Werner, R (on the application of) v Inland Revenue & Ors

On an application for permission to appeal against refusal of permission to seek judicial review, the Court of Appeal applies the CPR test of whether the proposed appeal has a real prospect of success, meaning a prospect which is not fanciful. The court may examine the merits of the proposed judicial review claim in applying that test.

Under section 20 of the Taxes Management Act 1970, the inspector decides whether to seek information and the General Commissioner supervises that decision. Judicial review is not a vehicle for obtaining a second assessment of the Commissioner’s judgment where relevant matters were considered and no irrationality or material non-disclosure is shown.

The claimant sought permission to appeal against Newman J’s refusal of permission to apply for judicial review. The proposed claim challenged a notice issued under section 20(1) of the Taxes Management Act 1970, requiring information relevant to the claimant’s tax liabilities.

The challenge alleged lack of authorisation, failure to use powers under Regulation 10 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994, material non-disclosure to the Commissioner, oppression and lack of a reasonable opportunity to comply under section 20B(1), and breach of article 4(2) of the Convention. The central question was whether an appeal against Newman J’s refusal had a real prospect of success or raised another compelling reason for appellate intervention.

1. Disposition. The application for permission to appeal was refused. There was no order as to costs.
2. Permission threshold. Hart J held that there was no material distinction, for present purposes, between finding that there were no arguable grounds for judicial review and finding that the claim was hopeless. The proposed appeal had no real prospect of success.
3. Statutory decision-making. The inspector is the decision-maker under section 20, while the Commissioner is designated to monitor and authorise the exercise of the information power. The claimant’s arguments confused the court’s role on a permission application with the Commissioner’s supervisory role. The evidence showed that the claimant’s imprisonment and ability to provide information had been considered.
4. Disclosure and authorisation. There was no evidential basis for requiring proof of the inspector’s authorisation. The presumption of regularity applied. The Commissioner had been given the relevant correspondence and arguments, and the inspector was not required to disclose underlying information which he was entitled to withhold where the Commissioner could assess the position without examining it.
5. Alternative procedure. The inspector had considered the possible use of Regulation 10 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994. Proceeding under section 20(1) could not, on the facts, be characterised as irrational.
6. Brooke LJ. In a concurring judgment, Brooke LJ explained that CPR 52.3 requires permission to appeal only where the appeal has a real prospect of success or there is another compelling reason. Under CPR 52.15, the Court of Appeal may grant permission to apply for judicial review instead of permission to appeal. He also noted the differing appeal consequences identified in R v Secretary of State for Trade and Industry ex p Eastaway [2000] 1 WLR 2222 and R (Burkett) v Hammersmith LBC [2002] 1 WLR 1593.

• Court of Appeal (Civil Division): refused permission to appeal against Newman J’s order and refused permission to apply for judicial review.
• Administrative Court, Newman J: refused permission to apply for judicial review on 19 February 2002.
• Administrative Court, Silber J: refused permission on the papers on 17 December 2001.