Bottomley, R (on the application of) v General Commissioners Of Income Tax Pontefract Division & Anor

Apparent bias is assessed by asking whether, having regard to all relevant circumstances, a fair-minded and informed observer would conclude that there was a real possibility or danger of bias. A tribunal may regulate its procedure broadly, but must retain control and ensure that each party is treated fairly. Intervention by one party during another’s evidence is not, without more, evidence of bias where the procedure is justified, controlled and assented to. Complaints about procedural irregularity or excluded evidence should ordinarily be pursued through the statutory appeal route. A waiver of bias must be clear and unequivocal, made with knowledge of the essential facts.

Mr Bottomley sought judicial review of the General Commissioners’ decision dated 11 January 2007 dismissing his appeals against income-tax assessments and amendments to self-assessments. He alleged that the Commissioners were biased in favour of HMRC, relying on alleged comments by the chairman, procedural control of the hearing, late documents, treatment during cross-examination, and interruptions by HMRC representatives during his evidence.

The claimant could have appealed by case stated under regulation 20 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994, but chose judicial review. The central issue was whether the circumstances established apparent bias or, alternatively, procedural unfairness.

1. Claim dismissed. None of the allegations, individually or collectively, established apparent bias.
2. The applicable test, stated in Lawal v Northern Spirit [2003] UKHL 35, required the court to consider all relevant circumstances and ask whether a fair-minded and informed observer would conclude that there was a real possibility, or real danger, that the tribunal was biased.
3. The alleged statement by the chairman that he believed the Revenue’s witness was telling the truth was not proved. The contemporaneous clerk’s notes and other evidence contradicted it. Had the statement been made, the claimant’s failure to object at the time would have amounted to waiver. Waiver must be clear and unequivocal, with knowledge of the essential facts, applying Jones v DAS Legal Expenses Insurance [2003] EWCA Civ 1071.
4. A tribunal may form provisional views and control questioning, but must not appear to have reached a firm view on credibility before the opposing evidence is heard. The chairman’s requests for specific and relevant questions were legitimate case management, not evidence of bias.
5. Under paragraph 15 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994, the Commissioners had broad power to regulate their procedure. Permitting HMRC representatives to clarify matters during the claimant’s evidence was not good general practice, but it was within the Commissioners’ power in the circumstances. The procedure was controlled, the claimant assented to it, and his evidence was allowed to continue in the ordinary way when interruptions became unhelpful.
6. Any complaint that evidence had been wrongly excluded, that the appeal decision failed to reflect a concession, or that the procedure caused unfairness should ordinarily have been pursued by case stated rather than judicial review. Costs submissions were permitted within 14 days, with a further 14 days for reply.

The judgment was a first-instance judicial review of the General Commissioners’ decision dated 11 January 2007. The judgment records that an alternative appeal by case stated under regulation 20 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994 was available but was not pursued.