Bamber, R (on the application of) v HM Revenue & Customs

Judicial review cannot generally be used to obtain a monetary award unless the claim includes an appropriate claim and the statutory conditions are met. Where a public authority resiles from a representation, personal detriment must be proved with sufficient detail and assessed in the circumstances of the case. Detriment need not amount to hardship, but the court may consider the net detriment after foreseeable benefits are taken into account. A public authority’s responsible assessment of fairness attracts some weight. Resiling from an undertaking will not be unlawful merely because it is unattractive; the conduct must cross the applicable threshold of unfairness, disproportionality or abuse of power.

The claimant challenged HM Revenue and Customs’ decision to withdraw an agreement providing increased flat-rate expense allowances for airline crew. The court had previously dismissed the claim insofar as it sought relief for the crew generally, but allowed the claimant an opportunity to adduce further evidence of personal reliance and detriment.

At the resumed hearing, the claimant relied on expenditure on a cruise, kitchen improvements, disposal of expense receipts and non-financial criticism. He indicated that he sought payment of money, although the judicial review claim had not been amended to include such relief. The issues were whether monetary relief was procedurally and jurisdictionally available and, if so, whether personal detriment made the withdrawal substantially unfair or otherwise unlawful.

1. Outcome. The application was dismissed. The court held that, even assuming the procedural and jurisdictional obstacles to a monetary award could be overcome, the claimant had not established a sufficient case for relief.
2. Monetary relief. The claim sought only a quashing order. It contained no claim for damages, restitution or recovery of a sum due. Accordingly, the condition in section 31(4)(a) of the Supreme Court Act 1981 was not satisfied. The court also identified a difficulty under section 31(4)(b): a private-law claim sufficient to support recovery would undermine the asserted detriment from reliance.
3. Reliance and detriment. The cruise expenditure was accepted as reliance-related detriment. The kitchen evidence was materially weaker because the building work had begun before the agreement, the additional features were not clearly identified, and there was no clear evidence of the relevant ordering or cost. The disposal of expense receipts was unsupported by adequate detail and was not shown to have caused detriment. Criticism by fellow aircrew was too remote to be fairly attributed to the Commissioners.
4. Assessment. Detriment short of hardship can suffice. In assessing an imprecise concept such as unfairness, however, the court may take account of benefits obtained from the expenditure and consider the resulting net detriment. The financial detriment was at most modest, with no evidence of significant continuing difficulty. The public interest in correcting an agreement inconsistent with general practice, together with the Commissioners’ responsible assessment that withdrawal was fair, carried weight.
5. Legality of withdrawal. Whether gross or net detriment was considered, withdrawal was not illogical, immoral or outrageously unfair. It was neither disproportionate to the public-interest problem created by the agreement nor an abuse of power.

This was a resumed first-instance judicial review hearing. The court had previously dismissed the claim insofar as it sought general relief, while permitting further evidence on the claimant’s personal position. The resumed application was dismissed.