St Matthews (West) Ltd, R (On the Application Of) v HM Treasury

Cross-examination in judicial review proceedings is exceptional. The court retains a discretion to permit it where it is necessary for the claim to be determined fairly and justly. The power should not be used for a fishing exercise, to obtain evidence from witnesses without relevant knowledge, or where the dispute is essentially legal and the documentary evidence is sufficient. Alleged selectivity in the Government’s use of retrospective legislation does not, without more, establish that comparison with other schemes is relevant to the legal issues.

The claimant sought permission to cross-examine witnesses for HM Treasury during a rolled-up hearing concerning a challenge to retrospective legislation directed at certain tax avoidance schemes. The challenge was brought primarily under Article 1 of Protocol 1 to the European Convention on Human Rights, with permission also given to advance an Article 6 argument.

The proposed cross-examination concerned alleged selectivity in relation to employment and stamp duty land tax schemes, and the Government’s consideration of a protocol on retrospective legislation. The issue was whether cross-examination was necessary for the claim to be determined fairly and justly.

1. Application refused. The court declined to exercise the exceptional power to permit cross-examination in the judicial review proceedings.
2. The applicable principle, identified from Bubb v London Borough of Wandsworth [2011] EWCA Civ 1285 and Bancoult v Secretary of State for the Foreign and Commonwealth Affairs [2012] EWHC 2115 (Admin), is that cross-examination may be ordered where it is necessary for the claim to be determined, and seen to be determined, fairly and justly. It remains exceptional in judicial review.
3. The proposed evidence about employment legislation could not assist because the defendant’s witnesses had no relevant knowledge of that subject. Cross-examination about other stamp duty land tax schemes was also unnecessary. The issue was essentially legal, and comparison with other schemes was not shown to be relevant to whether the retrospective legislation under challenge was lawful.
4. The application was also a fishing exercise. The recently produced material did not establish that another scheme had been disclosed to HMRC or that any decision had been taken concerning it. The court further observed that arbitrariness and selectivity were distinct issues.
5. There was no need to cross-examine the witness about the relevant protocol because the disclosed memorandum showed that it had been considered. The Article 6 point was allowed to be raised, subject to the claimant’s assurances concerning Scottish-law documents and an attempt to agree relevant facts. The witness evidence and exhibits were not excluded.