Murat, R (on the application of) v Special Commissioners Office

A litigant cannot bring a second appeal against the same decision merely by naming a different respondent after the first appeal has failed. The proper respondent is ordinarily the party who succeeded below and is entitled to support the decision on appeal. Arguments that were, or should have been, raised in an earlier appeal cannot be reopened in fresh proceedings. Such proceedings may constitute an abuse of the process of the court and may be dismissed. The court may also award the properly participating respondent its reasonable costs.

Mr Murat appealed against penalty notices issued by HM Revenue and Customs. A Special Commissioner reduced the penalties from £4,280 to £2,870. Mr Murat appealed to the High Court, where Moses J dismissed the appeal. Permission to appeal to the Court of Appeal was subsequently refused by Latham LJ.

Mr Murat then commenced these proceedings concerning the same Special Commissioner’s decision, naming the Commissioner rather than HM Revenue and Customs as respondent. He also sought to raise tax-management and human-rights arguments, including complaints under Articles 4, 6 and 8 of the ECHR. The central issues were whether the proceedings were competent, whether the points could be raised again, and whether HM Revenue and Customs were properly present for costs purposes.

1. The claim was dismissed. The proceedings challenged the same decision that had already been appealed to the High Court. Changing the named respondent did not create a new or separate appeal. The proceedings were therefore misconceived and an abuse of the process of the court.
2. The successful party before the first appellate judge was entitled to support that decision on any further appeal. This was not a case in which the tribunal or its judge was the appropriate respondent. The suggestion that the Special Commissioner should have appeared before Moses J was misconceived.
3. Arguments that had been, or should have been, raised in the earlier appeal could not be raised in fresh proceedings. This included the complaints concerning private drawings and Articles 8(1) and 8(2) of the ECHR, the self-incrimination argument, and the contention that penal powers should not be used in pursuit of an erroneous demand. If such points were arguable but had not been raised, that was the claimant’s failure.
4. Complaints concerning other decisions of the Special Commissioner, including decisions apparently made months earlier, could not be introduced into proceedings directed at a different decision.
5. HM Revenue and Customs were properly present for costs purposes. They were the party with the benefit of the penalty decision and were entitled to oppose an attempt to overturn it. The court accepted that the claimed preparation was necessary and ordered Mr Murat to pay £860.

1. High Court: Moses J dismissed Mr Murat’s appeal against the Special Commissioner’s decision.
2. Court of Appeal: Latham LJ refused permission to appeal on 6 April 2005.
3. High Court (Administrative Court): The present proceedings concerning the same decision were dismissed as misconceived and an abuse of process. Costs of £860 were ordered in favour of HM Revenue and Customs.