Chick v Guernsey Financial Services Commission (Court of Appeal, Civil Division, Appeal No. 543) (2020-10-09)

Summary

This is a Guernsey Court of Appeal judgment refusing Alan Chick leave to appeal against a Royal Court decision striking out his civil claim against the GFSC. Chick had been fined £50,000 and disqualified for 5 years from director/controller roles in licensed fiduciary businesses following a GFSC enforcement decision, and instead of using his statutory right of appeal he later sued the GFSC for damages alleging breaches of his human rights. The Court of Appeal held all nine grounds of appeal unarguable and dismissed the application, confirming the Royal Court's reasoning.

• Statutory appeal route is the proper remedy: The Court held that a person subject to a GFSC enforcement decision has a statutory right of appeal to the Royal Court (under section 11H(2) of the FSC Law) exercisable within 28 days, covering broad grounds (ultra vires, unreasonableness, bad faith, disproportionality, material factual/procedural error); failing to use this route bars a later civil claim on the same complaints.
• GFSC enforcement process is not criminal: Applying the Engel v Netherlands test, the Court confirmed GFSC disciplinary/enforcement proceedings under the FSC Law and Regulation Law are regulatory, not criminal, so Articles 6(2), 6(3) and 7 ECHR do not apply to them.
• Senior Decision Maker appointments upheld: The Court confirmed that GFSC's practice of appointing Senior Decision Makers to determine enforcement matters is not ultra vires and does not contravene section 19(5) of the FSC Law.
• Article 6(1) fair trial satisfied by appeal availability: Even if the GFSC's own adjudicative process had shortcomings, Article 6(1) is satisfied where a statutory right of appeal to a court of full jurisdiction exists, as it did here.
• No freestanding discrimination claim: Article 14 ECHR was held not engaged because it only operates alongside another substantive Convention right and the Applicant showed no discrimination based on a protected characteristic.

The judgment is primarily of interest as a precedent confirming the validity of the GFSC's SDM appointment practice and enforcement procedure, and as a reminder that persons sanctioned by the GFSC must pursue the statutory appeal within the time limit rather than later suing in a separate civil action. It does not itself create new ongoing regulatory obligations for licensees generally.

Key obligations

• Persons subject to a GFSC enforcement decision must exercise the statutory right of appeal to the Royal Court within 28 days of notice of the decision if they wish to challenge it, rather than bringing a separate civil claim afterwards.

Applies to

persons regulated under the Regulation of Fiduciaries, Administration Businesses and Company Directors, etc (Bailiwick of Guernsey) Law, 2000, directors, controllers, partners or managers of licensed fiduciary businesses

Deadlines

• within 28 days of the notice of the GFSC's decision: Statutory right of appeal to the Royal Court against a GFSC enforcement decision under section 11H(2) of the FSC Law must be exercised within this period.