Following the judgment handed down by the Royal Court on 18 April 2023 in the case of Domaille, Clarke & Hannis vs the Guernsey Financial Services Commission (“the GFSC”) – see here, the GFSC has been denied permission at first instance by LB Marshall KC to appeal.
The application was heard on 19 June 2023, with the decision being communicated by the Judge at the hearing. The formal note of the Judgment is now available, here.
The GFSC put forward various grounds, all of which were refused by the Judge. In summary:
- First, the GFSC attempted to argue that the Judge had, amongst other things, “improperly pre-judged the issues” within the case. It was held that this argument by the GFSC represented a “complete distortion and misrepresentation” of the Judgment as a whole, and that this ground of appeal (along with the related arguments) had no real prospect of success.
- The GFSC asserted that the Judge had misapplied the Guernsey Anti-Money Laundering Regime by taking into account, when considering the reasonableness and proportionality of the sanctions, the fact that the relevant breaches had not “in the event, resulted in any discernible damage to either members of the public or to the reputation of the Bailiwick”. Once again this argument was held not to have any real prospect of success.
- The GFSC argued that the Judge had committed an error of law as to the application of the test for probity, and also erred in law in “misconstruing and unlawfully ‘ limiting’ the scope of the Commission’s power to impose a prohibition order”. As to the first element, the Judge found that she was unable to see the error of law in what the GFSC had put forward. The second limb was dismissed as the GFSC having “once again” misconstrued the Judgment.
- The fourth ground put forward was that the Judge had erred in law in holding “that financial penalties had to be assessed by reference to fining powers applicable under legislation no longer in force”. In short, the Judge concluded that: “Once again, this is an exaggerated misstatement of what I did hold ”, and found that this ground of appeal does not disclose “any potential error of law, nor anything but the Commission’s apparent disagreement with my assessment of the situation as a matter of fact”.
In general, the Judge considered that the GFSC had “cherry-picked ” statements from the Judgment, which were then “taken out of context, without regard to the totality of the Judgment”. Ultimately, the Judge also disagreed with the GFSC that any of the issues raised ought to go to the Court of Appeal in the “public interest” and concluded the judgment with the following observation about the impact on the individuals:
“Another reason why I do not think I should give leave to appeal is that I am also conscious of the huge stresses and strains, both mental and financial, which will have already been imposed on the Appellants in this case over a long period of several years. They have had this issue hanging over them in a very major way for four years, and this uncertainty should stop.”
The GFSC, upon receiving the judgment at the hearing, noted its intention to renew this application for permission to appeal before a single Judge of the Court of Appeal, although as at the date of publication this has not taken place.
If you would like to discuss the Judgment further, please do get in touch.
The Appleby team comprised of Advocate Williams (Partner and Head of Dispute Resolution), Richard Sheldon (Group Partner), Alex Thornton de Mauroy (Senior Associate), Ndaedzo Khwidzhili (Associate) and Nafiza Rahman (Paralegal).
