Competence of lay court called into question

THE ability of Sark's lay judges to deal with complicated legal cases has come under attack. The island's Seneschal's Court agreed earlier this year that the Guernsey Financial Services Commission had been right not to grant Castle Company Management a fiduciary licence.

During a Royal Court appeal yesterday, its director, Michael Doyle, asked if Deputy Seneschal Jeremy La Trobe-Bateman was qualified to hear such cases.

'I am calling into question whether a carpenter should be hearing a case of this kind,' he said.

'This is the first chance I have had to voice my concern about it and whether the law should be changed or not. I don't know.'

Castle applied for a licence under new regulations introduced in 2001 across the Bailiwick and last year took its appeal to a shadow tribunal, which upheld the original decision.

Because the company is based in Sark, the Seneschal's Court held a two-day hearing in January.

The time lapsed since the application was one of four legal arguments put forward by Mr Doyle in both the Seneschal's and the Royal Court.

He said that the two-and-a-half year gap had led it to believe that it had 'legitimate expectation' it would be granted a licence.

Although the regulator does have the power under the law to close a company that is not meeting its licence obligations or one that it has refused a licence, Crown Advocate Richard McMahon said that it did not on this occasion because of the appeal process.

'The simple fact that there is a live application in appeal is probably sufficient for the GFSC not to use the law,' he said.

Mr Doyle's appeal was also based on an alleged lack of consultation between the GFSC and Sark's General Purposes and Advisory Committee, as laid out in the law.

He claimed that a letter listing all applicants at the time the law was introduced was insufficient and that when the commission was considering turning down his licence, it should have contacted the committee again.

The committee's written response raised no objection to Castle's application and said it welcomed business that might be considered too small for Guernsey.

'It was just lip service to the law.'

The Bailiff, Sir de Vic Carey, questioned whether further letters would have made any difference.

Mr Doyle was also unhappy with the way the commission conducted itself in compiling information on the company in that a letter sent informing him of an on-site visit did not convey its serious implications.

'I would have had a lawyer present and had it video-taped as well if I had a crystal ball,' he said.

Advocate McMahon said it was up to the Bailiff to decide whether the letter had been clear and concise.

The final ground for appeal was based on the tribunal's independence, or lack of it, according to Mr Doyle.

He was unhappy that during the hearing last year, Mr Morgan had represented the commission because the regulator itself had prompted its formation.

Mr Doyle was also unhappy that the tribunal judgement was published on the GFSC's website, claiming it was prejudicial to his case and that it was costing the company clients.

He repeated allegations made at the tribunal that the GFSC never intended to grant a licence and was prejudiced against Sark companies because of publicity given to the so-called 'Sark lark'.

* Sir de Vic is expected to publish his judgement in the next couple of weeks.