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Limitation of Recourse to Judicial Review

In the recent case of Benjamine Company Services Ltd v Anguilla Financial Services Commission AXAHCV2017/0066, the High Court considered an application for judicial review. The applicant attacked the decision of the Anguilla Financial Services Commission (FSC), the industry regulator, to impose upon it a significant financial penalty of EC$50,000.00. This the FSC levied because Benjamine Company Services Ltd. (BCS), a company licensed by it to carry on company management business, had allegedly failed to comply with various sections of the Anti-Money Laundering and Terrorist Financing Regulations.

As such, in or around June 2017, BCS received the Notice of Intention from the FSC to impose the penalty. The particular breaches grounding the Notice included, amongst others, a failure to conduct customer due diligence and failing to categorize the particular client company as high risk. Naturally, BCS denied that the due diligence it undertook were rudimentary. Further, in the alternative, they argued that the penalty should be significantly reduced. They were, it was advanced, in no financial position to pay such an excessive fine. In support of this contention, they supplied the FSC with copies of their audited financial statements. If FSC remained unpersuaded by these, BCS requested an oral hearing.

In response, the FSC indicated that the written representations of BCS provided no sufficient reason for a variation of its original position as contained in the Notice of Intention. Further, the FSC denied BCS’s subsequent request for an oral hearing. It contended there was no legislative authority for the FSC to consider such a request. After further exchanges, the FSC’s maintained there was no reason to find that BCS had not committed the alleged infractions or to justify the imposition of a lower penalty. BCS applied to the High Court for leave to apply for judicial review. The gravamen of the BCS’ claim is that the FSC breached the principles of natural justice. It BCS argued failed to afford it the opportunity for a fair hearing before imposing the EC$50,000.00 penalty. BCS also claimed that the penalty was disproportionate and unreasonable in all the circumstances.

It was common ground that the applicable test was that stated by the Privy Council in Sharma v. Antoine et al (Privy Council Appeal No. 75 of 2006) where the Committee stated: “The ordinary rule now is that the Court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or alternative remedy.”

In this case, Mathurin J. rendered her decision on 22nd February 2018. In consideration of the evidence, the court was satisfied that there was a potential failure by the FSC. In these particular circumstances, not affording BCS an opportunity to be heard was an issue. It raised a reasonable prospect of success as it gave birth to the issue of procedural unfairness. That being said, the court went on to consider whether there were any operative discretionary bars. Recognising the presumption against judicial review where an alternative remedy exists it was noted that “the Court may not grant leave where the Court forms the view that some other form of legal proceedings or avenue of challenge is available.” This became the very issue on which the case turned.

Pursuant to section 60 of the Anguilla Financial Services Commission Act, a person aggrieved by a decision of the FSC may apply to the court for leave to appeal against that decision. Such an application must be filed within twenty-eight (28) days of the decision. The court, on hearing such an appeal, may either dismiss the appeal or remit the matter back to the FSC for further consideration. Given this available statutory avenue for redress, it was for BCS to establish an exceptional reason why judicial review was a more appropriate remedy than the statutory appellate regime.

In an attempt to overcome this hurdle, BCS argued that given the limited ambit of orders that the court could make on an appeal, judicial review was conducive to saving time and costs. It contended that if remitted BCS may find itself being aggrieved by a subsequent decision of the FSC’s. This was likely to cost it more professional costs and time in having to apply for leave repeatedly. This argument of inconvenience did not find favour with the court. Mathurin J deemed it unsustainable. The view of the court was that “…to agree with this would in effect license applicants to achieve judicial review by simply relying on the inconvenience, cost and delay of the statutory procedure and would risk subverting the Legislature’s intention in creating such appeals.” The court, in stating this position, was not daunted by the fact that by the time of judgment on 22nd February 2018, the time for filing a statutory appeal had elapsed. The court considered this to have been the choice of BCS; a choice they would have to live with. The application for leave to apply for judicial review was therefore dismissed.

Compelling as the applicant’s natural justice arguments may have been, given the decision of the court, these were not considered. Instead the court decisively reconfirmed the well-known presumption against judicial review where an alternative remedy exists.

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