The Gazette 1986

GAZETTE

sepTemBER

1986

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".

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.

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.

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.

Slade LJ thought that even in this

case s.98(2) would rule out a direct attack on the

registrar's certificate

although, he said

"it might well be that the court would act

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

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.

Although English decisions on

company law matters are often followed with little or no

analysis or critical consideration,

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

susceptible to judicial review by means of

certiorari

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

in Ireland it most certainly does.

The Irish position is governed by the

State (Abenglen) -

Dublin Corporation.

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.

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.

The State (Lynch)

-v-

Cooney

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

— 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.

that an aggrieved creditor could use

certiorari

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.

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.

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.

concerned a "conclusive

evidence" provision. Section 44(2)(a) of the Road

286