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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> W -v- JFSC [2016] JRC 184 (11 October 2016) URL: http://www.bailii.org/je/cases/UR/2016/2016_184.html Cite as: [2016] JRC 184 |
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Business - reasons for refusing an adjournment of the final hearing.
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Before : |
Advocate Matthew John Thompson, Master of the Royal Court |
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Between |
W |
Appellant |
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And |
Jersey Financial Services Commission |
Respondent |
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Advocate P. C. Sinel for the Appellant.
Advocate B. H. Lacey for the Respondent.
CONTENTS OF THE JUDGMENT
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Paras |
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1. |
Introduction |
1 |
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2. |
Background |
2-9 |
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3. |
The parties' contentions |
10-23 |
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4. |
Decision |
24-46 |
judgment
the master:
1. This judgment represents my written reasons for refusing an adjournment of the final hearing for this matter listed for Monday, 17th October, 2016, with a time estimate of three days.
2. The relevant background to this matter is set out in a judgment of Commissioner Clyde-Smith in the present proceedings at W-v-JFSC [2015] JRC 017 at paragraphs 4 to 8 which provides as follows:-
3. In view of the fact that what has led to the present application is the current state of health of the appellant, it is also right to record that there have been a number of earlier adjournments of this matter because of the health of the appellant. By paragraph 3 of an Act of Court of 10th March, 2016, in relation to the question of the appellant's health I made the following order:-
"3. by no later than 5pm Wednesday, 4th May, 2016, Dr Powell shall provide to the Court and to the Respondent an update on the Appellant's medical condition addressing the following issues namely, whether the Appellant is able:-
a. to instruct a lawyer to represent him in respect of his administrative appeal against a decision of the Respondent to issue public statements about the Appellant and certain conclusions the Respondent had reached about the Appellants conduct;
b. to instruct a lawyer to prepare a substantive affidavit in response to the affidavits filed by the Respondent in the administrative appeal;
c. to prepare himself without legal representation, an affidavit to respond to the affidavits filed by the Respondent;
d. whether legally represented or not, to take part in a final hearing to determine his appeal;
e. whether the Appellant would be able to conduct such proceedings himself."
4. As a result of this order, Dr Powell a Consultant Neurologist advised that the appellant was able to provide an affidavit but was not able to devote more than two to three hours a day in doing so. Accordingly, by an Act of Court dated 11th May, 2016, I gave the appellant until 19th August, 2016, to file his substantive affidavit in support of his appeal. This deadline was ultimately extended by one week with the respondent's affidavit in reply being filed on 16th September, 2016, which was complied with. I also provided for skeleton arguments to be exchanged by Monday, 10th October, 2016. The respondent is able to meet this obligation; the appellant is not.
5. The affidavit ultimately filed by the appellant ran to 119 paragraphs and comprised two lever arch files of exhibits. The appellant also filed an affidavit from a Mr Martin Bowen comprising of 25 paragraphs and one lever arch file of exhibits.
6. In reply, Lord Eatwell, the current chairman of the respondent, filed an affidavit of 169 paragraphs and 58 pages together with 109 pages of exhibits. Within his affidavit he recorded that Mr John Averty former Deputy Chairman of the respondent had previously filed six affidavits in relation to this matter together with one affidavit filed by Mr Paul Le Marrec, an employee of the respondent.
7. It is also right to record in relation to this case that I ordered the respondent to provide some discovery in this matter as reported at U V and W-v-JFSC [2014] JRC 202 where I stated at paragraph 36:-
8. Appeals to the Royal Court and the Court of Appeal on behalf of the appellant against the above decision were dismissed. In this judgment I also gave the appellant permission to bring further applications for specific discovery provided that any such application was made on a much more limited and precise basis (see paragraph 41). No such application has been made to date and no specific category of missing documents has been identified. However, subsequent to my decision on discovery, the appellant obtained information from the liquidators of the Financial Services Group with which the present appeal is concerned.
9. I have referred to the above directions because as far as I am aware all affidavits permitted to be filed by directions given by me previously have now been filed and all discovery ordered to be provided has been provided; the appellant also has had access to documents provided to him by the liquidators. Finally there are no outstanding procedural applications in particular for discovery in relation to this appeal.
10. Advocate Sinel contended by reference to an affidavit sworn by the appellant's wife that he was unable to obtain instructions on the affidavit of Lord Eatwell filed on behalf of the respondent. His client was type 1 diabetic, suffered from epilepsy, has serious digestive problems described as primary sclerosing cholangitis and ulcerative colitis, has inflammatory bowel disease, had lost two stone, had suffered two broken vertebrae and was on steroids. The steroids could also affect the management of the appellant's diabetes and cause a number of psychological side effects. These symptoms were set out in a letter from Dr Rees a Consultant Gastroenterologist and Physician who saw the appellant on 14th and 15th September, 2016, pursuant to a routine appointment. On 15th September, 2016, the appellant was also diagnosed with Crohn's disease, which led to the steroids being prescribed.
11. Paragraph 10 of the affidavit of Mrs W also deposed that at a consultation with Dr Rice, a Diabetic Consultant, on 26th September, 2016, it was found that the appellant's long-term blood sugar levels had been significantly raised compared to normal. Finally, the affidavit exhibited a letter addressed to me from Dr Powell who reported that the appellant was in the process of changing medication for his epilepsy.
12. Advocate Sinel also contended this was a case which his client was taking seriously and this was not a delaying tactic. His client had produced a lengthy affidavit and obtained documents from the liquidator, which his client had considered at length. An affidavit had also been obtained from a third party.
13. There was also no prejudice to the respondent as the appellant had offered an undertaking not to carry out any financial services business within Jersey.
14. The appellant's case was also unusual because the appellant was challenging the whole approach of the respondent. His client was challenging the facts relied on by the respondent, the behaviour of the respondent's employees and the conclusions reached.
15. Advocate Sinel therefore needed instructions on how to respond to the affidavit of Lord Eatwell to prepare a skeleton argument and oral submissions and on certain tactical decisions including whether or not he should apply for cross-examination. His client by reference to the medical evidence was simply not in a position to give such instructions. In the absence of instructions Advocate Sinel could not proceed and was left in an impossible position.
16. Advocate Lacey in response contended that no undertaking had been accepted or agreed by the respondent.
17. In terms of the facts to this case they were clear. All relevant evidence had been filed and all documents the respondent was required to disclose by the court had been disclosed.
18. Furthermore Sinels had been involved since 2013 and at each stage of the respondent's process. They were therefore fully familiar with this matter.
19. The final hearing should therefore progress on the basis of skeleton arguments and oral submissions. This was principally a matter for the lawyers of the respective parties to prepare.
20. As far as cross-examination was concerned, this required exceptional circumstances or an exceptional reason (see Volaw & Corporate Services & Anor v Controller of Taxes [2013] (2) JLR 499). In any event, even if cross-examination was ordered of Mr Averty or Lord Eatwell, she did not intend to cross-examine the appellant.
21. Advocate Lacey was also critical of the medical evidence now relied upon. She pointed out that the final paragraph of the opinion from Dr Rees stated "I have been asked to let you know as he is due to give evidence in the near future which clearly may be an issue." However, the appellant is not due to give evidence. There is no medical evidence indicating he could not otherwise take part in the appeal or provide any necessary instructions. She further contrasted the letter from Dr Rees with the degree of specification required by paragraph 3 of the Act of Court of 10th March, 2016, referred to above and suggested that the same level of detail had not been provided.
22. In relation to the letter from Dr Powell, Advocate Lacey observed that this letter was not based on any consultation but simply followed a call by the appellant and Mrs W. The conclusions Dr Powell had expressed were therefore only based on a phone call and not any personal examination of the appellant. His conclusion "It is my feeling that given all that is happening with his health it would not be appropriate for him to participate in this legal process and at present he does not have the stamina or cognitive ability to fully contribute to the legal proceedings" could not be relied upon because it did not follow any assessment of the appellant's current condition.
23. Advocate Lacey also reminded me that the Commission's decision had been made in June 2014. There was therefore a public interest in ensuring that this appeal was disposed of and while there had been delays for various reasons including at times the appellant's health, it remained important for the appeal to be determined sooner rather than later.
24. The starting point for refusing the appellant's request for an adjournment is the nature of the appeal. In my decision concerning the appellant's discovery application in this matter reported at [2014] JRC 202, at paragraphs 22 to 28 I set out why this was an administrative appeal. I also referred specifically to paragraph 54 of the decision of the Court of Appeal in Volaw referred to above which includes the following statement:-
25. At the first sentence at paragraph 34 of the discovery judgment, I stated "I accept Advocate Lacey's submissions that an appeal against the decision of the respondent, which is undoubtedly an administrative decision, should not be turned into a trial."
26. Commissioner Clyde-Smith in dismissing the appeal against my decision reported at [2015] JRC 017 noted that Advocate Sinel did not take issue with the legal principles to be applied to the issue of discovery in an administrative appeal.
27. He also warned at paragraph 42 as follows:-
28. In refusing leave to appeal Commissioner Clyde-Smith's decision, the Court of Appeal in its judgment reported at W-v-JFSC [2015] JCA 060, stated at paragraph 24 as follows:-
29. In addition to the Interface and Anchor Trust decisions referred to at paragraph 24 of the Court of Appeal decision, the third relevant authority referred to by the Court of Appeal on the nature of the appeal was the Volaw case referred to above.
30. It is quite clear therefore that the present appeal is an administrative appeal and should not be turned into a mini trial. I have referred to this expressly because Advocate Sinel considered that he had a right to cross-examine until I drew to his attention to the Volaw case. When I asked him to justify why cross-examination was required or should be permitted, he essentially repeated the same arguments that he had relied upon as to why the broad discovery he had previously sought was required. In my judgment Advocate Sinel is still trying to turn this case into a mini trial notwithstanding the observations of all the courts that dealt with the applications for discovery referred to above. That approach was and remains incorrect.
31. What is therefore required at this stage is the drafting of skeleton arguments and oral submissions. My general experience, both as Master and previously as a practitioner before the Courts of Jersey, allows me to conclude that the primary individual upon who such a task falls is the advocate and/or a party's legal team rather than a client. The skill of drafting skeleton arguments and preparing oral submissions is that of the lawyer. It is a critical task for the lawyer because it involves the ultimate skill of an advocate namely how best to present a party's case both in writing and orally to persuade a court to find in favour of the lawyer's client. That is not to say that a client will not have input in relation to or review the contents of a skeleton argument. A client may well also discuss with an advocate what the advocate intends to submit orally to the court. However the primary responsibility for such work rests with the advocate and not with the client.
32. At this stage of any action, the advocate should also be completely familiar with all the material relevant to the case. In this case, as set out above, the respondent has filed a significant number of affidavits; the appellant has also filed detailed affidavits. There is extensive documentation exhibited to the affidavits. By the time the matter comes before a Court, the advocate's professional obligation requires him/her to know the detail of all this material. While this may appear obvious, it explains why in the present case Advocate Sinel should be in a position to analyse the affidavit of Lord Eatwell filed in response and test it by reference to his knowledge of the affidavits and documents in his possession. That is not to say that any conclusions reached might not be reviewed with the appellant and there may be specific questions Advocate Sinel may raise with the appellant. However, I am not satisfied that Advocate Sinel is unable to act without instructions given my general experience of how responsibilities for a case are allocated at this stage of an instruction. For the sake of completeness I should add that Advocate Sinel's general instructions are clear, namely to pursue the appeal and he has both a detailed notice of appeal which his client must have approved or be taken to have approved and also detailed affidavits filed on the appellant's behalf. There is therefore a significant body of evidence from which Advocate Sinel can work and which means that the requirement to take instructions is not by any means as extensive as Advocate Sinel has suggested.
33. The other aspect of this part of my decision I should refer to expressly is the question of cross-examination. As noted in the judgments in this matter to which I have referred, and in Volaw there is no right to cross-examination. Commissioner Clyde-Smith noted this expressly in the extract from his judgment at paragraph 42 which I have set out above.
34. Furthermore, in Volaw express reference was made to Royal Court Practice Direction RC5/25, which makes it clear that any application for cross-examination in an administrative appeal must be sought no later than 7 days in advance of any hearing. Practice Direction RC05/25 was also referred to in paragraph 42 of Commissioner Clyde-Smith's judgment. Yet no application has been made. While Advocate Sinel contended that this was because he could not obtain instructions, the analysis of whether or not cross-examination should be sought and the reasons for it is much more a matter for the legal adviser than the client, even if it is the client's ultimate decision.
35. In this case I am also not satisfied that exceptional circumstances exist. While the matter is ultimately for the trial judge, I consider I am entitled to form a view on whether or not cross-examination is likely to be granted in deciding whether or not to grant an adjournment. In my judgment just as in the discovery application, Advocate Sinel is still trying to take the court down the slippery path of conducting a trial. This was the only reason advanced for cross-examination. The view I have reached is that the arguments put before me are unlikely to persuade the Royal Court to permit cross-examination and therefore it is not a factor that supports granting the adjournment requested.
36. In relation to the medical evidence, I of course accept that the appellant has health issues which are serious. However, the only medical evidence based on a recent assessment of the appellant is by Dr Rees whose only specific conclusion is that the appellant at present is unable to give evidence. However, Advocate Lacey does not seek to cross-examine the appellant as she made it clear expressly in response to questions from me. If it were the case that cross-examination was required, I might have reached a different view. However, in the absence of a requirement for cross-examination (assuming the Royal Court agreed), and in light of my conclusions above as to the respective roles of the appellant and Advocate Sinel, I was not persuaded that the specific conclusion of Dr Rees was sufficient to persuade me to grant an adjournment.
37. In relation to the evidence of Dr Powell, he had not seen the appellant but simply spoken either to him or to Mrs W (it is not clear) and expressed a view on this basis. Again this was not sufficient to persuade me to grant an adjournment.
38. Neither letter goes to the level of detail required by paragraph 10 of the act of court of 10th March, 2016, and in particular neither letter addresses whether the appellant is able to give instructions or whether he could take part by attending a final hearing (without giving evidence).
39. Furthermore there is no evidence from the appellant. The appellant does not therefore indicate his own position. Yet the medical evidence filed does not say he is unable to explain his position. Furthermore, the extent of any communications between Advocate Sinel and the appellant and/or Mrs W was not clear. While it is not necessary for Advocate Sinel to refer to the content of any legal advice, Advocate Sinel was not clear as to whether discussions with either the appellant or Mrs W had taken place, what communications had taken place in writing and what response had been received. I have referred to this lack of clarity because the chronology of events is not clear. In particular, it appears that the appellant saw Dr Rees before the affidavit of Lord Eatwell was filed. I do not know what communication took place after the affidavit was filed. I also do not have any up-to-date explanation from either the appellant or Mrs W of how the appellant current is rather than how he was nearly three weeks ago.
40. In relation to the question of undertakings, this was dealt with by Commissioner Clyde-Smith in his judgment reported at JFSC-v-W [2015] JRC 094 at paragraphs 22 and 23 where he stated as follows:-
41. Accordingly, the offer of an undertaking is not a factor which I should take into account in support of the application for an adjournment.
42. I also agree with Advocate Lacey that the question of reaching a conclusion to this appeal is something I should take into account. While this appeal has not progressed for a number of reasons including the health of the appellant, it is the case that over two years have elapsed since the respondent made its decision to make a public statement. At paragraph 24 of Commissioner Clyde-Smith's decision in this matter reported at [2015] JRC 094 in the context of refusing a further stay of the proceedings on the basis of a criminal investigation Commissioner Clyde-Smith said this:-
43. In my judgment these comments apply just as much to the present application as they did to the question before Commissioner Clyde-Smith.
44. Taking all these matters together I was not satisfied it was appropriate to grant an adjournment and the application was therefore refused.
45. I did however extend the time limit to prepare a skeleton argument mainly because Advocate Sinel candidly informed me that no steps had been taken to prepare a skeleton argument at all due to a lack of instructions. It was clear that a skeleton was not going to be filed in accordance with the deadline I had previously set and I therefore extended the time for filing of skeleton arguments until close of business Wednesday, 12th October, 2016.
46. I further gave Advocate Sinel liberty to apply to me to renew his application for an adjournment before the date set for trial to allow his client an opportunity to address the concerns about the medical evidence set out in this decision. In particular, I made it clear that any renewed application should deal with the ability of the appellant to give instructions and to attend any final hearing but without giving evidence. The giving of instructions should be in the context of the primary responsibility falling on Advocate Sinel to prepare written and oral submissions with the appellant's role being to approve the approach taken or to answer any specific matters not covered by the material already in Advocate Sinel's possession. I further indicated I would hear such an application on two hours' notice.
