© 2024 by Michael Firth KC, Gray's Inn Tax Chambers
Contact: michael.firth@taxbar.com
Procedure.Tax
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J8: Judicial review: procedure
Judicial review v. High Court proceedings
- Abuse of process to challenge validity of HMRC statutory decision in ordinary High Court claim rather than judicial review
"[25] We are satisfied that, in the present case, the correct procedure for individual partners to challenge the amendments made to their returns was by judicial review, and not by ordinary civil proceedings. There are a number of reasons for this.
[1] First, there are no private law rights involved. This is not, for example, a case where a claimant is seeking to enforce a contractual right.
[2] Second, the time limits are a strong factor in favour of judicial review being the correct procedure. Both appeals to the FTT and applications for permission to pursue judicial review are subject to short time limits. It makes no sense at all that an individual taxpayer or a partnership has a period of 30 days in which to appeal to the FTT against a closure notice, but an individual partner should have six years in which to make what is, in effect, the same challenge to a notice given under section 28B(4).
[3] Third, the challenges in these cases affect a large number of people and raise no issues of fact that might be unsuitable for determination in judicial review proceedings.
[4] Fourth, the requirement for permission to pursue judicial review does not make it an unsuitable procedure in the circumstances of this case, any more than in the many other cases (tax and non-tax) to which it applies. It is no more than a filter to weed out groundless cases.
[26] We are accordingly satisfied that the judge was right in his conclusion that, irrespective of the merits of the substantive issues of law arising in these cases, the Part 7 proceedings should be struck out as an abuse of the process of the court." (Knibbs v. HMRC [2019] EWCA Civ 1719 - numbering added)
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"[64] In my judgment, these (obiter) observations about the appropriateness of a judicial review claim on the facts of that case do not lend any support to the argument that a claim that is properly the subject of a judicial review, in accordance with Knibbs, can be brought instead as a Part 7 claim. On the contrary, Archer supports the argument that a challenge to the validity of a notice should be brought by judicial review if an appeal is unavailable or inappropriate for other reasons. Neither is a Part 7 claim seeking to establish that HMRC could not or could not properly give a s.28B(4) notice to the claimant justified because HMRC threatened bankruptcy proceedings: the Administrative Court or the bankruptcy court can grant a temporary injunction, if required, to restrain presentation of a bankruptcy petition.
[65] The real issue raised in the claim before the court is whether HMRC has power to give a s.28B(4) notice to a partner, following a closure notice served on the partnership, if in law there was no partnership. That is, in the first instance, a general question of statutory interpretation as to the scope of the duty/power conferred on HMRC by the TMA, as amended; and secondly a question of whether in the light of the s.54 Agreement it was proper for HMRC to exercise it. All the relief claimed – so far as it is still pursued – flows from a decision on these issues.
[66] Stating the issues in this way demonstrates that this is a claim that should have been brought by judicial review. The matter in issue is the validity of the s.28B(4) notices, which depends on general issues of law. There is no overlap with private law rights, as there was in a case like Clark v University of Lincolnshire and Humberside [2000] 1 WLR 1988, which prevented the bringing of a private claim for breach of contract in a public law context from being an abuse of process.
[67] In my judgment, HMRC is right that to bring this claim for declaratory relief as a Part 7 claim, well out of time for bringing a judicial review claim, is an abuse of process. The issues are ones of general significance, raising no factual dispute. In substance the relief sought is the quashing of the s.28B(4) notices, or a declaration of their invalidity, and the other relief sought is purely consequential. Had I concluded that the s.54 Agreement means that it was agreed that there was never a partnership, the question would still remain whether on that basis the duty in s.28B(4) was subject to an implied limitation (or was wrongly exercised) when (as conceded on behalf of the Claimant) the duty in s.28B(2) to amend the partnership return had to be complied with.
[68] These are public law questions, not matters of private right." (Barklem v. HMRC [2024] EWHC 651 (Ch), Fancourt J)
​
- Challenge existence of debt by waiting to be sued or High Court declaration
"[69] At the hearing, I questioned whether these proceedings had properly been brought by way of judicial review. Mr Derry then applied to amend the relief sought so that in addition to an order quashing the relevant demand and prohibiting HMRC from taking any enforcement action in reliance on it, the Upper Tribunal was asked to declare that the tax due and payable by Mr Derry for the year 2009-2010 was Nil. In the alternative, the Upper Tribunal was asked to grant such other remedy as it considered appropriate.
[70] I do not think that the procedure used in this case was appropriate. The application proceeds on the basis of a misunderstanding of the function and effect of a demand by HMRC under section 60 of TMA. That section allows HMRC to serve a demand if there is tax due and payable. If there is no tax due and payable, then the demand is of no effect. The service of a demand does not create a debt or other liability if there is no pre-existing debt. If HMRC do serve a demand where there is a pre-existing debt, then they can take steps to recover or collect that debt. Accordingly, the decision by HMRC to serve a demand does not create a liability or alter a pre-existing liability. It may be that there is a public law decision involved in deciding to serve a demand but it is not a public law decision which creates or alters a liability and, where there is no pre-existing liability, the decision would not normally need to be quashed. It would be an unusual case where it would be necessary to apply to the court to quash the decision to serve a demand.
[71] Mr Derry says that there is no right of appeal against a demand. Strictly, that is correct but that is because the demand does not create or alter any liability. In fact, the statement is potentially inaccurate because there are steps which can be taken to call into question the validity and effect of a demand. The normal step would be for the taxpayer to wait to be sued in the county court or the High Court and then to defend the claim made in accordance with the demand. The decision of the Supreme Court in Cotter establishes that the county court and the High Court have jurisdiction to determine the kind of dispute which arises in the present case as to whether a taxpayer owes the tax which is said by HMRC to be due and payable. Further, if a taxpayer can defend such a claim in the county court or the High Court I do not see why the taxpayer could not seek declaratory relief in advance of being sued by HMRC." (R (oao Derry) v. HMRC [2015] UKUT 416 (TCC), Morgan J)
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- Raising public law arguments as a defence in collection proceedings
"[21] [HMRC's] essential argument before us is that the practical consequences of the respondent here postponing his challenge to the Board's directions until he comes to raise it by way of defence to the collector's recovery proceedings are indeed significantly disadvantageous, at any rate to the Inland Revenue and the public interest.
...
[28] Powerful though many of these arguments are, and ably presented though they were, I for my part would reject them. To my mind there is no true distinction to be made between this case and Winder. The lack of any contractual relationship between the Revenue and the taxpayer really can make no logical difference to the position. In the Dennis Rye Pension Fund case, Lord Woolf said at page 846:
"... as in Roy's case, I would regard this as being a case where the plaintiff's relationship with a public body whether statutory or contractual would confer on him conditional rights to payments so that bringing of ordinary actions to enforce those rights was not in itself an abuse of process"
[29] By the same token, the respondent's relationship to the Revenue here was surely such as to confer on him "conditional rights to [resist] payment."
...
[32] As for the undoubted practical disadvantages which flow from raising a public law challenge like this by way of defence instead of judicial review, this too is an argument which Winder amply demonstrates (in the passage already cited) to be unavailable to the appellant. Indeed it seems to me plain that the disadvantages in that case were altogether greater than any which exist here. The decision there affected many third parties (tenants and ratepayers) and its challenge put at risk the whole basis of the council's financial administration over a period of years. The present challenge concerns only a single taxpayer's liability although of course the point of principle is clearly one of great importance to the Revenue and would affect many cases.
[33] It is with this thought in mind that I return finally to Inland Revenue Commissioners v Aken. There, as stated, this court held the taxpayer to be precluded from disputing his liability in proceedings brought by the Commissioners to enforce assessments made against him. Statutory machinery exists for appealing against such assessments and, consistently with Inland Revenue Commissioners v Pearlberg [1953] 1 WLR 331, Commissioners of Inland Revenue v Soul (1975) 51 TC 86, and In re Vandervell's Trusts [1971] AC 912, this was held to be the exclusive machinery by which an assessment could be contested. Although the judgments contain obiter dicta which contemplate the possibility that complaints of abuse of power or unfairness could sometimes be raised by way of judicial review or defence to tax recovery proceedings, this possibility is understandably put as "exceptional" and "rare in the extreme".
[34] It seems to me that the Revenue's solution to the problem raised by the present case is a simple one: they should confer on taxpayers a right of appeal against directions comparable to that which arises on assessment.
[35] I would allow the appeal but hold that the respondent is entitled to advance his public law defence in the County Court. There will accordingly have to be a rehearing below." (Pawlowski v. Dunnington [1999] EWCA Civ 3020)
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Time limit: 3 months and promptly​
“(1) The claim form must be filed –
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose.” (CPR 54.5)
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“(1) A person seeking permission to bring judicial review proceedings before the Upper Tribunal under section 16 of the [Tribunals, Courts and Enforcement Act 2007] must make a written application to the Upper Tribunal for such permission.
(2) Subject to paragraph (3), an application under paragraph (1) must be made promptly and, unless any other enactment specifies a shorter time limit, must be sent or delivered to the Upper Tribunal so that it is received no later than 3 months after the date of the decision, action or omission to which the application relates.” (Upper Tribunal Rules 2008 (SI 2008/2698), r.28)
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- Time limit runs from when decision has legal effect
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"[60] The reasoning in para 43 indicates that Lord Steyn did not consider his conclusion that time ran from when the decision had legal effect rather than from an earlier point when the decision was foreseeable or provisional, was limited to the planning context. At paras 44 – 50 he identified a number of factors that pointed against the Greenpeace approach (which was overruled). In particular, he stressed the desirability of a clear and straightforward interpretation that would yield a readily ascertainable starting date, whereas the lack of certainty inherent in the Greenpeace approach was “a recipe for sterile procedural disputes and unjust results” (para 49).
...
[90] However, in my judgement these would be unrealistic contentions given there had been no legally effective decision taken by that point. Consistent with the decision in Burkett, the sheer fact that it may have been possible to bring a challenge to an anticipated or foreseeable future decision does not mean that the time for challenging the decision ran from before the time when the decision had legal effect (paras 58 - 60). The decisions complained of did not have legal effect until the Direction was brought into force from 7 May 2022." (R (oao Tax Returned Limited) v. HMRC [2022] EWHC 2515 (Admin), Heather Williams J)
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- Sensible approach to commencement of time limit
“I do not think it fair to blame the appellant for not having tried to launch judicial review proceedings earlier. It is not obvious to me that the right approach to difficult problems such as this is to rush off to the administrative court. Most people try to resolve their difficulties over access to public services by negotiation and agreement with the authorities. Very few have the knowledge or the resources to approach the administrative court. If all the people who were trying to persuade public authorities to comply with their legal obligations did so, the court would soon be swamped. Better by far to try and achieve a negotiated solution. Indeed, while negotiations are going on, the court may well refuse leave on the ground that the application is premature.” (A v. Essex County Council [2010] UKSC 33, §117)
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- Time limit not applied unthinkingly (particularly if there is a statutory procedure open to T)
"[92] I am equally unimpressed by the argument that the strict three month time limit for judicial review leaves the taxpayer with no realistic option except to begin judicial review proceedings within three months of the date of the APN, even if representations are also made under section 222. The authorities show that, although the time limit in CPR 54.5(1) is indeed strict, it is not applied unthinkingly, and in a suitable context the courts are willing to adopt a flexible and pragmatic approach, as exemplified in cases such as Burkett. Where Parliament has provided a potential alternative remedy, such as that in section 222, the court will if necessary ensure that the taxpayer is not prejudiced by taking advantage of it. So, for example, in a case where the taxpayer has in good faith made representations under section 222, and HMRC's response is not notified to the taxpayer until more than three months from the date of the APN, I would expect the court to proceed on the basis that time does not begin to run for judicial review purposes until the date of the notification. In practical terms, the sensible course would normally be for the taxpayer, when making his representations, to seek HMRC's agreement that time for judicial review purposes should not begin to run until the section 222 procedure has been completed. Absent exceptional circumstances, I cannot imagine that HMRC would refuse such a request, and if they did so without justification, I would expect any subsequent objection to judicial review on the grounds of delay to receive short shrift from the court. As the guidance in Cowl emphasises, both sides are under a duty to act responsibly and to take all reasonable steps to ensure that judicial review proceedings are not prematurely pursued while other forms of dispute resolution are in progress." (R (oao Archer) v. HMRC [2019] EWCA Civ 1021, Henderson Floyd, Flaux LJJJ)
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- Argument that T should exhaust statutory appeal procedure first
"[20] Mr Peretz for the Secretary of State contends that SPL should have exhausted the statutory appeal procedure before progressing the claim for judicial review. The judicial review proceedings eventually became moot because SPL had succeeded on the grounds relied on in the statutory appeal..." (R (oao Speciality Produce Limited) v. Secretary of State for Environment, Food and Rural Affairs [2014] EWCA Civ 225)
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- Promptness: depends on the nature of the decision challenged
“[45] The claim was filed on 6 May 2016, two days short of the three month period from the date of that settlement. It is trite law that CPR 54.5 does not provide a three month time limit for commencement of judicial review proceedings; claims have, in any event, to be filed "promptly". What is “prompt” depends on the nature of the challenge. This was in substance, a challenge to a budgetary decision of central government. In my judgment it is self-evident that such a challenge has to be brought very promptly indeed since it potentially threatens the budgetary arrangements of the Government for an entire year.” (R (oao Liverpool CC) v. Secretary of State for Health [2017] EWHC 986 (Admin), Garnham J)
“[31] ... Prompt action is necessary so that the parties, and the public generally, know whether they are able to proceed on the basis that a decision is valid and can be relied on and so that they can plan and make business decisions accordingly. In the context of a challenge to a decision affecting the sale of a significant, publicly-owned asset, the wider public interest, as well as the interest of the bidders, provide a real need to ensure that any challenge which may affect the sale process is resolved quickly.” (R (oao Sustainable Development Capital LLP) v. Macquarie Corporate Holdings Pty Ltd [2017] EWHC 771 (Admin), Lewis J)
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- Promptness: absence of prejudice predominant consideration
“[37] ... Indeed, when considering whether an application is sufficiently prompt, the presence or absence of prejudice or detriment is likely to be the predominant consideration. The obligation to issue proceedings promptly will often take on a concrete meaning in a particular case by reference to the prejudice or detriment that would be likely to be caused by delay.” (Maharaj v. National Energy Corporation of Trinidad and Tobago [2019] UKPC 5)
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- HMRC should identify any prejudice at the outset
“[41] ... Nowadays the pre-action letter of response allows a respondent or interested party to draw attention to the possibility of any prejudice or detriment. Compliance with pre-action protocols and the Civil Procedure Rules should ensure that in most cases issues of prejudice or detriment to good administration are identified at the outset...” (Maharaj v. National Energy Corporation of Trinidad and Tobago [2019] UKPC 5)
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Extension of time
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- Test is good reason for extending time (prejudice or detriment important factors)
“[38] In the same way, questions of prejudice or detriment will often be highly relevant when determining whether to grant an extension of time to apply for judicial review. Here it is important to emphasise that the statutory test is not one of good reason for delay but the broader test of good reason for extending time. This will be likely to bring in many considerations beyond those relevant to an objectively good reason for the delay, including the importance of the issues, the prospect of success, the presence or absence of prejudice or detriment to good administration, and the public interest. Here the Board finds itself in agreement with the observations of Kangaloo JA in Abzal Mohammed (para 25) cited above para 17. In Trinidad and Tobago these are all matters to which the court is entitled to have regard by virtue of subsection 11(3). More fundamentally, where relevant, they are matters to which the court is required to have regard.
[...]
[43] For these reasons the Board accepts the submission of Mr Fordham on behalf of the appellant that, far from constituting an insulated residual discretion, considerations of prejudice and detriment are capable of being of key relevance to the issues of promptitude and extension of time.
[...]
[47] The Board is, however, unable to endorse without reservation the approach followed by Kangaloo JA in Abzal Mohammed . It is not the case that “it is only if there is both undue delay and prejudice or detriment that the Court may refuse to grant leave” (per Kangaloo JA, para 21). Here the Board agrees with the observation of Jamadar JA in the Court of Appeal in the present case (para 51) that Kangaloo JA in Abzal Mohammed overstated the position somewhat. While prejudice or detriment will normally be important considerations in deciding whether to extend time, there will undoubtedly be circumstances in which leave may properly be refused despite their absence. One example might be where a long delay was wholly lacking in excuse and the claim was a very poor and inconsequential one on the merits, such that there was no good reason to grant an extension." (Maharaj v. National Energy Corporation of Trinidad and Tobago [2019] UKPC 5)
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- Prejudice: what would HMRC have done differently?
“[35] There is no real prejudice to the Council caused by the delay as its case is not that if the judicial review application had been brought earlier, it would not have incurred the expense which it did because the Council has continued incurring expenses even after the present judicial review claim was brought. I assume that it would have acted in the same way if the judicial review claim had been bought more promptly. So I would not refuse permission on the grounds of delay.” (R (oao Croydon Property Forum Ltd) v. Croydon LBC [2015] EWHC 2403 (Admin), Sir Stephen Silber)
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- Pursuing an FTT appeal
“[13] Initially, I was unimpressed by the period of time taken by the claimant to bring this claim for judicial review. However, analysing the chronology, the issue of expedition was, in fact, flagged up by the claimant on 6 June 2017. The grounds attached to the Notice of Appeal expressly referred to expedition. The decision on expedition was not given by the First-tier Tribunal until 5 December 2017. The claimant could, in my judgment, put forward the argument…that it was reasonable to await the outcome of the First-tier Tribunal decision and then to apply for judicial review with a view to seeking interim relief. I accept that argument and that explains the delay between the end of the three months from 18 May decision to a period of 5 December 2017. I also accept [the claimant’s] submission that the claimant would need a reasonable period of time thereafter in order to bring the judicial review claim. The decision refusing expedition did not restart any 3-month period.” (R (oao Manhattan Systems Limited) v. HMRC [2018] EWHC 1682 (Admin), Lewis J)
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“The delay in seeking judicial review of that assessment is because the claimant initially appealed to a Value Added Tax tribunal. But on 20 July 2000 the tribunal decided that there was no right of appeal since the claimant's case depended on an extra-statutory concession and it was "not within the jurisdiction of the tribunal, which is appellate in nature, to review the Commissioners' application of the [concession] any more than it is within our jurisdiction to review the Commissioners' “care and management' powers, such as their conferring and withdrawing the benefits of extra-statutory concessions”. On 15 August 2000 this application for judicial review was made. On 18 September 2000 Richards J granted permission to proceed notwithstanding the delay since he was satisfied that there was a good reason for it. Mr. McKay, who appeared before me on behalf of the Commissioners, indicated that he did not propose to take any point based on delay.” (R (oao Greenwhich Property Ltd) v. CCE [2001] EWHC Admin 230)
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- Reasonably waiting for final decision
“[107] In our judgment, on the facts of this case, where each of the decisions was a step along the path required by statute when a direction under section 38 is being contemplated by a PCC, and where the Chief Constable argues that a flawed approach by the PCC underlies all the decisions made, it is understandable that the Chief Constable should wait until the final decision before launching proceedings. Those circumstances provide a good reason to extend time. We anticipate that PCC would have alleged a challenge was premature if launched before the process was completed.” (R (oao Crompton) v. Police and Crime Commissioner for South Yorkshire) [2017] EWHC 1349 (Admin), Garnham J)
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Alternative remedy
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- FTT usually exclusive forum for grounds within its jurisdiction
“[57] In my judgment the principle is applicable in the present tax context. The basic object of the tax regime is to ensure that tax is properly collected when it is due and the taxpayer is not otherwise obliged to pay sums to the state. The regime for appeals on the merits in tax cases is directed to securing that basic objective and is more effective than judicial review to do so: it ensures that a taxpayer is only ultimately liable to pay tax if the law says so, not because HMRC consider that it should. To allow judicial review to intrude alongside the appeal regime risks disrupting the smooth collection of tax and the efficient functioning of the appeal procedures in a way which is not warranted by the need to protect the fundamental interests of the taxpayer. Those interests are ordinarily sufficiently and appropriately protected by the appeal regime. Since the basic objective of the tax regime is the proper collection of tax which is due, which is directly served by application of the law to the facts on an appeal once the tax collection process has been initiated, the lawfulness of the approach adopted by HMRC when taking the decision to initiate the process is not of central concern. Moreover, by legislating for a full right of appeal on fact and law, Parliament contemplated that there will be cases where there might have been some error of law by HMRC at the initiation stage but also contemplates that the appropriate way to deal with that sort of problem will be by way of appeal.” (R (Glencore Energy UK Ltd.) v HMRC Revenue and Customs [2017] EWCA Civ 1716, Sales, Gloster, Singh LJJJ)
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- JR for grounds of challenge not within FTT jurisdiction
“[6] It is unfortunate that, for whatever reason, the course taken in the case of the first appellants was not taken in the case of the second appellant. Were either of his contentions in the present proceedings to prevail, it would follow that the commissioners invested a large amount of time – as well as a conspicuous degree of care – in application to the issues of his residence and ordinary residence of principles inapplicable to them. In their Decision they expressly noted that their function was to apply the law rather than the guidance in the booklet. But, whereas issues of fact between the Revenue and the first appellants in relation to their circumstances in 2001-02 remain unresolved, the now conclusive resolution by the commissioners of the issues of fact between the Revenue and the second appellant in relation to his circumstances from 1992-93 to 2003-04 at any rate throws the effect of these proceedings into sharp relief. For, although it remains an open question whether, upon application of the ordinary law, the first appellants were resident and ordinarily resident in the UK during the year relevant to them, we know that, upon application of the ordinary law, the second appellant was resident and ordinarily resident in the UK during the years relevant to him. As the appellants rightly stress, a legitimate expectation that the ordinary law will apply to them is a matter of no legal significance in that it adds nothing to the right of every citizen to due application to him of the ordinary law.” (R (oao Davies and another) v. HMRC [2011] UKSC 47​)
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“[58]...In [re Preston [1985] 1 AC 835], the allegation was that the Inland Revenue Commissioners had made a promise not to collect tax in certain circumstances (i.e. had created what would today be called a legitimate expectation not to collect an amount of tax), and although the allegation was not made out the House of Lords was prepared to accept that such a claim could be made by way of judicial review. In fact, the tax appeal process would have been incapable of dealing with such a claim of unlawfulness on the part of the commissioners, which did not go to the merits of whether the criteria for imposition of tax were or were not met (a subject fit for examination on appeal) but rather to enforcement of fundamental rule of law standards against the commissioners if they had in fact made a promise not to initiate the tax collection process in the first place.” (R (Glencore Energy UK Ltd.) v HMRC Revenue and Customs [2017] EWCA Civ 1716, Sales, Gloster, Singh LJJJ)
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"[8] There are principles of common law governing when claims for judicial review may be brought. One set of principles concerns the fact that generally judicial review is not appropriate when there are other adequate alternative remedies available. Where Parliament has created a statutory appellate system to hear appeals against decision, that system, rather than judicial review, is generally appropriate and permission to apply for judicial review is generally refused because of the availability of an alternative remedy which is adequate (see. e.g. R (Glencore Energy UK Ltd.) v HMRC Revenue and Customs[2017] EWCA Civ 1716). There are cases where the particular grounds of challenge available before a tribunal are narrower than those available in judicial review, in which case judicial review may be appropriate in relation to those other grounds (see, for example, CC & C v HMRC [2014] EWCA Civ 1653). That particular situation does not arise here because all the grounds of challenge in relation to the substantive decision to deregister would be available in the First-tier Tribunal..." (R (oao Manhattan Systems Limited) v. HMRC [2018] EWHC 1682 (Admin), Lewis J)
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- Application to Adjudicator or Parliamentary Ombudsman may be alternative remedy
"[52] The Respondent contended that there is an alternative remedy open to the Applicant, namely an application to the Adjudicator, an impartial and independent referee whose role is to consider whether or not the Respondent and other similar bodies have handled complaints properly and have given a reasonable decision. When the Adjudicator considers that the Respondent has fallen short, she will recommend what it needs to do to put matters right, including the payment of compensation. Mr Dunn had of course specifically alerted the Applicant to the possibility of referring its case to the Adjudicator in his letter of 17 May 2012.
[53] For the Respondent, Mr Singh pointed out also that, in the event that the Applicant is dissatisfied with the outcome of an application to the Adjudicator, it would be open to it to approach the Parliamentary and Health Service Ombudsman (PHSO). The PHSO would have the power to direct the payment of appropriate compensation by the Respondent to the Applicant.
[54] Miss Graham-Wells contended that this Court was the Applicant's last resort, since no other avenue it can pursue will offer an adequate, suitable or otherwise effective remedy. She argued that the case involves matters of law with which neither the Adjudicator nor the PHSO could deal. Neither could they reach conclusions as to whether the disputed decision was irrational, unreasonable, conspicuously unfair or otherwise in breach of natural justice, procedural fairness and/or an abuse of power. Miss Graham-Wells also submitted that, since the Adjudicator and the PHSO only have the power to make "recommendations" to Government Departments, there is no guarantee that, even if they recommended payment of substantial compensation to the Applicant, the Respondent would comply with that recommendation. Only this Court, she said, could bind the Respondent.
[55] The Respondent acknowledges that it is not open to the Adjudicator or the PHSO to consider disputes of law. However, Mr Singh submitted that they would be well able to consider the adequacy of the Respondent's findings on the central questions raised by the Applicant's judicial review claim, namely whether the Applicant had demonstrated that it had suffered an economic loss in the relevant period and, if so, whether the Respondent was solely responsible for that loss.
[56] I do not consider that this claim involves issues of law or policy. The Applicant contends that the Respondent was wrong to apply the capping restrictions to the claim for Period 2 and that it applied the wrong Guidance when determining the Applicant's claim. However, those are not issues of law; they concern what are in essence alleged errors in the Respondent's application of its decision-making system. There is no reason why the two alternative organisations concerned could not deal with those issues. They would also be in a good position to reach a conclusion as to whether the Respondent has acted unfairly and/or improperly, as alleged by the Applicant. Moreover, the fact that the two organisations would not have the power to declare the Respondent's actions unlawful does not mean that they do not provide an adequate remedy. The organisations are able to make a recommendation for the payment of monies and that is the outcome which the Applicant is seeking. The argument that the claim involves a breach of Article 1 of the ECHR is somewhat fanciful and cannot form the basis for a decision that the Applicant has no adequate alternative remedy.
[57] In addition, the Applicant's claim involves factual issues, e.g. the dispute about the extent of the advice given to the Applicant by officers from the local VAT Office and the dispute about the nature and adequacy of the financial information provided to the Respondent by the Applicant in support of its claim. Such factual issues would be much more appropriately explored by the Adjudicator and/or the PHSO than by this Court." (R (oao NCM 2000 Ltd) v. HMRC [2015] EWHC 1342, Swift J)
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- Consider whether alternative remedy is an effective and more suitable remedy
“Whether the alternative statutory remedy will resolve the question at issue fully and directly; whether the statutory procedure would be quicker, or slower, than procedure by way of judicial review; whether the matter depends on some particular or technical knowledge which is more readily available to the alternative appellate body; these are amongst the matters which a court should take into account when deciding whether to grant relief by way of judicial review when an alternative remedy is available.” (ex p. Waldron [1986] QB 824 at 852, Glidewell LJ).
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- Abuse to argue another forum provides appropriate remedy and then object to that alternative
"[321] The second source of unfairness is the dismissal of the judicial review proceedings on the application of the respondents expressly on the basis that the merits of the claim could better be dealt with in the civil proceedings. Having succeeded in having the judicial review proceedings set aside on that basis, it is extraordinary that the Ministry and the ICTA thought it was appropriate then to attempt to stop the civil claim in its tracks with a series of preliminary points again designed to avoid consideration of the merits of Emtel's claim.
...
[324] All the respondents accept that the Telecom Authority would have been the appropriate respondent for the judicial review claim. Having therefore succeeded in having those public law proceedings set aside relying on the civil claim as providing a better forum, the ICTA then performed a volte face arguing that the civil claim was a nullity on the grounds that the Telecom Authority did not have legal personality. If the ICTA considered that the civil claim was inherently defective because of the Telecom Authority's lack of legal personality, it was incumbent on it to raise this before inviting the court to bring the judicial review proceedings to an end, and it was wrong not to do so. Similarly, there was no good reason for the failure by the ICTA to raise this point during the interlocutory hearing when advancing its many other in limine objections to being a party to the civil claim (leading to the 2011 Interlocutory judgment, and an appeal where this point was never raised), or during the case management hearing shortly before the trial, when yet further objections were raised, but this one was not.
[325] The Board agrees with the submission made by Emtel that this was an abuse of process: "the ICTA and the MTA could not, for 16 years, keep such a defence up their sleeve, only to deploy that and ambush Emtel at trial": para 125 of their written case. It may be that changes in the legal team acting for the respondents prompted a fresh consideration of available defences. But later additions to the legal team must take the case as they find it and are to this extent constrained by the conduct of the litigation before they became involved.
[326] Whether or not the ICTA waived its ability to rely on the supposed defence of lack of legal personality, the Board concludes that it was an abuse of process for the ICTA to raise the point when it did in light of (a) its failure to raise the point in the course of the pre-trial stages where various procedural points were adjudicated upon and (b) its conduct in relation to the setting aside of the judicial review proceedings in favour of the civil claim." (Mauritius Telecom Ltd v. Emtel Ltd [2024] UKPC 9)
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Commencement of proceedings
"[19] CPR 7 is headed "How to start proceedings – the claim form". CPR 7.2 provides:
"(1) Proceedings are started when the court issues a claim form at the request of the claimant.
(2) A claim form is issued on the date entered on the form by the court."
[20] CPR 2.6 is headed "Court documents to be sealed" and provides that the court must seal the claim form on issue and that the seal may be placed on the document by hand or by printing a facsimile of the seal on the document electronically or otherwise." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
Service of the sealed claim form (within 7 days)
​
"The claim form must be served on –
(a) the defendant; and
(b) unless the court otherwise directs, any person the claimant considers to be an interested party,
within 7 days after the date of issue." (CPR 54.7)
​
For the claimant to effect service
​
"[24] It is common ground that the reference to service in CPR 54.7 must be a reference to actual service (and not deemed service as identified in CPR 6.14). It is for the claimant, and not the court, to effect service of the claim form (see Practice Direction 54PD.6 which refers expressly to CPR 6)." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
Insufficient to serve unsealed claim form
​
"[63] Further, the absence of any proper explanation as to how the mistaken view that service of an unsealed claim form could amount to valid service came about (as set out above), or who (and how many) formed it, does not advance Good Law's cause..." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
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Need for particular care
​
"[41] As for the importance of valid service, service of a claim form can be distinguished from other procedural steps. It performs a special function: it is the act by which the defendant is subjected to the court's jurisdiction. This quality is reflected in the terms of CPR 7.6, with its very strict requirements for any retrospective extension of time. Equally, reliance on non-compliant service is not one of the instances of opportunism deprecated by the courts (see for example Woodward v Phoenix Healthcare Distribution Ltd [2019] EWCA Civ 985 ("Woodward") at [48]). The need for particular care in effecting valid service, particularly when there are tight time limits and/or a claimant is operating towards the end of any relevant limitation period, is self-evident." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
No duty on Defendants to warn of defective service
​
"[57] Provided that a defendant has done nothing to put obstacles in the claimant's way, a potential defendant is under no obligation to give any positive assistance to the claimant to serve. The potential defendant can sit back and await developments (see, albeit in the context of CPR 7.6, Sodastream Ltd v Coates [2009] EWHC 1936 (Ch) at [50(9)]). Thus, there is no duty on a defendant to warn a claimant that valid service of a claim form has not been effected (see Barton at [22] and Woodward at [44] to [47])." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
No specific power to extend time for service
​
"[24] There is no specific provision in the CPR empowering the court to extend time for service of a judicial review claim form under CPR 54." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
Specific cases where extension may be granted do not apply to judicial review
​
"[29] CPR 7.5 provides for the time for "service of a claim form". Where the claim form is to be served within the jurisdiction, this is before midnight on the calendar day four months after the date of issue of the claim form. As set out above, CPR 54.7 provides for a (much) shorter time for service of claims for judicial review.
[30] CPR 7.6 makes provision for extensions of time to be granted for "service of a claim form":
"(1) The claimant may apply for an order extending the period for compliance with rule 7.5.
(2) The general rule is that an application to extend the time for compliance with rule 7.5 must be made –
(a) within the period specified by rule 7.5; or
(b) where an order has been made under this rule, within the period for service specified by that order.
(3) If the claimant applies for an order to extend the time for compliance after the end of the period specified by rule 7.5 or by an order made under this rule, the court may make such an order only if –
(a) the court has failed to serve the claim form; or
(b) the claimant has taken all reasonable steps to comply with rule 7.5 but has been unable to do so; and
(c) in either case, the claimant has acted promptly in making the application.
...
[52] The insuperable hurdle for this primary position is the wording of CPR 7.6 which, as set out above, refers expressly and repeatedly only to CPR 7.5. Whilst this may be a lacuna in the CPR, which make no express provision otherwise for extending time for service of a judicial review claim, it is not possible to read in to CPR 7.6 what would be the necessary references to CPR 54.7." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
But principles apply by analogy: Claimant must have taken all reasonable steps to comply
​
"[80] The question then is how the discretion in CPR 3.1(2)(a) to extend time for service of a judicial review claim should be exercised. There is no good reason why the requirements under CPR 7.6(2) for a retrospective extension of time to serve a Part 7 or Part 8 claim form should not apply equally to a judicial review claim, and every reason why they should. Indeed, Good Law's skeleton referred to its application for an extension of time under CPR 3.1(2)(a) being made "by analogy to CPR 7.6". As set out above, promptness is an essential requirement in any judicial review claim, and particularly in a procurement challenge. The time limit of seven days for service of a judicial review claim is (far) shorter than the time limits for service of Part 7 and Part 8 claims. It would be wholly counter-intuitive in those circumstances for the extension regime for judicial review claims to be more lenient than that applicable to Part 7 and Part 8 claims.
[81] On this approach, there was no justification for an extension of time for service of the claim form. Good Law had not taken all reasonable steps to comply with CPR 54.7. Thus, whilst the Judge erred in her approach on the application under CPR 3.1(2)(a), it was an error in Good Law's favour. The outcome, namely dismissal of the application to extend time for service of the judicial review claim, remains the same." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
Claimant fixed with failures of solicitors
​
"[61] First it is said that the Judge was wrong to find that Good Law failed to take reasonable steps to effect valid service. This is unsustainable. As was the case for example in Ideal, Good Law is fixed with the acts and omissions of its solicitors. Good Law, by its solicitors, failed to serve the claim form on the nominated address for service. The steps taken by Bindmans on 27 and 28 April 2021 were obviously inadequate; there was then a significant missed opportunity to identify and correct the error (within time) when the certificate of service came to be executed on 30 April 2021." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
Methods of service
​
"[25] CPR 6.3 specifies methods of service of a claim form, including at CPR 6.3(1)(d) electronic communication such as email in accordance with Practice Direction 6A.
[26] Practice Direction 6A states at paragraph 4.1:
"Subject to the provisions of rule 6.23(5) and (6), where a document is to be served by fax or other electronic means—
(1) the party who is to be served or the solicitor acting for that party must previously have indicated in writing to the party serving -
(a) that the party to be served or the solicitor is willing to accept service by fax or other electronic means; and
(b) the fax number, e-mail address or other electronic identification to which it must be sent; and
(2) the following are to be taken as sufficient written indications for the purposes of paragraph 4.1(1) -
(a) a fax number set out on the writing paper of the solicitor acting for the party to be served;
(b) an e-mail address set out on the writing paper of the solicitor acting for the party to be served but only where it is stated that the e-mail address may be used for service; or
(c) a fax number, e-mail address or electronic identification set out on a statement of case or a response to a claim filed with the court." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
Power to authorise service by alternative means
​
"[27] CPR 6.15 provides:
"(1) Where it appears to the court that there is a good reason to authorise service by a method or at a place not otherwise permitted by this Part, the court may make an order permitting service by an alternative method or at an alternative place.
(2) On an application under this rule, the court may order that steps already taken to bring the claim form to the attention of the defendant by an alternative method or at an alternative place is good service."
[28] CPR 6.15(2) was introduced following the decision in Elmes v Hygrade Food Products plc [2001] EWCA Civ 121 ("Elmes") where it was held (at [13]) that the power to authorise service by an alternative method (to be found in rule 6.8 of the Civil Procedure Rules at the time) could not be exercised retrospectively. Its object was to open up the possibility that in appropriate cases a claimant may be enabled to escape the consequences for limitation when a claim form expires without having been validly served." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
Must be a good reason
​
"[55] The following summary suffices for present purposes:
i) The test is whether in all the circumstances, there is good reason to order that steps taken to bring the claim form to the attention of the defendant are good service;
ii) Service has a number of purposes, but the most important is to ensure that the contents of the document are brought to the attention of the person to be served. This is a critical factor. But the mere fact that the defendant knew of the existence and content of the claim form cannot, without more, constitute a good reason to make an order under CPR 6.15(2);
iii) The manner in which service is effected is also important. A "bright line" is necessary to determine the precise point at which time runs for subsequent procedural steps. Service of the claim form within its period of validity may have significant implications for the operation of any relevant limitation period. It is important that there should be a finite limit on the extension of the limitation period;
iv) In the generality of cases, the main relevant factors are likely to be:
a) Whether the claimant has taken reasonable steps to effect service in accordance with the rules;
b) Whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired;
c) What, if any, prejudice the defendant would suffer by the retrospective validation of a non-compliant service of the claim form.
None of these factors are decisive in themselves, and the weight to be attached to them will vary with all the circumstances.
(See Barton at [9], [10] and [16].)" (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355)
​
Power not exercised where wrong email address used but defendant aware of proceedings
​
"[59]... It was clear that Good Law did not take reasonable steps to effect service in accordance with the rules. The SSHSC had stated that he would accept service by email but was very clear that such service must be effected through the new proceedings address. The use of a designated email address would ensure certainty for the SSHSC in respect of all and any new claims. Good Law did not take any step to serve the sealed claim form by the specified method within the stipulated period set out in CPR 54.7. The SSHSC was aware of the contents of the claim form within the prescribed time limit for service but satisfying that criterion alone was not sufficient to justify the exercise of CPR 6.15. If the court granted the relief sought, the Defendant would suffer prejudice because it would be deprived of an accrued limitation defence. Her judgment was that there was no good reason to authorise service at an alternative place.
...
[77] Standing back, looking at the judgment in the round, I do not find that there was a failure by the Judge to take account of some material factor such as to undermine her conclusions and take the decision outside the generous ambit of her discretion. Her decision cannot be said to have been "wrong"; it was in line with the authorities, including Barton." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355, Carr LJ)
"[101] Underlying Good Law's various particular criticisms of the Judge's decision is a more general point that it cannot be right that they should be deprived of the chance to progress their claim because of a trivial, or "technical", procedural error which caused no problem of any kind; and that the fact that the error of that kind ought to constitute a good reason for retrospective validation. Phillips LJ makes that point in strong terms at para. 90 of his judgment; and I of course see its force. But it is important to keep in mind the real issue in an application under CPR 6.15 (2). A claimant is asking for a retrospective validation of non-compliant service in order to circumvent a limitation defence. Quite trivial errors can sometimes lead to limitation deadlines being missed. That can be harsh, and may be characterised as technical; but it is recognised as a necessary consequence of a limitation regime. The Court will in this context be less ready to overlook mistakes of a kind which in other contexts would be accorded no real weight." (R (oao The Good Law Project) v. Secretary of State for Health and Social Care [2022] EWCA Civ 355, Underhill LJ)
​
​
- Valid electronic service: must provide only one email address
"[76] In my judgement the consequence of the other party failing to provide a single email address (or fax number or other electronic identification) is not to give rise to a right to elect between two or more addresses that have been provided, as Ms Clement suggests. The purpose of PD 6A para 4.1 is not to mandate a form of service (by fax or other electronic means), rather it is to provide an option of effecting service in this way if the stipulated information is provided. Where the other party gives more than one email address for service, para 4.1 has not been complied with, in that the stipulated information has not been properly provided. In these circumstances the serving party cannot, as matters stand, undertake good service by electronic means. They have two options: either they can serve the Claim Form by one of the prescribed means in CPR Part 6 or they can ask the other party to clarify which is the one email address that they may use to effect service, so that para 4.1 is then satisfied. No clarification of that kind was sought in this case." (R (oao Tax Returned Limited) v. HMRC [2022] EWHC 2515 (Admin), Heather Williams J)
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- Service at wrong physical address invalid
"[79] The Claimants accept that the effect of CPR 6.10(b) read with the provisions I have summarised at para 46 above, is that the physical address for service was the London address. It is agreed that the Claim Form was not delivered to this address.
[80] CPR 6.7 does not assist the Claimants in the circumstances: the London address was the address provided in writing at which service would be accepted and none of the communications during the material period indicated that the Defendant’s solicitors were instructed to accept service at the Salford address. Counsel were not agreed as to whether a Government Department could agree to accept physical service at a different Judgment Approved by the court for handing down. Tax Returned Ltd v HMRC location to that which appeared in the PD 66 list. In any event it is unnecessary for me to resolve that point as it is quite clear from the correspondence that no such agreement was purportedly made in this instance. The correspondence of 12 May 2022 indicates that the hard copy bundle was supplied to the Salford address at the Defendant’s request as a convenience to Mr Kelly; there was nothing to indicate that this was an address for service." (R (oao Tax Returned Limited) v. HMRC [2022] EWHC 2515 (Admin), Heather Williams J)
​
- Service direct to HMRC's allocated solicitor invalid
"[68] As Carr LJ also said in Good Law Project, service of the claim form requires the utmost diligence and care to ensure that the relevant procedural rules are properly complied with (at paragraph [63]). By the same token, in my judgement, where instructions are purported to be given, especially new instructions, regarding an important litigation step, they must be clear, logical, unequivocal and readily understood.
[69] The reasons given by Mr Levy for his reading to the effect that where a solicitor has been allocated to a case, that solicitor is the proper recipient of service, are compelling. HMRC's case is that the document has effect as a strict rule of procedure. The language of the Press Release did not assist the reader to understand that although the word "can" was used, it in truth meant "must". Further, the criticisms made by Mr Levy (which I do not repeat here) are well made. I accept, however, from Mr Gabbitas that HMRC intended that all new proceedings should be served upon the new proceedings email, essentially for the reasons given in respect of the government legal service position in Good Law Project, repeated to an extent by Mr Gabbitas. The guidance ought, in the present case, to have stated words to the effect (without intending to draft) of "if you choose to effect service by email, rather than by hardcopy, it is essential that you serve the new proceedings email with the materials first. This is so, whether or not an HMRC solicitor has already been assigned to the case"." (R (oao London Fluid System Technologies Ltd) v. HMRC [2023] EWHC 2206 (Admin), Foster J)
​
- Invalid service saved where no prejudice to HMRC
"[97] In all the circumstances I conclude that, on balance, there is good reason to order that the steps taken to bring the Claim Form to the attention of the Defendant constitute good service. I have found that Mr Kelly was made aware of the contents of the Claim Form on the day that it was issued (11 May 2022) and that the Defendant would suffer no prejudice as a result of retrospective validation of the non-compliant service of the Claim Form. I have decided that the Claimants did not take reasonable steps to affect service in accordance with the rules, but I have noted that there were some mitigating factors and, accordingly, these affect the weight that this factor carries.
[98] I will therefore authorise service of the Claim Form by email to Mr Kelly’s email address on 11 May 2022 in the particular circumstances of this case, pursuant to CPR 6.15(1)." (R (oao Tax Returned Limited) v. HMRC [2022] EWHC 2515 (Admin), Heather Williams J)
​
- Invalid service saved where reasonable belief of valid service and HMRC fully aware
"[74] Dealing with the matters referred to by Carr LJ in turn:
(1) whether the Claimant took reasonable steps to effect service in accordance with the rules; Answer: In the context of the wording of the Press Release and Mr Levy's understanding of its meaning, particularly in light of his experience with HMRC, yes he did take reasonable steps to effect what he reasonably understood to be required in accordance with the rules. This case was not a careless slip – up case. This is not a solicitor who did not care to inform himself, or was careless and slipshod. This solicitor took care within the system which he understood to be operating and which he had previously operated as he understood it successfully and consistently with HMRC's direction, after the introduction of the email service policy. He believed he had effected service in accordance with the "rules". In my judgement that belief was not unreasonable. Furthermore, it was suggested at one stage by HMRC, that if in doubt, Mr Levy ought to have asked for clarification. The point is, Mr Levy was not in doubt, and I have held that his absence of doubt was in all the circumstances, reasonable.
(2) whether the Defendant/his solicitor was aware of the contents of the claim form at the time when it expired; Answer: Overwhelmingly, the answer to this question is yes. There were numerous occasions on which the relevant materials reached the relevant solicitor. The purposes of service had been plainly achieved, and the case was progressing, with concessions made as to a joint acknowledgement of service, and so forth with core bundles served and no doubt considered. There is no question but that HMRC were made aware on the several occasions on which the materials were provided to them, and were able to take such steps as they believed appropriate in the proceedings – indeed acted as if those proceedings were properly brought until the last minute.
(3) the prejudice if any the Defendant would suffer by retrospective validation of non-compliant service bearing in mind what he knew about its contents; Answer: Necessarily, as in all cases the serious prejudice of losing a limitation period will fall upon the defendant. I do not underestimate the prejudice caused but, however, I balance it against the other circumstances including in particular the apparent acquiescence of HMRC in asking for extra time in which to acknowledge service, and the absence of operative carelessness on the part of Mr Levy (the later miss-filing to the GLD email address is irrelevant to the central issue here). As stated this was not a "careless mistake" case. The solicitor for HMRC here knew clearly, and early, what the issues were and what case he had to meet. Acknowledging the presence of the limitation prejudice, there is no other detriment to HMRC in allowing service by the alternative means of direct email." (R (oao London Fluid System Technologies Ltd) v. HMRC [2023] EWHC 2206 (Admin), Foster J)
​
Reply to acknowledgement of service (7 days, 5 pages)
"54.8A.—(1) A claimant who has been served with any acknowledgment of service in accordance with rule 54.8(2)(b)(i) may file a reply.
(2) Any reply must be—
(a)filed not more than 7 days after service of the acknowledgment of service; and
(b)served on—
(i)the defendant; and
(ii)any person served with the claim form,
as soon as practicable and in any event not later than 7 days after it is filed.
(3) The time limits under this rule may not be extended by agreement between the parties.
(4) Practice Direction 54A makes provision as to the content and length of any reply." (CPR 54.8A)
​
"Rule 54.8A – Reply to acknowledgment of service
7.1 (1) A Reply should be filed only if necessary for the purpose of the court’s decision to grant permission to apply for judicial review, for example, where a discrete issue not addressed in the Claim Form is raised in the Acknowledgement of Service. A Reply is not the occasion to rehearse matters already referred to in the Claim Form.
(2) A Reply shall be as concise as possible and shall not exceed 5 pages. The court may grant permission to exceed the 5-page limit.
7.2 If a Reply is filed unnecessarily, the court may make any order it considers appropriate, whether as to costs or otherwise." (CPR PD54A, 54.8A)
​
Permission stage
​
- Requirement for permission
"54.4 The court’s permission to proceed is required in a claim for judicial review whether started under this Section or transferred to the Administrative Court." (CPR Part 54)
​
- No more than a filter to weed out groundless claims
"The requirement of permission to apply for judicial review is imposed primarily to protect public bodies against weak and vexatious claims. The requirement of permission to appeal is imposed primarily to protect the courts against the burden of hearing and adjudicating on appeals with no realistic chance of success. The purpose of these filters is different, even though there is an incidental benefit to the courts in the first case and the successful litigant (or both litigants) in the second." (R v. SoS for Trade and Industry ex p. Eastaway [2001] 1 All ER 27 at 32, Lord Bingham)
​
"[25]...Fourth, the requirement for permission to pursue judicial review does not make it an unsuitable procedure in the circumstances of this case, any more than in the many other cases (tax and non-tax) to which it applies. It is no more than a filter to weed out groundless cases." (Knibbs v. HMRC [2019] EWCA Civ 1719, David Richards, Henderson, Moylan LJJJ)
​
- Court should not go into depth at permission stage
"[68]...As Sedley J put it in Martin (at page 364G), the point of the requirement for permission in judicial review claims is "to afford applicants a simple and inexpensive way of finding out whether they [have] a worthwhile case". The whole purpose of requiring permission to be obtained would be defeated if the court were to go into the matter in depth at that stage, the proper place for full exploration of the evidence and argument ordinarily being at the substantive hearing of the claim which has been shown to be arguable at the permission stage. Thus, the part played by a defendant to such a claim at that stage is restricted. The relevant public body may of course file an acknowledgement of service with short summary grounds of resistance; but, to do so, it should generally not be necessary for it to do much additional work. As this court has said, its proper course is to explain its decision and any further grounds of opposition in short form; and not take an active part in any oral hearing, but simply wait and see if permission is granted and, if it is, then and only then deploy a full defence (R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166; [2008] 1 WLR 878 at [12]-[13] per Sedley LJ)." (R (oao Wilson) v. Prime Minister [2019] EWCA Civ 304, Hikcinbottom, Haddon-Cave LJJJ)
​
"[11] It may be helpful first to recall what Lord Diplock said in the National Federation of the Self-Employed case [1982] AC 617, 643-4:
"…. The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. …"
In the same vein, Lord Woolf in his 1989 Hamlyn Lectures, Protection of the Public – a New Challenge, noted that the Justice All Souls Review had argued for the abolition of the leave requirement but said (p.21):
"In practice the requirement, far from being an impediment to the individual litigant, can even be to his advantage since it enables a litigant expeditiously and cheaply to obtain the view of a High Court judge on the merits of his application."
[12] We have been shown in the course of argument the transcript of a permission application in the Administrative Court [2007] EWHC 2352 (Admin) in the course of which Burton J expressed a preference for the maximum amount of material on a contest at the permission stage. While there may be cases in which it is necessary or helpful to explore issues in depth at this stage, such cases must be quite exceptional. The proper place for a full exploration of evidence and argument is at the hearing of a claim which has been shown at the permission stage to be arguable." (Davey v. Aylesbury Vale DC [2007] EWCA Civ 1166, Sedley LJ)
​
- Low threshold: arguable with realistic prospect of success
"[3] The threshold for the grant of leave to apply for judicial review is low. The Board is concerned only to examine whether Mr Maharaj has an arguable ground for judicial review which has a realistic prospect of success: see governing principle (4) identified in Sharma v Brown-Antoine [2006] UKPC 57; [2007] 1 WLR 780, para 14." (Maharaj v. Petroleum Company of Trinidad and Tobago Ltd [2019] UKPC 21)
​
- Arguability must take account of nature and gravity of what is alleged
"[14]...(4) The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied that there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: R v Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628; Fordham, Judicial Review Handbook, 4th ed (2004), p 426. But arguability cannot be judged without reference to the nature and gravity of the issue to be argued. It is a test which is flexible in its application. As the English Court of Appeal recently said with reference to the civil standard of proof in R(N) v Mental Health Review Tribunal (Northern Region) [2005] EWCA Civ 1605, [2006] QB 468, para 62, in a passage applicable mutatis mutandis to arguability:
"… the more serious the allegation or the more serious the consequences if the allegation is proved, the stronger must be the evidence before a court will find the allegation proved on the balance of probabilities. Thus the flexibility of the standard lies not in any adjustment to the degree of probability required for an allegation to be proved (such that a more serious allegation has to be proved to a higher degree of probability), but in the strength or quality of the evidence that will in practice be required for an allegation to be proved on the balance of probabilities."" (Sharma v. Antoine [2006] UKPC 57)
​
- Court looking at whether there is a knockout blow
"[15] Mr Maurici for the PHSO has advanced detailed written and oral submissions to the effect that Mencap's claim lacks merit. Those admissions may or may not succeed at the end of the day, but they do not include what amounts in my view to a knockout blow. They have not persuaded me that the claim is unarguable. In those circumstances, with due respect to Mr Maurici, I think it better not to express any further view on his submissions at this stage and it is therefore unnecessary to summarise those submissions even as he made them this morning. It goes without saying that all his substantive points will be open to him on the hearing of the judicial review application itself." (R (oao Mencap v. Parliamentary Health Service Ombudsman [2010] EWCA Civ 875)
​
- Substantive point of law determined where legal position entirely clear
"[2] ... Wider questions of the public interest may have some bearing on whether leave should be granted, but the Board considers that if a court were confident at the leave stage that the legal position was entirely clear and to the effect that the claim could not succeed, it would usually be appropriate for the court to dispose of the matter at that stage." (AG of Trinidad and Tobago v. Ayers-Caesar [2019] UKPC 44)
​
- Factual disputes: is there material before the court that could properly succeed?
"[9] There is an analogy between the court withdrawing a factual case or matter from the jury in defamation proceedings and the court refusing permission to bring judicial review proceedings upon a factual issue as to the claimant's age. We consider that at the permission stage in an age assessment case the court should ask whether the material before the court raises a factual case which, taken at its highest, could not properly succeed in a contested factual hearing. If so, permission should be refused. If not, permission should normally be granted, subject to other discretionary factors, such as delay. We decline to attach a quantitative adjective to the threshold which needs to be achieved here for permission to be given." (R (FZ) v. London Borough of Croydon [2011] EWCA Civ 59)
​
- Potential higher threshold depending on circumstances (e.g. detailed and lengthy hearing)
"[8] The orthodox approach is to give permission to apply for judicial review if the claimant shows an arguable case. But the court in the exercise of its discretion whether to give permission may impose a higher hurdle if the circumstances require this. Factors of substantial importance in this context may include the nature of the issue, the urgency of resolution of the dispute and how detailed and complete is the argument before the court on the application for permission.
[9] Turning to the last of these considerations the fuller the argument the easier it is for the court to form a judgment of the prospects of success. The hurdle may range from requiring likely success at the substantive hearing to merely establishing an arguable case. The former may be the appropriate standard where there has been on the application for permission the detailed presentation and development of argument to be expected at the substantive hearing. When there has been something less than the detailed presentation and development to be expected at the substantive hearing (as has been the case before me) it may be appropriate in the ordinary case to set a standard or requirement mid-way between these two limits: see The Queen v. Northampton BC (Forbes J) 10th July 2003. This may be formulated as requiring a substantial prospect of success." (R (oao Federation of Technologies Industries) v. CCE [2004] EWHC 254 (Admin), Lightman J)
​
Oral reconsideration
"(1) This rule applies where the court, without a hearing –
(a) refuses permission to proceed; or
(b) gives permission to proceed –
(i) subject to conditions; or
(ii) on certain grounds only.
(2) The court will serve its reasons for making the decision when it serves the order giving or refusing permission in accordance with rule 54.11.
(3) Subject to paragraph (7), the claimant may not appeal but may request the decision to be reconsidered at a hearing." (CPR 54.12)
​
- Request within 7 days
"(4) A request under paragraph (3) must be filed within 7 days after service of the reasons under paragraph (2).
(5) The claimant, defendant and any other person who has filed an acknowledgment of service will be given at least 2 days’ notice of the hearing date.
(6) The court may give directions requiring the proceedings to be heard by a Divisional Court." (CPR 54.12)
​
- Unless marked totally without merit (appeal to CoA instead)
"(7) Where the court refuses permission to proceed and records the fact that the application is totally without merit in accordance with rule 23.12, the claimant may not request that decision to be reconsidered at a hearing." (CPR 54.12)
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- Respondents misusing the concept of totally without merit
"[104] The 'totally without merit' provisions were introduced to save court time in respect of cases which were obviously hopeless or abusive. They were intended, in such cases, to remove the right, after permission to apply for judicial review has been refused on the papers, to make a renewed oral application for permission (without first seeking the court's permission to renew). Far too often, however, Acknowledgements of Service are received on behalf of this Defendant which invite the judge considering permission to dismiss the claim as being 'totally without merit' when that is clearly not the case.
[105] In a case where the Secretary of State does not consider an argument obviously hopeless or abusive - even if she does not consider that it crosses the arguability threshold - what should be pleaded is that the Defendant does not accept the Claimant's case is arguable. Where a case is obviously arguable, albeit the Defendant thinks it is wrong, what should be pleaded is that the Defendant accepts that the point is arguable, though the Defendant does not think it is right.
[106] On any view, the legal submissions made in this case are arguable and important, as is illustrated by the fact that (I was told) other cases on this issue have been settled on an individual basis, and it has been treated as a lead case for a number of other cases raising the same issue.
[107] It devalues the concept of a case being 'totally without merit' if it is pleaded as a matter of course. Indeed, it may be an abuse of process to assert this in circumstances where it is apparent that a point is arguable. I would simply observe that the Secretary of State should not as a matter of routine pleading invite judges to certify cases as being totally without merit. If a Defendant wishes to plead that a case is totally without merit, as opposed to wrong, she should be prepared to say why that is the case." (R (oao K) v. SoS for the Home Department, Helen Mountfield QC)
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Appealing refusal of permission
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- Appeal directly to Court of Appeal
"(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, an application for permission to appeal may be made to the Court of Appeal except where precluded by section 18(1)(a) of the Senior Courts Act 1988." (CPR 52.8)
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"[11] It is true that CPR 52.8 does not expressly state the negative, i.e. that the High Court, having refused permission, has no power to grant permission to appeal. But that it the silent premise upon which it is drafted.
[12] The logic behind these rules must be understood in the context of the regime governing judicial review in CPR 54. A litigant cannot bring proceedings for judicial review unless permission is granted and if no permission is granted there are no proceedings on foot: CPR 54.4. Where the High Court has refused permission on paper then the litigant can renew the application before the High Court but cannot appeal that refusal: CPR 54.12. Where the applicant has been refused permission after an oral hearing then there is a specific rule (CPR 52.8) enabling the disappointed litigant the chance to request the Court of Appeal to grant permission to bring proceedings. CPR 54.4, 54.12 and 52.8 thus provide a complete code which governs the bringing of proceedings for judicial review.
[13] In my judgment, I therefore have no power to grant permission." (Glencore Energy Ltd v. HMRC [2017] EWHC 1587 (Admin), Green J)
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- Within 7 days
"(3) An application under paragraph (1) must be made within 7 days of the decision of the High Court to refuse to give permission to apply for judicial review.
[...]
(5) On an application under paragraph (1) or (2), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review.
(6) Where the Court of Appeal gives permission to apply for judicial review in accordance with paragraph (5), the case will proceed in the High Court unless the Court of Appeal orders otherwise."
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Amending grounds of review
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- Permission required once served on the other party
"[25] The statement of facts and grounds is therefore broadly equivalent to the particulars of claim, because it is the document which sets out the detailed basis for the applicant's challenge. By analogy with CPR r.17.1, an applicant seeking permission to bring judicial review proceedings in the UT would be entitled to amend his statement of facts and grounds without permission, provided that the amendments were made before that statement was served on the respondent. Conversely, once the statement of facts and grounds had been served on the respondent, r.17.1 would indicate that any amendments thereto would require the permission of the UT.
...
[27]...If the respondent has not yet received the statement of facts and grounds, he or she does not know what it says so, at least in the vast majority of cases, there is no harm in allowing the applicant a wide latitude to amend the statement before it is received by the respondent, the better to reflect the applicant's real challenge. But once it has been received, and the respondent starts work on preparing his or her defence, it would create confusion, lead to delay and waste costs if an applicant was entitled then to serve further versions of the statement of facts and grounds as and when new thoughts (or new events) occurred." (R oao Spahiu v. Secretary of State for the Home Department [2018] EWCA Civ 2604, Coulson, Patten, Hamblen LJJJ)
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- No hard and fast rule against challenging new decisions by amendment
"[63] In short, there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as "rolling" or "evolving", and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties." (R oao Spahiu v. Secretary of State for the Home Department [2018] EWCA Civ 2604, Coulson, Patten, Hamblen LJJJ)
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- Touchstone is fairness to the parties
"[20]...On the other hand, in cases where public authorities have ongoing functions, where open-minded re-evaluation and re-consideration are a reality and a virtue, there needs to be sufficient flexibility to ensure that the interests of justice are secured and not undermined. As it was put in Secretary of State for the Home Department v Said [2018] EWCA Civ 627 at paragraph 110: “decided cases have shown that cases are infinitely different and flexibility is desirable, allowing for rolling judicial review where appropriate. The touchstone must be fairness to the parties”. In R (XY) v Secretary of State for the Home Department [2018] EWCA Civ 2604 [2019] 1 WLR 1297the Court at paragraphs 60-62 discussed the case-law on “rolling review” and at paragraph 63 concluded: “there is no hard and fast rule. It will usually be better for all parties if judicial review proceedings are not treated as 'rolling' or 'evolving', and it is generally simpler and more cost-effective for the reviewing court to avoid scrutinising post-decision material. But there will also be a need to maintain a certain procedural flexibility so as to do justice as between the parties”." (R (oao Raha) v. London Borough of Redbridge, [2020] EWHC 1456 (Admin) Fordham J)
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- Is there any procedural reason (e.g. delay or prejudice) against amendment?
"[58] As to the procedural history, there can be no issue. The President said that "no significant issue of delay or prejudice is identifiable" if the amendments were allowed. Mr Malik did not suggest to the contrary. There is therefore no procedural reason to prevent the amendment of the statement of facts and grounds..." (R oao Spahiu v. Secretary of State for the Home Department [2018] EWCA Civ 2604, Coulson, Patten, Hamblen LJJJ)
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- Court wanting to avoid becoming involved in an on going decision-making process at intermediate stage
"[83] The cases I have cited at [77] show that the court will adopt a flexible approach. Some flexibility will enable it to do justice. This court has also stated (Turgut's case at 736) that, at the appellate stage, it is not usually appropriate for the Secretary of State to substitute a new decision for the old and to litigate the legality of the new decision before the court. But, if even a first instance court becomes too entangled in post-decision material and the legality of later decisions, in the immigration context there is a risk that it will be faced with a stream of evidence and counter-evidence: see Turgut's case at 735d – e. Ouseley J stated in R (Rathakrishnan) v Secretary of State for the Home Department [2011] EWHC 1406 (Admin) at [10] that these cases may come before the court "at a point where the hearing is no more than an interruption in the process of the exchange of correspondence between the Secretary of State and the claimant" and "this makes for a wholly unsatisfactory process of litigation." Moreover, in a sense, the court can be said to step outside its primary role. It will not only be adjudicating on the dispute between the parties as to the legality of the original decision made. It will become part of a rolling administrative decision-making process, in which a decision by the Secretary of State is followed by challenge, which is followed by new material which in turn is followed by a further decision, with the possible interposition of the court at any or all of these stages. Such "rolling judicial review" appears unprincipled. It is also liable to lead to confusion and to sideline the administrative process laid down by the legislature." (R (oao A) v. Chief Constable of Kent Constabulary [2013] EWCA Civ 1706, Beatson LJ)
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- Judicial review is about challenging discrete decisions not monitoring and regulating public authorities
"[56]...This is as Miss Thelen submitted, approaching a case of the kind averted to by Munby J in R (P) v Essex County Council [2004] CWA 2027 (Admin), where he drew a distinction between monitoring and regulating the performance of public authorities, and challenges to discrete decisions. The latter being the proper purview of the Administrative Court..." (R (oao Ellis) v. Secretary of State for Eductation [2023] EWHC 2230 Admin, Foster J)
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- Permission granted where challenge to the original decision and further decision made on same basis
"[5] On 19 August 2015, the Secretary of State ("the appellant") made an offer to Mr Spahiu that the proceedings be withdrawn by consent (because the removal directions had been cancelled) and that his asylum and human rights claims would be considered and determined in 3 months. On the same day the appellant filed an AoS with the UT, which dealt with the reasons why the appellant said that the UT should refuse permission for judicial review.
[6] The appellant's offer was rejected and instead, on 28 August 2015, Mr Spahiu filed a reply to the summary grounds of defence. On 10 September 2015 the appellant wrote to the UT inviting them to refuse permission to apply for judicial review, on the basis that the claim had become academic.
[7] On 17 September 2015, the appellant considered and determined Mr Spahiu's asylum and human rights claim. The claims were refused and were certified as "clearly unfounded" under Section 94 of the Nationality, Immigration and Asylum Act 2002. One of the effects of the certificate is that an appeal against the decision could be brought to the First-Tier Tribunal ("FTT") only from abroad.
[8] On 6 October 2015, Mr Spahiu filed an application notice seeking permission to amend the grounds of judicial review. The amendments sought to challenge the decision of 17 September, contending that that decision was unlawful and that the appellant's approach to Article 8 was legally flawed.
...
[64] In my view, this was a case in which the President was entitled to reach the view he did, and to adopt a measure of flexibility. The challenge to the removal directions was based on the respondent's Article 8 claim. The challenge to the decision to reject his Article 8 claim (the subject of the amendments) was necessarily concerned with the very same claim. This is not a case about supplementary decisions and the like. The claim has always been founded on the same basis. So the President was entitled to conclude that, on the particular facts of this case, fresh proceedings were not necessary such that the application for permission to amend should be granted. Other judges may have reached a different conclusion, but there was no error of law." (R oao Spahiu v. Secretary of State for the Home Department [2018] EWCA Civ 2604, Coulson, Patten, Hamblen LJJJ)
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- Continuing request and refusal making rolling review appropriate
"[21] This case called for, and illustrates the appropriateness of, the procedural flexibility which the Courts have described. The design of the claim was permissible, sensible and has been vindicated. The parties were able to focus on the substance, and so was the Court. The central features of the case as brought were: a continuing statutory function; a continuing request for a particular care provision response; a continuing refusal of that request; and the consistent central issue as to whether the requested response was, in all the circumstances, the sole justifiable response such that the refusal was unreasonable in a public law sense. The discipline came from being able to see clearly: the basis on which the claimant says that the defendant is unlawfully failing to comply with a public law duty to act reasonably; and the basis on which the defendant says that its refusal is reasonable. This approach could take in its stride the reality on the ground, that the parties would continue to communicate about the disputed issue between them. There was no unfairness or prejudice. There was no problem of inadmissibility or irrelevance of fresh evidence. There was no need for the claim to be re-pleaded. The interests of both parties were protected, as the story of the case unfolded." (R (oao Raha) v. London Borough of Redbridge, Fordham J)
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- Disapproval of challenging fresh decisions by amendment
"[24] [Counsel for HMRC] rightly drew our attention to the Postscript in the judgment of this court in R (oao Dolan and others) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 handed down on 1 December 2020. The Court there (the Lord Chief Justice, King and Singh LJJ) emphasised the need for procedural rigour in judicial review cases. They particularly deprecated the trend towards what has become known as a "rolling" approach to judicial review in which fresh decisions which have arisen after the original challenge are sought to be challenged by way of amendment. In my judgment, to allow Cartref to amend its appeal either to challenge the legislation in its post-July 2020 form or to add criticisms about 2017 provisions which were not challenged in the judicial review claim form would be precisely to contribute towards the trend of which the Court in Dolan expressed its strong disapproval." (R (oao Cartref Care Home Limited) v. HMRC [2020] EWCA Civ 1744, Rose LJ)
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HMRC's duty of candour
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See also M4: Disclosure
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"[12] In support of the claimants’ application for disclosure here, [the taxpayer], in addition, took me to a number of authorities to support wider propositions of principle in relation to the public authority defendant’s duty of candour and the particular need for the public authority defendant to be transparent and clear about its decision and decision making process. The public authority had to assist the court with “full and accurate explanations of all the facts relevant to the issues the court must decide” R (Quark) Fishing Ltd v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1409. The court must not “be left guessing about some material aspect of the decision-making process” Abraha v Secretary of State for the Home Department [2015] EWHC 1980 (Admin) at [114], per Singh J as he then was. The public authority ought also ordinarily to exhibit documents significant to its decision. Mr Ghosh for the claimants also referred to R (oao Phoenix Life Holdings Ltd and others) v HMRC [2019] EWHC 2043 (Admin) where the court ordered disclosure in relation to the decision making process." (R (oao Refinitiv Ltd v. HMRC [2023] UKUT 187 (TCC), Judge Raghavan)
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"[65] Mr Stevens’ approach was therefore to put the Secretary of State’s case as best he could, including by referring on a number of occasions to what “the Government” thought or did where there is no evidence that this was what the Secretary of State thought or did. However, in taking this approach to what he must have appreciated was a central issue in the Claims, it is not clear that he and those who assisted him in drafting his witness statement had the following aspects of the duty of candour, as described in the judgment of Singh LJ in R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812; [2018] 4 WLR 123 at [106], at the forefront of their minds:
“(3) The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. As I said in Hoareau at para 20:
“It is the function of the public authority itself to draw the court's attention to relevant matters; …… to identify ‘the good, the bad and the ugly’. This is because the underlying principle is that public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law.”
(4) The witness statements filed on behalf of public authorities in a case such as this must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. There can be no place in this context for “spin”.”
[66] The duty of candour is fundamental to the effectiveness of judicial review because the court approaches the case on the basis that, unless the contrary is demonstrated, both sides have complied with it i.e. they have both sought to “assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide”. It should not have been necessary, in the present case, for the court to engage in detective work or to read between the lines of Mr Stevens’ witness statement and/or draw inferences from his silence on certain points. To borrow the words of Singh LJ, in writing his statement Mr Stevens ought to have been “engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law” rather than striving for a particular result in the proceedings. Where, as here, what the Minister saw personally is legally significant, and is in issue, the duty of candour requires a departmental witness statement to set out in clear terms what material was seen by the Minister and what was not. In such a case, statements that a matter has been seen or considered by “the Government” risk obfuscating the position rather than achieving the level of clarity required." (R (oao Unison) v. Secretary of State for Business and Trade [2023] EWHC 1781 (Admin), Linden J)
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- Limited by the public law issues raised
"[13] Of particular relevance, given the factual nature of the dispute here as to the reliance HMRC’s decision-maker placed on Ground 2, is the test explained in Tweed v Parades Commission for Northern Ireland [2006] UKHL 53 [2001] 1 AC 650. There, the House of Lords held disclosure will be ordered where it appears “necessary in order to resolve the matter fairly and justly”. It is therefore critical to understand what “the matter” for resolution is.
[14] That question, regarding the nature of the dispute, is also key to understanding the ambit of the principles on transparency and clarity around decision making. In agreement with Mr Bremner for HMRC, I do not accept that the cases the claimants rely on, establish a general requirement on the public authority, irrespective of the kind of public law challenge that is being made, to disclose everything about the decision-making process and all the documents underlying its decision. As the extract from Quark Fishing makes clear, the explanations given should concern “the facts relevant to the issues…”. In that case one of the grounds was that there was no proper de novo reconsideration of the relevant fishing license. It can therefore be appreciated from the particular public law challenge in that case why focus was needed on the decision-making process and the reasons and documents underlying the decision. That is also true of the other cases. In Jet2 the grounds concerned the factual issue of improper purpose. Abraha was an immigration case which concerned the legality of detention. That included issues as to the reasonableness of the length of detention and questions of what was apparent to the public authority in terms of prospects of the claimant’s removal. It is to be noted that the function of the duty of candour and co-operation was explained as helping the court to fully understand the decision making process “under challenge”. In Phoenix Life, there was a disputed question, relevant to the public law issue, as to whether the public authority had in fact made a decision. The disclosure was necessary to resolve that.
[15] The particular extent of the duty of candour, and the necessity in a given case for disclosure will thus be sensitive to the particular public law issues raised. The key question remains “whether, in any particular case, disclosure of documents is necessary for the fair and just disposal of the issues”. There is no dispute that question falls to this tribunal to determine." (R (oao Refinitiv Ltd v. HMRC [2023] UKUT 187 (TCC), Judge Raghavan)
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Wider disclosure not necessary where the dispute is essentially legal
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"[20] In reply, [the taxpayer] pointed to paragraph 51 of the SoGR to emphasise the broader public law nature of the claim. In that paragraph the claimants set out a number of material matters which it was said HMRC failed “to take into account”. However on closer analysis, the substance of those points and their context, indicate they are all points which HMRC are said not to have taken account of in the sense of them having reached a substantively wrong view on the relevant law and its application to the facts. In other words, they are points which go to the merits of HMRC’s legal stance on timing (Ground 1) as applied to the facts of the claimants’ situation. As paragraph 51 itself concludes by way of summary, the allegation is that HMRC’s attribution of additional profits to the claimants on the 2018 disposal “is entirely inconsistent with the substantive contractual effect of the APA” in respect of the relevant transactions. The points in paragraph 51 are not therefore points which go to what was or was not in the decision maker’s mind when he issued his decision." (R (oao Refinitiv Ltd v. HMRC [2023] UKUT 187 (TCC), Judge Raghavan)
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- Is a duty of explanation, not just disclosure
"[12] Two points of context are material. The first is that it is well-established that the duty of candour is an obligation of explanation rather than simply an obligation of disclosure. The substance of the obligation is well put by Sir Clive Lewis in his "Judicial Remedies in Public Law" 6th edition 2021, at paragraph 9-098. The obligation exists to ensure that a defendant explains, whether by witness statements, or the provision of documents, or a combination of both, the reasoning process underlying the decision under challenge. In the present case the Secretaries of State have, to date, chosen to discharge their candour obligation by disclosure of the documents in the four disclosure bundles. No witness statements have been provided..." (R oao IAB) v. Secretary of State for the Home Department [2023] EWHC 2930 (Admin), Swift J)
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- Court normally expects defendant to set out fully and frankly what happened in a witness statement
"[19] Significantly, in our view, the claimant says in terms, at para.36 of its skeleton argument, that it has enough to show there is an arguable claim now without further disclosure. Of course, the terms of permission, if granted, either in whole or in part, would inform any future disclosure exercise that might become necessary. Furthermore, we would stress that disclosure, in the sense of disclosure of documents, is not automatic in judicial review proceedings, even after permission has been granted. What the court normally expects to happen, if permission is granted at all, is that the defendants will then set out fully and frankly an accurate description of what has happened so far as necessary to resolve the issues in the claim for judicial review in a witness statement. Guidance was given by Lord Bingham in Tweed, in particular at para.4, as to what should happen in relation to documents. Very often, as he said, the appropriate course to take will be to exhibit the original documents rather than simply to try to summarise them. But there can be exceptions to that, for example, where confidentially requires otherwise." (R (oao Terra Services Limited) v. NCA [2019] EWHC 1933 (Admin), Singh LJ, Carr J)
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- More extensive duty after permission granted
"[47] In my judgment the application is also premature. Now that permission has been granted, it will be for the Defendant to decide what evidence to adduce and what documents to disclose pursuant to its duty of candour and the requirements of CPR Part 54 and its Practice Direction. As the Judicial Review Guide 2022 makes clear at paragraph 15.3.2, what is required to satisfy the duty after a grant of permission will be more extensive than what is required before the grant. If the interview records are capable of shedding light on the issues, and if there are internal communications which could help a Judge to decide the predetermination issue, then my provisional view is that it would be hard to see how the duty will not apply to them." (R (oao Batmanghelidhj) v. Charity Commission for England and Wales, Bourne J)
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"[15.3.2] The duty of candour has been recognised as applying at all stages of judicial review proceedings, including when responding to the pre-action letter, in Summary Grounds, Detailed Grounds, witness statements and in counsel’s written and oral arguments.298 However, what is required to discharge the duty at the substantive stage will be more extensive than what is required before permission has been granted." (Admin Court Guide 2023)​
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- Test: what is necessary for fair and just determination
"[12] ...The second point of context is the criterion for disclosure of documents in judicial review proceedings. The standard applied by the court when asked to decide whether disclosure of a document is required is whether disclosure is necessary for the fair and just determination of an issue in the case: see Tweed v Parades Commission for Northern Ireland [2007] 1 AC 650 per Lord Bingham at paragraphs 3 and 4, Lord Carswell at paragraph 38, and Lord Brown at paragraph 52." (R oao IAB) v. Secretary of State for the Home Department [2023] EWHC 2930 (Admin), Swift J)​
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- Redaction on grounds of relevance only where does not concern the decision in question
"[22] Drawing these points together, the principle that ought to guide the approach in judicial review proceedings is that absent good reason to the contrary (which might, for example, include that the information in question was subject to a legal obligation of confidentiality), redaction on grounds of relevance alone ought to be confined to clear situations where the information redacted does not concern the decision under challenge. The names the Secretaries of State seek to protect are not in this class. Names of civil servants should not routinely be redacted from disclosable documents; redaction should take place only where it is necessary for good and sufficient reason. This conclusion is consistent with the obligation of candour and with the general principle of cooperation between public authorities and the court that is one foundation for judicial scrutiny. This approach will also guard against the practical difficulties caused by excessive redaction, see Hollander's book at paragraph 10-15." (R oao IAB) v. Secretary of State for the Home Department [2023] EWHC 2930 (Admin), Swift J)
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- Explain redaction at time of disclosure
"[43] A party disclosing a redacted document ought to explain the reason for the redaction at the point of disclosure. The explanation need not be elaborate; the simpler and shorter it can be the better. The explanation ought to be such that it affords the receiving party a sensible opportunity to decide whether to apply for disclosure of the document, unredacted. The approach taken by the Secretaries of State in this case, the provision of single word explanations, "relevance", "privilege" and so on, will rarely be sufficient. All will depend on context. I do not consider the approach I suggest will be unduly onerous for the disclosing party. Before deciding to provide a disclosable document in redacted form at all, the disclosing party will have given careful thought to the reason for redaction. It is neither unreasonable nor onerous to expect the disclosing party to reduce that reason, succinctly, to writing. A requirement to explain at the point when the documents are served reflects in part the provision made in CPR 79.24. That Rule has no application either to these proceedings or to the general run of judicial review claims, but is certainly a model for an efficient and pragmatic approach.
[44] When redacted documents are exhibited to a witness statement it may be appropriate for the reason for redaction to be given in that statement. All will depend on the reason for the redaction and the identity of the person making the witness statement. If the redaction is made on LPP grounds it will usually be better for the explanation to be given in a witness statement made by the solicitor with conduct of the case. If the redaction is made for some other reason, it will be for the disclosing party to decide who is best placed to provide the explanation. Whoever provides the explanation should do so in a witness statement. Experience shows that the process of reducing an explanation into a signed statement produces decisions that are better considered. A party receiving a redacted document can decide, taking account of the explanation provided, whether to apply for disclosure of an unredacted version of the document." (R oao IAB) v. Secretary of State for the Home Department [2023] EWHC 2930 (Admin), Swift J)
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Expectation that public authority will comply with declaratory order
"[46] The Government’s compliance with court orders, including declaratory orders, is one of the core principles of our constitution, and is vital to the mutual trust which underpins the relationship between the Government and the courts. The courts’ willingness to forbear from making coercive orders against the Government, and to make declaratory orders instead, reflects that trust. But trust depends on the Government’s compliance with declaratory orders in the absence of coercion. In other words, it is because ours is a society governed by the rule of law, where the Government can be trusted to comply with court orders without having to be coerced, that declaratory orders can provide an effective remedy. Although cases have occurred from time to time in which ministers have failed to comply with court orders (such as M v Home Office and the recent case of R (Majera (formerly SM (Rwanda)) v Secretary of State for the Home Department [2021] UKSC 46; [2021] 3 WLR 1075), they are exceptional, and can generally be attributed to mistakes and misunderstandings rather than deliberate disregard. However, where a legally enforceable duty to act, or to refrain from acting, can be established, the court is capable of making a coercive order, as M v Home Office and Davidson v Scottish Ministers [2005] UKHL 74; 2006 SC (HL) 41 demonstrate. Furthermore, a declaratory order itself has important legal consequences. First, the legal issue which forms the subject matter of the declaration is determined and is res judicata as a result of the order being granted: St George’s Healthcare NHS Trust v S [1999] Fam 26, 59-60. In addition, a minister who acts in disregard of the law as declared by the courts will normally be acting outside his authority as a minister, and may consequently expose himself to a personal liability for wrongdoing: Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (1959), pp 193-194." (Craig v. Her Majesty's Advocate [2022] UKSC 6)
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