Glencore Energy UK Ltd v Revenue And Customs

Where the High Court refuses permission to apply for judicial review after an oral hearing, the applicant must seek permission to appeal from the Court of Appeal. The general permission rule in CPR 52.3(2) is subject to the special regime in CPR 52.8. Together with CPR 54.4 and 54.12, those provisions form a complete code for judicial review permission decisions. The High Court therefore has no power to grant permission to appeal its own refusal. In any event, permission would be refused where statutory review and appeal remedies were likely to resolve the dispute, the judicial review had become academic or premature, or the outcome would not differ under the Senior Courts Act.

The claimant sought permission to appeal from a judgment refusing permission to apply for judicial review of HMRC’s decision to impose diverted profits tax under the Finance Act 2015. Permission for judicial review had been refused after an oral hearing on the basis that the claimant had alternative remedies under sections 101 and 102 of that Act, together with wider discretionary grounds.

The central issue was whether, after refusing permission to apply for judicial review following a hearing, the High Court could itself grant permission to appeal, or whether the claimant had to apply directly to the Court of Appeal under CPR 52.8.

1. Jurisdiction. The High Court had no power to grant permission to appeal its refusal of permission to apply for judicial review. CPR 52.3(2) states the general rule that permission may be granted by the lower court or the appeal court. CPR 52.8 is a special rule for an appeal against refusal of permission to apply for judicial review after a hearing, and therefore governs the case.
2. CPR 52.8 does not expressly state that the High Court lacks power to grant permission. That is, however, the silent premise of the rule. CPR 54.4 provides that judicial review proceedings cannot be brought without permission. Under CPR 54.12, a refusal on paper may be renewed before the High Court, whereas a refusal after an oral hearing is addressed by CPR 52.8, which permits an application to the Court of Appeal. These provisions form a complete code.
3. Alternative basis. Even if the High Court had jurisdiction, permission would have been refused. By the time an appeal could be heard, the review process under section 101 of the Finance Act 2015 would probably have concluded. Any surviving dispute would give rise to a statutory appeal to the specialist tribunal under section 102. There was consequently no practical utility in granting permission.
4. The court was also reinforced in that conclusion by its findings that HMRC was reconsidering its decision, making the judicial review academic or premature, and that the outcome would not be different within section 31(3C)–(3D) of the Senior Courts Act. The claimant was directed to seek permission from the Court of Appeal under CPR 52.8.

1. High Court (Administrative Court): In [2017] EHWC 1476 (Admin), permission to apply for judicial review was refused. The present court held that any application for permission to appeal had to be made to the Court of Appeal.