Application for leave to appeal to the Judicial Committee of the Privy
Council
[2017]JCA099
Court of Appeal
29 June 2017
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Before :
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James McNeill, Q.C., President;
John Martin Q.C., and
Sir David Calvert-Smith
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Between
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Doraville Properties Corporation
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Appellant
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And
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Her Majesty’s Attorney General
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Respondent
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Advocate P. G. Nicholls, for the Appellant
Advocate M. T. Jowitt Esq Crown Advocate for
the Respondent
judgment
McNeilL JA:
1.
On 22nd
February, 2017, we gave our judgment Doraville Properties Corporation v AG
[2017] JCA 029 dismissing the appeal in this matter. Doraville Properties Corporation, the
unsuccessful appellant, now seeks leave to appeal to the Judicial Committee of
the Privy Council. That application
is opposed by Her Majesty's Attorney General.
2.
This court
has recently reflected on the applicable principles to be applied in this
jurisdiction in respect of applications for leave to appeal to the Judicial
Committee: see Parish of St Helier v Minister for Infrastructure [2017]
JCA 027. As Martin JA indicated in
paragraph 7 of that decision, this court treats the co-relative Privy Council
Practice Direction as prescribing the ordinary test to be applied on
applications such as this; to the effect that, in all but the clearest of cases,
it will be desirable to leave the question of leave to the Privy Council
itself.
3.
Under the
Privy Council Practice Direction, leave ought to be granted only where the
application raises an arguable point of law of general public importance which
should be considered by the Judicial Committee at the time in question.
4.
In the
application before us it is contended on behalf of Doraville that its proposed
appeal raises two "central questions of law". The first is said to be: under what circumstances will property
be regarded as having been "found" by a foreign court to have been
"used in, or intended to be used in, unlawful conduct" or to have
been "obtained in the course of, from the proceeds of, or in connection
with, unlawful conduct", so as to be "tainted property" for the
purposes of the Civil Asset Recovery (International Co-operation) (Jersey)
Law 2007?
5.
In support
of its application to obtain leave, Doraville suggests that whilst this court
recorded common ground in a relevant definition for a "finding", it
did not consider how far (if at all) the local judge had conducted any such
judicial examination or investigation, beyond reading the Verified Complaint
presented in this jurisdiction. In
such circumstances Doraville wishes to submit to the Judicial Committee that
the US judgment in default contains no finding of fact; and that a conclusion
by the US Judge as to the adequacy of formal pleadings does not find that
particular property meets the requirements of "tainted property" as
defined in the 2007 Law.
6.
As there
is no dispute by the proposed appellant as to the test to be applied in respect
of whether there had been a "finding", but, rather, only in essence a
contention that in the circumstances which took place here this court was wrong
to construe the facts as showing that a "finding" had been made, we
do not consider that this application raises an arguable point of law of
general public importance.
7.
The second
of the "two central questions of law" sought to be pursued on appeal
is as to under what circumstances a foreign court's finding that property was
"involved in" transactions in violation of a foreign statute
constitutes a finding that the property in question was "used in",
"intended to be used in", "obtained in the course of",
"obtained from the proceeds of" or "obtained in connection
with" unlawful conduct.
8.
In our
judgment such a question is a question of mixed fact and law, the answer to the
factual element being a question of fact and degree in each case. The proposed contentions put to us do
not state a point of law of general public importance and it would not be
proper for us to grant leave.
9.
For all
these reasons we refuse permission to appeal to the judicial committee of the
Privy Council.
Authorities
Doraville
Properties Corporation v AG [2017] JCA 029.
Parish
of St Helier v Minister for Infrastructure [2017] JCA 027.
Civil Asset Recovery (International
Co-operation) (Jersey) Law 2007.