NOMURA INTERNATIONAL (HONG KONG) LTD AND OTHERS v. SECURITIES & FUTURES COMMISSION

1997, No.AL108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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THE APPLICATION

1. On 19th November 1997, the Applicants in these proceedings issued and filed a Notice of Application for leave to apply to judicial review pursuant to Order 53 rule 3. That application was brought on, as a matter of urgency, on Monday 24th November 1997, at a contested inter partes hearing.

2. At the conclusion of that hearing, leave was granted on the basis that there should be expedited argument. With the co-operation of the parties this was achieved. A Notice of Originating Motion was filed on 26th November 1997, and the evidence marshalled. This, then, is the judgment consequent upon the hearing of that Motion. As the Notice of Application makes clear, the decision which is sought to be reviewed is that of the Securities & Futures Commission (hereinafter "the SFC") as set out in a letter dated 23rd October 1997 wherein the SFC rejected the Applicants' request for a stay of disciplinary action pending determination of related proceedings before the Federal Court of Australia, in Action No.N63045 of 1997, between the Australian Securities Commission and Nomura International Plc. (hereinafter "Nomura (UK)"), the 2nd Applicant herein.

3. In these proceedings, the 1st Applicant is Nomura International (HK) Ltd. (hereinafter "Nomura (HK)"), whilst the 3rd, 4th and 5th Applicants are senior employees, the latter two individuals being at the material time seconded from Nomura (UK) to Nomura (HK). Upon application at the leave stage by Counsel on behalf of the Applicants, permission was given for the Originating Motion consequent upon the grant of such leave to make reference to the individual Applicants herein by number and not by name, and at the substantive hearing a further direction was given that the argument should be conducted upon this basis also. This was done solely to protect these three gentlemen pending the conclusion of the SFC disciplinary process. However, the request to permit the corporate Applicants to be similarly so treated was refused, as was, also, a request that reporting restrictions should be imposed during the hearing of the Motion.

THE FACTUAL BACKGROUND

4. Although larded with detail, the factual background leading to this application is in short compass. In outline, the story is as follows. Nomura (UK) had taken a significant arbitrage position on its own account in the Australian Stock Exchange and the Sydney Futures Exchange. On 29th March 1996, a sophisticated (and undoubtedly highly complex) trading strategy was implemented on behalf of Nomura (UK) to unwind this stock index arbitrage position. The strategy was devised in London by Nomura (UK) but was executed by Nomura employees here in Hong Kong. The 3rd Applicant is an executive who was seized with supervisory responsibility, whilst the 4th and 5th Applicants are the traders who were involved in the implementation of the strategy itself. That such strategy was executed from Nomura (HK) rather than from Nomura (UK) was in order to take advantage of Hong Kong's geographical location; as Mr Michael Thomas, S.C. who appeared for the Applicants, told me, the strategy could as easily have been implemented directly from London, time zone considerations apart.

5. Be that as it may. The strategy was put into effect from Hong Kong with a not insignificant market effect in Australia; as a result thereof, the Australian Ordinaries Index fell 12.3 points, i.e. approximately 0.5%. The Australian Stock Exchange and the Sydney Futures Exchange investigated the fall, and concluded that there appeared to be evidence of an intention on the part of Nomura (UK) to manipulate downward the market price of the relevant stock.

INTERNATIONAL REGULATORY ACTIVITY

6. This trading strategy prompted interest and activity on the part of regulatory agencies in three jurisdictions : the Australian Securities Commission ("ASC"), within whose stock and futures markets the strategy had impacted, the English Securities and Futures Authority ("SFA") within whose jurisdiction the strategy had been conceived, and the Hong Kong Securities and Futures Commission ("SFC"), within and from whose jurisdiction the strategy had been executed. Save for the 2nd Applicant herein, Nomura (UK), the 1st Applicant Nomura (HK), and the three individual employees were and are registered with the SFC, the Respondent to this application, and are therefore undoubtedly subject to its regulatory process. And it is this regulatory process, and in particular the progress of the SFC's disciplinary jurisdiction, which constitutes the focus of this application.

7. Before considering the application as such, it may assist to identify just what was, and is, happening, and where. The Court was furnished with detailed chronologies in chart form by both sides, which have been of great assistance in grasping the overall picture. The following outline summaries of relevant events in each of the three jurisdictions involved are, I think, necessary in order to place the arguments into their proper context.

(i) ASC : Australian Securities Commission

8. Interestingly, potential difficulties arising from the possible unwinding of Nomura (UK)'s arbitrage position on the Australian Stock Exchange ("ASX") and the Sydney Futures Exchange ("SFE") had been the subject of correspondence between Nomura (UK) and the SFE since early March 1996, prior to the eventful date of 29th March 1996; and such interest, on behalf of the Sydney Futures Exchange, was maintained subsequently when it became clear precisely what had transpired. However, the Australian Federal authority, the ASC, soon became involved, and on 16th April 1996, by letter of that date, the ASC informed the President of Nomura (UK) that the ASC had commenced an investigation into the relevant trading on the Australian Stock Exchange and the Sydney Futures Exchange. That letter read, in part :

"According to information which has been provided to the ASC by the ASX and the Sydney Futures Exchange ('SFE'), it appears that Nomura placed with a number of Australian brokers a substantial volume of sell orders in respect of approximately 340 stocks, being the majority of the stocks comprising the All Ordinaries Index. The orders were placed a short time before the close of trading on the above date, which was the last day of trading for the March quarter. Simultaneously, Nomura held open sold positions in approximately 12,500 March Share Price Index (SPI) Futures contracts due to expire on that day.

The ASC is investigating whether any trading or other conduct by or on behalf of Nomura on either the ASX or the SFE on that day may constitute a breach of any of sections 997 and/or 998 of the Corporations Law ('CL') (which prohibit manipulation of the stock market), section 995 (which prohibits conduct which is misleading or deceptive in relation to dealings in securities), or sections 1259 and/or 1260 (which prohibit manipulation of the futures market).

In due course, the ASC will be seeking to obtain information regarding the events which occurred on that day from Nomura and, in particular, from the officers of Nomura who were involved in dealings on its behalf. In view of the publicly reported comments attributed to your company indicating its willingness to co-operate with the Australian authorities in respect of this matter, the ASC hopes that Nomura will provide this information on a voluntary basis."

9. On 30th May 1996, Nomura (UK) signed a Co-operation Agreement with the ASC, Recital C thereof expressly stating that Nomura (UK) wished to co-operate with the ASC in the conduct of the investigation and proposed to make available to the ASC for the purpose of the conduct of interviews certain officers and employees of Nomura International, and of bodies corporate related to Nomura International, who would otherwise not be available.

10. At the same date Nomura (UK) provided the ASC with an explanatory paper, and thereafter at various times, provided interviews to ASC staff, telephone transcripts of the trading in question, and, in August 1996, an expert report.

11. On 11th November 1996, the ASC wrote a letter before action to Nomura's Australian solicitors wherein, inter alia, the ASC gave notice of the commencement of a civil action :

"... to enforce ss.995, 998 and 1260 of the Corporations Law in relation to the securities and futures transactions on the Australian Stock Exchange and the Sydney Futures Exchange on 29th March 1996 involving Nomura or its related bodies corporate."

12. In January 1997, the ASC obtained copies of interview transcripts conducted by the SFA in London, and on 25th February 1997, the ASC commenced civil proceedings in the Federal Court of Australia in Action No.N63045 of 1997, with the ASC as the Applicant therein and Nomura (UK) as Respondent.

13. At various dates between March and November 1997, pleadings, discovery and other interlocutory matters were constituted and resolved, and on 28th November 1997 the case was listed for a directions hearing before the designated trial judge.

14. In the context of the argument in this case, this directions hearing in late November 1997 is of significance. The Short Minutes of Order, exhibited in the evidence before the Court, recites a timetable to the run up to the trial, which is presently listed for hearing for four weeks within the period 27th July to 28th August 1998. Significant within the directions thus made is that the sole Respondent to those proceedings, Nomura (UK), serve all witness statements by 9th April 1998, whilst the Applicant, the ASC, serve statements in reply by 8th May 1998. There is a provision for a further directions hearing on Friday 29th May 1998, and the Minutes of Order conclude as follows :

"The Court notes the indication by the solicitors for the Respondent that, in the event that the SFC does not refrain or is not stayed from proceeding in Hong Kong in relation to the trading of the Respondent on 29th March 1996, it may well be necessary for the Respondent to make application to vary the timetable and vacate the hearing date."

15. This, therefore, represents the current state of play in the Australian proceedings.

(ii) SFA : English Securities & Futures Authority

16. The English Authority, within whose jurisdiction the strategy had been conceived, gave a Notice of Investigation to the 2nd Applicant, Nomura (UK), on 23rd May 1996. Nomura (UK) assisted with their inquiries, by way of the provision of an explanatory paper and expert report, the provision of tapes of the ASC interviews, and interviews conducted with staff of the SFA itself. On 15th January 1997, SFA investigators reached preliminary conclusions as to the breach of relevant regulatory principles, and duly referred the matter to SFA prosecutors.

17. On 9th May 1997, Nomura (UK) made submissions to the prosecutions division of the SFA seeking a stay of any disciplinary action by the SFA pending the resolution of the Australian proceedings, which by that time had been commenced by the ASC.

18. Thereafter, by letter dated 23rd October 1997, the SFA informed the solicitors for Nomura (UK), Messrs Clifford Chance, that the SFA Enforcement Committee was minded to commence disciplinary proceedings against Nomura (UK), and enclosed a draft Notice to that effect, and further suggested that any representations Nomura (UK) wished to make before a final decision was taken as to the commencement of such disciplinary proceedings should be received by 21st November 1997. With regard to the issue of a stay, the SFA letter continued as follows :

"SFA has considered Nomura's submissions with regard to a stay. We take issue with the suggestion that it is not appropriate even to commence any enforcement action pending the outcome of the Australian proceedings. In our view it is appropriate for the Enforcement Committee to take a decision as to whether to institute proceedings.

We do not accept that multiple jeopardy is itself necessarily a reason for granting a stay in respect of disciplinary proceedings once instituted, nor the potential loss of the ability to negotiate a settlement. We do however recognise that this is not a case where the public interest in the speedy resolution of regulatory discipline is in conflict with the pursuit of private law remedies: this case is highly unusual in that the three sets of actual or potential proceedings are all regulatory in nature.

Accordingly, in the event that the Enforcement Committee decides to commence disciplinary proceedings, it will also agree that those proceedings be stayed, such stay to be terminable on the provision of four weeks' notice to Nomura."

19. At present, therefore, the situation in England is that the SFA proceedings remain in abeyance, with such stay being terminable upon notice.

(iii) SFC : Hong Kong Securities & Futures Commission

20. The involvement of the SFC commenced with a meeting on 15th April 1996 between representatives of the SFC and senior executives of the Legal and Compliance Division of Nomura (HK), wherein the SFC expressed concern, inter alia, as to the propriety of the action of Nomura (HK) in passing on the orders for the relevant trades from Hong Kong.

21. On 3rd August 1996, the SFC formally wrote to Nomura (HK) to the effect that it was conducting inquiries under section 56 of the Securities Ordinance and section 36 of the Commodities Trading Ordinance, and on 13th August Nomura (HK) provided the SFC with a copy of the Co-operation Agreement dated 30th May 1996 entered into between Nomura (UK) and the ASC, and also an explanatory paper which had been delivered by Nomura (UK) to the ASC explaining stock index arbitrage trading generally, and outlining Nomura's trading activity leading up to the March 1996 unwinding of its stock index position.

22. To the end of 1996 there was evidently a considerable degree of co-operation between Nomura (HK) and the SFC, in terms of the provision of tapes of the ASC interviews, the submission of an expert report, and the attendance of the traders involved, at interviews with the SFC, between 20th and 26th November 1996.

23. Thereafter, some six months elapsed, and on 30th May 1997 the SFC issued "Letters of Mindedness" to Nomura (HK) and to the 3rd and 4th Applicants, and on 17th July 1997, a further Letter of Mindedness to the 5th Applicant. These letters are not insignificant documents, and represent a central feature of the present case. They recount, inter alia, the nature of the inquiries made by the SFC, the detailed facts as they had been perceived to have emerged as a result of such inquiries, and culminate in the expression of a sequence of minded conclusions on the part of the SFC which themselves culminate in conclusions as to "fitness and properness" to be registered, and an expression of current mindedness as to the appropriate sanction in each case. However, before a final decision was to be made, both as to the minded conclusions of fact and the proposed sanction in each instance, representations were sought by a given date, absent which the Commission stated that it would make a decision on the basis of the material presently available to the Commission (the bulk of which material, of course, having been supplied to the SFC by and on behalf of Nomura (HK)).

24. These Letters of Mindedness of 30th May 1997 triggered a concerned response from Nomura. On 13th June 1997, Mr Levy of Nomura (HK) wrote to Mr Dickens, Executive Director of Enforcement within the SFC, and first flagged the issue of a stay of disciplinary proceedings by the SFC. In the context of this application, this is an important letter; it reads, in part, as follows :

"At the root of our concern is the introduction of the trading issues into the process at this stage. We have always been and remain willing to address supervisory and trading issues arising from the events of 29 March 1996. However, we do not think it appropriate to deal now with the trading issues, which are primarily the domain of the ASC and its proceedings against Nomura International plc ('NIPlc') or, in the case of the traders, the SFA's investigation. ...

... the issues raised by the letters [of mindedness] cannot be properly resolved until the propriety of the trading is addressed. That is the subject of the proceedings before the Australian Courts. It is quite wrong for the SFC (or indeed the SFA) to prejudge the outcome of those proceedings: it is wrong as a matter of legal process; it is inappropriate as a matter of regulatory process; and it is unfair as a matter of administrative law, not only on NIHK, and on [the 3rd and 4th Applicants], but also on NIPlc (involved in the Australian proceedings and facing potential action by the SFA) and the individuals (who will be giving evidence in those proceedings and face potential action by both the SFC and the SFA).

Accordingly, we will be submitting that the SFC should stay its proceedings insofar as they relate to the trading issues pending the outcome of the ASC proceedings. A similar application has been made to the SFA, but we will need to address the Hong Kong law aspect and the specific Hong Kong circumstances which are not identical to those for London. ...

We should emphasise, to the extent that it is not clear already, that NIHK and [the 3rd and 4th Applicants] are not questioning the SFC's legitimate regulatory interest in the trading aspects of this matter. Our position is simply that it is premature and unfair to take steps now in relation to the trading issues being properly dealt with in Australia. It may also be the case that the appropriate forum for action against the individual traders is in fact the SFA ..., given that the trading was driven from London.

It follows from our position regarding the stay that we do not propose to address you at this point in time on the trading issues. NIPlc is currently finalising its Defence in the ASC proceedings, but you will be aware from the ASC that there is a genuine difference of interpretation about the propriety of the trading strategies adopted. We should, however, make it clear that even without the request for a stay, we would need to marshal considerable evidence and argument to rebut the preliminary conclusions you appear to have drawn about the trading. This could well include statements from the traders concerned (in this regard we note you are relying on transcripts of telephone conversations involving the principal trader responsible for [the] strategy, ... but have not sought to interview him), as well as expert evidence both in relation to the Australian markets and index arbitrage trading internationally. Accordingly, even if we were minded to respond to the trading issues at this stage we would require a lengthy extension of the time within which to do so. In addition, we would seek from you an agreement on appropriate arrangements to ensure that the defence of the Hong Kong proceedings does not prejudice the position of NIPlc in relation to the Australian proceedings.

We are conscious that the SFC will not welcome the suggestion that it may have to stay its hand on the trading issues pending the outcome of the ASC proceedings. However, in all the circumstances we consider the above proposed course of action to be reasonable. It may be that, in dialogue with you (and perhaps the other regulators concerned), we could explore ways of achieving an early resolution of the issues. Given the complexity of the issues and the involvement of three jurisdictions, we perceive considerable logic in trying to deal with the matter globally. ..."

25. Subsequent to this letter, on 21st July 1997, Nomura (UK) submitted to the SFC a 43 page submission requesting a stay by the SFC of its proposed action pending the outcome of the Australian proceedings between the ASC and Nomura (UK), and enclosed at the same time copies of the pleadings in the Australian litigation. Such stay submissions were said to be made "not only on behalf of those persons who have received a letter of mindedness, but also on behalf of Nomura (UK) and the other individuals who are directly affected by the SFC actions proposed in those letters".

26. Further correspondence on the matter then passed between the SFC and Messrs Clifford Chance, Nomura (HK)'s lawyers, and the issue of a stay was clearly considered at some length by the SFC. However, on 23rd October 1997, the SFC by its solicitors Herbert Smith, wrote the letter containing the decision which is the subject of the present judicial review. In part, it read as follows :

"... your submissions are to the effect that it is appropriate for the SFC to defer further steps in its disciplinary proceedings (at least insofar as they relate to 'trading issues') until the outcome of, primarily, court proceedings in Australia brought by the Australian Securities Commission ('the ASC').

The SFC has considered all of your submissions and all of the circumstances of this matter very carefully. This has included a review of the pleadings in the proceedings brought by the ASC against Nomura International PLC. It has instructed us to consider the matter fully and advise it of our views on the legal issues raised. We have done so. In short, the SFC has concluded that, notwithstanding the submissions made by you, it is inappropriate for it to defer its proceedings whether because of the ASC's action or otherwise.

We have been instructed to set out in this letter the principal factors upon which the SFC relies in reaching its conclusion. The SFC is not obliged to set out its reasons for its conclusion. It is doing so to ensure that you understand fully its reasons.

We are instructed to inform you that the SFC considers it appropriate to provide the respondents to its proceedings with 30 days in which to submit such further written submissions and materials as they wish in answer to the matters set out in the letters of mindedness. Thereafter the SFC will as soon as is practicable consider whether it is in a position to make a determination based on the material before it and in what manner."

27. This letter is a tightly argued document, and sets out a detailed response to Nomura's request. To a significant extent, the arguments therein reflect some, if perhaps not all, of the arguments propounded by Mr Dykes, S.C. upon this application, to the substance of which I will shortly advert.

RELEVANT PRINCIPLES : THE CORRECT APPROACH

28. Both Mr Thomas, S.C. for the Applicants and Mr Dykes, S.C. for the SFC are, I think, agreed that the correct test for the Court to adopt in this review is not that of Wednesbury unreasonableness. In the present case, the Court is exercising an original jurisdiction in determining for itself what is fair and just, and is not confined simply to a review, upon Wednesbury principles, of the tribunal's own determination. The point is usefully encapsulated in the judgment of Lloyd LJ. in Reg. v. Panel on Take-overs and Mergers, Ex.p. Guiness PLC, [1991] 1 QB 146 at 183H :

"... the question whether we are entitled to intervene at all is not to be answered, as Mr Buckley argued, by reference to Wednesbury unreasonableness : see Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223. It is not a question whether, in the language of Lord Diplock, quoted by Watkins L.J. in the Divisional Court, the decision to hold the hearing on 2 September was

'so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it' : see Council of Civil Services Unions v. Minister for the Civil Service [1985] A.C. 374, 410.

Rather, the question has to be decided in accordance with the principles of fair procedure which have been developed over the years, and of which the courts are the author and sole judge. These principles, which apply as well to administrative as judicial tribunals, are known compendiously, if misleadingly, as the rules of natural justice.

Mr Buckley argued that the correct test is Wednesbury unreasonableness, because there could, he said, be no criticism of the way in which the panel reached its decision on 25 August. It is the substance of that decision, viz., the decision not to adjourn the hearing fixed for 2 September, which is in issue. I cannot accept that argument. It confuses substance and procedure. If a tribunal adopts a procedure which is unfair, then the court may, in the exercise of its discretion, seldom withheld, quash the resulting decision by applying the rules of natural justice. The test cannot be different, just because the tribunal decides to adopt a procedure which is unfair. Of course the court will give great weight to the tribunal's own view of what is fair, and will not lightly decide that a tribunal has adopted a procedure which is unfair, especially so distinguished and experienced a tribunal as the panel. But in the last resort the court is the arbiter of what is fair. ..."

29. In this connection, Mr Thomas also helpfully referred the Court to De Smith, Woolf & Jowell, Judicial Review of Administrative Action (5th Ed. 1995) at p.448, wherein the learned authors comment briefly as follows :

"... It may also be contrary to the rules of natural justice for a tribunal to refuse to grant an adjournment where the continuation of the proceedings may prejudice the fairness of the trial of other proceedings, at least if there is a real risk of injustice. In such a situation, the tribunal, or reviewing court, must balance the potential prejudice to the applicant against the public and/or private interest in the speedy determination of the proceedings. However, it has been emphasised that the power to adjourn is one 'which has to be exercised with great care and only when there is a real risk of serious prejudice which may lead to injustice'."

30. The learned authors then proceed to observe that "it would appear that, in practice, the test is difficult to satisfy". If by that is meant that the decided cases tend to articulate a pronounced judicial reluctance to interfere in the normal workings of statutory tribunals, such is, no doubt, entirely fair comment; indeed, it was perhaps with this broad principle in mind that leave in this case was granted by the Court with "considerable reservations".

31. But to return to the applicable principles. Just as there was agreement that Wednesbury unreasonableness did not figure in the argument in these proceedings, so too was there agreement that the facts of this case are markedly different from the facts in the considerable body of case law which has relatively recently arisen in the context of judicial review of statutory regulators. In the course of his attractive address, Mr Thomas, S.C. placed considerable reliance upon the judgment of Nolan, L.J. in R. v. Institute of Chartered Accountants in England and Wales and others, Ex p. Brindle, [1994] BCC 279, whereas Mr Dykes, S.C. directed my attention in particular to the transcript of the judgment of Dyson, J. in R. v. Executive Counsel Joint Disciplinary Scheme Ex p. Hipps [1996], unreported. In Brindle, op.cit., the Court decided that the relevant accountants' disciplinary proceedings should not continue pending trial of the BCCI/Pricewaterhouse litigation, whilst in Hipps a stay of the relevant inquiry into the audits of Polly Peck by Stoy, the accounting firm in question, was refused. However, unlike Brindle, Hipps and other leading cases to which I have been briefly referred, such as Reg. v. Panel on Take-overs and Mergers, Ex.p. Fayed, [1992] BCC 524, the present case does not involve a conflict between proceedings before a domestic regulatory body on the one hand and parallel civil proceedings on the other (such parallel proceedings almost certainly involving different parties and different remedies, notwithstanding that each set of proceedings has been spawned by the same broad set of facts, of which, perhaps, the demise of BCCI and Polly Peck are classic examples).

32. To the contrary. The present case focuses upon a tension (I hesitate to use the term "conflict") between three separate regulatory agencies in three different jurisdictions arising out of the same trading strategy, namely Nomura's unwinding of its arbitrage position in the Australian markets on 29th March 1996. And despite the efforts of distinguished Counsel and their respective teams, no similar reported case has been located.

33. It follows, therefore, that the considerable body of authority in this area which has come into existence in recent years is of assistance solely in terms of the abstraction of general principle. And whilst Counsel differ, naturally enough, in terms of the emphasis to be accorded to certain elements within their preferred cases, there is, I think, no real disagreement of substance here either. As Mr Thomas, S.C. accepts, the burden is on the Applicants to establish that the refusal of the stay pending the outcome of the Australian proceedings involves a real risk of prejudice which may lead to injustice in one or both of those proceedings, the relevant standard being that of the balance of probabilities. And that with the establishment of this threshold point, so to speak, the Court then undertakes a balancing exercise in which it weighs the risk of prejudice or injustice on the one hand against countervailing considerations of public interest on the other. As Nolan, LJ. observed in Brindle, op.cit., at p.301 :

"The critical question as I see it is whether its continuation at this stage would delay, impede and prejudice the appellants in the conduct of their defence [in the civil proceedings] to an extent which cannot be justified in the public interest."

34. I turn now to the application of these general principles to the present situation.

THE PRINCIPLES APPLIED

35. Agreement on general approach and relevant principles notwithstanding, it is the application of such principles to the instant case which has provided the substance of the debate. At one stage, during an absorbing argument which was distinguished on both sides by advocacy of a high order, Mr Dykes was moved to remark that "without good reason" the SFC was unable to leave this matter "hanging in the air", and it seemed to me then, as now, that that observation as to the absence of good reason neatly summed up the SFC's perception of the Applicants' position, and served largely to explain why this case has been pressed to Court. In any event, I deal with the twin issues of prejudice and public interest in turn, and in so doing I will, I hope, be forgiven for inelegant summation of what has been highly cogent written and oral argument.

(1) The Issue of Prejudice

36. The fundamental thrust of the prejudice debate, and indeed the core of Mr Thomas' argument, lies in the difficulties endemic in the multiplicity of proceedings concerned with the same, or largely similar, subject matter. The SFA proceedings have now been halted, at least pro tem, and, says Mr Thomas, his clients are now at least in a better position than when they were fighting on three fronts. Even so, he submits, the progress in parallel of the Australian and the SFC proceedings in Hong Kong is creating (and will continue to create) very considerable problems. I have been left in no doubt that his clients' immediate concerns are to throw their efforts into full-scale preparation for the Australian civil action, and Mr Thomas goes on to further submit that considerations of fairness and justice point unequivocally to the desirability of the prior determination of the issues in the Australian forum, which is where the allegedly wrongful trades took place and which, he maintains, is clearly the most appropriate forum, factually and legally, in which to grapple with the crucial issues of the propriety and the legitimacy of such trading. Mr Thomas further submits that it is inherently wasteful in terms of time, effort and money for any entity to be caught, as here, in essentially duplicated legal proceedings dealing with the same subject matter; indeed, in this case, the factual matrix the subject to examination in both fora is, to adopt the Brindle terminology (op.cit. at p.311), "a virtual total elipse"; in such circumstances he submits that "a strong and highly discernible theme of the common law is to lean against multiplicity of suit, not least because the danger of inconsistent findings in the respective fora, and because to permit the situation to be otherwise would encourage an unseemly race to judgment between respective courts or tribunals".

37. Mr Thomas developed this argument with specific reference to the "letters of mindedness" issued in late May 1997, to the broad content of which I have earlier alluded. These letters, issued against the 1st, 3rd, 4th and 5th Applicants, are serious and detailed documents, and as such these documents, he argued, demand a serious, considered and carefully prepared response if there is to be any chance of diverting the SFC from its current "mindset" upon the crucial issues of ability, reputation and financial integrity. Moreover, submitted Mr Thomas, should his clients in fact suffer disciplinary action, there is no doubt that the relevant appellate procedures will be invoked immediately thereafter to place the case before the statutory appellate tribunal, an independent panel constituted for the purpose, the proceedings before which more closely mirror traditional common law views as to the correct mode of determining facts and of adjudicating guilt. This, of course, was precisely the type of process which was due to take place in Australia in July 1998; how much more appropriate, therefore, to await the findings of that most appropriate forum before proceeding further in Hong Kong with the purely disciplinary element of the SFC exercise? The alternative, submitted Mr Thomas, was to sanction parallel proceedings involving two different jurisdictions and two different sets of regulators, a situation recognized as inherently undesirable by the solicitors of the SFC, Messrs Herbert Smith, who in their letter of 23rd October 1997 wrote :

" The SFC accepts as it must do that the fact that dealing with separate proceedings in different jurisdiction is more onerous than dealing with one set of proceedings at a time",

albeit that this letter then proceeded to state :

"The SFC considers that the hardship in question is not nearly as significant as you suggest ..."

38. In a wide-ranging debate of this nature, various strands of argument necessarily intertwine, and it is important, in my view, that they be identified and separately evaluated. It seems to me, for example, essential to separate the intrinsic and well-known problems created by parallel proceedings in different jurisdictions with ideas of the appropriate forum and the concept of forum conveniens as they have developed in the sphere of private international law. In this connection I confess that I am unpersuaded, in circumstances such as these involving parallel process within different statutory regulatory regimes, to accept the persuasive submission that it is necessarily right simply to adopt the mindset of a judge seized with normal forum non conveniens (or lis alibi pendens) arguments.

39. The essential difference, as Mr Dykes suggested, is that in the private law sphere the litigant has a choice in terms of which jurisdiction within which to litigate; so that, for example, if he wishes simultaneously to proceed in both England and Australia with a like dispute against the same or substantially similar parties, he will (other things being equal) generally be made to elect; in this regard multiplicity of proceedings are frowned upon and in general are clearly discouraged. But in the present situation, Mr Dykes submitted, a similar choice was not available to his client, the local regulatory authority in Hong Kong. The SFC is statutorily bound to inquire and, if necessary, to discipline all persons registered and operating within its statutory jurisdiction. So that whilst undoubtedly there is a discretion vested in the SFC as to the pace of play, so to speak, there is no choice as to whether the game should be played at all. Ergo, maintained Mr Dykes, if investigations have taken place which are prima facie revelatory of standards of conduct requiring to be addressed in terms of disciplinary action by the SFC, there can be no question of ceding such responsibility to Australia and to the Australian regulators by reason merely of the fact that the trading took place on and in the Australian markets. Nor, said Mr Dykes, should it necessarily be thought that the SFC would, without more, accept and thereafter act upon whatever determination was arrived at in the Australian proceedings (or in any appeal therefrom). Whilst the SFC would take note of what occurred in Australia, such would be far from conclusive in terms of the SFC's own determination as to the propriety of the particular conduct which had taken place within its own jurisdiction.

40. On this aspect I am minded to agree with Mr Dykes, at least in so far as there is running through Mr Thomas' submissions, with varying degrees of emphasis, the theme that the result achieved by the ASC in the Australian proceedings should, in effect, be regarded as determinative of the present disciplinary position in Hong Kong; and that this should be the case because Australian law represents what I am tempted to call the "proper law of the trades". I am disinclined to accept this argument. And whilst Mr Thomas has powerfully submitted that in the global village there cannot (or at any rate should not) be "competing orders of saintliness", as he attractively put it, it seems to me that the short answer is that this may or may not be the case. What is to the point is that, absent the establishment of a global regulatory policeman (which may yet be visited upon us given technological advances and the internationalization of hitherto relatively remote markets), in my view it remains necessary for, and incumbent upon, each regulatory agency to say what can or cannot occur in it own bailiwick, and to take steps to enforce the desired standard of conduct within its particular jurisdiction via the imposition of sanctions upon persons or houses registered within that jurisdiction. If this be conceptually correct, as I am inclined to think that it is, it does not necessarily follow that an "acquittal" (if I may use such a loaded term) in Australia must result in an "acquittal" in Hong Kong (albeit in true overlap situations it would perhaps be surprising if such a result in Australia was not carefully regarded) or vice versa.

41. So that when viewed against this framework, the idea of inconsistent findings or results does not acquire, in my judgment, the resonance that obtains in the conflict of laws; in short, potential inconsistency seems to me to be endemic in a system in which each individual jurisdiction maintains separate licensing and registration requirements as a pre-condition for operation within that jurisdiction. Put bluntly, if the particular trading house or trader wishes to function in Hong Kong, such individuals are in the hands of the SFC, for better or worse; that comes with the territory, so to speak, and accordingly, "what one might expect" in any given instance, to take but one of Mr Thomas' themes, may not be the same as "what may legitimately occur". It seems to me, therefore, that once there is rejected, within a multi-jurisdictional regulatory situation, the concept of a "lead regulator" or that of the most appropriate regulatory forum in which to adjudge the propriety of a particular event, the argument presently before the Court becomes re-focused and reverts to hard-headed practical considerations thrown up by the parallel progression, within different jurisdictions, of regulatory activity arising out of the same incident.

42. Viewed at this level, therefore, the argument essentially concerns the difficulties and risks of being required to fight on two fronts at the same time. Moreover, in addition to the sheer volume of vital preparatory work currently on foot for the Australian case, Mr Thomas pointed out that if the Applicants are in the position of having to respond to the 30 day letter at this stage, the 2nd Applicant (which I have not overlooked is the only one of the present Applicants to be involved as a party in the Australian proceedings) will inevitably be placed at a significant tactical disadvantage. Given the large (and doubtless appropriate) element of co-operation that has existed to-date between the Hong Kong and Australian regulators, it was far from unlikely, he suggested, that the detailed material submitted by the Applicants to the SFC would find its way to Australia prior to the 9th April 1998 deadline set in the Australian proceedings for Nomura (UK) to file its witness statements, the individual Applicants herein being almost certain to figure prominently among the witnesses being marshalled by Nomura for the Australian case. Therefore, said Mr Thomas, absent an effective stay, the effect of responding to the present proceedings would also be to put at risk the tactical advantage Nomura currently enjoyed; and, when taken together with the other problems, this would "constitute an unnecessary fetter on what should be untrammelled preparation for a major trial".

43. Mr Dykes, S.C. on behalf of the SFC, did not accept the Applicants' argument. First, he said it "beggars belief" that, at this stage, the Applicants are not in a position to respond with alacrity to the 30 day letter, nor did he accept that the fact of dealing with simultaneous proceedings was sufficient in itself to constitute a real risk of prejudice. The Applicants must be in a position to respond and should do so in the circumstances, he submitted; all that was being required by the SFC was purely a documentary response, and accordingly there was no question of a hearing with witnesses needing to be in two places at once, which was one of the adverse scenarios painted by Mr Thomas. The process involving viva voce evidence is left to appeal, said Mr Dykes; for the moment, the SFC reaches its conclusion on the papers only, and it had merely asked for such written representations pursuant to its statutory obligation, within the terms of section 56(3), Cap.24, not to impose any penalty "without first giving the registered person an opportunity to be heard". Curiously, therefore, the very process of affording the right to be heard had attracted judicial review.

44. In addition, said Mr Dykes, the SFC had been first off the mark, in terms of official action, in response to the events of 29th March 1996. And as for premature disclosure, the problem could be dealt with by an undertaking, which was proffered to the Court towards the end of his submission, to the effect that the written representations received by the SFC would not be made available to the ASC prior to the 9th April deadline for Nomura to put its own evidence on record within the Australian proceedings.

45. To this submission Mr Dykes added the further argument that if, which was disputed, prejudice did exist in these circumstances, the Applicants had brought this situation upon themselves in that the request for a stay should not have merely awaited the conclusion of the investigatory phase (in which the Applicants' full co-operation was only to be expected), but should have been made considerably earlier. So that if the timing of events in the two jurisdictions was now seen to be causing real difficulties, this problem was one of the Applicants' own making.

46. I am not persuaded by this latter argument, which on the facts seems to me to be harsh. In the circumstances prevailing, in my view it is eminently probable that any suggestion made to the SFC to the effect that the investigatory phase should be stayed or otherwise postponed pending the determination of the Australian proceedings would have met with the sort of brief and pithy response that the SFA had accorded a similar request by Nomura (UK). Moreover, in correspondence with the SFC, it was evident that Nomura had throughout drawn a clear line of demarcation between the supervisory element and the trading aspects of the case, and if as a matter of historical development circumstances now have arisen whereby matters are effectively proceeding in parallel in two jurisdictions, it is, I think, less than generous to lay responsibility for this situation at the Applicants' door. And in any event, as Mr Thomas observed, there could be no discernible risk of prejudice in the act of simply co-operating with the SFC's inquiries.

47. At the end of the day, of course, the Court has to grasp the nettle. Has there been demonstrated, in the circumstances prevailing, a sufficient risk of prejudice if the present regulatory proceedings in Hong Kong proceed in accordance with the SFC's timetable (or, I suppose, as nearly in accordance with that timetable as now is possible given the institution of the present court proceedings.)? In this context Mr Thomas pointedly did not suggest that the SFC's disciplinary jurisdiction should not purport to be exercised; to the contrary, on behalf of his clients he asked only that the necessary incidents of that jurisdiction should not take place now.

48. The arguments are nicely poised, and have afforded a degree of reflection. Ultimately I have come to the conclusion, on the evidence before me and in light of these very particular circumstances, that the submission made as to a sufficient risk of prejudice, and the possibility of consequent injustice, is established. I have attached considerable weight to the difficulties and problems which are inherent within, and a function of, the existence of parallel proceedings. In this connection, Mr Thomas has referred me to some celebrated dicta on the point, but in my view, general difficulties of this nature do not require great elaboration. I note in passing, however, that it was just such elaboration that was required on behalf of the SFC. In a letter of 15th August 1997, Mr Dickens said, in terms :

"We would expect you to provide detailed projections as to the time and resources likely to be involved, and an explanation as to how that expenditure of time and resources impacts on the defence of the SFC disciplinary action."

49. It may be that that request, doubtless put forward in good faith, neatly illustrates the difference in mindset between a regulator on the one hand and a litigation lawyer on the other when the latter is seized with the task of doing his best for his client in each jurisdiction wherein that client is under attack.

50. Be that it may. For my part I do not think, in the particular situation prevailing, that such expectation with regard to a detailed breakdown was or is reasonable. Quite apart from the manifest waste of time and resources in the compilation of so detailed a projection, I harbour real doubt as to whether such a projection would be achievable at all. Preparation for major litigation is not a static linear exercise; problems of preparation need to be dealt with as and when they arise, tactical and strategic decisions require to be taken, the weighing of options often needs to be anxiously confronted; it is not, I apprehend, mere neophytes at the Bar who sometimes suffer sleepless nights when wrestling with what is or is not in their client's best interests.

51. In my view, on a broad view of the papers before the Court, including the relevant correspondence prefacing the application and the affidavit evidence, those acting for the Applicants have more than adequately rehearsed the difficulties with which they were, and are, genuinely faced, difficulties which had been amplified again by Counsel during submission. It is patently not, as Mr Thomas, S.C. said, simply a question of "dashing off" a few submissions in response to the letters of mindedness. Nomura were entitled to present the Hong Kong regulators which the fullest range of material, including statements from all relevant witnesses together with experts' reports supporting Nomura's argument as to the propriety of the trading strategy adopted, and also evidence of Australian law and of Australian market practice; in other words, a full defence, and this not least in a situation in which the regulators appear to have formed some firm ideas about the propriety of his clients' actions, a concern with which Mr Dykes' bald statement that "we have made our findings of fact" did nothing to allay. I would observe, however, that I do not think that Mr Thomas was correct in suggesting that, in its determination to press on, the SFC's conduct "borders on the oppressive". That, in my view, puts the case too high. Possibly Mr Thomas was nearer the mark when he commented that the current SFC position was "against good sense and good judgment".

52. At the end of the day, whatever technical justification may be marshalled for the current SFC insistence upon submissions in response to the "letters of mindedness", my view is that it was inappropriate for the SFC to press the point with quite the singlemindedness of purpose that has been demonstrated. Nor do I accept Mr Dyke's beguiling but somewhat paternalistic argument that submissions to the SFC would actually assist Nomura's preparation of its case in the Australian proceedings. I take the latter suggestion with a considerable pinch of salt; although the gamekeeper may often think that he knows what is good for the poacher, my experience is that the poacher often does not agree.

53. Nor has been any suggestion that this application is not made in good faith, and no case has been advanced that the application is, for example, little more than a tactical manoeuvre. I conclude that, as I have indicated, a sufficient risk of prejudice has been established should the SFC now be permitted to press on. There is nothing within the SFC's statutory scheme precluding the SFC from exercising its discretion in terms of a more flexible response to particular circumstances, and Mr Dykes, S.C. in an application which contained more than its fair share of well-turned phrases, readily conceded that the SFC is not a "regulatory automaton". Quite so.

54. I turn now, and somewhat more briefly, to the issue of public interest.

(2) Public Interest

55. Mr Dykes' primary position was that this head simply did not fall to be considered because insufficient risk of prejudice had been shown; ergo, there was no need for the necessary balancing exercise to take place. Against this background, it is unsurprising, therefore, that whilst he did not concede the point, Mr Dykes did not pitch his case high in terms of damage to the public interest should there be a delay to the SFC disciplinary proceedings at this stage.

56. In my judgment, that stance was, and is, entirely correct. The public interest in Hong Kong, as reflected by the SFC and the exercise of its statutory remit in ensuring the integrity of the operation of the Hong Kong markets, will not be damaged if, the relevant inquiries having now taken place, the disciplinary element of the procedure is now to be placed on hold for a limited period; indeed, as Mr Thomas observed, the public interest manifestly has been served already by the prompt institution of the SFC inquiries, and by their assiduous pursuit.

57. As earlier noted, there has been no suggestion that such disciplinary procedures should not take place at all; and nor, in my judgment, has there been demonstrated any pressing need to proceed now, rather than several months hence. The trades under scrutiny took place some 20 months ago and, assuming purely for the sake of argument, that the conduct of such trades require disciplinary sanction of some sort, there remains no immediate threat or, for that matter, concern to the investing public, aside possibly from the desire to uphold matters of principle. To the contrary. The particular traders in question, the 4th and 5th Applicants, left Hong Kong some time ago and have returned to London, whilst I gather that the 3rd Applicant, who was involved in a supervisory capacity only, is himself about to leave, if he has not by now already done so. Indeed, requests to the SFC by the individual Applicants to be deregistered have been refused pending completion of SFC procedures (for the reason, I understand, that SFC jurisdiction is coterminous with registered status). So this is demonstrably not a case, for example, of nefarious individuals continuing to wreak havoc on the Hong Kong markets to the immediate detriment of Hong Kong's investing public.

58. Looked at in the round, therefore, this cannot be regarded as a case in which there is a very strong countervailing public interest in proceeding without further delay. Accordingly, I do not think that this element of the case necessitates or merits further deliberation.

CONCLUSION : RESULT OF THE APPLICATION

59. It is clear from the foregoing, I think, that in my judgment the appropriate balancing process causes the scales to come down on the side of the Applicants. I am satisfied that it is fair and just that in the particular circumstances the Court should step in in this case and provide some measure of relief, and it is the precise ambit of such relief that I now address.

60. Mr Thomas, S.C. has made it clear that he does not seek to kick the disciplinary ball into touch, so to speak, for a period longer than is taken for the determination at first instance of the Australian civil proceedings, scheduled for trial for four weeks from 28th July 1998. Although the Short Minutes of Order in those proceedings refer to a listing for further directions on Friday 29th May 1998, and a "tentative" listing of the actual hearing for the period of 27th July to 28th August 1998, evidence recently filed by Mr Korner, Nomura's Australian solicitors seized with the conduct of the proceedings in that jurisdiction, leads me to believe that, if not yet set in stone, the position is in fact pretty firmly fixed. Mr Korner notes :

"I was contacted on 3rd December 1997 by the Assistant to His Honour Mr Justice Sackville of the Federal Court and instructed that His Honour had requested that the parties to the ASC proceedings be advised that the matter would definitely be listed to proceed for four weeks before His Honour during the five week period commencing 27th July 1998."

Mr Korner also provides further indications to the effect that the hearing date will not be lightly vacated. In the same affidavit, this gentleman amplifies the timetable fixed by the Australian Federal Court at the hearing on 28th November 1997, wherein Nomura's Australian lawyers, acting in conjunction with those in London, will have the following major commitments :

"- completion of documentary inquiries and systems analysis to secure verification of discovery by 15 December 1997;

- work on formulation of issues and assumptions for expert evidence, initially in the period December 1997/January 1998 on a preparatory basis and then on a responsive basis from 13 February 1998;

- analysis of ASC's lay evidence and identification of documentary issues to be addressed in Nomura London's evidence, in the period from 19 December 1997 to 13 February 1998;

- preparation and finalisation of lay and expert witness statements to be relied on by Nomura London in the period up to 9 April 1998;

- review of ASC statements in reply and consideration of any further evidence that may be required. The ASC is to file any statements in reply by 8 May 1998;

- consultations with ASC to produce an agreed bundle of documents by 22 May 1998;

- preparation of issues concerning trial conduct and management for submissions at the directions hearing on 29 May 1998; and

- preparation for the trial, including detailed briefing of Senior and Junior Counsel."

61. On the basis of the foregoing, therefore, Nomura and those advising Nomura are evidently going to be pretty pressed, in terms of essential preparatory work, until the end of May 1998. Is there, however, any justification for extending any period of leeway to the anticipated conclusion of the trial at the end of August 1998, and quite possibly beyond, given that in such a complex case the learned trial judge is unlikely to do other than to reserve judgment?

62. I am not convinced. It seems to me that so long as the extensive, and no doubt highly demanding, documentary preparation for trial is properly dealt with, leading and junior Counsel can doubtless proceed with their own preparation. And whilst assistance and the "detailed briefing" of Counsel on particular matters may well be required, this is unlikely, in itself, to demand the type of day-to-day detailed immersion in the case that Nomura's lawyers are clearly going to be required to put in for the coming several months. Nor, for present purposes, do I accept Mr Thomas' invitation to regard the Hong Kong proceedings in the round, so as to encompass both the imposition of the SFC regulatory sanction (if such indeed transpires) together with what is described as "the inevitable appeal". This, I think, is to attempt to peer too deeply into the judicial crystal ball.

63. It seems to me that the broad justice of this case, as I perceive it, can be achieved by affording Nomura some measure of breathing space, but without permitting this, in effect, to be totally open-ended in calendar terms. Certainly the SFA, if that be any guide, has not permitted such a relatively indeterminate situation to arise. In this regard, Mr Thomas has suggested that all relevant considerations could be met should the SFC proceedings be halted pending determination of the Australian proceedings, but with liberty to apply for a review of the situation should circumstances so warrant.

64. Whilst this has its attractions, I am disinclined to adopt that suggestion. In my view, relief by way of judicial review should be, and be seen to be, considerably more clear cut. The Court's discretion to accord relief should, it seems to me, be exercised (or not) upon the basis of the material before it at the time of the application, rather than to permit the development of a sort of "rolling review process" depending upon the vagaries of future circumstance.

65. On this basis, therefore, what has been established to my satisfaction in this case is the situation undoubtedly faced by Nomura up to the end of May 1998. Thereafter, matters in Australia may take the course currently anticipated, or they may not; such eventualities will be exclusively in the hands of the learned judge who has the task of trying that case. But in these circumstances, I am disinclined to make an Order which will have the effect of preventing the SFC in Hong Kong from further proceeding to discharge its statutory functions after 31st May 1998.

66. In my judgment, therefore, the justice and fairness of the case warrants interference with so much of the decision of the SFC in rejecting the application for a stay as relates to the period from the date of such decision, namely 23rd October 1997, up to and including 31st May 1998, and an order prohibiting the SFC, as Respondent, from requiring responses to the letters of mindedness prior to that date. Naturally, I will hear Counsel as to the precise form of the Order, and also with regard to the question of costs.

67. A final comment. At the conclusion of the inter partes hearing for leave to issue the present judicial review proceedings, the Court reminded itself that what the Applicants were seeking to do was to ask for judicial interference in the normal procedural functioning of a domestic regulatory agency, a matter which then seemed to the Court to constitute "a pretty steep hill to climb". The fact that the Applicants have now climbed that hill, in part at least, in the particular circumstances as have arisen, should not detract from the importance and validity of this general approach. I venture to suggest that this case should not be regarded as a bellwether in terms of a judicial inclination to become involved in matters entrusted by the Hong Kong legislature to a responsible regulatory body.

[Submissions from Counsel]

68. I have been much assisted by Mr Thomas and Mr Dykes as to the precise form of the Order, which is the first of the consequential matters with which I have to deal. There is, I think, agreement between leading Counsel that all that is needed in the present situation is an Order in the following specific terms :-

That there be an Order of prohibition whereby the Respondent is prevented as regards the 1st, 3rd, 4th and 5th Applicants under section 56(2) of the Securities Ordinance, Cap.333 or as regards the 3rd, 4th and 5th Applicants under section 36(2) of the Commodities Trading Ordinance, Cap.250 from requesting responses to the respective "Letters of Mindedness" prior to 31st May 1998.

To cater for the possibility (albeit it appears to me highly remote) that there may be some early demise or substantial settlement of the Australian proceedings, in the circumstances I am prepared to grant liberty to apply to either party during the period of this prohibition.

69. The second consequential matter with which I must deal is the question of costs. In this context Mr Thomas, S.C. has reminded me that I specifically reserved the costs of the application for leave to issue the Originating Motion. Mr Thomas asks for his costs; he says, in effect, "I may not have won completely, I may not have got all that I wanted, but I had to come to Court to get relief, and I have obtained relief." He submits that there is no exceptional reason in this case for the Court to depart from the basic principle that costs should follow the event.

70. Mr Dykes, S.C. suggests that the appropriate order should be no order as to costs; that this was not a Wednesbury unreasonableness situation, and that the present proceedings were brought primarily for the benefit of Nomura in Australia given that the individual Applicants herein have no direct benefit accruing from the limited stay that has been ordered. The SFC had assisted the Court to reach an informed view, and matters were only really clarified once the review proceedings proper commenced.

71. Sometimes it strikes me that costs orders are more difficult than the substantive case. However I think that Mr Thomas is right. I think that rigorous analysis requires that the costs should follow the event in this case. Nothing was really offered in terms of latitude, and the matter was pressed to Court. The SFC have taken a hard-nosed attitude and I have ruled, rightly or wrongly, that this attitude was a touch too hard-nosed. I have also in this judgment quoted from the pre-trial correspondence wherein Messrs Clifford Chance set out their case; and their case, at least in terms of the difficulties of parallel preparation, I have held to be vindicated. It seems to me that had there been more flexibility displayed, a good deal of money could have been saved, and certainly I would not have had to detain Counsel for an hour and a half while I delivered what is, in the circumstances, a relatively urgent judgment.

72. Accordingly, the costs of and occasioned by this application are to be the Applicant's, including the costs reserved from the application for leave; needless to say such costs are to be taxed, if not agreed.

73. Lastly it remains for me to thank both Senior Counsel for the precision of their arguments and the very considerable assistance they furnished to the Court.