The Gazette 1986

sepTemBER

1986

GAZETTE

v- Dublin Corporation. 41 Judicial review would certainly, prima facie , be available where the Registrar has made an error of law which has taken him outside his jurisdiction. In Ex parte Central Bank of India it was argued that the correctness of the particulars submitted to the Registrar was a condition precedent to his jurisdiction to register a charge. This argument was rejected. 44 This opinion should be followed in Ireland, and indeed all the more so because in Ireland the Registrar is merely given verified particulars of the charge without the original instrument of charge which must be produced to his counterpart in England; and in any event it is not the function of the Registrar to examine the background to the application for registration. In The State (Lynch) -v- Cooney 45 it was held that in order for a statutory official's decision to be intra vires, his opinion must be bona fide held, factually sustainable and not unreasonable. In view of the limited discretion of the Registrar — his function being essentially administrative rather than decision making 46 — the principle of Lynch's case is of little value. It lends support, however, to the view expressed in Ex parte Central Bank of India by Lawton and Dillon LJJ. 47 , that an aggrieved creditor could use certiorari to challenge the registration of a charge obtained through fraud. Despite the essentially administrative nature of the Registrar's function there will still, though, be cases where he makes an error of law which could be considered as going to jurisdiction as, for instance, where he misunderstands the effective date of creation of a charge arising from a series of acts and instruments. In the case of error of law on the face of the record, judicial review is not possible unless the determination challenged is a "speaking order": one stating the Registrar's view on a point of law, so as to make the erroneous view of the law apparent on the record. 48 While the details of the verified particulars which are presented to the Registrar are sparse, an error on the face of the record may occur, for instance where the date of creation of a charge and the date of its registra- tion are both recorded in the Registrar's certificate, but fall more than the statutory 21 days apart. Where the error is one of fact, judicial review will not lie. 49 This considerably reduces the likelihood of certiorari being available since precedent suggests that most errors made by the Registrar are likely to involve questions of fact. There is, though, no reason in principle, except for the effect of section 104 of the Companies Act, 1963, why certiorari should not lie. Constitutional considerations In the absence of some special consideration there would be no reason to expect the Irish courts to take a view of the effect of section 104 which differs from the Court of Appeal's view of the equivalent English provision. The special consideration is that Irish case law seems to suggest that any statutory attempt to determine an issue of either a criminal or civil nature of which a court is properly seised is constitutionally infirm having regard to Article 34 of the Constitution. Two cases are of particular importance in this context. One, Maher -v- A.G. i0 concerned a "conclusive evidence" provision. Section 44(2)(a) of the Road

not the requirements of s.95(l) have been complied with in any given case, and that he cannot be said to be acting beyond his powers even if he made an honest error of fact or of law or mixed fact and law in the course of determining this question". 11 The registrar had not, therefore, in this case usurped powers he did not have even though he was in error in accepting delivery of a copy of the instrument of charge as adequate. On the question of natural justice, which in the light of his other findings Mervyn Davies J. had not dealt with, the Court of Appeal was agreed that there was no duty on the part of the registrar to consult with other creditors before registering a charge. It would be impracticable for him to be obliged to do so, and, as Dillon LJ observed, the registrar had no discretion to exercise in the light of representations he might receive. 12 There were, however, some limits to the Court of Appeal's decision that the registrar's decision could not be reviewed. First, Slade LJ and Lawton LJ indicated that since the 1984 Act was not expressed to bind the Crown, the Attorney-General could, or could probably, bring proceedings for judicial review free of the conclusive evidence provision. 11 Secondly, all three judges made an exception for fraud. Lawton LJ and Dillon LJ suggested that judicial review might be available on behalf of an unsecured creditor when he alleged that registration had been obtained by fraudulent means. 34 Slade LJ thought that even in this case s.98(2) would rule out a direct attack on the registrar's certificate 15 although, he said 16 "it might well be that the court would act in personam against the fraudulent party so as to prevent him taking advantage of the fraudulently obtained certificate and, furthermore, a creditor personally damaged by the fraud might be able to take proceedings for damages 18 ." Judicial Review in Ireland The Court of Appeal's decision, reversing Mervyn Davis J., made a return to the strict "conclusiveness" theory of registration, an approach shared up to now by the Irish courts. 39 Although English decisions on company law matters are often followed with little or no analysis or critical consideration, 40 it may well be that similar arguments will be addressed to the Irish courts in relation to section 104 of the Companies Act, 1983 as were addressed to the English High Court and Court of Appeal. It is submitted that the outcome of the arguments should be the same in Ireland, but there are some special considerations involved. The first question which must be asked is whether a decision of the Registrar would, at least prima facie be susceptible to judicial review by means of certiorari . 4I In Ireland, if it were alleged that the Registrar's decision was vitiated by an error of law, this could be to two types: an error of law which goes to the jurisdiction and one appearing on the face of the record although within jurisdiction. While this dichotomy may no longer exist in England following Anisminic -v- Foreign Compensa- tion Commission 42 in Ireland it most certainly does. The Irish position is governed by the State (Abenglen) -

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