Chick v Guernsey Financial Services Commission (Application for Leave to Appeal Strike Out) (2020-09-07)

Summary

This is a judgment of a single judge of the Guernsey Court of Appeal refusing Mr Alan Chick's renewed application for leave to appeal the strike out of his civil claim against the Guernsey Financial Services Commission (GFSC). It is a judicial decision, not a rule or notice, and creates no new regulatory requirement. It is included in the GFSC's published judicial decisions because it addresses the validity of the Commission's enforcement and Senior Decision Maker (SDM) process.

Background: the applicant, a former shareholder and director of a licensed fiduciary entity, was found by the Commission's SDM in May 2018 not to meet minimum standards for regulated activity, resulting in a £50,000 financial penalty and a five year prohibition from acting as director, controller, partner or manager in the fiduciary sector. He did not appeal within the standard 28 day window, later paid the penalty, and instead brought separate proceedings alleging breaches of ECHR Articles 6, 7 and 14 and of data protection law.

• SDM delegation upheld: The court confirmed that Section 19(5) of the Financial Services Commission (Bailiwick of Guernsey) Law does not invalidate delegation of enforcement decisions to a Senior Decision Maker; that provision concerns delegation to committees, not individual SDMs, and the relevant delegation power is Section 19(1).
• Article 6 fair trial argument rejected: The disciplinary process, while lacking full independence at Commission level, satisfies Article 6.1 because of the availability of an independent right of appeal to the Royal Court, consistent with European Court of Human Rights case law (Ramos Nunes de Carvalho e Sa v Portugal).
• Not criminal or quasi-criminal: The enforcement proceedings were confirmed as civil rather than criminal or quasi-criminal in nature, applying the Engel test, meaning Article 7 and related criminal-limb protections do not apply.
• Judicial capacity of decision-maker valid: The court held that a judge who became a Lieutenant Bailiff immediately after ceasing to be Bailiff retained full judicial capacity to hand down the earlier strike out judgment, so no procedural invalidity arose from that change in title.
• Leave to appeal refused: All eight grounds of appeal were found to have no reasonable prospect of success and no exceptional public interest circumstances existed, so leave to appeal was refused and costs awarded against the applicant.

For compliance purposes, the practical significance of this decision is that it confirms the legal validity of the GFSC's practice of delegating enforcement sanction decisions to a Senior Decision Maker, and confirms that the statutory right of appeal to the Royal Court is treated as curing any procedural shortcomings at the Commission's decision-making stage for human rights purposes.

Applies to

licensed fiduciary entities, individuals acting as director, controller, partner or manager in the fiduciary sector

Deadlines

• within twenty-eight days of the decision: Standard right of appeal window against a GFSC enforcement decision, as noted in the background facts of this case (the applicant did not exercise this right within the 28 day period).