In Glencore Energy UK Limited v Revenue & Customs Commissioners [2017] EWCA Civ 1716, the Court of Appeal has emphasised that it is only in the most exceptional circumstances that the Courts will intervene by way of judicial review when there is a statutory appeal process available.

Key Points

·The Court reiterated the basic principle that judicial review is a remedy of last resort such that, where an alternative remedy exists, it should be exhausted before any application for judicial review is made.

·For the Court to interfere where Parliament has provided a statutory appeal procedure there must be exceptional circumstances, such as a serious error of law amounting to an abuse of power or where a public authority is acting "in defiance of the rule of law".

Background

The relevant statutory regime under Part 3 of the Finance Act 2015 ("FA 2015") establishes a six-stage procedure governing the imposition of a Charging Notice for Diverted Profits Tax ("DPT"). Firstly, a Designated Officer of HMRC must issue a Preliminary Notice within 24 months after the end of the relevant accounting period. The taxpayer has 30 days to make representations and then the Designated Officer has 30 days to consider those representations and decide whether to issue a Charging Notice. Once a Charging Notice is issued, the taxpayer must pay the DPT within 30 days. The Designated Officer must then review the case and in the following 12 months may issue a notice to reduce or increase the DPT due. The taxpayer then has 30 days from the end of the review period to lodge an appeal to the First-tier Tribunal ("FTT"). The appeal is a full merits appeal on the law and on the facts. If the taxpayer's appeal is successful, it will be repaid the money it is owed with interest.

Glencore Energy UK Limited ("Glencore") was issued with a Charging Notice and paid the assessed DPT amount within the time limit, following which the Designated Officer began the statutory review. Rather than waiting to appeal under the statutory scheme, Glencore issued a claim for judicial review of the Charging Notice.

The High Court refused permission for judicial review, but on appeal permission was granted on the papers and the Court of Appeal considered the substantive judicial review challenge for itself.

Glencore argued that the review and appeal procedure did not provide a suitable alternative remedy as Glencore would be out of pocket for the 12 month review period and then for the further period of any appeal in circumstances where it may then transpire that the amount of tax paid was not in fact due. It was submitted that if the Court could see an error it should immediately step in and quash the decision, without waiting for the statutory appeal procedure to be followed.

The Judgment

The Court of Appeal emphasised that only in exceptional cases will there be a compelling need for the Court to intervene by way of judicial review, overriding the normal considerations which ordinarily mean that the statutory appeal process should be treated as the suitable remedy to be pursued. Not every arguable error of law will be within this category. The examples discussed in previous case law of such exceptional circumstances include an abuse of power or acting "in defiance of the rule of law", such as if there was evidence of the Designated Officer having been bribed to issue a Charging Notice or if he did so in breach of a promise not to issue a Charging Notice which gave rise to an enforceable legitimate expectation which could not be vindicated in an appeal. There was said to be nothing exceptional about the arguments put forward by Glencore.

The review period may mean that an ultimately successful taxpayer is out of pocket for longer. But that feature did not in the Court's view make the case an exceptional one. The regime established by Parliament requires the DPT charged to be paid at an early stage, with a period of review to follow before appeal, with the protection that if the taxpayer is ultimately successful on appeal, HMRC will have to repay the money with interest. Parliament's view is that this approach creates a fair balance between the interests of the public in the prompt payment of tax which is due and the interest of the taxpayer should it eventually show that tax was not in fact due. The Court found this was a reasonable position to take and did not think it should supplement the remedies provided for by Parliament by way of judicial review. There was no clear fundamental unfairness to the taxpayer in this process which could justify the Court diverting from the statutory process.

Parliament had introduced the mandatory review stage with the aim of encouraging the taxpayer to engage with HMRC to seek to agree what could be complex factual issues. A review period would allow such issues to be assessed within a reasonable timeframe and allow for the taxpayer to provide any further relevant information. It could therefore be seen as a form of alternative dispute resolution procedure in which HMRC and the taxpayer are encouraged to try and agree the amount of DPT due and limit the issues which may end up being disputed on appeal. This legitimate objective would be undermined if the Court became involved through judicial review. Such interference could only be justified in the type of exceptional case referred to above.

Lord Justice Sales, giving the leading judgment, indicated that he would have refused permission for judicial review, as the High Court had done. However, since permission had been granted on the papers, the Court instead exercised its discretion to refuse to grant relief due to the existence of a suitable alternative remedy.

In any event the Court did go on to consider the grounds of challenge (including irrationality and failure to give adequate reasons), concluding that none of them were made out.

Comment

The Court is only likely to interfere by way of judicial review where Parliament has provided a clear legislative route of appeal in exceptional circumstances involving an abuse of power.  The Court of Appeal's judgment emphasised the numerous policy objectives underlying this approach.

The fact that an ultimately successful taxpayer may be denied its money for longer does not make a case exceptional.  This case therefore illustrates how strictly the alternative remedy principle will be applied, even if there appears to be unfairness in the statutory regime.