Ingenious Games LLP & Ors. v The Commissioners for HMRC

CPR r 52.30 provides a narrow route for reopening a final determination, including a permission decision. It regulates an existing jurisdiction and does not permit reconsideration merely because the court may have reached the wrong result or misunderstood the law. The applicant must show exceptional circumstances involving a serious failure of process, such as a failure to engage with the issues, and no effective alternative remedy. Where some permission grounds are granted and others refused, any reopening application should be made promptly and before the substantive appeal, so that one hearing can be held. The court may assess grounds separately under the second-appeal test.

The three LLPs sought permission under CPR r 52.30(4) to apply to reopen Arnold LJ’s refusal of permission to appeal on Grounds 2 and 4 to 7. Permission had been granted on Grounds 1 and 3. The substantive appeal was subsequently dismissed for the Games LLP and allowed for the Film LLPs on Grounds 1 and 3 in [2021] EWCA Civ 1180.

The LLPs argued that Arnold LJ had failed to understand the interrelationship between the grounds. HMRC also relied on delay. The central questions were whether the earlier permission decision involved a corruption of the judicial process and whether the application had been brought in time.

Lord Justice Nugee gave the reasons for the court. Sir David Richards and Lord Justice Phillips agreed.

1. Scope of the reopening jurisdiction. CPR r 52.30 regulates, but does not enlarge, the existing jurisdiction to reopen a final determination. The conditions in rule 52.30 are not a broad discretion to revisit an allegedly wrong decision. The jurisdiction is confined to exceptional circumstances of the kind identified in Jaffray v The Society of Lloyd’s [2007] EWCA Civ 586 and Taylor v Lawrence.
2. Process failure required. The applicant must show that the impugned decision was not a proper judicial decision because the integrity of the earlier litigation process was critically undermined. The relevant vice is corruption or failure of process, rather than a merely incorrect result. A failure to grapple with or understand the issues may qualify, but an arguable error of law or a stronger presentation of the case later will not by itself do so. The court relied on Re Uddin (a Child) [2005] EWCA Civ 52, Municipio de Mariana and others v BHP Group Plc and another [2021] EWCA 1156 and Barclays Bank plc v Guy (No 2) [2010] EWCA Civ 1396.
3. Application of the test. Arnold LJ had grappled with the grounds put before him. Grounds 4 to 7 had been presented as dependent, to varying degrees, on Ground 2, but the skeleton argument did not say that permission on Ground 2 necessarily followed from permission on Grounds 1 and 3. The alleged error therefore did not come close to a process corruption. The application was also brought too late. Where an appeal proceeds on some grounds, an application to reopen refusal on other grounds should be made as soon as possible and well before the substantive hearing, so that a single hearing can take place.
4. Separate consideration of grounds. The Appeals from the Upper Tribunal to the Court of Appeal Order SI 2008/2834 and CPR r 52.7 permit the court to assess grounds separately. The court may allow grounds raising an important point of principle or practice while refusing others. It is not required to allow every arguable ground merely because one ground makes the appeal as a whole eligible for permission. Permission under CPR r 52.30(4) was therefore refused.

1. Court of Appeal (Civil Division): In the present judgment, permission under CPR r 52.30(4) to apply to reopen the refusal of permission to appeal was refused.
2. Court of Appeal (Civil Division): In [2021] EWCA Civ 1180, the appeal of the Games LLP was dismissed, while the appeals of the Film LLPs were allowed on Grounds 1 and 3.
3. Court of Appeal, Arnold LJ: On 24 February 2020, permission to appeal was granted on Grounds 1 and 3 and refused on Grounds 2 and 4 to 7.
4. Upper Tribunal (Tax and Chancery Chamber): In [2019] UKUT 226 (TCC), the contractual analysis of the First-tier Tribunal was substantially upheld, but none of the LLPs was held to be trading with a view to profit.
5. First-tier Tribunal: Decisions were given in [2017] UKFTT 429 (TC) and [2016] UKFTT 521 (TC).