Hitch, R (on the application of) v Commissioners For The Special Purposes Of The Income Tax Acts

The death or incapacity of a judge or Special Commissioner during a case does not ordinarily remove the jurisdiction to continue the proceedings before a replacement decision-maker. Whether the hearing should begin again is generally a matter of case management, particularly where witnesses have given evidence. Section 45(3) of the Taxes Management Act 1970 is an enabling provision concerning the quorum of Special Commissioners. It does not require the parties’ consent before a reconstituted tribunal may continue an appeal.

The claimant sought judicial review of the Special Commissioners’ decision to continue tax appeals after the death of one of the two Commissioners who had heard them. The appeals had previously been remitted by the Court of Appeal. The claimant argued that section 45(3) of the Taxes Management Act 1970 required his consent before the proceedings could continue and that a fresh hearing was necessary. The central issue was whether section 45(3) governed jurisdiction to continue proceedings after a Commissioner’s incapacity.

1. The application was dismissed. The Special Commissioners had jurisdiction to continue the remitted appeals after the death of one Commissioner.

2. At common law, the death or incapacity of a judge during a case does not necessarily deprive a replacement judge of jurisdiction to take over and complete it. Whether the matter should be heard de novo is ordinarily a case-management decision. A rehearing will often be appropriate where witnesses have been involved.

3. The appeals lay to the body of Special Commissioners, rather than exclusively to the Commissioners nominated to hear the particular appeal. Section 45(1) permitted a single Commissioner to deal with an appeal.

4. Section 45(3), read with its heading, Quorum of Special Commissioners, was an enabling provision. It was not intended to restrict the Commissioners’ underlying jurisdiction whenever one member became incapacitated. The consent requirement therefore did not prevent continuation before a replacement Commissioner or reconstituted panel.

5. R v Coates [2004] 1 WLR 3043 and Quenchers Ltd v McShane (unreported, 26 January 1993) concerned express statutory requirements governing tribunal constitution and did not govern the present issue.