Tax Returned Limited & Ors, R (on the application of) v The Commissioners for His Majesty’s Revenue and Customs

Alternative service under CPR 6.15 requires a holistic assessment of whether there is good reason to validate steps bringing a claim form to the defendant’s attention. Relevant factors include the claimant’s compliance with the service rules, the defendant’s knowledge of the claim form before expiry, and prejudice, including loss of a limitation defence. Knowledge alone is insufficient.

For judicial review, time ordinarily runs from the date on which the challenged decision has legal effect, rather than from an earlier foreseeable or provisional decision. A consultation challenge does not automatically cause time to run from the date on which the alleged failure to consult was decided.

Three high-volume tax agents brought two substantially identical judicial review claims concerning HMRC’s introduction of a mandatory P87 form for claims to employment-expense tax relief. The claims challenged the commencement date, the inclusion of an employer PAYE reference field, the alleged threat to suspend processing, and the absence of consultation.

The court determined applications concerning service of the first claim, the time limit under CPR 54.5, and permission to seek judicial review. The first claim form had been emailed to HMRC lawyers and delivered in a bundle to an address which was not the prescribed address for service. The central issues were whether those steps constituted valid or alternative service, when time began to run, and whether the substantive grounds were arguable.

1. Service. The claim form in JR1 was not validly served under the rules. Emailing it to an individual HMRC solicitor did not comply with PD 6A para 4.1 because that solicitor had not indicated in writing that the address could be used for service. The prescribed physical address was not used.
2. Multiple email addresses. PD 6A para 4.1 contemplates the provision of one email address or other electronic identification. Providing two addresses did not give the claimant a right to elect between them. The serving party had to use a prescribed method or obtain clarification.
3. Alternative service. Applying Barton v Wright Hassall LLP [2018] UKSC 12 and the principles summarised in R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWCA Civ 355, there was nevertheless good reason to validate the email service. The defendant knew the claim form’s contents before expiry, and retrospective validation caused no reasonably arguable limitation prejudice. Those matters outweighed the claimants’ failure to take reasonable steps, although knowledge alone would not have sufficed. Application 3 was therefore granted under CPR 6.15(1).
4. Time limits. Following R (Burkett) v Hammersmith and Fulham London Borough Council [2002] UKHL 23, time ran from 7 May 2022, when the Direction acquired legal effect. The possibility of an earlier challenge to an anticipated decision did not start time. R (Nash) v Barnet London Borough Council [2013] EWCA Civ 1004 was factually distinguishable and did not establish a general consultation rule. The earlier approach in R v Secretary of State for Trade and Industry ex p Greenpeace Ltd [1998] Env LR 415 had been overruled in Burkett.
5. Outcome. The declaration that JR1 had already been validly served was refused, but alternative service was authorised. Directions were varied, JR2 was to be brought to an end, and permission to apply for judicial review was granted on all grounds because each was arguable with a realistic prospect of success.

This was a first-instance decision of the Administrative Court. It determined Applications 1–3 concerning service and case management, and granted permission to apply for judicial review.