R v International Stock Exchange of the United Kingdom and the Republic of Ireland Ltd, ex parte Else (1982) Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE McCOWAN,LORD JUSTICE LEGGATT |
| Judgment Date | 16 October 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J1016-4 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0957 |
| Date | 16 October 1992 |
and
[1992] EWCA Civ J1016-4
The Master of The Rolls
(Sir Thomas Bingham)
Lord Justice Mccowan
Lord Justice Leggatt
92/0957
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE POPPLEWELL)
Royal Courts of Justice
MR ROGER HENDERSON Q.C., MR ADRIAN BRUNNER and MR JOHN CONE (instructed by Peter Noel Gerard Esq., Solicitor to the International stock Exchange of the United Kingdom and the Republic of Ireland) appeared for the Appellants.
MISS MONIQUE ALLAN and MR MARC ROWLANDS (instructed by Messrs. Arnold Deacon Greene & Co., Sleaford, Lincolnshire) appeared for the Respondents (Else Limited).
MR G. P. THOMAS appeared in person.
This appeal concerns a company named Titaghur PLC. The company (as I shall call it) was incorporated in Scotland in 1883. It runs a substantial jute business in India, where it has some 18,000 employees. The shares of the company were first listed by the Stock Exchange in London in 1912 and continued to be so listed until 1988.
In May 1988 the International Stock Exchange of the United Kingdom and the Republic of Ireland (which I shall for brevity call "the Stock Exchange") suspended the listing of the company's shares because annual listing charges had not been paid. This omission was rectified and the listing was restored after one month's intermission.
On 28th June 1989 the listing of the company's shares was again suspended by the Stock Exchange. The immediate cause of this suspension was the arrest of the chairman of the company on suspicion of insider-dealing offences. (He was later prosecuted on a number of counts and, after the events giving rise to this appeal, acquitted). The suspension of the listing continued, partly because of uncertainty concerning the chairman's position, partly because the Stock Exchange was concerned about possible failures to notify dealings in the company's shares and partly because the Stock Exchange was concerned about the adequacy of the financial information provided by the company and about its accounts. There were meetings between representatives of the company and the Stock Exchange concerning these matters, which were also raised in correspondence. It was made clear that the company wished the suspension to be ended, but it appears that in November 1990 the company's broker was told that the Quotations Department of the Stock Exchange had decided to take the matter of the listing of the company to the Panel of the Quotations Committee with a recommendation that the listing be cancelled. The broker indicated that he would probably not attend the Quotations Panel but might appeal against any cancellation decision to the Quotations Committee. The case was duly referred to the Panel, which on 23rd November 1990 concluded that the listing should be cancelled.
The company (by its broker) was informed of this decision and exercised its right to appeal to the Committee. The Committee met on 7th December 1990 to hear the appeal. A director and two representatives of its brokers attended on behalf of the company. The Committee decided to uphold the decision of the Panel and accordingly directed that the company's listing should be cancelled in view of the inadequacy of the financial information currently available concerning the company.
The company itself has taken no formal step at any time to challenge the decisions of the Panel or the Committee. It is not a party to these proceedings and has played no part in them.
The proceedings arise out of applications for judicial review made by three applicants. All of the applicants are shareholders in the company, having bought shares off-market during the period when the listing was suspended and before it was cancelled. Two of the applicants (Else (1982) Limited and Leonard Brealey as a trustee of a private pension trust) sought leave to challenge the Panel's decisions to suspend the company's listing in June 1989 and to cancel the listing in November 1990 and the Committee's decision to cancel the listing in December 1990. They were granted leave to challenge the Committee's decision, but refused leave to challenge the Panel's decisions. Following this refusal, no renewed application for leave to challenge the Panel's decisions was made until, during the hearing of this appeal, application was made to this court for leave to move to challenge the Panel's cancellation decision. We refused that application. The third applicant, Gerard Patrick Thomas, is a Scots solicitor. He sought and obtained leave to move to challenge the Committee's cancellation decision. He has not sought to challenge either of the Panel's decisions.
Following an order for expedition, the hearing of these substantive applications took place before Popplewell J. in June 1992. At that hearing the applicants attacked the Committee's decision as irrational, disproportionate and tainted by bias or the appearance of bias. The judge rejected these criticisms. His decision in rejecting them is the subject of appeal, but has not formed part of this appeal hearing.
Before the judge an issue of European Community law arose on which the judge held it necessary to seek a ruling from the Court of Justice of the European Communities under Article 177 of the EEC Treaty to enable him to give judgment. Although the applicants in the court below contended that the issue should be decided in their favour, they did not resist the course adopted by the judge if he was left in doubt on the issue, subject to settling appropriate questions. The Stock Exchange, on the other hand, contended below that the issue should be decided in their favour and opposed a reference. The judge having decided to refer, they appeal against his decision to do so. They continue to argue that the Community law issue should be resolved in their favour. As an authority responsible for regulating an important international market, they have further urged the practical importance of knowing where they stand as quickly as possible. The apparent cogency of that consideration has caused the hearing of this appeal, on the Community law issue, to be expedited. It has proved convenient also to consider an issue of domestic law closely related to the Community law issue. For the avoidance of doubt I should make clear that by "domestic law" I mean, for present purposes, the law of England not including that part of it which derives directly from the law of the Community.
The issues
The central issues on this appeal are these:
1. Were the applicants as shareholders entitled to be notified of and given the opportunity to make representations (which should have been duly considered) about the Committee's impending decision whether the company's listing should be cancelled
(a) in Community law?
(b) in domestic law?
2. Are the applicants as shareholders entitled to challenge the Committee's decision to cancel the company's listing
(a) in Community law?
(b) in domestic law?
In relation to questions such as 1(a) and 2(a), I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the Community law issue is critical to the court's final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer. I am not here attempting to summarise comprehensively the effect of such leading cases as HP Bulmer v. J. Bollinger SA [1974] Ch. 401, Srl CILFIT and Lanificio di Gavardo SpA v. Ministry of Health [1982] ECR 3415 and R. v. The Pharmaceutical Society of Great Britain ex parte The Association of Pharmaceutical Importers [1987] 3 CMLR 951, but I hope I am fairly expressing their essential point.
It is convenient, with that point in mind, to turn to the Community law issue. This arises, and arises only, from Council Directive 79/279/EEC of 5th March 1979, the Admission directive. I shall refer to it as "the directive". Since its correct construction lies at the heart of this appeal, the directive must be analysed in a little detail.
The directive
The directive was made under the EEC Treaty and in particular Articles 54(3) (g) and 100 thereof. Article 54(3) (g) required the Council and the Commission to carry out their duties under the Treaty in particular
"(g) by co-ordinating to the necessary extent the safeguards which, for the protection of the interests of members and others, are required by Member States of companies or firms within the meaning of the second paragraph of Article 58 with a view to making such safeguards equivalent throughout the Community."
The second paragraph of Article 58 contained a stipulative definition of...
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