Imperium Trustees (Jersey) Limited v Jersey Competent Authority and another

For article 6(1) ECHR, the decisive question is the nature of the proceedings and the measure challenged. The exercise of public-law powers in tax matters lies within the hard core of public-authority prerogatives. That principle extends beyond assessing or collecting tax to closely connected investigation and enforcement measures, including a tax authority’s information notice.

Incidental effects on confidentiality, privacy or other civil rights do not change the proceedings’ essential nature. Judicial review of a third-party tax information notice therefore does not determine civil rights and obligations, and article 6(1) is not engaged. The Board allowed the appeal. It also indicated that Convention compatibility and any declaration of incompatibility should ordinarily be assessed by reference to the individual case and confined to the issue before the court.

Imperium Trustees (Jersey) Limited challenged a notice issued by the Jersey Competent Authority under the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008, as applied by the Taxation (Implementation) (Convention on Mutual Administrative Assistance in Tax Matters) (Jersey) Regulations 2014. The notice sought information for a Belgian tax investigation.

The Royal Court refused leave to apply for judicial review: [2022] JRC 300. The Court of Appeal granted leave and allowed the appeal: [2023] (1) JLR 229. In subsequent costs proceedings, it declared the International Co-operation (Protection from Liability) (Jersey) Law 2018 incompatible with article 6(1) ECHR: [2024] JCA 014. The JCA and the Attorney General appealed. The central issue was whether the judicial review proceedings engaged article 6(1).

Appeal allowed. The Board unanimously advised that article 6(1) ECHR was not engaged.

1. The Board followed the principle in Ferrazzini v Italy (2001) 34 EHRR 45, reinforced by Lindstrand Partners Advokatbyrå AB v Sweden (App No 18700/09) 20 December 2016. The exercise of public-law powers in tax matters forms part of the hard core of public-authority prerogatives. The principle is not confined to assessment or payment of tax. It may extend to investigation, enforcement and other closely related measures.
2. In public-law proceedings, article 6(1) depends on the nature of the proceedings and the measure challenged, not on the grounds relied upon or incidental effects on other civil rights. The judicial review proceedings concerned the legality of a notice issued under the Taxation (Exchange of Information with Third Countries) (Jersey) Regulations 2008 and the Taxation (Implementation) (Convention on Mutual Administrative Assistance in Tax Matters) (Jersey) Regulations 2014. Their core issue was whether the requested information was foreseeably relevant to Belgian tax laws under Regulation 1A of the 2014 Regulations.
3. The fact that Imperium was a third-party recipient did not alter that conclusion. Any confidentiality or article 8 ECHR issue was incidental. The Court of Appeal had therefore inverted the required approach by treating peripheral rights as more significant than the tax-information issue.
4. Issue 1 was decisive, so the Board did not determine the compatibility of article 2(1)(c) of the 2018 Law. It nevertheless observed that challenges under articles 4 and 5 of the Human Rights (Jersey) Law 2000 do not require victim status, and that compatibility normally requires evidence focused on the claimant’s individual circumstances rather than a hypothetical class.
5. A costs rule is not automatically incompatible with article 6. Any challenge requires fact-sensitive proportionality analysis. In assessing legitimate aim, the court may consider the legislation’s underlying social purpose and relevant extrinsic materials. Any declaration of incompatibility should have been confined to the costs rule as applied to challenges to tax information notices, rather than the 2018 Law generally.

• Privy Council — In [2025] UKPC 28, the appeal was allowed because article 6(1) ECHR was not engaged.
• Court of Appeal of Jersey — In [2024] JCA 014, the court declared the costs rule incompatible with article 6(1) ECHR and made no costs order.
• Court of Appeal of Jersey — In [2023] (1) JLR 229, the court granted leave to apply for judicial review and allowed the appeal from the Royal Court.
• Royal Court of Jersey — In [2022] JRC 300, the court refused leave to apply for judicial review and made no order as to costs.