Michael Ashley v The Commissioners for HMRC

A court may determine issues raised by an application before determining other issues under Civil Procedure Rules 1998, rule 3.1(2)(k), including where the application has already been listed. A prior paper order giving directions does not preclude variation where the order expressly permits an application to vary or discharge it. However, a two-stage determination requires a powerful case-management justification. Where the first stage would not dispose of the whole application, involves potentially factual disputes or substantial legal argument, risks inefficiency and costs, and offers no substantial preparation advantage, the overriding objective will generally favour a single hearing.

The claimant had obtained an order requiring HMRC to provide further personal data and explanations following findings that HMRC had unlawfully handled his subject access request. He then made an Enforcement Application alleging incomplete compliance and seeking further directions.

Collins Rice J directed that the application be listed and required HMRC to respond by evidence. HMRC applied for an earlier half-day hearing to determine threshold issues, including alleged abuse of process and whether relief under section 167 of the Data Protection Act 2018 was available. The issue was whether the Enforcement Application should be divided into a preliminary hearing and a later substantive hearing.

1. HMRC’s application was dismissed. The Enforcement Application was to proceed at a single hearing, with an agreed time estimate of three days.

2. The court had power under rule 3.1(2)(k) of the Civil Procedure Rules 1998 to determine issues raised by the Enforcement Application before determining other issues. The claimant’s reliance on the White Book guidance concerning review of interim orders was misplaced because Collins Rice J had determined the application on the papers, rather than making an interim order, and had expressly given liberty to apply to vary or discharge it.

3. Nevertheless, the prior order and the circumstances in which it was made supported the conventional course of determining the application in one hearing. HMRC had to show a powerful case-management justification for departing from that course.

4. No such justification was established. A first-stage decision would not dispose of the whole application because issues concerning redactions would remain. The proposed time estimate was likely to be inadequate, and the issues might involve factual disputes and extensive argument concerning whether section 167 of the Data Protection Act 2018 could ground enforcement of the earlier order.

5. Dividing the application risked inefficiency, additional cost and determining the statutory relief issue in the abstract, without the facts. A single hearing was also unlikely to require substantially greater preparation by HMRC. The court expressed no concluded view on the substantive abuse-of-process and enforcement arguments, which were left for the judge hearing the Enforcement Application.