Corporation, the unsuccessful appellant, now seeks leave to appeal to the Judicial Committee of the Privy Council. That application is opposed by Her Majesty's Attorney General.
2. This court has recently reflected on the applicable principles to be applied in this jurisdiction in respect of applications for leave to appeal to the Judicial Committee: see Parish of St Helier v Minister for Infrastructure [2017] JCA 027. As Martin JA indicated in paragraph 7 of that decision, this court treats the co-relative Privy Council Practice Direction as prescribing the ordinary test to be applied on applications such as this; to the effect that, in all but the clearest of cases, it will be desirable to leave the question of leave to the Privy Council itself.
3. Under the Privy Council Practice Direction, leave ought to be granted only where the application raises an arguable point of law of general public importance which should be considered by the Judicial Committee at the time in question.
4. In the application before us it is contended on behalf of Doraville that its proposed appeal raises two "central questions of law". The first is said to be: under what circumstances will property be regarded as having been "found" by a foreign court to have been "used in, or intended to be used in, unlawful conduct" or to have been "obtained in the course of, from the proceeds of, or in connection with, unlawful conduct", so as to be "tainted property" for the purposes of the Civil Asset Recovery (International Co-operation) (Jersey) Law 2007?
5. In support of its application to obtain leave, Doraville suggests that whilst this court recorded common ground in a relevant definition for a "finding", it did not consider how far (if at all) the local judge had conducted any such judicial examination or investigation, beyond reading the Verified Complaint presented in this jurisdiction. In such circumstances Doraville wishes to submit to the Judicial Committee that the US judgment in default contains no finding of fact; and that a conclusion by the US Judge as to the adequacy of formal pleadings does not find that particular property meets the requirements of "tainted property" as defined in the 2007 Law.
6. As there is no dispute by the proposed appellant as to the test to be applied in respect of whether there had been a "finding", but, rather, only in essence a contention that in the circumstances which took place here this court was wrong to construe the facts as showing that a "finding" had been made, we do not consider that this application raises an arguable point of law of general public importance.
7. The second of the "two central questions of law" sought to be pursued on appeal is as to under what circumstances a foreign court's finding that property was "involved in" transactions in violation of a foreign statute constitutes a finding that the property in question was "used in", "intended to be used in", "obtained in the course of", "obtained from the proceeds of" or "obtained in connection with" unlawful conduct.
8. In our judgment such a question is a question of mixed fact and law, the answer to the factual element being a question of fact and degree in each case. The proposed contentions put to us do not state a point of law of general public importance and it would not be proper for us to grant leave.
9. For all these reasons we refuse permission to appeal to the judicial committee of the Privy Council.
Authorities
Doraville Properties Corporation v AG [2017] JCA 029.
Parish of St Helier v Minister for Infrastructure [2017] JCA 027.
Civil Asset Recovery (International Co-operation) (Jersey) Law 2007.