In a judgement handed down this week, the Court of Appeal has overturned the decision of Commissioner Clyde-Smith in In Re Tantular  JRC 114 that had the effect of prohibiting a bank from assigning its mortgage to a third party.
The Court of Appeal has held that the Commissioner “conflated” the issues as to sale of the property with the right of the bank to deal with its own property.
Advocate Timothy Hanson (who appeared for the Appellants) commented that “There has been a tendency for the Attorney-General to ask that the Royal Court apply a “purposive” approach to the interpretation of a saisie. There comes a point, however, where the result bears little relation to the order actually made and a great risk of injustice to third parties who are threatened with contempt. The approach, further, sits uneasily with the role of the Attorney-General as a minister of Justice.”