Guernsey Legal Resources

The appellant was formerly licensed to carry on business as an insurance intermediary in the Bailiwick of Guernsey. Its licence was suspended by consent with effect from January 20th, 2004.

2 The respondent gave notice of its decision to revoke the appellant’s licence under s.9 of the Insurance Managers and Insurance Intermediaries (Bailiwick of Guernsey) Law 2002 (“the Intermediaries Law”) by letter dated March 2nd, 2007.

3 By letters dated March 8th and 14th, 2007, the appellant requested a written statement of the reasons for the respondent’s decision. This was provided by letter dated March 26th, 2007.

4 By letter dated March 14th, 2007 the appellant asked H.M. Greffier for details as to how to institute an appeal pursuant to s.43 of the Intermediaries Law. The Greffier responded the same day, drawing the appellant’s attention to the need to apply for permission to issue a Royal Court summons and supplying it with an application form and guidance notes relating to the Royal Court (Signing of Summonses) Order 2003. By letter dated March 29th, 2007, the appellant lodged an application pursuant to

5 Section 43(5) of the Intermediaries Law provides that an appeal such as this “shall be instituted within 28 days of the [decision under challenge] . . . by summons served on the Chairman of the Commission.” This plainly did not happen. However, because the appellant is not legally represented, it was not able to issue the summons without first obtaining the Order. The appellant applied for the Order in time but leaving very little time for the administrative work to be done to issue it. Even if the Order had been granted almost immediately, the appellant would have been in difficulties in issuing the summons in time but in theory it would have been possible. Whether the appellant would have acted quickly had Mr. Webber appreciated the risk that a late appeal might be impossible cannot now be known. In fact, by the date upon which the Order was granted, the time for appealing had run out.

6 On April 18th, 2007 the respondent issued an application to strike out. This application came before me for hearing on September 13th, 2007 as the second of three applications which I heard that day (the first was dealt with and ruled upon on the day and I need say nothing more about it). The question, therefore, is whether the court has jurisdiction to hear the appeal, given that it was issued out of time, or whether it should be struck out. The Intermediaries Law does not specify that the court should have power to extend the time-limits therein specified. But that is not necessarily fatal. In R v. Soneji (2), Lord Steyn described ([2006] 1 A.C. 340, at para. 14 et seq.) the difficulties presented by situations where the legislature prescribes time-limits without setting out the consequence of a failure to comply with them. The modern approach, at least in England, is to look at the role played by the time-limit in the scheme of an Act, and look at whether the legislature could fairly be said to have intended that the consequences of non-compliance with the time-limit should be that the step to be taken within that time-limit could not be taken outside the time-limit, even with the permission of the court. Lord Rodger of Earlsferry gave two exquisitely ordinary and contrasting examples of the importance of time-limits when he said (ibid., at para. 30):

“. . . [I]f your young daughter wants to go out with friends for the evening and you agree, but tell her that she must be home by eleven o’clock, she is under a duty to return by then. But this does not mean that her duty is to return by then or not at all. Rather, even if she fails to meet your deadline, she still remains under a duty to return home. On the other hand, if you contract with a conjuror to perform at your daughter’s birthday party, you want the conjuror and his tricks only for the party. His duty is accordingly limited to performing at the

7 Whether or not the Royal Court should follow the modern English approach, no Guernsey authority has been cited to me which requires me to take a different approach. In my judgment, the Royal Court should follow the modern English approach in this case. That is not to say that it must do so for each piece of legislation which lays down time-limits for acts to be done; each act in each piece of legislation must be considered on its own merits. Nothing that I say in any way conflicts with, for example, the Guernsey decision cited to me of Cable & Wireless Guernsey Ltd. v. Office of Utility Regulation (Dir. Gen.) (1), where consideration was given to the question of whether a tribunal had authority to extend time-limits laid down by s.15 of the Regulation of Utilities (Bailiwick of Guernsey) Law 2001. The time-limits governed the period for bringing challenges to decisions of the Director General of the Office of Utility Regulation. The particular type of tribunal involved in that case was not a standing tribunal but one appointed on a case-by-case basis from a panel of potential members. The Director General had power to appoint tribunals in specified circumstances, which, the Deputy Bailiff held, were not engaged when the time-limits were not adhered to. A tribunal such as the Utilities Appeal Tribunal had no jurisdiction to extend its own jurisdiction and a decision of the Tribunal to extend time would therefore be ultra vires. In marked contrast, the Royal Court is a permanent institution with its own inherent jurisdiction.

8 There is a public interest in the finality of decision-making which requires appeals against the decisions of regulatory bodies to be brought within a time-limit. Equally, there is a public interest in ensuring that time-limits do not work substantial injustice. I do not take the States to have intended that the time-limit for appealing decisions of the respondent should be operated in a manner which would tend to create injustice. It is necessary to temper the requirements of certainty with a method of dealing with potential injustice. The way to do this is to allow the court to exercise a discretion to extend the time-limit laid down by the legislature in cases where not to do so might well work injustice.

9 In the present case, the chronology undoubtedly shows that the appellant must take some share of the blame for the delay in issuing the summons. But, given that it is not legally represented and there was some delay, for which it was not responsible, in issuing the Order during which time the limit for appealing expired, it would in my judgment work injustice were it to be shut out from appealing.

10 I have considered the fact that an extension of time for service was sought and granted without this point about lack of jurisdiction having been raised. Had I found that there was in fact no jurisdiction to extend

11 I refuse the application to strike out this appeal. But the appellant is under a duty to prosecute the appeal without any further delay.

12 The third application before me is an application by the respondent to the appeal seeking security for costs in the sum of £15,600 as more particularly described in its draft bill of recoverable costs. Rule 48(1) of the Royal Court Rules provides that the court may “in any action . . . (b) order any party to give security for costs in such amount, on such terms and in such manner, as the Court thinks just.” It was not submitted to me that this proceeding, by which a decision of the respondent is challenged by way of summons brought in the Royal Court at first instance, is not an “action” within the meaning of the Rule. It was not suggested that the court does not have jurisdiction to grant security in this type of case.

13 The application for security is supported by an affidavit sworn on April 18th, 2007 by Diane Colton of the respondent to the appeal. Ms. Colton is the Director of Insurance of the Guernsey Financial Services Commission. She draws attention to and relies on the following points which seem to me to be material:

  (a) The appellant has not traded since 2005 and its last management accounts provided to the Guernsey Financial Services Commission are for the nine months ended September 30th, 2004. These accounts are exhibited to her affidavit. They show a negative turnover in 2004 and no turnover in 2005.

  (b) Since the end of that period the appellant claims to have incurred further expenses, according to the evidence which Mr. Webber gave to the Guernsey Financial Services Tribunal. These expenses could only be met because Mr. Webber was making his own resources available to the appellant.

  (c) There is therefore cogent evidence that the appellant would be unable to meet the costs of an unsuccessful appeal.

14 The ruling of the Guernsey Financial Services Tribunal dated February 20th, 2007, and in particular paras. 51, 63, 64 and 94d, together with the accounts themselves which are annexed thereto, bear out what Ms. Colton says. At the oral hearing, it was suggested that a third party might

15 In my judgment, it is clear that the appellant will only be able to pursue this appeal by utilizing whatever resources Mr. Webber is prepared to devote to it. It is also clear to me that, were the appeal to be unsuccessful, it would be unable to meet the costs of the respondent. These circumstances were not disputed and it was not suggested that, as a matter of principle, the court should not order security. Nor was it submitted that an order to give security would have the effect of stifling the appeal unfairly. When Mr. Webber made submissions about the amount of security to be ordered, he asserted that the draft bill was excessive, but in the course of his own submissions he revealed that he was minded, should the court permit it, to call live witnesses; he wanted at least three days in court, eight weeks of preparation (at two to three days per week at six hours per day) all of which would combine to make the respondent’s draft bill seem conservative, even taking into account that as a non-lawyer Mr. Webber might well spend longer preparing than a qualified person would have to do.

16 I am of the view that the court is justified in ordering security for the costs of the appeal. As to the amount of security, the respondent’s draft bill does not seem extravagant; but I am unconvinced that witnesses will be permitted, or, if permitted, necessary or desirable. I will therefore exclude £1,950 from the total requested, as this is the amount which it is said will be needed for the interviewing of witnesses and the preparation of proofs of evidence. The resulting figure, £13,650, may not be fully recoverable, and the amount of security which I shall order is £12,000. This is to be paid into court by 4.30 p.m. on December 28th unless (1) the parties before that time agree upon an alternative mode of providing security (for example, a bank guarantee satisfactory to the respondent), or (2) an application for an extension of time to pay is made in writing, setting out in full the grounds upon which it is made. Any such application must be lodged at the Greffe and served on the respondent by no later than 4.30 p.m. on December 14th, 2007. Until the security is given, the appeal is to be stayed, subject to one matter which I set out below.

17 Advocate Wessels told the court that there are no established procedures for appeals of this nature. I would therefore be grateful if he would prepare and circulate a written argument setting out his proposals, on behalf of the respondent, for the procedures to be applied to this appeal. Matters which I would like to see covered include the following:

  (a) section 43(4) of the Intermediaries Law provides that “the grounds of an appeal under [s.43] shall be that the decision was ultra vires or an

  (b) should there be a document akin to a notice of appeal setting out the grounds relied upon and a respondent’s notice?

  (c) what principles should be applicable to the question of whether or not the court should hear the evidence of witnesses?

  (d) what should the appeal bundle contain?

  (e) what should be the constitution of the court when it sits to hear such an appeal?

18 This list is not exhaustive, and there may be other matters which ought to be considered. Any matters which Advocate Wessels might like to raise should be canvassed. It would be helpful if such a document could be prepared and sent to the appellant and the Greffe by December 14th, and the appellant should then have an opportunity to comment upon it in writing by no later than 4.30 p.m. on December 21st, 2007. If necessary, I will then rule in writing on the procedure to be adopted and, in any event, I will set directions for the future conduct of the action once security has been provided as ordered or agreed.