National Bank of Anguilla (Private Banking and Trust) Ltd ((in Administration)) v Chief Minister of Anguilla

JurisdictionAnguilla
JudgeHenry JA [AG.]
Judgment Date30 July 2021
Neutral CitationAI 2021 CA 4,[2021] ECSC J0730-1
Docket NumberAXAHCVAP2020/0001
CourtCourt of Appeal (Anguilla)

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Dame Janice M. Pereira, DBE Chief Justice

The Hon. Mr. Gerard St. C. Farara Justice of Appeal [Ag.]

The Hon. Mde. Esco L. Henry Justice of Appeal [Ag.]

AXAHCVAP2020/0001

Between:
[1] National Bank Of Anguilla (Private Banking And Trust) Limited (in administration)
[2] Caribbean Commercial Investment Bank Limited (in administration)
Appellants
and
[1] Chief Minister Of Anguilla
[2] Attorney General Of Anguilla (Sued as the legal representative of the Government of Anguilla/Executive Council)
[3] Gary Moving As Receiver Of National Bank Of Anguilla Limited (In Receivership) And Caribbean Commercial Bank (Anguilla) Limited (in receivership)
[4] Eastern Caribbean Central Bank
Respondents
Appearances:

Mr. Ronald Scipio, QC with him, Mrs. Eustella Fontaine and Ms. Yanique Stewart for the appellants

Dr. Francis Alexis, QC and Mrs. Nakishma Rogers-Hull for the 1st and 2nd respondents

Mr. Paul Dennis, QC with him, Mrs. Nadine White-Laing and Ms. Navine Fleming for the 3rd and 4th respondents

Civil appeal — Judicial review — Application by appellants for leave to seek judicial review — Rule 56.3 of the Civil Procedure Rules 2000 — Threshold test for leave to apply for judicial review — Dismissal of application by learned judge — Whether learned judge erred in dismissing application for leave to seek judicial review against third and fourth respondents — Whether learned judge wrongly considered threshold test despite non-appearance of third and fourth respondents — Whether learned judge erred in striking out the Attorney General and Chief Minister as parties to the proceedings — Whether Attorney General and Chief Minister made any decision which can be subject to judicial review and are thereby necessary and proper parties to the judicial review application — Whether the Executive Council of Anguilla made any decision subject to judicial review and should therefore be substituted in place of the Attorney General — Whether learned judge erred in dismissing disclosure application — Costs — Rule 56.13(6) of the CPR — Whether appellants acted unreasonably in making application or in their conduct of the application to justify departure from general rule — Appellate court's approach to interference with lower court's exercise of discretion

The appellants, National Bank of Anguilla (Private Banking and Trust) Limited (in administration) (“PBT”) and Caribbean Commercial Investment Bank (in administration) (“CCIB”) (referred to collectively as “the subsidiary banks”) are both licensed under the Trust Companies and Offshore Banking Act (“TCOBA”) to conduct offshore banking business and are, respectively, the subsidiaries of National Bank of Anguilla (“NBA”) and Caribbean Commercial Bank (Anguilla) Limited (“CCB”) (collectively “the parent banks”). As a result of the financial crisis threatening Anguilla's banking sector, the Eastern Caribbean Central Bank (“ECCB”) placed the parent banks under conservatorship, in accordance with their powers under the relevant legislation.

To protect customers' deposits and provide a solution to the financial threats, the Government of Anguilla (“GOA”) and the ECCB finalised a resolution plan for Anguilla (“the Resolution Plan”). The Resolution Plan essentially entailed: (i) the transfer of assets and liabilities of each parent bank up to a maximum of EC$2.8 million (“the threshold sum”) to a new domestic bank, the National Commercial Bank of Anguilla (“NCBA”); and (ii) the creation of two Depositor Protection Trusts (“DPTs”), one for each parent bank. The DPTs were funded partly by the GOA, proceeds from non-performing loans and deposit liabilities over the threshold sum being transferred from each parent bank to its own dedicated DPT.

The public was informed of the Resolution Plan by the first respondent, the Chief Minister of Anguilla (“the Chief Minister”) who commended it as a policy designed to protect the holders of deposits at the parent banks from losses. Following the announcement of the Resolution Plan, the ECCB relinquished control and conservatorship of the parent banks and appointed the third respondent, Mr. Gary Moving (“Mr. Moving” or “the receiver”) as the receiver of both entities.

Mr. Moving then executed a separate Purchase and Assumption Agreements (“PAAs”) with NCBA to effect transfer to it, of the assets and liabilities of the parent banks. Two DPTs were executed on 30 th June 2017 among the GOA through Mr. Aidan Harrigan as Permanent Secretary in the Ministry of Finance as authorised by the Executive Council of Anguilla (“EXCO”), the trustees and the receiver in respect of the transfer of assets from NBA and CCB to NCBA.

It is only after a recommendation is made by the ECCB for the Minister of Finance to make a Banking Business Vesting Order (“BBVO”) by virtue of section 174 of the Banking Act.

The appellants, being dissatisfied with aspects of implementation of the Resolution Plan, filed an application for judicial review of decisions purportedly made by the GOA and bank regulatory officials which they claimed deprived them of certain protections. Essentially, they complained that though they were large depositors of the parent banks and contrary to the legitimate expectation held out to them by the ECCB and Chief Minister, their deposits had been wrongfully and unlawfully excluded from transfer to NCBA and to the DPTs and from protection under the Resolution Plan, by the unlawful decisions of the Chief Minister, the receiver and the ECCB. They argued that they were accorded different treatment from other large depositors by the Chief Minister, the receiver and the ECCB and accordingly sought leave to seek judicial review of these decisions. They also applied for disclosure of certain documentation including the PAAs, DPTs, the relevant BBVO and the identity of the trustees. The Attorney General and Chief Minister were named as respondents to the application.

The learned judge dismissed the application for leave to seek judicial review, ordered costs to the respondents to be assessed in accordance with rules 65.11 and 65.12 of the Civil Procedure Rules 2000 (“CPR”) within 21 days unless otherwise agreed and struck out the Chief Minister and Attorney General as parties to the proceedings. The learned judge held that the subsidiary banks attributed no specific decision to EXCO and therefore denied their application to substitute EXCO as a respondent in the Attorney General's place. The learned judge also dismissed the disclosure application on the basis that it was merely a fishing expedition.

The appellants have appealed to this Court advancing fifteen main grounds of appeal. The issues which arose for this Court's determination may be helpfully crystallised as follows: (i) whether the learned judge erred in striking out the Attorney General and the Chief Minister as parties to the proceedings; (ii) whether the learned judge erred in refusing to substitute the Attorney General with EXCO; (iii) whether the learned judge erred in refusing leave to apply for judicial review; (iv) whether the learned judge erred in dismissing the disclosure application; and (v) whether the judge erred in awarding costs to the respondents.

Held: dismissing the appeal; affirming the orders of the learned judge save and except that the costs awarded to the respondents is set aside; and making the orders set out in paragraph 206 of the judgment, that:

  • 1. The issue before the learned judge, namely the consideration of an application for leave to seek judicial review, required him to exercise a judicial discretion. It is well — settled that an appellate court will interfere with a judge's discretion only if satisfied that the judge erred in principle by failing to take into account or giving too little or too much weight to relevant factors, or by having regard to irrelevant factors; and by reason of such error in principle, the learned judge's decision exceeded the generous ambit within which reasonable disagreement is possible and is therefore plainly wrong.

    Dufour and Others v Helenair Corporation and Others (1996) 52 WIR 188 followed.

  • 2. The correct defendant in judicial review proceedings is the person or authority who made the impugned decision. Accordingly, the Attorney General should only be named if he made the decision for which judicial review is being sought. In this case, the appellants have failed to establish that the Attorney General made any decision, took any action or refrained from taking a relevant decision or any action in relation the exclusion, transfer, deposits or BBVO decisions about which they complained. It follows that in the circumstances where the learned judge has applied the correct legal principles and gave deliberate consideration to the relevant factors, there is no basis for this Court to interfere with his decision to strike out the Attorney General as a party to the proceedings.

    Elmoalis Ltd v The Attorney General of Anguilla AXAHCVAP2019/0002 (delivered 21st May 2021, unreported) followed; Quorum Island (BVI) Limited v Virgin Island Environment Council and Another [2011] ECSCJ No. 182 (delivered 12 th August 2011) followed; Bahamas Hotel Maintenance and Allied Workers Union v Bahamas Hotel Catering and Allied Workers Union and Others [2011] UKPC 4 applied; Minister of Foreign Affairs v Vehicles and Supplied Limited [1991] 1 WLR 550 applied; Dufour and Others v Helenair Corporation and Others (1996) 52 WIR 188 followed.

  • 3. The law and the evidence led in the court below point to the reasonable conclusion that no BBVO or exclusion decision had been made by the Chief Minister. In relation to the BBVO, this is due to the fact there was no evidence that the receiver made any application to the ECCB for the approval of a BBVO; or of an investigation by the ECCB arising from such application; or of any recommendation by...

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