Jersey Unreported Judgments

Appeal - applications by the Respondent following from the decision by the Appellant not to continue his Appeal.

[2018]JCA089

Court of Appeal

18 May 2018

Advocate P. C. Sinel for the Appellant.

Advocate B. H. Lacey and Advocate E. M. Layzell for the Respondent.

judgment

MCnEILL ja:

1.        This judgment deals with certain applications made by the Respondent in this matter following upon the decision by the Appellant not to continue with his Appeal.

Background

2.        By Notice of Appeal served on the Respondent and filed on behalf of the Appellant on 21 December, 2017, the Appellant sought to have set aside a judgment of the Royal Court dated 4 December 2017.  The Notice of Appeal ran to some fourteen pages and contained thirty five paragraphs of argument and by a timings letter dated 15 January, 2018, this Court set the appeal down to be heard in the sitting scheduled to commence on 23 July, 2018, with Appellant's contentions being lodged on 21 May and Respondent's contentions being lodged on 2 July. 

3.        Before the Royal Court the Appellant had appealed against a decision of the Respondent to issue a direction prohibiting him from engaging in any manner in financial services business in this Island and to issue a Public Statement to that effect.  He also appealed against the decision of the Respondent to issue Public Statements in respect of three other individuals in circumstances where he contended that he was identified in those statements. 

4.        The determinations by the Respondent had been made in June 2014, following an investigation and decision making process lasting some three years.  The appeal to the Royal Court was not heard until 2016 as a result of numerous interlocutory applications made by the Appellant and as a result of delays caused by his ill health.  In a compendious judgment running to some 370 paragraphs, the Royal Court dismissed the principal appeal, but allowed a supplementary appeal to the extent of declaring that there had been a failure to comply with the requirements of Article 25A (2) of the Financial Services (Jersey) Law 1998, but otherwise making no further order in respect of the three public statements where that failure had occurred. 

Procedure in the Appeal to this Court

5.        By an application dated 23 April, 2018, the present Respondent sought security for the costs of responding to the appeal.  The Respondent sought to identify the existence of a risk of exposure to it should the appeal fail.  It contended that there was no true merit in the appeal.  It also contended that, by reference to its legitimate expectation under Article 6 of the European Convention on Human Rights, it should not be exposed to continual, meritless litigation; and that it was proportionate in all the circumstances for security to be ordered.  An order was sought for payment of £37,000 to be lodged in court within fourteen days and before the Respondent had to incur considerable costs of responding to the Appellant's Grounds of Appeal and submissions.  It was noted, further, that the Appellant's Advocate had indicated that he intended to amend the current extensive Grounds of Appeal, albeit that the Appellant's submissions were due to be filed by 21 May, 2018. 

6.        By a further application dated 30 April, 2018, the Respondent applied to this Court for an order that the Appellant be directed to pay to the Respondent within seven days the sum of £150,000 in satisfaction of the Royal Court's interim payment order dated 23 March, 2018, failing which payment that the appeal should stand dismissed with an order for costs in the Respondent's favour and with ancillary directions.  It appears that this second application was served on the Appellant's Advocate at 2:28pm on 30 April.  By a letter from the Appellant's Advocate emailed to the Respondent's Advocate and to the Greffier at about 16:20pm on 30 April, Advocate Sinel intimated "Mr. Francis is not well enough, physically or financially, to continue, with the Appeal."

7.        By email sent shortly thereafter the Respondent's Advocate expressed concern as to this communication and suggested that I, as the Single Judge dealing with the procedure of the Appeal should consider whether I should hear from parties' Advocates in order, formally, to bring the case to a close, and to consider applications for expenses and ancillary orders.  On 1 May I directed that the Respondent should make formal applications by 15 May with provision for the Appellant to respond and the Respondent to reply.  I indicated that, following that exchange I would determine whether or not some form of hearing would be required.  Shortly thereafter the Respondent emailed the Greffier, copied to the Appellant's Advocate, indicating that as the Appellant's communication appeared to be a notice of discontinuance, the Respondent made more restricted applications in the hope that no further notices, submissions or hearing would be required. 

8.        Thereafter the Greffier contacted the Appellant's Advocate to ask for confirmation or otherwise that the Appellant no longer insisted on his appeal and that the Court might treat it as abandoned.  By letter of the same date the Appellant's Advocate responded indicating that he had spoken to the Appellant who had "made an irrevocable decision not to proceed any further with the litigation."  Advocate Sinel indicated that he was aware that he remained a conduit in the matter but indicated that all future enquiries should be addressed to the Appellant's trustee in bankruptcy.

Discussion

9.        There has been no further substantive communication from or on behalf of the Appellant.  The contentions before me, therefore, are those contained in the email from the Respondent's Advocate of 1 May, 2018 to the following effect: 

(i)        The appeal being discontinued, the Respondent's two Applications fall away.  The Respondent seeks the cost of the appeal and the applications on the standard basis.

(ii)       This court should approve the form of the judgment of the Royal Court to be publicly available; in particular with a direction that the reference to "W" in all interlocutory judgments should be replaced with the Appellant's name. 

10.      As I have indicated, there has been no further substantive communication from or on behalf of the Appellant, and indeed, given the restricted nature of the Respondent's application, it is clear that no material counter-contentions could be sustained. 

11.      In my judgment, given that the appeal has been withdrawn - and leaving aside any other consideration of prior procedure - the costs of the appeal and of the two applications on behalf of the Respondent automatically fall to be granted to the Respondent on the standard basis.  The Royal Court's payment orders will fall to be enforced in the usual way.

12.      As to the appropriate anonymity in respect of the publication of the Royal Court judgment, I understand that parties have identified all references to third parties which require redaction or anonymization.  That matter apart, all references to "W" should now be replaced with the name of the Appellant.  Appropriate orders will be made accordingly.

Authorities

Financial Services (Jersey) Law 1998. 

European Convention on Human Rights