|[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]|
England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Derrin Brothers Properties Ltd & Ors, R (on the application of) v A Judge of the First Tier Tribunal (Tax Chamber) & Ors  EWCA Civ 15 (15 January 2016)
Cite as:  4 All ER 203, 18 ITL Rep 472,  WLR(D) 10,  EWCA Civ 15,  STI 209,  STC 1081,  1 WLR 2423,  WLR 2423,  BTC 10
[New search] [Context] [View without highlighting] [Printable RTF version] [Buy ICLR report:  1 WLR 2423] [View ICLR summary:  WLR(D) 10] [Help]
ON APPEAL FROM HIGH COURT OF JUSTICE ADMINISTRATIVE COURT
Mrs Justice Simler DBE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE DAVIS
LORD JUSTICE VOS
|on the application of|
|DERRIN BROTHERS PROPERTIES LTD & OTHERS||Appellants|
|A JUDGE OF THE FIRST TIER TRIBUNAL (TAX CHAMBER)||First Respondent|
|THE COMMISSIONERS FOR HER MAJESTY'S REVENUE AND CUSTOMS|
|and HSBC BANK plc||Second Respondents|
|LUBBOCK FINE LLP||Interested Parties|
MissJulie Anderson (instructed by Solicitor and General Counsel to the Commissioners for Her Majesty's Revenue and Customs) for the Second Respondents
Hearing dates : 8th December 2015
Crown Copyright ©
The Chancellor (Sir Terence Etherton):
The legal framework
"Exchange of information
1. The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant to … the domestic laws of the Contracting States concerning taxes to which this Convention applies insofar as the taxation under those laws is not contrary to this Convention. … Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Convention applies. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall obtain that information in the same manner and to the same extent as if the tax of the first-mentioned State were the tax of that other State and were being imposed by that other State, notwithstanding that the other State may not, at that time, need such information for the purposes of its own tax."
"2. Power to obtain information and documents from third party
(1) An officer of Revenue and Customs may by notice in writing require a person–
(a) to provide information, or
(b) to produce a document,
if the information or document is reasonably required by the officer for the purpose of checking the tax position of another person whose identity is known to the officer ("the taxpayer").
(2) A third party notice must name the taxpayer to whom it relates, unless the tribunal has approved the giving of the notice and disapplied this requirement under paragraph 3.
(3) In this Schedule, "third party notice" means a notice under this paragraph.
3. Approval etc of taxpayer notices and third party notices
(1) An officer of Revenue and Customs may not give a third party notice without–
(a) the agreement of the taxpayer, or
(b) the approval of the tribunal.
(2) An officer of Revenue and Customs may ask for the approval of the tribunal to the giving of any taxpayer notice or third party notice
(2A) An application for approval under this paragraph may be made without notice (except as required under sub-paragraph (3)).
(3) The tribunal may not approve the giving of a taxpayer notice or third party notice unless–
(a) an application for approval is made by, or with the agreement of, an authorised officer of Revenue and Customs,
(b) the tribunal is satisfied that, in the circumstances, the officer giving the notice is justified in doing so,
(c) the person to whom the notice is to be addressed has been told that the information or documents referred to in the notice are required and given a reasonable opportunity to make representations to an officer of Revenue and Customs,
(d) the tribunal has been given a summary of any representations made by that person, and
(e) in the case of a third party notice, the taxpayer has been given a summary of the reasons why an officer of Revenue and Customs requires the information and documents.
(4) Paragraphs (c) to (e) of sub-paragraph (3) do not apply to the extent that the tribunal is satisfied that taking the action specified in those paragraphs might prejudice the assessment or collection of tax.
(5) Where the tribunal approves the giving of a third party notice under this paragraph, it may also disapply the requirement to name the taxpayer in the notice if it is satisfied that the officer has reasonable grounds for believing that naming the taxpayer might seriously prejudice the assessment or collection of tax."
"It is my belief that the entities noted above may hold information that is directly relevant to your tax and financial affairs and that, in particular albeit without prejudice to the general nature of the ATO enquiries that:
(a) sums remitted from companies controlled by or on behalf of yourself may represent taxable income,
(b) sums remitted from companies controlled by or on behalf of yourself and paid directly to other parties and institutions may represent taxable emoluments and
(c) companies controlled by or on your behalf may properly be resident in Australia for tax purposes."
The judicial review proceedings
"the dispute currently at issue is not a dispute of this kind. … [I]t relates to the lawfulness of the searches of the premises and the seizures to which the Appellants were subject: at its heart is the question of disregard or otherwise by the authorities of their right to respect for the home. The "civil" character of this right is clear, as is its recognition in domestic law, which results not only from article 9 of the Civil Code … but also from the fact that the Convention, consecrated by article 8, applies directly in the French legal system."
" The Court reiterates that art.6(1) secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal. This "right to a court", of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of art.6(1) .
 The right of access to the courts is not absolute but may be subject to limitations; these are permitted by implication since the right of access:
"[B]y its very nature calls for regulation by the state, regulation which may vary in time and in place according to the needs and resources of the community and of individuals." [See Ashingdane v United Kingdom (1985) 7 EHRR 528 at ]
In laying down regulation [on the right of access], the contracting states enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention's requirements rests with the Court, it is no part of the Court's function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with art.6(1) if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved."
Lord Justice Davis:
Lord Justice Vos: