Judicial review: premature claim

The right to make representations, pursuant to s 222 of the Finance Act 2014, was an appropriate alternative remedy which the taxpayer could and should exhaust before bringing judicial review proceedings. The Court of Appeal, Civil Division, held that the judge had not erred in dismissing the claimant taxpayer’s appeal and holding that the master had correctly concluded that there should be no order for costs upon the basis that the claim for judicial review was premature because the taxpayer had failed to exploit the statutory right to make representations to the defendant Revenue and Customs Commissioners.

Background

The claimant received an accelerated payment notice (APN) from the defendant Revenue and Customs Commissioners (HMRC) under the Finance Act 2014 (the FA 2014). The APN legislation did not provide a statutory right of appeal from the giving of an APN, with the consequence that the only way in which an APN could be challenged in legal proceedings was by way of judicial review. However, under the FA 2014 s 222, a taxpayer was able to send written representations to HMRC following the issue of an APN. 

The claimant issued judicial review proceedings challenging the APN and then, soon after, made representations to HMRC pursuant to the machinery under s 222. HMRC withdrew the APN and the claimant sought her costs of the judicial review proceedings. A master dismissed the claim for costs, holding that the judicial review proceedings had been premature. That decision was upheld, the judge finding that the master had been correct to find that it was premature to commence judicial review proceedings pending the exercise of the statutory right to make representations under s 222. The claimant appealed.

Appeal dismissed.

Issues and decisions

Whether the machinery under the FA 2014 s 222 provided a suitable alternative remedy that the taxpayer should normally pursue before beginning judicial review proceedings to challenge an APN.

Parliament had to have intended taxpayers to take advantage of the machinery in s 222 in all cases where it was available before having resort to judicial review proceedings. The representations machinery in s 222 fulfilled an obvious purpose by providing a relatively cheap and simple way for a taxpayer to challenge an APN without incurring the cost of court proceedings (see [89] of the judgment).

Further, the strict three month time limit for judicial review did not leave the taxpayer with no realistic option except to begin judicial review proceedings within three months of the date of the APN even if representations had also been made under s 222. Where Parliament had provided a potential alternative remedy, such as that in s 222, the court would, if necessary, ensure that the taxpayer was not prejudiced by taking advantage of it. It was expected that the court would proceed on the basis that time did not run for judicial review purposes until the date of the notification of HMRC’s response to representations made under s 222 proceedings (see [92] of the judgment). 

Accordingly, the decisions below were correct that s 222 provided an alternative means of redress for the taxpayer in receipt of an APN that should normally be exhausted before the commencement of judicial review proceedings (see [96] of the judgment).

Cowl v Plymouth City Council [2001] All ER (D) 206 (Dec) considered; Glencore Energy UK Ltd v Revenue and Customs Commissioners [2017] STC 1824 considered.

Decision of Green J [2018] All ER (D) 14 (Apr) affirmed.

Conrad McDonnell (instructed by KPMG LLP) for the claimant.

David Yates QC (instructed by the General Counsel and Solicitor to the Revenue and Customs Commissioners) for HMRC.

Peter Fuller - Barrister.