The Gazette 1986

GAZETTE

sepTemBER

1986

reserved to the Court to consider an application for registration out of time 20 under the English equivalent of section 106 of the Companies Act, 1963. 21 On this ground, and without needing to consider the other grounds, the judge was prepared to quash both the Registrar's decision to register the charge and his certificate of registration. In Mervyn Davies J.'s view the provision that the Registrar's certificate was to be conclusive applied only in ordinary litigation, but in judicial review the policy of commercial certainty had to give way to the policy that the decisions of public officials ought to be subject to scrutiny. 22 Mervyn Davies J.'s decision was reversed by the Court of Appeal. First, on the question of the juris- diction of the Registrar both Lawton LJ and Dillon LJ considered that the Registrar had exceeded his juris- diction in a way which would ordinarily be open to judicial review under the principles expounded by the House of Lords in Anisminic Ltd. -v- Foreign Compen- sation Commission 23 . They both agreed 24 that the Registrar had erred in law in accepting a copy of the instrument of charge when on a proper construction of section 95 of the Companies Act 1948 25 the original instrument had to be submitted. Dillon LJ differed from the trial judge in thinking that the omissions from the official form did not prevent there being sufficient compliance with the requirement to deliver the prescribed particulars provided that these particulars could be gleaned from the other documents supplied; 26 Lawton LJ preferred to express no opinion on this point. 27 Despite their opinion that the Registrar had gone beyond his statutory authority, however, Lawton LJ and Dillon LJ considered that his decision to register the charge was protected from judicial review. In the words of Dillon LJ 28 "As a matter of construction of the words used in the 'conclusive evidence' formula in s.98(2), it does not preclude an application for judicial review of a decision of the registrar. But it would have the effect, unless a gloss is written into the section, that an application for judicial review would be bound to fail because no evidence could be adduced to show that the certificate was wrong and that by error on the part of the registrar or for some other relevant reason the requirements of Part III of the 1948 Act had not been properly complied with." Dillon LJ added that the reasoning which had been applied in previous cases in regard to ordinary litigation was equally applicable to judicial review: "the section cannot be taken as meaning what it says in one form of judicial proceedings but as meaning something else in a different judicial procedure". 29 Slade LJ agreed with his fellow appeal judges that the effect of the "conclusive evidence" provisions of s.98(2) was to preclude a court from considering whether the registrar had acted beyond his powers. He considered, moreover that section 98(2).(30)

'Our Progressive and Professional Team' OUR PROFESS IONAL SERV ICES VALUATIONS RENT REVIEWS LEASE RENEWALS ARBITRATIONS CAPITAL GAINS AND PROBATE VALUATION RATING APPEALS AND INSURANCE VALUATION COMPULSORY PURCHASE ORDERS OUR VALUAT I ON TEAM Anthony M. Sherry F.S.VA, F.IAVJ.

Gordon H. Gill F.RJ.C.S. Philip G. Sherry A.R.I.C.S.

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"by itself shows the intention of the legislature that the registrar is to have jurisdiction finally and conclusively to determine the question whether or

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