Revenue & Customs v Church of Scientology Religious Education College Inc

An appellate time limit runs from the decision being challenged. A tribunal’s later correction or supplementation does not revoke the original decision or restart time for appealing issues already decided. An extension of time remains discretionary and requires a balancing exercise under the overriding objective and the relevant procedural checklist. The court must give proper weight to the public interest in finality. Delay, absence of a satisfactory evidential explanation, failure to take protective procedural steps, and prejudice to the successful party may together make an extension inappropriate, even where the proposed appeal concerns a substantial sum of public money.

HM Revenue and Customs applied for an extension of time to appeal a decision of the VAT and Duties Tribunal concerning repayment of overpaid VAT. The Tribunal’s July decision allowed the College’s appeal on the Fleming issue but did not determine an additional point. In September, the Tribunal issued a further document adding paragraph 24 under rule 30(6) of the Value Added Tax Tribunal Rules 1986.

HMRC filed its Appellant’s Notice on 30 March 2007. It argued that the September document superseded the July decision or justified treating the appeal period as running from a later date. The central issues were which Tribunal decision was relevant to HMRC’s proposed appeal and whether the court should extend the 56-day period.

1. Relevant decision. The July decision was the relevant decision for HMRC’s proposed appeal on the Fleming issue. The September document was properly characterised as a correction to the decision released on 21 July 2006. The Tribunal had no power to revoke the July decision or extend the High Court appeal period. Time for appealing the matter decided in paragraph 23 therefore expired on 15 September 2006. The time for appealing the distinct subject matter of the correction might have run from 13 September, but HMRC was not appealing paragraph 24.
2. Power and approach. The court had power under CPR 52.6 and the relevant practice directions to extend time. In a case of complexity, the court should consider the overriding objective in CPR 1.1 and the checklist in CPR 3.9, while avoiding rigid judge-made checklists. The exercise is a balancing exercise involving all the circumstances.
3. Application. The application was not prompt. HMRC took the full period after learning of the September document before filing a straightforward Appellant’s Notice. Its failure to appeal the July decision was intentional in the sense that it was not accidental, and no adequate evidence explained the delay. HMRC could have filed a protective appeal, sought an extension before time expired, or sought an agreement from the College concerning time.
4. Finality and prejudice. The court gave substantial weight to the public interest in finality, as explained in Smith v Brough [2005] EWCA Civ 261. The College had relied, at least to some extent, on the apparent end of the litigation when borrowing money and acquiring properties. The fact that public money was involved did not justify overlooking the delay and inadequate evidence.
5. Disposition. HMRC had not shown an exceptional case justifying an extension. The extension was refused, with the result that the Appellant’s Notice filed on 30 March 2007 was out of time and the appeal was dismissed.

• VAT and Duties Tribunal: A decision released on 21 July 2006 allowed the College’s appeal on the Fleming issue but did not determine the additional point. A document released on 13 September 2006 added paragraph 24 under rule 30(6) of the Value Added Tax Tribunal Rules 1986.
• High Court (Chancery Division): The court treated the July decision as the relevant decision for HMRC’s proposed appeal, refused an extension of time and dismissed the out-of-time appeal.