Forfeiture of Assets - appeal against two judgments of the Royal Court 30 March and 19 May 2002.
Before : |
Clare Montgomery, KC., President; Jonathan Crow KC., and James Wolffe KC. |
Between |
Jeremiah Timbut Useni |
Appellant |
And |
His Majesty's Attorney General |
First Respondent |
And |
Standard Chartered Bank Jersey |
Second Respondent |
Advocate H. B. Mistry for the Appellant
Crown Advocate S. C. Brown for the First Respondent
Advocate J. Harvey-Hills for the Second Respondent
judgment
wolffe ja:
1. The Appellant appealed to this Court against three decisions made by the Royal Court in proceedings under Articles 10 and 11 of the Forfeiture of Assets (Civil Proceedings) (Jersey) Law 2018 ("the 2018 Law"). Those proceedings were directed against funds in various accounts ("the Accounts") which the Appellant held with the Second Respondent ("the Bank"). The decisions against which the Appellant appealed were:
(i) the Royal Court's decision ("the First Funding Judgment") handed down on 20 March 2022 refusing the Appellant's application for an order authorising the Second Respondent ("the Bank") to release funds from the Accounts to meet the Appellant's legal expenses;
(ii) the Royal Court's decision ("the Second Funding Judgment") handed down on 22 April 2022 dismissing an application seeking to require the Chief Officer of Police to consent to the release of funds from the Accounts for that purpose; and
(iii) the Royal Court's decision ("the Forfeiture Order") issued on 19 May 2022 granting the First Respondent's application for a forfeiture order in relation to the Accounts.
2. On 23 September 2022 we dismissed the Appellant's appeal against the First Funding Judgment, refused him leave to appeal the Second Funding Judgment and dismissed the appeal against the Forfeiture Judgment. Our reasons for those decisions are set out in a written judgment which we issued on 29 September 2022 ("the Substantive Judgment").
3. We now have before us a number of applications for orders consequential on the Substantive Judgment, namely -
(i) for the Appellant:
(a) an application pursuant to Article 16 of the 2018 Law for the release of funds from the Accounts forfeited by the Forfeiture Order (which we will describe as "forfeited funds") to enable the Appellant to meet his legal expenses in connection with the appeal;
(b) an application for leave to appeal the Substantive Judgment to the Judicial Committee of the Privy Council ("the JCPC");
(c) an application for stay of any costs orders which we might make against the Appellant pending an appeal to the JCPC;
(d) an application pursuant to Article 16 of the 2018 Law, or under the Court of Appeal's inherent jurisdiction, for the release of forfeited funds to enable the Appellant to pursue an application for leave to appeal to the JCPC and to meet legal expenses in connection with the appeal, inclusive of King's Counsel's fees and Privy Council Agent's fees;
(ii) for the First Respondent ("the Attorney General"):
(a) an application for costs of and incidental to all proceedings in the Court of Appeal on the indemnity basis against the Appellant;
(b) in the alternative, an application for those costs on the standard basis; and
(c) an application for a special order as to costs against the Appellant pursuant to paragraph 2.6 of the Court of Appeal Consolidated Practice Direction CA05/1 ("the Practice Direction"); and
(iii) for the Bank:
(a) an application for the costs of the appeal on an indemnity basis against the Appellant; and
(b) an application for an order that such costs be paid from the forfeited funds.
4. This is the judgment of the Court on those applications. We have considered the written submissions and the various supplementary submissions filed by the parties. We are satisfied that we can determine the applications on the basis of the written materials which have been laid before us. We will first address the various applications relating to the costs of the appeal before us, and then consider the Appellant's application for leave to appeal to the JCPC and his associated applications.
5. The Attorney General seeks an order for costs on the indemnity basis against the Appellant (or, in the alternative, on the standard basis). He also seeks a special order for costs against the Appellant under the Practice Direction. He refers us to the following authorities: Leeds United AFC Ltd v. The Phone-in Trading Post Ltd t/a Admatch [2011] JLR Note 22; AA Hobson and MA Hobson v. Minister for Planning and Environment [2014] (1) JLR Note 19; Hong Kong Foods Ltd v. Robin Hood Curry Ltd [2017] JRC 116; BNP Paribas Jersey Trust Corporation v. Camilla de Bourbon des deux Siciles [2021] JRC 268.
6. The Appellant resists these orders. He submits that no order for costs should be made at all or at least at this time, that if a costs order is made it should be on the standard basis, and in any event that we should order that any costs awarded be taken from the forfeited funds. He argues that no costs order should be made pending his application for leave to appeal to the JCPC.
7. The Appellant points out that he was granted leave to appeal the First Funding Judgment and identifies various features of our Substantive Judgment to support a submission that his appeal was not meritless. He submits that this was not a case where there were "winners and losers". He makes the point that the appeal raised questions of law which required clarification in the public interest. He argues that the difficulties the Appellant would face in remitting funds to Jersey to meet any award of costs justifies an order that any costs awarded against the Appellant be taken from the forfeited funds. He observes that the Attorney General is a public servant, funded by Government. He refers us to two additional authorities: Watkins v. Egglishaw 2002 JLR 1 and Marett v. Marett 2008 JLR 384.
8. There is no good reason for us to defer addressing the applications for costs which are before us pending an application for leave to appeal to the JCPC. The appropriate course is for us to determine all matters before us including costs. If the Appellant is granted leave to appeal to the JCPC it will be open to the JCPC to make any consequential orders, including to modify our costs orders. Given the identity of the Respondents, the Appellant is not at risk that any consequential repayment which might, in that event, be required would not or could not be made.
9. We grant the Attorney General's application for costs against the Appellant. The general rule is that a successful party should have an award of costs against an unsuccessful party. It is clear from the Substantive Judgment that the Attorney General was justified in resisting the appeal and that he has been successful in doing so. We dismissed the Appellant's appeal against the First Funding Judgment and the Forfeiture Order and refused his application for leave to appeal the Second Funding Judgment. Although we did not accept the entirety of the reasoning of the Royal Court or, indeed, all the submissions advanced on behalf of the Attorney General, we rejected all of the Appellant's grounds of appeal. In these circumstances, the Attorney General is clearly the successful party. The mere fact that an appeal may have provided an occasion for clarifying and explaining the law is not, generally, on its own a sufficient basis for modifying the usual rule. Nor is the fact that the Attorney General holds a public office. The public purse in Jersey should not be expected to absorb the costs of this appeal, which was brought and pursued by the Appellant in his own interest.
10. To justify an award of indemnity costs, there must be something out of the ordinary which justifies such an award, but the ultimate question is whether an award of indemnity costs, as opposed to costs on the standard basis, would be fair and reasonable in all the circumstances. In considering this question, we are entitled to have regard to the Appellant's conduct throughout the litigation, insofar as that may inform our view of the appeal and his conduct of it. In the circumstances of this case, we are satisfied that it would be fair and reasonable to order costs in favour of the Attorney General against the Appellant on the indemnity basis. We take that view for the following reasons, which should be read cumulatively.
(i) We recognise that the Royal Court granted the Appellant leave to appeal the First Funding Judgment, and that the appeal has provided the occasion for the Court to consider and clarify the law in certain respects. However, the grant of leave does not compel a litigant to appeal. The decision to appeal remained the Appellant's decision. The central position which he adopted in relation to this case, including the appeal, was, for the reasons which we set out in the Substantive Judgment, lacking in legal merit. The arguments advanced on appeal focused on peripheral issues including, in particular, a general attack on the "no consent" regime of the Proceeds of Crime (Jersey) Law 1999 ("the 1999 Law") which was plainly not open to the Appellant in the context of this case. The circumstances justify an inference that the Appellant has deliberately sought to avoid addressing the substantive issues in the case.
(ii) The fundamental question before us was whether the Appellant could receive a fair hearing, compatible with his Convention rights, without legal representation at the forfeiture hearing before the Royal Court. The Appellant's contention that he required legal representation at the forfeiture hearing was the essential foundation for the applications which the Royal Court refused in the First Funding Judgment and the Second Funding Judgment. It was also the reason which the Appellant gave for his decision not to appear or to be represented at the forfeiture hearing. As we explained in the Substantive Judgment, any belief which the Appellant may have entertained that he could not receive a fair hearing before the Royal Court without legal representation was misconceived.
(iii) The Appellant's challenge to the First Funding Judgment and to the Forfeiture Order depended critically on his submission that, without legal representation, he could not receive a fair trial at the forfeiture hearing. It was accordingly central to his appeal to argue that Article 6(3) of the European Convention on Human Rights was engaged. That submission was, having regard to well-established law, including Serious Organised Crime Agency v. Gale [2011] 1 WLR 2760, doomed to fail.
(iv) Once that submission had been rejected, our conclusion (expressed at paragraphs 53 and 69 to 75 of the Substantive Judgment) that the Appellant did not require legal representation to obtain a fair trial involved the application to the circumstances of this case of well-established and uncontroversial Strasbourg case-law. It was not, in the circumstances of this case, a marginal or doubtful decision. That being so, the other points raised by the Appellant (which took up the greater part of the submissions) were of peripheral significance to the outcome of this case. In particular, the Appellant mounted a general attack on the "no consent" regime of the 1999 Law which was plainly not open to him in the context of these proceedings.
(v) In the course of the forfeiture proceedings in the Royal Court, the Appellant did not properly address the substance of the issues which arose. As we note at paragraph 30 of the Substantive Judgment, the Royal Court advised the Appellant in terms that the onus was on him to explain the source of the substantial payments made into the accounts. He declined to do so, whether by affidavit or by appearing in person at the forfeiture hearing. Further, as we note at paragraph 29 of the Substantive Judgment, the Royal Court directed the Appellant to appear at the substantive hearing in person so that he could be cross-examined on his affidavits unless there was a good reason for him not to attend in person. At all stages of this case, apart from at the substantive forfeiture hearing itself, the Appellant has had the benefit of legal advice and representation.
(vi) The Appellant was entitled to advance the arguments which led to the First and Second Funding Judgments, but once those arguments had been rejected, he had no good reason not to comply with the Royal Court's order and appear personally at the substantive forfeiture hearing, or indeed otherwise to address the substantive issues in the proceedings. Quite apart from that consideration, it follows from what we have said above about the merits of the Article 6 arguments that the reason which the Appellant gave for not appearing at the Forfeiture Hearing was misconceived. The Court is entitled to infer that the approach which the Appellant has taken to this case has involved a deliberate strategy designed to avoid addressing the substantive issues which arise in these proceedings and that the appeal to this Court was a continuation of that strategy. A litigant may, of course, take strategic or tactical decisions, but if the strategy proves to be unsuccessful and the legal basis for it ill-founded, the litigant cannot complain if those decisions, and their effects, are taken into account by the Court when considering questions of costs.
11. We decline the Appellant's invitation to make an order that the costs be met from the forfeited funds. It follows from our decision dismissing the appeal against the Forfeiture Order that we must proceed on the basis that the forfeited funds were the proceeds of, or instrumental in, criminality. They have properly been forfeited to public use in accordance with the 2018 Law. To order that the costs should be taken from the forfeited funds rather than be the subject of an award against the Appellant personally would, in effect, free him from his liability for costs and, contrary to the purpose of the 2018 Law, give him the benefit of forfeited funds to meet those costs. It would enrich the Appellant at the expense of the public purposes to which that element of the forfeited funds would otherwise be dedicated. That would not in our view be an appropriate or just order. Any practical or legal difficulties which the Attorney General might face in enforcing an award of costs against the Appellant in Nigeria or otherwise are for him to address if he can.
12. The Attorney General also seeks a special order for costs against the Appellant under the Practice Direction. He relies on paragraphs 10 to 14 of his primary submissions on the substantive appeal. In those paragraphs the Attorney General stated that the Appellant had not filed documents which were before the Royal Court and which should, in terms of the relevant Rules and Practice Direction, have been filed for the appeal. These included the pleadings in respect of the First Funding Judgment and the Second Funding Judgment and the affidavit evidence which was before the Royal Court. The Attorney General advised us that he had produced this material, in the absence of the Appellant doing so.
13. Paragraph 2.6 of the Practice Direction states: "If this Practice Direction is not complied with, the Court of Appeal may consider making a special order in relation to any unnecessary costs which have been occasioned by such non-compliance either against a party to the appeal or against the Advocate who is responsible". In the present case, insofar as the Attorney General's response in filing documents which had not been filed by the Appellant was not unreasonable (a matter which will be for the Greffier to determine on taxation), the costs thereof will be included in our award of costs on the indemnity basis. In these circumstances we do not consider it necessary to make a special order under the Practice Direction.
14. The Attorney General does not apply for a special order under the Practice Direction against the Appellant's Advocate personally and we accordingly do not require to consider whether such an order would be appropriate in the circumstances of this case.
15. The Bank seeks an order for its costs of the appeal on the indemnity basis against the Appellant and an order that such costs be paid from the forfeited funds. The Bank submits that an order on the indemnity basis is justified both on the basis that such an award would be fair and reasonable in the circumstances of this case, and also on the ground that the terms and conditions applicable to the bank accounts in which the forfeited funds were deposited contained an agreement to indemnify the Bank for any loss reasonably incurred in connection with, inter alia, "any litigation brought by you [the customer] or any third party about any account, product or service where we are joined as a party to the proceedings".
16. As we have set out above, the Appellant resists any costs order being made against him and in any event resists any order being made on an indemnity basis. The Attorney General submits that it is not open to the Court to order that the costs be paid from the forfeited funds. We discuss this submission in more detail below. He also raises a question (without making any active submission on the point) as to whether the Bank's current terms and conditions, which contain the indemnity which we have quoted above, may properly be relied on. He points out that the Bank has not produced earlier versions of the terms and conditions, that we accordingly do not know whether they (like the current version) contained an indemnity or a power permitting the terms and conditions to be changed if there is no objection, and in any event that the accounts were effectively frozen at the date of this latest version.
17. We grant the Bank's application for a costs order against the Appellant. Although the Bank has adopted a neutral position, it was convened as a necessary party to these proceedings by the Appellant. The Appellant's unsuccessful pursuit of this appeal has resulted in the Bank incurring costs, which it is just that the Appellant should meet. We also make that order on the indemnity basis, for the reasons we have set out at paragraph 10 above. In these circumstances, we do not require to address the question of whether the Bank is entitled, in the context of its application for costs, to rely on the indemnity which appears in its current terms and conditions.
18. We turn to the question of whether we can and should make an order that the Bank's costs be met from the forfeited funds. The Royal Court made such an order, in the following way: (i) it made a forfeiture order; (ii) it ordered the Bank to pay over the totality of the forfeited funds to the Viscount; (iii) it ordered the Viscount to pay all of those funds, less £45,000 into the Criminal Offences Confiscation Fund ("the Fund"); and (iv) it ordered that the Bank would have its costs on the indemnity basis, as agreed with the Attorney General or taxed, such costs to be paid by the Viscount out of the retained sum of £45,000 with any surplus being paid into the Fund.
19. The Bank points out that the Attorney General did not oppose that order, nor has the Attorney General appealed against it. The Bank submits that to allow the Attorney General now to challenge whether the Court has power to make such an order amounts to a collateral attack on the reasoning of the Royal Court. The Attorney General confirms that he did not oppose the Bank's costs application before the Royal Court but asserts that he was not in any position to make positive submissions about where or from whom the costs were to be recovered.
20. We do not consider that the Attorney General's position before the Royal Court bars him from raising the point before us. The live issue before this Court is whether it can and should make an order in the terms sought by the Bank. If this Court does not have power to make such an order it cannot, in effect, be compelled to do so by the fact that the Royal Court granted such an order or by the absence of any objection at that time by the Attorney General. Nor do we consider that the Attorney General's position before us amounts, in any relevant sense, to a collateral attack on the Royal Court's order. A conclusion by us that the Court has no power to make such an order would not in and of itself, in the absence of an appeal, affect the continuing legal force and effect of the Royal Court's order.
21. The Attorney General submits that we do not have power to make an order that the Bank's costs be met from the forfeited funds; and, in any event, that we should decline to make such an order. The essential points which he makes in his initial submissions on the issue are as follows. (i) Article 11(5) of the 2018 Law provides that "[p]roperty which is forfeited pursuant to a forfeiture order under this Article shall be paid into the Criminal Offences Confiscations Fund established under Article 24 of" the 1999 Law. (ii) A costs order is an order in personam against the party concerned, in this case the Appellant and is enforceable against him and/or his assets. (iii) The forfeited funds are not now (following the Forfeiture Order) the Appellant's assets and are accordingly not available to meet an award of costs made against the Appellant. (iv) In this case the forfeited funds never have been assets of the Appellant because a person who receives corrupt payments holds them on constructive trust for that person's principal (FHR European Ventures LLP v. Cedar Capital Partners LLC [2015] AC 250; In the Matter of the Rex Trust [2013] (2) JLR 444). (iv) No other provisions of the 2018 Law provide a relevant basis for making such an order. (v) Banks choose their customers and have responsibilities in relation to money laundering risk, and there is accordingly no relevant injustice in leaving the Bank to enforce, if it can, an award of costs against the Appellant.
22. In response, the Bank explains that the legal basis for its application is the Court's general costs jurisdiction set out in Article 16 of the 1961 Law. Article 16 is identical to Article 2 of the Civil Proceedings (Jersey) Law 1956 and confers a very broad jurisdiction, including the power to make an order against a non-party. The Bank refers us to Watkins v. Egglishaw, supra; Channel Islands Knitwear Company Ltd v. Hotchkiss [2001] JLR 570, paragraphs 9-13 (Smith JA) and Planning and Environment Minister v. Yates and Reg's Skips Ltd [2008] JLR 486, paragraph 74 (McNeill JA). The relevant funds are, so far as the Bank is aware, in the hands of the Viscount and an order that the Bank should have its costs from the forfeited funds is a non-party costs order against the Viscount. The Bank contends that the order which the Royal Court made is not dissimilar to an order in trust proceedings that the beneficiaries should have their costs from the trust fund. It argues that it is not necessary to call the Viscount (who is the court's enforcement officer with no personal interest in the destination of the funds) as a party. The Bank submits that the interests of justice favour the proposed order where it is a necessary party, has adopted a neutral position and is unlikely to be able to enforce any award against the Appellant personally.
23. The Attorney General offers the following further response. (i) The Court's trusts jurisdiction is irrelevant. (ii) A costs order is an in personam order and such an order is therefore either against the Appellant personally or the Viscount personally. (iii) The costs jurisdiction is broad and flexible but not unprincipled; adverse costs orders are usually made on the basis of responsibility for incurring costs. (iv) Non-party costs orders are usually made where the party before the Court is not the real party which stands to gain from the litigation. (v) To justify a non-party costs order against the Viscount, it would, at least, be necessary to show some relationship between the Appellant and the Viscount which would make it just that the Viscount should be liable for the Appellant's defending of the litigation. (vi) In any event, the non-party must be joined and given an opportunity to make submissions before a non-party costs order is made. In addition to the cases referred to by the Bank, the Attorney General refers to Dymocks Franchise Systems (NSW) Pty Ltd v. Todd [2004] 1 WLR 2807; Travelers Insurance Company Ltd v. XYZ [2019] 1 WLR 6075; Willers v. Joyce [2019] EWHC 2183 (Ch); MacFirbhisigh v. CI Trustees and Executors Ltd [2017] (1) JLR Note 8.
24. For the following reasons we conclude: (i) that the Court's power to make a non-party costs order could be exercised to order payment from the forfeited funds; but (ii) that we should not make such an order.
25. Article 11(5) of the 2018 Law states that "[p]roperty which is forfeited pursuant to a forfeiture order under this Article shall be paid into the Criminal Offences Confiscations Fund established under Article 24 of" the 1999 Law. This is an imperative statutory requirement which applies - subject to any specific provision of the 2018 Law, such as Article 16(2) - to all the property forfeited pursuant to a forfeiture order. The Bank does not rely on any power in the 2018 Law, which would allow the Court to divert forfeited funds to any other destination or purpose, but on the Court's general costs jurisdiction.
26. Notwithstanding its imperative terms, the 2018 Law does not displace the Court's costs jurisdiction. As this Court recognised in Channel Islands Knitwear Company Ltd v. Hotchkiss, supra, Article 16 of the 1961 Law confers a very wide discretion and includes a power to make an order for costs against a non-party to the proceedings. It would not be consistent with the breadth of that discretion to hold that, in an appeal under Article 16 of the 2018 Law, this Court has no power to make a costs order, which would have the practical effect of ordering that payment be made out of the forfeited funds, against the Viscount or against the Minister for Treasury and Resources (who is responsible, under Article 24 of the 1999 Law, for managing and controlling the Fund).
27. At the same time, the wide discretion conferred on this Court by Article 16 must be exercised judicially and in accordance with the accepted principles applicable to the Court's costs jurisdiction. The general principles which fall to be applied to an application for a costs order against a non-party were set out by McNeill JA in Planning and Environment Minister v. Yates, supra, at paragraph 74. As McNeill JA observed, costs orders against non-parties "will be exceptional in the sense of having considerations outside the ordinary run of cases where parties pursue or defend claims for their own benefit and at their own expense. The exceptional considerations will be fact-specific and the ultimate consideration will be that of justice as between the litigant seeking the order and the person against whom the order is sought".
28. In light of this and the other general principles articulated by McNeill JA in Planning and Environment Minister v. Yates, we decline to make the order which the Bank seeks. As we have observed above, the practical effect of such an order would be to give the Appellant the benefit of the forfeited funds, by using them to discharge his liability for the Bank's costs. It would also deprive the Fund of monies which would otherwise be applied to the public purposes set out in Article 24 of the 1999 Law. We recognise that the Bank has been put to cost in participating in proceedings in which its interest may be regarded as formal. However, that does not, in our view, justify making a non-party costs order that the Bank's costs be met from the Fund. The Bank chose to accept the Appellant as its customer. It accepted the forfeited funds into the accounts in the circumstances which we described at paragraphs 21 to 23 of the Substantive Judgment. It does not appear to us, in these circumstances, to be unjust that the Bank, like the Attorney General, should be required to enforce the costs order which we have made in its favour against its former customer if it can.
29. The Appellant's appeal against the Forfeiture Order was brought under Article 16 of the 2018 Law which provides as follows:
"(1) Any party (other than the Attorney General) to proceedings in which a forfeiture order is made ... may appeal to the Court of Appeal against the making of the order.
(2) On an appeal under paragraph (1) the Court of Appeal may order the release of so much of the property in question as it considers appropriate to enable the appellant to meet legal expenses in connection with the appeal."
30. The Appellant now applies, pursuant to Article 16(2), for the release of forfeited funds to meet his legal expenses in connection with the appeal. No such application was made at an earlier stage of the appeal. Advocate Mistry explains that he did not act pro bono in this matter and could not afford to do so. He has rendered an invoice for an agreed fee of £52,000 plus GST for advice on the appeals and drafting appeal notices. His work in progress for the work since the appeal notices were served amounts to £23,007.50 excluding disbursements. The invoice has not been paid and, for reasons explained in the Substantive Judgment his bank will not accept funds from the Appellant.
31. The Attorney General contends that we now have no power to make an order under Article 16(2). His position is that Article 16(2) grants a prospective discretionary power which falls to be exercised by the single judge at the same time as leave to appeal. Now that we have determined the appeal, there is, he submits, no appeal on foot. He refers us to a Guernsey case, Heykers v. HM Comptroller General, Royal Court of Guernsey, Judgment 46/2018, to illustrate the use of the differently framed statutory provisions in that jurisdiction. The Attorney General further submits that if we have power to make an order under Article 16(2) at this stage, we should not do so. He argues that we must proceed on the basis that the forfeited funds are tainted property. It would, according to the Attorney General, be an unreasonable exercise of our discretion for any of those assets to be returned to the Appellant or to his lawyer. The Attorney General also argues that the information that the Appellant agreed to pay his Advocate £52,000 discloses that the Appellant's affidavit evidence as to his means was false. He contends that the agreement to pay that sum was a prohibited conditional fee agreement. He refers to Article 11 of the Access to Justice Act 2019 (not yet in force), In re Valetta Trust [2012] (1) JLR 1 and Voisin Advocates v. Princess Camilla de Bourbon des Deux Siciles [2021] JRC 135.
32. For the following reasons we conclude: (i) that we have power at this stage of the case to make an order under Article 16(2) of the 2018 Act; but (ii) that we should not do so.
33. Article 16(2) implicitly recognises that an appellant may require legal representation for the right of appeal to this court granted by Article 16(1) to be effective, and that it may be appropriate to release property to which the proceedings relate to enable the expenses of such legal representation to be met. An application under Article 16(2) will no doubt usually proceed on the footing that, without such an order, the appellant will be unable to secure legal representation for the appeal hearing. Such an application will accordingly usually be presented in advance of the appeal hearing so that such representation can be secured. But Article 16(2) is in wide terms and we consider that an order under the provision remains competent at any time while the appeal proceedings are before the Court of Appeal. It is commonplace for costs and other consequential applications to be made following disposal of the substantive issues in an appeal. It would be excessively technical to read the phrase "[o]n an appeal" in Article 16(2) so as to exclude the exercise of the power whilst the appeal is still before the Court of Appeal for the purposes of such consequential matters.
34. Although we accordingly have power to make an order under Article 16(2), we refuse the Appellant's application on its merits. Where an appellant makes an application under Article 16 in advance of an appeal hearing, the Court does not know whether the appeal will or will not succeed. But that is not the context in which we come to address the Appellant's application. We know that the appeal has been unsuccessful, that we must accordingly proceed on the basis that the Forfeiture Order was properly made and that the Royal Court was (as we held at paragraph 53 of the Substantive Judgment) entitled to reject the Appellant's contention that he could not secure legal representation without an order releasing funds from the accounts. And we also know that the Appellant was, as a matter of fact, legally represented at the appeal.
35. We need not concern ourselves as to the basis upon which the Appellant's Advocate was acting. We can proceed on the footing that the Royal Court was entitled to reject the Appellant's contention that he could not secure legal representation without an order releasing funds from the accounts. But even had we not reached that conclusion, we would not have considered it to be appropriate, in the circumstances of this case, to grant an application which would discharge the Appellant's liability to meet his legal costs by ordering payment from funds which were the proceeds of, or instrumental in, crime and which have, on that basis, been properly forfeited to public use.
36. There is no relevant unfairness to the Appellant's Advocate in this conclusion. He accepted instructions to conduct this appeal on behalf of the Appellant at a time when he knew that his bank would not receive funds from the Appellant and when he could have had no reasonable expectation, if the appeal was unsuccessful, that his fees would be recouped from the forfeited funds. If there are practical or legal difficulties for him in recovering his fees from the Appellant, that is a risk which he took. If the Appellant's Advocate was not prepared to accept instructions without the assurance of payment from the forfeited funds, the Appellant should have made an application under Article 16 before the appeal was heard.
37. We are able to determine the applications which are before us without considering whether the arrangements entered into by the Appellant's Advocate were a prohibited conditional fee agreement and we accordingly express no view one way or the other on the Attorney General's submissions on that matter.
38. Article 14 of the Court of Appeal (Jersey) Law 1961 ("the 1961 Law") provides:
"(1) No appeal shall lie from a decision of the Court of Appeal under this Part without the leave of the Court or the special leave of Her Majesty in Council.
(2) No appeal shall lie from a decision of the Court of Appeal to grant, or to refuse to grant, leave to appeal."
39. The Appellant makes clear in the submissions in support of his application for leave to appeal to the JCPC that he seeks leave to appeal only our decisions dismissing his appeals against the First Funding Judgment and the Forfeiture Order. He acknowledges that an appeal against the Second Funding Judgment is precluded by the explicit terms of Article 14(2) of the 1961 Law. He argues that the First Funding Judgment was not an interlocutory decision of this Court but a final decision on an appeal for which leave had been granted and that an appeal against that Judgment is available, with leave, to the JCPC.
40. In his application for leave, the Appellant formulates five potential Grounds of Appeal:
The Court of Appeal found that A1.FP of the Convention was engaged by the forfeiture of property in the bank account, which extinguishes the customer's right to payment. The Court of Appeal also accepted that the Human Rights (Jersey) Law 2000 (the "2000 Law") came into play so that the 2018 Law must, so far as it is possible to so, be read and given effect compatibility with the Convention. It is the duty of the Court, regardless of any arguments put forward or not on the issue, to ensure that a remedy is provided for any violation. The Court or Appeal erred by not finding that Articles 10 and 11 of the 2018 Law itself were incompatible with the Convention, in particular with Article 14 of the Convention (non-discrimination) read with Articles 6 and A1.FP of the Convention.
The Court of Appeal erred when it said that any challenges to the Proceedings of Crime (Jersey) Law 1999 (the "1999 Law"), in particular the consent regime, should be pursued by way of Judicial Review of the relevant decision of the police. The Appellant sought to argue that the consent regime was not proportionate on the basis that the lack of time limits deprived him of the ability to seek legal funding directly from the Royal Court i.e because the Attorney General would have had to have obtained a civil injunction or saisie judiciaire once the consent time periods had lapsed, and such orders would have meant that the property in the bank accounts would have become property that the Court had supervision over and secondly provisions are usual made for the payment of legal fees.
The Court of Appeal accepted that a foreign Politically Exposed Person might well be unable, by proper application of the Money Laundering (Jersey) Order regime, to fund legal representation in Jersey. It is incumbent on the Court to ensure that access to the justice should not be denied by application of the 2000 Law.
The Court of Appeal erred when it held that the Appellant was not deprived of his Article 6 Convention rights by not being legally represented/had the inability of funding) in proceedings under Articles 10 and 11 of the 2018 Law.
The Court of Appeal failed to expressly state that the Royal Court does have inherent jurisdiction to deal with legal funding in cases where property is held under the consent regime."
41. The Attorney General challenges the competency of the Appellant's application for leave to appeal the First Funding Judgment; and opposes his application for leave to appeal the Forfeiture Order. He argues that the First Funding Judgment is an appeal against an interlocutory decision, and that this Court accordingly has no power to grant leave. He relies, for the proposition that this Court has no power to grant leave in respect of an appeal against an interlocutory decision, on Forster v. Harbours and Airports Committee [1990] JLR 82, Showlag v. Mansour [1993] JLR 7 and MacKinnon v. Regent Trust Company [2005] JLR Note 20. He also draws our attention to Doraville v Attorney General 2017 (1) JLR 64, in which this Court refused leave to appeal an interlocutory appeal to the JCPC on the merits, but without referring to the three earlier cases which the Attorney General cited.
42. The Attorney General argues that leave to appeal against the Forfeiture Judgment should be refused because our refusal of the appeal against the Forfeiture Judgment simply followed from our decision in respect of the First Funding Judgment (which was an interlocutory decision against which an appeal to the JCPC is not, he argues, available). He further argues that the Appellant has not identified an arguable point of law of general public importance which ought to be considered by the JCPC at this time. He refers to AB v. HM Attorney General [2020] JCA 131, paragraphs 7 to 11 (McNeill JA) and Equity Trust (Jersey) Trust Ltd v. E [2019] JCA 188, paragraph 4, for the principles which this Court applies when considering whether to grant leave to appeal to the JCPC.
43. Whilst the Bank remains neutral as regards the substantive matters under appeal, it has filed helpful submissions on the question of competency raised by the Attorney General. The Bank argues that this Court has power to grant leave to appeal to the JCPC against any decision on an interlocutory appeal. It points out that Article 14(1), as it now stands, draws no distinction between interlocutory and final decisions. The Bank questions whether it was ever correct to draw a distinction between interlocutory and final decisions; but points out that, in any event, the three decisions upon which the Attorney General relies concern an earlier version of Article 14. The legal basis for the exclusion of interlocutory appeals to the JCPC when the 1961 Law was enacted was to be found in the Code of 1771, re-enacting the provisions of an Order in Council of 13 May 1572. The relevant provisions of the 1771 Code were repealed by the Code of 1771 (Revision) (Jersey) Law 1965. Referring to Bennion, Bailey and Norbury on Statutory Interpretation, the Bank invites us to apply an "updating construction" and to read Article 14(1) of the 1961 Act, as it now stands and in light of the repeal of the relevant provisions of the Code of 1771, to apply to any decision, whether final or interlocutory, of this Court.
44. Before this Court was established by the 1961 Law, an appeal lay from the Royal Court to the JCPC but only against a final order of that Court. The Order in Council of 13 May 1572 directed: "That no appeal in any cause or matter, great or small, be permitted or allowed before the same matter be fully examined and ended by definitive sentence or other judgment having the force or effect of a sentence definitive". This provision was re-enacted (with the omission of the words "having the force or effect of a sentence definitive") by the Order in Council sanctioning the Code of 1771. It was considered and applied by the JCPC in Esnouf v. Attorney General (Jersey) (1883) 3 App Cas 304. This part of the Code of 1771 was repealed by the Code of 1771 (Repeal) (Jersey) Law 1965.
45. By 1965, of course, this Court had been established by the 1961 Law. As first enacted, Article 14 of the 1961 Law was in the following terms:
"(1) No appeal shall lie from a decision of the Court of Appeal under this Part without the leave of the Court or the special leave of Her Majesty in Council except where the value of the matter in dispute is five hundred pounds or more.
(2) No appeal shall lie from a decision of the Court of Appeal to grant, or to refuse to grant, leave to appeal."
Article 2 of the Court of Appeal (Amendment No. 6) (Jersey) 1993 substituted the figure of "ten thousand pounds" for "five hundred pounds" in Article 14(1).
46. Article 14 as so amended was replaced by Article 7 of the Court of Appeal (Amendment No. 8) Jersey Law 2008. Article 7 provides:
"7 Article 14 substituted
For Article 14 of the principal Law there shall be substituted the following Article -
'14 Appeals from the decisions of Court of Appeal
(1) No appeal shall lie from a decision of the Court of Appeal under this Part without the leave of the Court or the special leave of Her Majesty in Council.
(2) No appeal shall lie from a decision of the Court of Appeal to grant, or to refuse to grant, leave to appeal.'."
47. The three cases on which the Attorney General relies - Forster, Showlag and Mackinnon - all predate the 2008 amendment to Article 14. They vouch the proposition that the word "decision" in Article 14(1), as it then stood, referred to a final or definitive decision disposing of the parties' rights. The judgments disclose two reasons for this conclusion. First, the word "decision" fell to be read against the longstanding position that an appeal lay to the JCPC only once a case had been "fully examined and ended by definitive sentence" of the Jersey courts. Secondly, if the word "decision" in Article 14(1) included a decision on an interlocutory appeal, a party to proceedings where the value of the matter in dispute exceeded the monetary value specified in Article 14(1) would be able to appeal to the JCPC as of right a decision in an appeal which could only be brought to the Court of Appeal with leave. Furthermore, it would be entitled to take successive appeals as of right to the JCPC against interlocutory decisions in the same case - an outcome which the Court in Mackinnon considered "absurd".
48. The question which we require to consider, apparently for the first time, is whether the word "decision" in Article 14(1) as it now stands is subject to the same limitation. For the following reasons, we have concluded that it is not and that an appeal does lie to the JCPC from a decision of this Court on an interlocutory appeal, but only with leave.
(i) The provision which we require to interpret, is Article 14 as it is now framed, in the context of the 1961 Law as a whole. The word "decision" in Article 14(1) is unqualified. There is no textual reason to give it a qualified or limited meaning. Indeed, the same word "decision", where it is used in Article 13 of the 1961 Law clearly encompasses an interlocutory decision, and this supports the view that "decision" in Article 14(1) encompasses an interlocutory decision.
(ii) One of the reasons for interpreting the word "decision" in the previous version of Article 14(1) to exclude an appeal from an interlocutory decision arose from the existence of an appeal as of right if the monetary value of the matter exceeded the specified amount. That consideration does not apply to Article 14(1) as it is now framed, which contains no equivalent provision.
(iii) There are practical reasons for construing "decision" in Article 14(1) as it is now framed so as to encompass interlocutory decisions. As Article 13 of the 1961 Law implicitly recognises, situations may arise where it would be more appropriate or efficient for an interlocutory issue to be determined finally on appeal before the first instance court addresses the merits. Such cases could give rise to an issue of general public importance which would justify an appeal to the JCPC. The requirement of leave, now applicable to all appeals to the JCPC, controls against such appeals being taken prematurely or inappropriately.
(iv) We recognise that, in removing from Article 14(1) the words which granted an appeal as of right where the value of the matter exceeded £10,000, the legislature chose to retain language which had previously been authoritatively interpreted to refer only to a final decision. We also acknowledge that an amendment to one part of a statute does not necessarily (or even usually) change the meaning of parts of the statute which are left unamended. However, in this case, the legislature in 2008 did not (as it could readily have done) simply omit the wording at the end of Article 14(1); rather, it chose to substitute an entirely new Article. Although the new Article 14(1) used the same language as the previous Article (with the omission of the words granting an appeal as of right where the value exceeded £10,000), that choice of drafting technique tends to support the conclusion that the legislature intended the new Article to be construed on its own terms, and not by reference to the previous version of the text.
49. On that basis, it would be competent for us to grant leave to appeal the First Funding Judgment. We observe that, even if this were not the case, we would require to consider whether or not to grant leave against the Forfeiture Order, which was a final decision. Contrary to the Attorney General's submission, it would not have been a good reason to refuse leave to appeal the Forfeiture Order that the Forfeiture Order followed from our decision in the appeal against the First Funding Judgment. As we record at paragraph 42 of the Substantive Judgment, the Appellant's appeal was predicated on the proposition that he could not receive a fair hearing compatible with Article 6 of the European Convention on Human Rights without legal representation at the forfeiture hearing. In the Substantive Judgment, we did not require to address that issue separately in the context of the appeal against the Forfeiture Order (see paragraph 82 of the Substantive Judgment), but that was only because we had already dealt with it in our discussion of the appeal against the First Funding Judgment.
50. We accordingly turn to address, on its merits, the Appellant's application for leave to appeal the First Funding Judgment and the Forfeiture Order. The approach which falls to be taken to applications for leave to appeal to the JCPC has been explained by this Court in AB v HM Attorney General, supra. It suffices, for present purposes, to observe that the test which ordinarily falls to be applied is whether the case raises:
"an arguable point of law of general public importance which ought to be considered by the Judicial Committee at this time, bearing in mind that the matter will already have been the subject of judicial decision and may have already been reviewed on appeal."
51. Further, in all but the clearest of cases, as was explained in Equity Trust (Jersey) Trust Ltd v. E, supra, this Court will usually leave the question of whether an issue is one which should be considered by the JCPC at this time to the JCPC itself unless this Court is better placed than the JCPC to form a view about the public importance of the issue in question to Jersey.
52. Applying this approach, we have no hesitation in refusing leave to appeal both the First Funding Judgment and the Forfeiture Order. At paragraph 53 of the Substantive Judgment, we set out our conclusions:
(i) that the Royal Court was entitled, on the information before it, to reject the Appellant's contention that he could not secure legal representation without an order releasing funds from the Accounts; and
(ii) that, in any event, the Appellant did not require legal representation in order to obtain a fair trial.
Any appeal to the JCPC against the First Funding Judgment or the Forfeiture Order would require to challenge both of these conclusions successfully.
53. The Appellant does not, in his proposed Grounds of Appeal seek to challenge the former conclusion. It is, in any event, a conclusion which concerns a question of fact, not law. The absence of any challenge in the proposed Grounds of Appeal to that conclusion would suffice to justify refusing leave to appeal generally, on the basis that, even if all or any of the proposed Grounds of Appeal had merit, their determination would be academic.
54. In any event, although proposed Ground 4 does challenge our conclusion that the Appellant did not require legal representation in order to obtain a fair trial, we are satisfied that this Ground does not raise a point of law of general public importance. Our decision on that question involved the application to the particular circumstances of this case of well-established and uncontroversial Strasbourg case-law. Ground 4 accordingly does not satisfy the test for leave.
55. In these circumstances, we can comment briefly on the other proposed Grounds of Appeal.
(i) Proposed Ground 1 seeks leave to appeal on the basis of contentions which were not advanced either before the Royal Court or before us (see paragraph 19 of the Substantive Judgment). On that basis alone, it would not be appropriate for us to grant leave to appeal to argue proposed Ground 1.
(ii) Proposed Ground 2 seeks leave to appeal with a view to challenging the observations which we made at paragraph 44 of the Substantive Judgment that the Appellant's attack on the consent regime under the 1999 Law would require to be advanced by way of a judicial review. The contention that the Appellant could, in these proceedings, challenge that regime was and is, in our view, plainly misconceived. Further, the Appellant did not explain how this challenge, even if it had any merit, could affect the issues which properly arose in this appeal. The proposed Ground does not raise an arguable point of law of general public importance which properly arises in these proceedings.
(iii) Proposed Ground 3 refers to an issue which we identified at paragraph 68 of the Substantive Judgment - namely that the proper application of the Money Laundering (Jersey) Order regime might have the practical effect that a foreign politically exposed person could be unable to secure legal representation in the Jersey courts. Whilst that issue could arise in another case, it does not arise in the present case. We concluded in the Substantive Judgment that the Royal Court was entitled, on the information before it, to reject the Appellant's contention that he could not secure legal representation without an order releasing funds from the accounts. The observation to which this Ground of Appeal refers is accordingly not one which applies to the Appellant's case. In the circumstances of this case, the proposed Ground accordingly raises an academic point.
(iv) Finally, standing our conclusions in the Substantive Judgment, it was unnecessary for us to address the issue identified in proposed Ground 5 (see paragraph 76 of the Substantive Judgment), and any appeal on that ground would likewise, in the circumstances of this case, be academic.
56. For all these reasons we refuse the Appellant's application for leave to appeal to the JCPC.
57. It is open to the Appellant to seek leave to appeal from the JCPC itself. The Appellant submits that our costs orders should be stayed pending an appeal to the JCPC. He points out that if such an appeal were to be successful, the costs orders would need to be reversed. The Respondents resist a stay. They refer us to BNP Paribas Jersey Trust Ltd v. Crociani [2018] JCA 141, Veka AG v. TA Picot (CI) Ltd [1999] JLR 306, C v. Trilogy Management Ltd [2012] (2) JLR 330 and Crociani v. Crociani [2017] JCA 162.
58. We refuse the Appellant's application for a stay. The Appellant does not suggest that refusal of a stay would render any appeal nugatory. He identifies no good reason not to give the Respondents the immediate benefit of the costs orders which we have pronounced. If the Appellant makes a successful application for special leave to appeal to the JCPC and any such appeal is successful and our costs orders are reversed, the identity of the Respondents means that the Appellant is at no risk that they would be unable to make any consequential repayment which may in those circumstances be required.
59. The Appellant applies for an order under Article 16 of the 2018 Law to enable him to pursue an application for leave to appeal to the JCPC and to meet legal expenses in connection with the appeal, inclusive of King's Counsel's fees and Privy Council Agent's fees. The Attorney General contends that we have no power to make such an order.
60. We agree with the Attorney General. The final words ("the appeal") of Article 16(2) of the 2018 Law, which we have quoted above, clearly refer back to the words "an appeal under paragraph (1)" in that paragraph of the Article. Those words, in turn, refer to an appeal to the Court of Appeal under Article 16(1) of the 2018 Law against the making of a forfeiture order. That is the only appeal to which the power in Article 16(2) relates. In the absence of statutory provision, we do not consider that we have an inherent power to order the use of forfeited funds for the purpose of meeting the expenses of an application for leave to appeal to the JCPC.
61. Even if we had such a power, we would not have exercised it in this case. The Appellant has no right under the European Convention on Human Rights or otherwise to be allowed access to funds (which, by virtue of the Forfeiture Order, have become public funds) to support a second appeal. For the reasons set out above, we do not consider that any of the proposed Grounds of Appeal would justify leave. In any event, the Royal Court was entitled to reject the Appellant's contention that he could not secure legal representation without access to the forfeited funds. In all of these circumstances there would, in our view, be no good reason to order that forfeited funds be used to allow the Appellant to fund a renewed application to the JCPC for leave to appeal.
62. For these reasons we deal with the various applications before us as follows:
(i) We grant the Attorney General's application for costs against the Appellant on the indemnity basis.
(ii) We refuse the Attorney General's application for a special order for costs under paragraph 2.6 of the Practice Direction.
(iii) We grant the Bank's application for costs against the Appellant on the indemnity basis.
(iv) We refuse the Bank's application for an order that its costs be met from the forfeited funds.
(v) We refuse the Appellant's application for an order releasing forfeited funds to meet his expenses of the appeal before us.
(vi) We refuse the Appellant's application for an order that any award of costs against him be met from the forfeited funds.
(vii) We refuse the Appellant's application for leave to appeal to the JCPC.
(viii) We refuse the Appellant's application for a stay of our costs orders pending any further application for leave to appeal to the JCPC.
(ix) We refuse the Appellant's application for an order releasing forfeited funds to meet the costs of renewing before the JCPC his application for leave to appeal and of any subsequent appeal.
Authorities
Forfeiture of Assets (Civil Proceedings) (Jersey) Law.
Leeds United AFC Ltd v. The Phone-in Trading Post Ltd t/a Admatch [2011] JLR Note 22.
AA Hobson and MA Hobson v. Minister for Planning and Environment [2014] (1) JLR Note 19.
Hong Kong Foods Ltd v. Robin Hood Curry Ltd [2017] JRC 116.
BNP Paribas Jersey Trust Corporation v. Camilla de Bourbon des deux Siciles [2021] JRC 268.
Watkins v. Egglishaw [2002] JLR 1.
Marett v. Marett [2008] JLR 384.
Proceeds of Crime (Jersey) Law 1999.
Serious Organised Crime Agency v. Gale [2011] 1 WLR 2760.
FHR European Ventures LLP v. Cedar Capital Partners LLC [2015] AC 250.
In the Matter of the Rex Trust [2013] (2) JLR 444.
Civil Proceedings (Jersey) Law 1956.
Channel Islands Knitwear Company Ltd v. Hotchkiss [2001] JLR 570.
Planning and Environment Minister v. Yates and Reg's Skips Ltd [2008] JLR 486.
Dymocks Franchise Systems (NSW) Pty Ltd v. Todd [2004] 1 WLR 2807.
Travelers Insurance Company Ltd v. XYZ [2019] 1 WLR 6075.
Willers v. Joyce [2019] EWHC 2183 (Ch).
MacFirbhisigh v. CI Trustees and Executors Ltd [2017] (1) JLR Note 8.
Heykers v. HM Comptroller General, Royal Court of Guernsey, Judgment 46/2018.
In re Valetta Trust [2012] (1) JLR 1.
Voisin Advocates v. Princess Camilla de Bourbon des Deux Siciles [2021] JRC 135.
Court of Appeal (Jersey) Law 1961.
Forster v. Harbours and Airports Committee [1990] JLR 82.
Showlag v. Mansour [1993] JLR 7.
AB v. HM Attorney General [2020] JCA 131.
Equity Trust (Jersey) Trust Ltd v. E [2019] JCA 188.
MacKinnon v. Regent Trust Company [2005] JLR Note 20.
Code of 1771 (Revision) (Jersey) Law 1965.
Esnouf v. Attorney General (Jersey) (1883) 3 App Cas 304.
Code of 1771 (Repeal) (Jersey) Law 1965.
Court of Appeal (Amendment No. 6) (Jersey) 1993.
Court of Appeal (Amendment No. 8) Jersey Law 2008.
BNP Paribas Jersey Trust Ltd v. Crociani [2018] JCA 141.
Veka AG v. TA Picot (CI) Ltd [1999] JLR 306.
C v. Trilogy Management Ltd [2012] (2) JLR 330.