Aubrey Weis v Commissioners for HM Revenue and Customs

When deciding whether to extend time for judicial review, the court applies the broader question whether there is a good reason to extend time. Relevant considerations include the importance of the issues, the prospects of success, prejudice, detriment to good administration and the public interest. Delay may be unjustified yet still warrant an extension where the claim is important and arguable, the defendant has suffered no material prejudice, and the proceedings would in any event have awaited related proceedings before another tribunal. A complaint or review process is not a suitable alternative remedy where it cannot determine the central public-law issue.

The claimant challenged HMRC’s closure notices for several tax years and the outcome of the statutory review upholding them. He alleged that HMRC’s earlier correspondence and subsequent conduct created a substantive legitimate expectation that he would continue to be treated as domiciled in Israel and would not be taxed retrospectively on a different basis.

Permission was refused on the papers because the claim was substantially out of time and allegedly unarguable. The claimant renewed the application and sought an extension of time, relying on HMRC’s complaints procedure, referral to the Adjudicator’s Office and alternative dispute resolution. The central issues were whether there was a good reason to extend time and whether the proposed legitimate-expectation claim was arguable.

1. Extension of time. Time began to run from the closure notices issued on 10 May 2019. It was reasonable to pursue the statutory review first, so the court examined the period after its conclusion. The claim was filed more than 30 months later.
2. The referral to the Adjudicator’s Office was not a suitable alternative remedy. Its remit did not extend to deciding whether a legitimate expectation existed. The fact that the claimant pursued that process nevertheless showed continuing engagement with the issue. A period of 14 months after the end of alternative dispute resolution was unjustified, particularly because the claimant had not chased the referral.
3. The applicable question was whether there was a good reason to extend time, not merely whether there was a good reason for the delay. The relevant considerations included the importance of the issues, prospects of success, prejudice, detriment to good administration and the public interest. The court applied the approach in Maharaj v National Energy Corporation of Trinidad and Tobago [2019] 1 WLR 983.
4. There was a good reason to extend time. The tax liability was substantial, the proposed claim was clearly arguable, HMRC had long known of the legitimate-expectation issue, and there was no evidence that delay had impaired its ability to defend the claim. The related appeal before the First-tier Tribunal would realistically have delayed any substantive judicial-review hearing in any event.
5. Permission. The claim was plainly arguable. Whether the expectation arose depended on the cumulative effect of HMRC’s statements and conduct, the claimant’s reliance, and whether he had provided full information in the domicile form.
6. Time was extended and permission to proceed with judicial review was granted.

Permission was refused on the papers by Jay J. The claimant renewed the application before the Administrative Court, which extended time and granted permission.