Chick v The Chairman of the GFSC (Application for Leave to Appeal out of Time) (2021-04-07)

Summary

This is a Royal Court of Guernsey judgment dismissing an application by a former fiduciary sector director, Alan Chick, for leave to appeal out of time against a 2018 GFSC enforcement decision that imposed a 50,000 pound financial penalty and a five year prohibition on him. It is a judicial decision published by the GFSC as part of its judicial decisions record, not a rule, guidance or policy document, and it creates no ongoing regulatory obligations for firms generally.

• Statutory time limit: Under section 11H(3) of the Financial Services Commission (Bailiwick of Guernsey) Law 1987, a person aggrieved by a GFSC decision must institute an appeal within 28 days of the notice of decision, served by summons on the Chairman stating grounds and material facts.
• Court's finding: The Deputy Bailiff held that, following Pomiechowski v Poland, the Court retains a discretion in exceptional circumstances to extend the 28 day appeal time limit to ensure compatibility with Article 6 of the European Convention on Human Rights, but that such discretion arises only in a very narrow range of cases.
• Outcome: The Court found the Applicant's circumstances were not exceptional, that he had been fully aware of the time limit and had not done all he could to appeal timeously, and dismissed his application for leave to appeal out of time.
• Costs: The Court indicated it would be minded to order the Applicant to pay the Respondent's recoverable costs unless either party applied within 14 days of the finalised judgment seeking a different order.

The practical significance for other regulated persons is the Court's confirmation that the 28 day appeal window under section 11H(3) is strictly enforced, and that only truly exceptional circumstances such as incapacitating illness or non receipt of the decision notice, not financial hardship or lack of legal representation, will justify an extension.

Key obligations

• A person aggrieved by a GFSC decision must institute an appeal within 28 days immediately following the date of the notice of the Commission's decision, by summons served on the Chairman of the Commission stating the grounds and material facts relied on.
• Any party wishing to seek a different costs order than that indicated must apply within 14 days of the finalised judgment being handed down.

Applies to

fiduciaries, persons regulated under the Regulation of Fiduciaries, Administration of Business and Company Directors, etc. (Bailiwick of Guernsey) Law, 2000, directors, controllers, partners or managers in the fiduciary sector

Deadlines

• within 28 days immediately following the date of the notice of the Commission's decision: Statutory time limit under section 11H(3) of the Financial Services Commission (Bailiwick of Guernsey) Law 1987 to institute an appeal against a GFSC decision.
• within 14 days of the finalised judgment being handed down: Deadline for either party to apply for a different costs order than the one the Court indicated it was minded to make.