The Gazette 1986

GAZETTE

sepTemBER

1986

reserved to the Court to consider an application for

registration out of time

under the English equivalent

of section 106 of the Companies Act, 1963.

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.

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

They both agreed

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

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;

Lawton LJ preferred to express no opinion on this

point.

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

"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".

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)

"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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