Summary
Where legislation provides an exclusive statutory remedy for recovery of overpaid tax, expressly ousting common-law claims, those claims cannot proceed merely because the statutory route is procedurally difficult. The EU law principle of effectiveness requires a remedy that is not impossible in practice or excessively difficult, but it does not require taxpayers to know that a remedy exists or to know the legally correct quantum before making a quantified claim. Limitation periods may be shortened retrospectively where reasonable notice or transitional protection is provided. A statutory defence inconsistent with EU law may be disapplied by conforming construction. Alleged obstructive conduct by a tax authority does not alter the legal position in the absence of a properly pleaded factual claim.
Factual background
The claimants were members of the class 8 claims in the CFC and Dividend Group Litigation concerning corporation tax paid on foreign dividend income. They brought common-law restitutionary and damages claims, including claims concerning compound interest. The court was asked to determine four agreed preliminary issues, principally whether those claims were ousted by paragraph 51(6) of Schedule 18 to the Finance Act 1998, whether section 320 of the Finance Act 2004 applied to earlier tax payments, and when mistakes could reasonably have been discovered. The court also decided whether five disputed issues remained open for trial under the group litigation order.
Held
- Paragraph 51(6). Paragraph 51(6) expressly ousted the claimants’ common-law claims issued after March 2010. Autologic did not support continuation of common-law claims where statute expressly excluded them.
- Effectiveness. The statutory remedy under section 790 of ICTA, construed in accordance with EU law, was effective. The reasoning in Haribo applied even where the taxpayer could not obtain the foreign company’s tax information. Lack of knowledge of the remedy, uncertainty about the correct quantum, and the application of portfolio dividends through the Marleasing principle did not make the remedy impossible or excessively difficult. A quantified claim need not be legally exact, and paragraph 56 permitted supplementary claims.
- The practice generally prevailing defence in paragraph 51A(8) was incompatible with EU law to the extent necessary and was to be read as excluded. The statutory limitation reductions did not deprive the claimants of an effective remedy because they had been introduced with more than six months’ notice.
- HMRC’s earlier concession in Portfolio Dividends HC 1 did not create an estoppel. Alleged obstructive conduct was not relevant to the agreed legal issue, absent a properly pleaded claim in fraud, misfeasance or judicial review.
- Section 320. Section 320 took effect from 22 July 2004, whether the tax had been paid before or after 8 September 2003. The court declined to follow the contrary reasoning in Jazztel concerning taxpayers’ knowledge of accrued rights.
- Constructive discovery. The relevant date was 12 December 2006, when the CJEU decided FII CJEU 1.
- The first disputed issue had been finally decided in the earlier test case and could not be raised again. The second and third issues remained open because they were fact-specific or concerned different claimants. The fourth issue no longer arose. The fifth was a legal issue already refused permission to appeal and could not be run again.
The court’s approach to earlier authorities
Available to signed-in members.
Appellate history
First-instance determination of agreed preliminary issues and the availability of five disputed issues in group litigation. No appeal decision is stated in the judgment.
Key cases cited
13 authorities cited.
- Test Claimants in the Franked Investment Income Group Litigation v Commissioners of Inland Revenue and another [2012] UKSC 19
- Fleming (t/a Bodycraft) (Respondent) v Her Majesty's Revenue and Customs (Appellants) Conde Nast Publications Limited (Respondents) v Her Majesty's Revenue and Customs (Appellants) [2008] UKHL 2
- Autologic Holdings plc and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)BNP Paribas UK Holdings Limited and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)The Future Network plc and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)Perkins Engines Company Limited and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)HJ Heinz Company Inc and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)British Telecommunications plc and others (Respondents) v. Her Majesty's Commissioners of Inland Revenue (Appellants)(Conjoined Appeals) [2005] UKHL 54
- Henderson v Henderson (1843) 3 Hare 100
- Franked Investment Income Group Litigation, The Test Claimants In v Revenue And Customs [2016] EWCA Civ 1180
- Leeds City Council v HM Revenue and Customs [2015] EWCA Civ 1293
- Jazztel Plc v Revenue And Customs [2017] EWHC 677 (Ch)
- Test Claimants in the FII Group Litigation v Revenue and Customs Comrs Case C-362/12
- Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) (No 3) Case C-35/11
- Haribo Lakritzen Hans Riegel BetriebsgmbH v Finanzamt Linz (Österreichische Salinen AG v Finanzamt Linz.) Joined cases C-436/08 and C-437/08
- Fantask A/S v Industriministeriet (Erhvervministeriet) [1997] ECR I-6783
- Marleasing SA v La Comercial Internacional de Alimentación SA [1990] ECR I-4135
- Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595
Sign in to see how the court treated each authority. A free account is enough.
Cases citing this case
4 later cases · 2 positive · 1 neutral · 1 negative
Most senior citing decisions:
- AXA Insurance UK PLC and another v Commissioners of Inland Revenue and another [2026] UKSC 24 approved
- Jazztel Plc v The Commissioners for HMRC [2022] EWCA Civ 232 not followed
- Credit Suisse Securities (Europe) Ltd & Ors v HM Revenue and Customs [2019] EWHC 1922 (Ch) mentioned
- The Commissioners for HMRC v Applicants in the Post Prudential Closure Notice Applications Group Litigation & Anor [2024] UKUT 23 (TCC)
Sign in for the full treatment table. A free account is enough.