Financial Services Authority v Rourke
| Jurisdiction | England & Wales |
| Judgment Date | 19 October 2001 |
| Neutral Citation | [2001] EWHC 704 (Ch) |
| Date | 19 October 2001 |
| Court | Chancery Division |
CHANCERY DIVISION
Before Mr Justice Neuberger
Civil proceedings - finding of criminality - criteria for granting declarations - Patten v Burke Publishing Co Ltd [1991] 1 WLR 541 - Nessier - Dowti v Sabena SA [2000] 1 WLR 2040 - Imperial Tobacco Ltd v AG [1980] 2 WLR 466 - Banking Act 1987 Section 3 & 35 - Civil Procedure Rules Rule 40.20 - ECHR Article 6.2 & 6.3
There was nothing to prevent the court in civil proceedings from granting a declaration stating that, on the balance of probabilities, the defendant had contravened provisions of the Banking Act 1987, notwithstanding that those facts could give rise to criminal liability.
Mr Justice Neuberger so held in the Chancery Division when granting the claimant, the Financial Services Authority, declaratory and injunctive relief against John Edward Rourke and in sentencing Mr Rourke to prison for 20 days for contempt of court.
Mr Nicholas Vineall for the authority; Mr David Kelly for the defendant.
MR JUSTICE NEUBERGER the claimant sought, inter alia, a declaration to the effect that the defendant had accepted unauthorised deposits from at least 21 individuals totalling Pounds 331,925, contrary to section 3 of the 1987 Act and that, for the purposes of inducing persons to make deposits, he made a number of statements contrary to section 35.
His Lordship said that as a matter of principle the court's power to grant a declaration was very wide. Rule 40.20 of the Civil Procedure Rules provided: "The court may make binding declarations whether or not any other remedy is claimed." Accordingly, so far as the rules were concerned, the power to make declarations was unfettered.
After referring to Patten v Burke Publishing Co LtdWLR ((1991) 1 WLR 541) and Messier-Dowty v Sabena SAWLR ((2000) 1 WLR 2040), his Lordship said that when considering whether to grant a declaration the court should take into account the justice to the claimant, the justice to the defendant, whether the declaration would serve a useful purpose and whether there were any other special reasons why or why not such an order should be made.
In his Lordship's judgment, the factual basis for the declaration sought had been established and the claimant had made out its case as to why the declaration should be granted.
His Lordship then went on to consider whether there were any reasons for not granting the order.
First Mr Kelly submitted that it was...
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...restating, with regard to the particular context of the cases before me, the observations of Neuberger J as the then was in Financial Services Authority v Rourke [2002] C.P.Rep. 14: “Accordingly, so far as the CPR are concerned, the power to make declarations appears to be unfettered. As be......
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...v Moir [1974] 3 AER p 217; Patten v Burke Publishing Co Ltd [1991] 2 AER p. 821; Aitbdaid Nime Times July 19, 1991; and Financial Services Authority v Rourke Chancey Division October 19,2001. [18] I agree with the submission of learned Counsel for the Claimant. The cases of Patten v Burke; ......
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