B e f o r e :
LORD JUSTICE BROOKE
and
MR JUSTICE HART
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Between:
| | THE QUEEN
on the Application of
LAURENCE IAN WERNER
| Claimant
|
| |
- and -
|
|
| |
COMMISSIONERS OF INLAND REVENUE & ORS
|
Defendants
|
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Official Shorthand Writers to the Court)
____________________
John Smart (instructed by Berg & Co) for the Claimant
The Defendants were not represented
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________
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Mr Justice Hart :
- This is an application for permission to appeal against the order of Newman J dated 19 February 2002 whereby he refused the claimant permission to apply for judicial review of a notice given to him by an inspector of taxes dated 19 July 2001 (“the notice”) pursuant to s.20(1) of the Taxes Management Act 1970. The application before Newman J was a renewed application, the application having been refused on the papers by Silber J on 17 December 2001, when he observed:
“The Commissioners were entitled to pursue the information sought under Section 20(1) of the Taxes Management Act 1970 as they had information which enabled them to be satisfied that the requisite statutory thresholds had been met. There are no arguable public law grounds for impugning any of the decisions sought to be challenged.”
- Section 20(1) gives an inspector power to give a notice in the following terms:-
“(1) Subject to this section, an inspector may by notice in writing require a person
(a) to deliver to him such documents as are in the person’s possession or power and as (in the inspector’s reasonable opinion) contain, or may contain, information relevant to -
(i) any tax liability to which the person is or may be subject, or
(ii) the amount of any such liability, or
(b) to furnish to him such particulars as the inspector may reasonably require as being relevant to, or to the amount of, any such liability.”
- Section 20(7) provides as follows:-
“(7) Notices under subsection (1) or (3) above are not to be given by an inspector unless he is authorised by the Board for its purposes; and
(a) a notice is not to be given by him except with the consent of a General or Special Commissioner; and
(b) the Commissioner is to give his consent only on being satisfied that in all the circumstances the inspector is justified in proceeding under this section.”
- Section 20B(1) provides that before a notice is given to a person under (inter alia) Section 20(1), “the person must have been given a reasonable opportunity to .... furnish the particulars in question; and the inspector must not apply for consent under Section 20(7) ... until the person has been given that opportunity”.
- In his witness statement dated 17 October 2001 made in support of his application for judicial review, the claimant set out the background to the giving of the notice. It had been given while he was still in HM Prison, Sudbury, serving a sentence of four years imprisonment imposed on him in July 1999 following his conviction in May 1998 on a charge of conspiracy to account falsely. The Special Compliance Office of the Inland Revenue had written to him in 1996 and 1997 but had elicited no response from him. In May 2000 he was interviewed in prison by officials from the Special Compliance Office (Mr Watters and Mrs Hutchinson), following which Mr Watters sent him a note of what had passed between them. The following paragraphs from that note convey something of its overall flavour:
“14. Watters asked if Werner was prepared to give him details of companies both UK and overseas which he had controlled or in which he had had a substantial interest. Watters suggested that they look at the period from 1990 to the present although, as Watters had pointed out, the tax affairs of companies and periods covered by the previous investigation had already been dealt with. Similarly, Watters said that he would wish Werner to provide details of his personal wealth.
15. Werner said that if Watters cares to name the companies which he had in mind, Werner would give him such details as he could. Watters said that the purpose of his question was to give Werner the opportunity to make a full and frank disclosure of companies with which he had been involved. It was not a case of Watters telling Werner which companies he knew or suspected his involvement. Watters wished Werner to take the initiative and inform the Revenue of his tax affairs.
16. Werner explained that, while he was enthusiastic about reaching a settlement, and wished to give as much help as he could, some of the information which Watters requested would have to rely on his memory. Also some documentation was not easily accessible. Werner said he would therefore like to think about this matter and perhaps take advice.
......
24. Watters and Werner discussed the nature of the information which would be required. Werner explained that sometimes documentation might be accessible whereas sometimes it would be very difficult to get given the current restrictions on his movement. In some instances, there might be no documentation available. Watters noted the point. He asked that Werner keep him informed as to what documentation was available, how it could be accessed, what documentation was unavailable and how progress could be made.
25. Watters referred again to Werner’s comments regarding professional advice. He reiterated his comments that this was something which Werner should seriously consider. If a professional advisor was appointed, Watters said that he would be happy to meet with him and to update him on the position. In the meantime, it was agreed that Watters would provide Werner with a copy of the notes of the meeting and a letter outlining the information required.
26. Watters asked Werner when he thought his imprisonment would end. Werner said he should be free in July 2001. He would then have completed 2 years of his term of imprisonment.”
- Mr Watters wrote to the claimant on 25 May 2000 attaching a schedule of information required by the inspector in connection with the claimant’s tax affairs, adding
“Once the information requested in the schedule is provided, I would hope to have a further meeting. You have indicated that in some instances, you may have difficulty in providing documentation and/or information and that in some instances, you may have to give estimates. Please indicate:-
Where the figures are bases on estimates and the rational for that estimate
Where documentation may be available and how this might be accessed.
Where you believe no documentation is available and why.
I would be grateful if you could provide such information as is currently available to you straight away and keep me up to date on any steps you are taking to get further information and/or documentation. Also, please keep me informed of any difficulties or obstacles which you encounter.”
- Following a further telephone conversation between Mr Watters and the claimant on 1 June 2000 and letters from Mr Watters dated 9 June 2000 and 5 July 2000, the claimant instructed solicitors, Berg & Co, to act on his behalf. Correspondence then ensued between Berg & Co and the Special Compliance Office throughout the summer and autumn of 2000. A letter from Mr Preshaw, Inspector of Taxes in that office dated 20 September 2000 contained the following passage:
“I note your comments regarding the difficulties faced in obtaining instructions from your client. However, our enquiries have been ongoing for some time and little in the way of concrete information has been provided. Specifically, there has, as yet, been no response to the schedule to Mr Watters’ letter of 25 May 2000, although I acknowledge that the circumstances of the present case are unusual, I cannot wait indefinitely for information which is required to progress our enquiries. Therefore, in the absence of information, I will be forced to act to protect the Revenue’s position. This would involve the raising of estimated assessments on Mr Werner for all years that it is considered tax is at risk. Further, I will consider whether requests for information should be formalised by the issuing of Notices under Section 20 Taxes Management Act 1970. I acknowledge that the deadline of the end of September for the provision of information now seems somewhat unrealistic. However, it will be necessary to work towards some form of deadline in order to move matters forward with more urgency. A timetable for the provision of information is a matter which I would like to discuss with you as soon as possible.”
- This elicited a response from Berg & Co which re-asserted the difficulties resulting from the claimant’s imprisonment, and invited the inspector to set out what might be the contents of a section 20 notice, “as this will save time at a later date”. Mr Preshaw, in a reply dated 2 November 2000, referred Berg & Co back to the schedule accompanying the letter dated 25 May 2000, and suggested a meeting “at which your concerns regarding your client’s ability to meet requests for information could be discussed”. This seems to have elicited no written response and on 27 November 2000 Mr Preshaw wrote both to Berg & Co and directly to the claimant indicating that formal action would have to be taken unless by 15 December some indication had been given when the information requested would be provided.
- By 12 February 2001 matters were still no further forward and on that day Mr Preshaw gave Berg & Co a deadline of the end of the month. On 26 February, Berg & Co wrote repeating earlier requests that they be supplied with information in the Revenue’s possession before attempting to comply with the Revenue’s request. That letter contained the following passages:
“Whilst you have acknowledged my comments regarding the present circumstances in which Mr Werner finds himself, you also indicate that you are not prepared to wait indefinitely to progress the enquiry.
I am sure you will appreciate that Mr Werner likely will only be in custody for a few months longer and it would therefore seem reasonable that the Inland Revenue allow sufficient time until his release, so that he can then deal with his income tax affairs.
If the Inland Revenue has a difficulty with this suggestion, then please explain why.”
- On 23 March 2001 Mr Preshaw wrote to both Berg & Co and to Mr Werner giving notice that the specified information and documentation be supplied within 30 days. The letter to Mr Werner made it clear that it was given so as to afford him the reasonable opportunity required by Section 20B (1). It also indicated Mr Preshaw’s willingness to meet to discuss the provision of the information. At the same time it informed him that assessments had been raised. Berg & Co replied on 5 April 2001 indicating that because of Mr Berg’s holiday arrangements he would not be able to take instructions until 27 April, and therefore requested that no action be taken for 30 days from 27 April 2001. Mr Preshaw replied that he did not intend to proceed until the outcome of Mr Berg’s discussions with the claimant was known.
- By letter dated 3 May 2001, Mr Berg lodged appeals against the estimated assessments which had been issued for the years 1988/89 to 1995/96 inclusive. In response Mr Preshaw, by letter dated 22 May 2001, indicated that he was not prepared to wait indefinitely, that he would review the question of action under Section 20 if he had heard nothing by the end of May, and that he would consider whether to ask the General Commissioners to use their information powers as an alternative to, or in addition to, action under Section 20 once the appeals had been listed for hearing. Mr Berg did not reply to this until 15 June 2001 when he protested the unrealistic nature of the end-May deadline, and ventured that the only way forward was to have his client’s appeals listed before the General Commissioners at the earliest opportunity, suggesting late July as an appropriate date. Some days later Mr Berg himself took steps to have the appeals so listed. Mr Preshaw’s response was by letter dated 27 June, advising that he intended to apply to the General Commissioners on 13 July for a Section 20 notice and inviting Berg & Co to let him know what representations and material they wished him to place before the Commissioners.
- Berg & Co then wrote directly to the General Commissioners on 2 July 2001. This was a long (eight page) letter which made twelve numbered points to be taken into consideration by the General Commissioners when considering the issue of the Section 20 notice. Points made, and developed at considerable length, included the contentions: 1) that in consequence of Mr Werner’s imprisonment he had not had a reasonable opportunity to deliver the documents and particulars requested; 2) that the period covered by the notice was such as to make it oppressive; 6) that the Inland Revenue were only making the application in order to avoid a hearing of the appeals; 10) that “even if information were available, such documentation could well be held outside of the UK where Mr Werner spent many years. Even when Mr Werner is released from prison, under the terms of his licence he would be prevented from leaving the United Kingdom until his period of licence had expired so the due process of law would impede Mr Werner from obtaining any such information held outside of the UK.” The letter reminded the Commissioners, in more than one passage, of the observations of the House of Lords in R v IRC ex parte T C Coombs & Co (1991) 2AC 283 of the Inspector’s duty to ensure that all relevant circumstances were made known to the Commissioner hearing the application. A copy of this letter was sent to Mr Preshaw. On 9 July Berg & Co wrote again to the Commissioners, summarising their principal objections to the giving of a notice (the lack of reasonable opportunity having regard to the claimant’s imprisonment and the oppressive nature of the notice) and emphasising that it had been impossible for the claimant to attend to his taxation affairs “given the restrictions that have been placed upon him”. On 11 July Mr Berg wrote to Mr Preshaw detailing twenty points which he said should be made to the Commissioners. A copy of the letter was sent to the Commissioners.
- In the event the application could not be heard on 13 July but was in the event made on 18 July. Mr Preshaw reported to Mr Berg by letter dated 19 July in the following terms:-
“I write to let you know that the application under Section 20 Taxes Management Act 1970 went ahead on 18 July 2001. The Commissioner gave consent to the issue of a Notice in the same terms as our precursor letter of 23 March 2001 with one exception. The exception was that the request relating to corporate information is now restricted to the period from 6 April 1986 to 5 April 2000.
I have copied the Notice to yourselves, along with the covering letter sent to Mr Werner.
There was considerable discussion with the Commissioner regarding the various points raised in your letters of 11 July 2001, 9 July 2001, 2 July 2001, and all earlier correspondence. All correspondence between the Revenue and your firm was presented to the Commissioners. As well as my own summary of the position, the Commissioners were referred to your letter of 11 July 2001, which was discussed on a point by point basis. Your letter of 9 July 2001, sent direct to the Clerk and copied to me, was also discussed in considerable detail. Further, representations made in your other correspondence were also discussed. In all, the hearing lasted for 2½ hours. All relevant information, whether favourable or unfavourable to the Revenue’s case, was therefore supplied to the Commissioner. Specifically, there was considerable discussion of your representations on whether Mr Werner had been given a “reasonable opportunity” to provide the information as required by Section 20B(1) Taxes Management Act 1970.”
- In reply, Mr Berg intimated that proceedings for judicial review were being considered.
- The application for judicial review was initiated on 18 October 2001. The grounds upon which permission was sought were (taking them in the order in which they make their appearance in the claim form):
(1) The Inland Revenue should be put to proof that Mr Preshaw was duly authorised by the Board of Inland Revenue for the purposes of Section 20;
(2) Given that there were tax appeals pending, the information should have been sought under Regulation 10 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994 rather than under Section 20 since this would have allowed an inter partes hearing. R v IRC ex parte Taylor [1989] STC 600, so far as it decided otherwise, had been wrongly decided.
(3) There was prima facie evidence that Mr Preshaw had failed to disclose to the Commissioners (i) information concerning the terms on which a group of companies, called “Club Riviera”, settled its tax affairs with the Revenue; (ii) all information in Mr Preshaw’s possession concerning the claimant’s residence; (iii) his full reasons for deciding to withhold this information from the claimant; and (iv) information of which the Inland Revenue was aware regarding the claimant’s poor state of mental health.
(4) (relied on as the main grounds of challenge) the claimant’s imprisonment hampered his ability to comply with the Section 20 notice which was proposed to be issued (in particular having regard to Rules 34-39 of the prison rules), the time limit could never have been complied with, and the claimant was not afforded a reasonable opportunity of supplying the particulars asked for before the s.20 notice was issued.
(5) Giving effect to Section 20 in the way in which the Inspector and the Commissioner had in the present case involved a breach of Mr Werner’s convention right not to be “forced to perform forced or compulsory labour” (see Article 4(2) of the Convention).
- The Inland Revenue’s summary grounds for contesting the claim were that the claim did not disclose an arguable case for judicial review. The point was made that Parliament had entrusted the Commissioner with the duty of supervising the exercise of the Inland Revenue’s investigation powers and had not provided for any appeal from his decision; that a presumption of regularity attaches to the decision to give a notice, both in relation to the Inspector’s decision to give and the Commissioner’s decision to approve the giving of the notice; and that the court should be astute to avoid the giving, by the avenue of judicial review, what is in reality a second look at the Commissioner’s decision. The existence of the alternative avenue of seeking information under Regulation 10 of the 1994 Regulations did not prevent the use of Section 20, and consideration had in fact been given to the use of that avenue. The extent to which the claimant’s imprisonment hampered his ability to comply had been expressly considered both by the Inspector and the Commissioner, and had been a factor in the Inspector’s decision to restrict the notice to particulars and not to seek an order requiring production of documents. The requirement to comply with the notice could not fairly be described as “forced or compulsory taken” but was a civic obligation.
- Newman J, in refusing permission, pointed out in relation to the central matter of complaint, namely that the claimant’s ability to comply with the notice was hampered by his imprisonment and the terms of his parole licence, that the claimant had not sought any licence to go abroad, and had made no attempt to furnish any particulars whatsoever. The learned judge was not satisfied that the claimant would not have been able to employ suitably instructed professional advisers to track down any missing information. He also adverted to the fact that there had been a complete failure by the claimant to co-operate in any way with the Inland Revenue since 1996, concluding that:
“The fact of the matter is that any possible pretext as I see it, by way of excuse, has been provided either by him or his solicitors in order to avoid giving the information.”
- He also rejected the arguments that there had been any material non-disclosure by the Inspector to the Commissioner and the argument that Article 4 of the Convention applied. He said that no case had been made out that either the Inspector or the Commissioner had failed to take into account relevant matters or had otherwise acted irrationally. While not dealing expressly with the suggestion that the Inland Revenue should be put to proof that Mr Preshaw had been authorised by the Board for the purposes of Section 20, he concluded his judgment by saying:
“Insofar as it has been suggested that there has been any irregularity, in my judgment, it is perfectly plain that nothing has been suggested which even gives rise to a need for the court to be concerned about the application of the presumption of regularity to apply in this case.”
- The grounds on which permission to appeal are sought may be summarised as follows. First, it is said that the judgment is silent as to the test being applied on the application for permission, and that, insofar as it proceeded on the basis that Mr Werner had not shown an arguable case, too high a threshold had been imposed. The question ought to have been whether the claim was frivolous, vexatious or hopeless. For myself I see no relevant distinction between a finding that there are no arguable grounds for a claim and a finding that it is hopeless.
- Secondly, complaint is made that the learned judge did not require the Inland Revenue to prove that Mr Preshaw had been authorised by the Board for Section 20 purposes but accepted a statement to that effect given on instructions by the Inland Revenue’s counsel at the oral hearing. There is in my judgment nothing in this point. In the first place there was no evidential basis on which to found a requirement that the Inland Revenue be put to proof of the authorisation. This was no doubt one of the matters the judge had in mind in his closing references to the presumption of regularity. In any event it was in my judgment entirely proper, in the context of what was otherwise found to be a hopeless application, for the judge to have accepted the statement of the Inland Revenue’s counsel.
- Thirdly, it was contended that the judge was wrong to treat as unarguable the claim that the Section 20 notice was oppressive having regard to the claimant’s imprisonment, the terms of his licence, and the reasons given by him for his inability to employ an agent to assist him in obtaining the relevant information. The judge ought, it was said, to have given weight to the fact that the Inland Revenue had not adduced evidence to contradict that given by the claimant. These submissions appear to me to confuse the role of the judge on the permission application with the role of the Commissioner in deciding to authorise the giving of the notice. Under Section 20 it is the inspector who is the decision-maker and the Commissioner is the person designated by Parliament as having the duty to monitor the decision: see R v IRC ex parte TC Coombs & Co [1991] 2 AC 283, HL and R v IRC ex parte Archon Shipping Ltd [1998] STC 1151 at p. 1157 a-b per Scott Baker J.
- Fourthly, it is contended that the judge was wrong to reject as unarguable the claimant’s claim that he had not had a reasonable opportunity to furnish the particulars. In addition to the point made under the third ground, complaint is made of the judge’s reference to the history of the matter having gone back to 1996. It is said that attention should have been confined to the period commencing on 18 May 2000. Once again confusion seems to exist between the judge’s role in refusing the application, and the material taken into account by the Commissioner. I am, in any event, quite unclear as to why it should be asserted that the background fact that the claimant had simply failed to respond to letters from the Inland Revenue should have been irrelevant to the Commissioner’s decision (assuming it to have been a factor, which is not shown).
- Fifthly, it is said that there was a stronger case of possible non-disclosure by the Inspector to the Commissioner than was allowed for by the judge. As to this it is correct that the judge referred to the claimant’s alleged state of mental health as having been a matter urged on his behalf to the Inspector and the Commissioner by Berg & Co, and that the judge was in error in that respect. Despite the copious nature of the arguments advanced by Berg & Co as to why the proposed notice would be oppressive and incapable of being complied with by the claimant, they failed (conspicuously it may be thought) to mention mental health as one of the grounds. In those circumstances the fact that Mr Watters may have learned in May 2000 that the claimant had previously suffered from mental health problems seems to me entirely irrelevant to what information ought to have been disclosed on this subject by Mr Preshaw to the Commissioner in July 2001.
- A further point developed at length by Mr Smart in his skeleton argument both before this court and before Newman J, related to the failure by the Inspector to disclose to the Commissioner, not only the fact that he had information relating to the Club Riviera settlement and to the question of the claimant’s residence, but also what that information was and why it had been denied to the claimant. This criticism seems to me to be misconceived. The Commissioner had before him the full terms of the debate on these issues which had taken place between the claimant and Berg & Co and the Inspector. The latter’s position in refusing to divulge the information to the claimant is readily intelligible on its face. If (as may be presumed) the Commissioner felt able to assess the reasonableness of the inspector’s stance without himself examining the information which he knew existed, no criticism can be made of the inspector for not furnishing the Commissioner with it. The truth of the matter is that this aspect of the application appears to be being deployed by the claimant as a means of seeking to prise out of the Inland Revenue information which, in the course of the exercise of its investigating powers, it is perfectly entitled to withhold.
- Finally reliance was placed on the failure to take into account the existence of the alternative means available to the Inland Revenue under Regulation 10 of the 1994 Regulations. Here, Mr Smart recognised the potential difficulty facing him as a result of the decision in this court in R v IRC, ex parte Taylor (No 2) [1990] STC 379. However, it is in any event clear here that the inspector did give consideration as to the appropriateness of a section 20(1) notice in the light of the powers available to him under Regulation 10, and I see no basis on which it can be suggested that his decision to proceed with the giving of a Section 20(1) notice can be said to have been irrational.
- For these reasons I do not consider that any appeal from Newman J’s order would have any real prospect of success, and I would therefore dismiss the application.
Lord Justice Brooke:
- I agree.
- At the outset of his submissions Mr Smart took a procedural point, arising out of the relationship between CPR Part 54 and CPR Part 52 in a case of this type.
- CPR 54.4 states quite simply:
“The court’s permission to proceed is required in a claim for judicial review whether started under this Part or transferred to the Divisional Court.”
CPR 52.3(1) and (6) contain provisions applicable to all CPR appeals, whether they are brought to a circuit judge, a High Court judge or the Court of Appeal:
“(1) An appellant … requires permission to appeal –
(a) where the appeal is from a decision of a judge in … the High Court, except where … [there follow three irrelevant exceptions]
(6) Permission to appeal will only be given where –
(a) the court considers that the appeal would have a real prospect of success; or
(b) there is some other compelling reason why the appeal should be heard.”
- CPR 52.15, which appears in the section of CPR Part 52 concerned with special provisions applying to the Court of Appeal, is headed “Judicial Review appeals”. CPR 52.15(1) and (3) provide:
“(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.
…
(3) On an application under paragraph (1), the Court of Appeal may, instead of giving permission to appeal, give permission to apply for judicial review.”
- Under this scheme the Court of Appeal will apply the now familiar test of determining whether an appeal against a judge’s refusal of permission would have a real prospect of success, in the sense that the prospect of success is not merely “fanciful” (Swain v Hillman [2001] 1 All ER 91). In applying this test it will inevitably examine the merits of the original application, and if it considers that the application is fit for consideration at a substantive judicial review hearing it will of course decide that the prospects of a successful appeal are not fanciful. It will probably go on to grant permission to apply for judicial review itself under CPR 52.15(3).
- If it considers that there is a real prospect of the appellant being able to show at a contested appeal hearing that the application is fit for consideration at a substantive judicial review hearing but it wishes to hear the respondent on the matter, it will probably adjourn the application to be heard on notice, with the appeal to follow if permission is granted. This will represent a speedier and more convenient way of dealing with the matter than merely granting permission to appeal there and then, and then holding things up until a substantive appeal hearing can be heard on the question whether the appeal should be allowed and permission to apply for judicial review granted.
- The House of Lords has now made it clear that if this court refuses permission to appeal against a refusal of permission to apply for judicial review there is no further right of appeal (R v Secretary of State for Trade and Industry ex p Eastaway [2000] 1 WLR 2222). If, on the other hand, this court grants permission to appeal but then refuses permission to apply for judicial review at the substantive appeal hearing, there is potentially a right of appeal to the House of Lords (R(Burkett) v Hammersmith LBC [2002] 1 WLR 1593).
- In the present case I agree with Hart J, for the reasons he gives, that an appeal from Newman J’s order would not have any real prospect of success, and I can see no other compelling reason for granting permission to appeal against that order.
Order: Application is refused. No Order as to costs.
(Order does not form part of the approved judgment)
