What Did the Case Involve?
What is the Significance of the Case?
A recent landmark case before the Guernsey Court of Appeal has brought the right of judicial review to Guernsey. In England applicants have long been able to request the courts to intervene where powers have been exercised unreasonably by public authorities so as to affect a person's private rights.
Before this judgment, (which by way of abbreviation is called B. Ltd v H.M. Procureur) interested parties could only challenge decisions of the States' (the Island's government) committees either where this was specifically permitted by legislation, or by an application under the Administrative Decisions (Review) (Guernsey) Law, 1986 in which case the matter would be referred to a review board.
B. Ltd v H.M. Procureur involved a challenge to a decision by Her Majesty's Procureur (the Island's attorney general) relating to the disclosure of confidential documents and information under the criminal justice (Fraud Investigation) (Bailiwick of Guernsey) Law, 1991 ('the 1991 Law'). The 1991 Law permits the Procureur (without leave of the court) to require disclosure of documents and information in cases of serious or complex fraud.
The court of first instance (The Royal Court) followed its 1997 judgment in Century Holdings Limited v. H.M. Procureur, and refused to review the decision of the Procureur on the grounds that it had no power to do so. The Court of Appeal, presided over by Martin Collins QC, ruled that the Royal Court did have jurisdiction to review such decisions. In delivering judgment the presiding judge said that the powers of review the Guernsey Courts should be similar to the powers of review in England.
What is the Significance of the Case?
The main interest of the Appeal Court judgment in B. Ltd v H.M. Procureur to financial and other institutions is the fact that notices issued by H.M. Procureur under the 1991 Law requiring the disclosure of confidential information are now potentially open to challenge and are reviewable by the Royal Court.
In essence therefore the effect of this decision is that henceforth any applicant who has sufficient interest in the subject matter, but who lacks any suitable alternative remedy may, if proceedings are commenced promptly, be able to seek judicial review of any administrative decision affecting his rights.
The wide-ranging judgment also considered other issues including the extent of its own appellate jurisdiction in matters of this nature, the position of H.M. Procureur under Guernsey law and the limitation of the powers of the States of Guernsey as a subordinate legislature.
It is too early to say what role judicial review will play in Guernsey. Rules of procedure have not yet been issued nor has the Court yet given guidance as to its ambit.
Collas Day Advocates represented applicants for both in the case of the B. Ltd v H.M. Procureur and in the earlier case of Century Holdings Limited.
This article is however only a brief summary of the content and possible implications of the B. Ltd v H.M. Procureur Judgment and, should not be relied upon as a definitive statement of how the case will apply in all circumstances.
For further information on this topic please contact Alison Ozanne at Collas Day by telephone (+44 1481 723191) or by fax (+44 1481 711880) or by e-mail ([email protected]). The Collas Day web site can be accessed at www.collasday.com.
The materials contained on this web site are for general information purposes only and are subject to the disclaimer.