Jazztel Plc (As Test Claimant for Glo Issues 9a,9b And 10) v Revenue And Customs

Where a group litigation test claim has been decided but an appeal or permission application remains outstanding, proceedings on the related claims have not been finally determined. An application by those claimants for payment from HMRC is therefore an interim remedy within section 234 of the Finance Act 2013, even if it is described as final or would not be an interim payment under CPR Part 25.

Payment may be ordered only if one of the statutory exceptions applies. Exceptional circumstances must be circumstances of the claimant seeking payment. Membership of a taxation GLO, success by the test claimant, resulting delay and the prospect of interest do not, without more, satisfy that requirement.

The application arose from a group litigation order concerning claims for restitution of stamp duty reserve tax allegedly levied incompatibly with EU law. Jazztel had succeeded on certain test issues before Marcus Smith J and received conditional repayment.

Other claimants remained stayed. Appeals or permission applications concerning limitation issues were pending, and the change of position issue remained unresolved. Jazztel sought an order enabling the other claimants to obtain equivalent payments, subject to repayment if HMRC ultimately established a defence.

The central issue was whether the proposed order was restricted by section 234 of the Finance Act 2013, and, if so, whether the statutory exception for exceptional circumstances and the interests of justice was satisfied.

1. The application was dismissed. The proposed order was an interim remedy within section 234 of the Finance Act 2013. The affected claimants had not had their individual claims tried, and the relevant legal issues remained subject to pending appellate processes.
2. Section 234(9) expressly treats appeal proceedings as part of the original proceedings. A pending application for permission to appeal could not place the affected claimants in a different position from claimants whose appeal had already been permitted. The points concerning section 320 of the Finance Act 2004 and its interaction with EU law were plainly unresolved.
3. There was no intermediate category between a final remedy and an interim remedy for the purposes of section 234. The proposed payment remained interim, even though it was not an interim payment under CPR Part 25 and was framed as subject to a condition subsequent.
4. Section 234(3)(b) required both exceptional circumstances of the claimant seeking the remedy and necessity in the interests of justice. The interests-of-justice limb might favour parity with the successful test claimant, but the exceptional-circumstances limb was not met. Being a claimant in a taxation GLO, the test claimant’s success and payment, and delay caused by the statutory treatment of pending appeals were not exceptional circumstances of the affected claimants.
5. Summary judgment would also have been inappropriate while the relevant legal issues remained unresolved. The court applied the reasoning in Six Continents Ltd v Revenue Commissioners concerning summary judgment where a material point was subject to appeal. The application was accordingly refused.

First-instance decision. The judgment records pending applications for permission to appeal from the test-case judgment, but this was not an appeal from an earlier decision.