First-tier Tribunal (Tax)

[2010] UKFTT 224 (TC)

TC00525

 

   Appeal number: LON/2007/0374

                            

 

FIRST-TIER TRIBUNAL

TAX   

 

                                     CGI GROUP (EUROPE) LTD                    Appellant

 

                                                                      - and -

 

 

                                 THE COMMISSIONERS FOR HER MAJESTY’S

                                                   REVENUE AND CUSTOMS               Respondents

 

 

                                    TRIBUNAL:  JUDGE CHARLES HELLIER

                                                                       

 

DIRECTIONS WITH REASONS

 

 

Kevin Prosser QC for the Applicant,

Philippa Whipple QC for the Respondents

 

A.        The application

 

1.         The appellant seeks to add a new ground of appeal to its existing grounds of appeal and seeks directions for the service of additional evidence to support that ground of appeal at the hearing which is set for July 2010. The hearing is listed for five days and Mr Prosser was confident that the additional evidence and arguments could be dealt with in the allotted time.

 

2.         The appellant's new ground of appeal is that it had a legitimate expectation that it could rely upon the assurances which it says are contained in paragraph 3.2 of the Respondents' Notice 700/34 ("para 3.2"). Para 3.2 is referred to in the appellant's existing notice of appeal but no express argument is advanced on the basis of legitimate expectation.

 

3.         The application was made following the judgement of Sales J in Oxfam v HMRC 2009 EWHC 3078 Ch in which Sales J said that Oxfam’s claim based on public law principles and the doctrine of legitimate expectation could properly have been raised before the tribunal and that section 83(1)(c) VATA 1994  gave the tribunal in that case the jurisdiction to resolve the issue of legitimate expectation. Mr Prosser says that Oxfam is authority for the tribunal to consider the legitimate expectation argument in this appeal; Miss Whipple says that it is not.

 

4.         In his judgement, at [78], Sales J indicated that HMRC had agreed with his conclusion. Miss Whipple made it clear that the commissioners did not agree and regarded Sales J’s comment as having been recorded in error.

 

B.        Legitimate Expectation

 

5.         Two streams flow together in the developing law of legitimate expectation. The first is that derived from English common law, and the second that derived from article 1 of the first Protocol to the Convention for the protection of Human Rights as given effect in the Human Rights Act 1998.

 

6.         The differences between those two streams were explored by the Court of Appeal in Josie Rowland v The Environment Agency [2003] EWCA Civ 1885. At [66 - 68] Peter Gibson LJ summarised the English common law doctrine:  a denial by a public authority of a representation made by it which gave rise to a legitimate expectation in another person may amount to an abuse of power, but for an expectation to be legitimate the party seeking to invoke it must show that it was within the powers of the authority. It is through the High Court remedy of judicial review that the protection of such legitimate expectations has normally been enforced.

 

7.         The stream which derives from HRA 1998 arises in the following way. Article 1 of the Convention confers a right to the peaceful enjoyment of possessions subject to the right of the state inter alia to secure the payment of taxes. In Pine Valley Developments v Ireland 1991 14 EHRR 319, the ECHR found that a legitimate expectation relating to property may constitute a possession. The protection of a legitimate expectation may thus fall within article 1 of the protocol to the Convention. By section 6  HRA it may be unlawful for a public authority to act in a way incompatible with that right, and a person may, where the authority so acts unlawfully,  by section 7 bring proceedings to enforce that right or rely upon it in legal proceedings.

 

8.         The legitimate expectation right which arises in this way is different from that which arises under the common law in two relevant respects. First, it may arise notwithstanding the fact that it was beyond the powers of the authority to make the representation or realise the expectations (see Pine Valley and [85] of Rowland) (and although it may not entitle the claimant to a realisation which is beyond the authority's powers it may entitled him to a relief which is within its powers).

 

 

9.         Second, section 7(1)(b) expressly permits a person to rely upon Convention rights in any legal proceedings. That will include proceedings before this tribunal. Section 8 HRA requires the court or tribunal to grant such relief or remedy within its powers as it considers appropriate.

 

10.       In Oxfam v HMRC 2009 EWHC 3078 Ch Sales J said that it was within the jurisdiction of this tribunal to address claims of legitimate expectation in relation to an appeal under section 83(1)(c) VATA (an appeal with respect to the amount of input tax which may be credited to a person).

 

11.       It is clear that, although he does not distinguish between the two streams, Sales J had both in mind. That is  because he relies upon two House of Lords authorities in reaching his judgement. The first, Wandsworth LBC  v Winder  [1985] AC 461 was decided before the enactment of the HRA and deals with legitimate expectation without reference to that Act. The second,  Doherty v Birmingham City Council  [2008] UHHL 57, deals with HRA principles. It may be that Sales J had the HRA source of the doctrine uppermost in his mind, because, as Philip Sales QC, he appeared  as counsel for the Secretary of State for Communities and Local Government in Doherty.

 

12.       In this decision I shall follow the path along which I was led by Mr Prosser and Miss Whipple and consider the authorities on the jurisdiction of the tribunal in chronological order. Only the last three of these however were decided after the enactment of the HRA.

 

13.       I use the term “supervisory review jurisdiction” in this decision to indicate a jurisdiction in which the tribunal is required to consider whether an action or decision of the commissioners was unreasonable in the sense of encompassing a failure to consider relevant matters, the consideration of irrelevant matters, the making of a mistake of law, or the making of a decision which in the circumstances no reasonable body of commissioners could make. The phrase “supervisory jurisdiction” is used in some of the authorities with the wider connotation of a jurisdiction under which the conduct of the Commissioners may be interfered with. The supervisory review jurisdiction to which I refer is not as wide as a more general supervisory jurisdiction but has the  effect (though not the form)  of a subset of that wider jurisdiction

 

C.        The Authorities

 

14.       In C & E Comms v JH Corbitt (Numismatists) Ltd 1980 STC 231 the question was whether, in relation to an appeal against an assessment which depended upon a prior exercise of a discretion by the Commissioners, the tribunal had power under the then equivalent of section 83 VATA to review the exercise of the discretion. The House of Lords held that the form in which the discretion was given precluded such review, but Lord Lane said that there was another aspect of the matter, namely that if the Act was intended to give a supervisory jurisdiction clear words would be expected, and the drafting of (what was later expanded to) section 83 VATA by inference negated the existence of a "general supervisory jurisdiction".

 

15.       Mr Prosser argues that Lord Lane’s statement was obiter dictum, and that that was recognised by Sales J at [73 to 76] in Oxfam. Whether or not it was obiter, it seems to me that the reasoning by which the House of Lords reached its conclusion on section 83 is binding and that reasoning requires close attention to the words of the particular appeal provision. The particularity of the headings in section 83 indicates strongly to me that no general supervisory jurisdiction is intended.

 

16.       In Oxfam Sales J says that whilst section 83 does not confer a general supervisory jurisdiction it is a non sequitur to say that the tribunal has no power to apply public law principles relevant to an appeal within one of the headings. In other words depending on the nature of the heading there may be forms of relief which are akin to those available in judicial review which may be appropriate to the heading and which will require the consideration of public law principles. That does not seem to me to be a proposition at odds with Lord Lane’s statement.

 

17.       There seems little doubt that section 83 does confer a supervisory review jurisdiction in some cases:

 

(i) in Kohanzad v CCE 1994 STC 967 Scheimann J said that in relation to what is now section 83(1)(c) when considering a case where the Commisioners were given a discretion by the Act, that it was established that the tribunal exercised a supervisory jurisdiction;

(ii) in John Dee Ltd v CCE  1995 STC 941 (to which I shall refer below), the Court of Appeal held that the jurisdiction of the tribunal in relation to what is now section 83 (1)(l) was in effect limited to a supervisory review jurisdiction;

(iii) in  Banbury Visionplus v R&C Comms 2006 STC 1568 Etherton J held that a tribunal did not have a "limited" supervisory jurisdiction in relation to special methods; and

(iv) section 84(4) prescribes a supervisory review jurisdiction in relation to a particular type of appeal.

 

18.       Likewise section 16 FA 1994 provides for appeals "with respect to" certain "decisions" of the commissioners and in subsection (4) indicates that the power of the tribunal "shall be confined" to a supervisory role.

 

19.       I conclude that whilst a supervisory jurisdiction is not generally conferred by the provisions of section 83, it cannot be concluded that section 83 precludes the exercise of a jurisdiction which encompasses some elements of such a jurisdiction in all cases.

 

 

Aspin v Estill  1987 STC 723

 

20.       This related to the jurisdiction of the General Commissioners rather than that given by section 83 VATA.

 

21.       The Court of Appeal held that the General Commissioners' jurisdiction was "to see whether the assessment has been properly prepared in accordance with [the] statute”. The lawfulness of the assessment and the question as to whether HMRC could proceed to enforce the assessment were questions for the decision of the High Court, not the General Commissioners.

 

22.       I can draw no general conclusion from this case as to the effect of section 83 VATA, but I note the difference between the determination of an amount and the judicial review jurisdiction consisting of preventing the assessment of that amount.

 

23.       (In this connection I also call to mind the express provisions of section 83 (p) which permits an appeal both in relation to the making of an assessment and in relation to the amount of the assessment: on an appeal under the former heading an assessment may be set aside.)

 

Customs and Excise Commissioners v United Biscuits 1992 STC 325

 

24.       The tribunal held that under the terms of an extra statutory concession a tin of biscuits was zero rated. The Commissioners appealed on the basis, inter alia, that the tribunal had no jurisdiction to construe or apply a concession.

 

25.       The Court of Session held that as a matter of form it was accepted that the tribunal had erred in law in treating the issues in the appeal before it as arising out of the concession, and that as a result “at least formally” the first ground of appeal succeeded. This finding however was against the background of the acceptance by the taxpayer that it would have been wrong in law for the tribunal to construe or apply the concession. In the end the appeal was dismissed because the facts found by the tribunal justified zero rating: the tribunal’s approach to its jurisdiction did not undermine its decision.

 

26.       Although the Court addressed no reasoning to the question of jurisdiction its conclusion is persuasive authority on the issue, but it was decided without consideration of Wandsworth and before the enactment of HRA

 

John Dee Ltd v C and E Commissioners 1995 STC 941

 

27.       This concerned an appeal against a requirement that the Appellant give security.

 

28.       The decision illustrates to my mind the problems with terminology. Much ink seems to have been spilled over whether the jurisdiction of the tribunal was appellate or supervisory, and the conclusion was reached that whilst it was appellate it had to be exercised in the same way as a Wednesbury supervisory jurisdiction. I emphasise the meaning of "supervisory review jurisdiction" that I set out the beginning of this decision.

 

29.       Neill LJ held that in determining the powers and jurisdiction of the tribunal on any appeal under section 83 it was necessary to examine the nature of the decision against which the appeal was brought and any special statutory provisions. Those provisions in that case dictated a "supervisory review  jurisdiction” by the tribunal.

 

30.       This seems to me to be key to the resolution of the issue in this application. What must be examined is the nature of the relevant appeal provision in section 83, the nature of the subject matter against which the appeal is brought, and the related statutory provisions. (The version of section 83 which was relevant in John Dee spoke only of an appeal against a decision of the Commissioners in relation to one of the matters in the list which followed. The formulation in section 83 is different: it speaks of an appeal with respect to the listed matters -- some of which are decisions, and some of which are amounts of VAT or other matters. Thus it may also be relevant to consider whether the appeal is in respect of a decision or an amount or another matter.)

 

Commissioners of Customs and Excise v Arnold  [1996] EWHC Admin 52

 

31.       In this case the taxpayer’s claimed entitlement depended entirely on the application of an extra statutory concession. There was no entitlement under the relevant legislation. The tribunal did not apply the concession directly. Instead it relied upon section 84(10) which permitted the tribunal to allow an appeal against a decision if it would have allowed an appeal against a prior decision on which the decision under appeal depended even if it did not have jurisdiction in relation to that prior decision.

 

32.       Hidden J held that section 84(10) had no application because there was no prior decision: there was simply one decision namely that the extra statutory concession did not apply. He said that as a result he was satisfied that there was no basis for the tribunal assuming jurisdiction. Thus he held that the tribunal had no jurisdiction in the operation of the concession or to quash the decision of the Commissioners not to apply it. Mr Prosser says that Hidden J’s statement that the tribunal had no jurisdiction in relation to the concession must be understood in the context of his concentration on section 84(10), but the argument before Hidden J encompassed a consideration of the appellate or supervisory nature of the jurisdiction in relation to particular subparagraphs of section 83 (see [77 and 79]); and the possibility of a basis for a supervisory jurisdiction outside section 84(10) seems to me to be alluded to in [93]. I conclude that whilst the judgement relates principally to the operation of section 84(10) and records little argument on the scope of section 83(g) – under which the appeal was brought – it is implicit that Hidden J considered that the tribunal did not have a supervisory jurisdiction under that section to quash the decision of the Commissioners not to apply the concession.

 

33.       I note however that there was no consideration of Wandsworth and that the decision predates the HRA.

 

34.       The following cases were decided after the enactment of the HRA.

 

Marks and Spencer Ltd v Commissioners of Customs and Excise  [1999] STC 205

 

35.       At the end of his judgement in this case Moses J dealt with an appeal against the tribunal's refusal of jurisdiction. He said that this point had become academic. He dealt with the issues shortly but said:

 

(i) to the extent that the issues related to community law principles of equality of treatment or against discrimination he did not see why the tribunal had disclaimed jurisdiction;

(ii) but to the extent that the claim was focused upon the conduct of the Commissioners the tribunal had no jurisdiction in relation to the supervision of that conduct (a comment which, in the general context of section 83 which includes, as I have noted above, forms of supervisory review jurisdiction, must mean a general jurisdiction to regulate their conduct rather than its effects.); and

(iii) that no submission had been advanced in relation to the Commissioners' conduct giving rise to a legitimate expectation over and above the arguments relating to legal certainty.

 

36.       I do not understand that by this Moses J is saying that arguments in relation to legitimate expectation cannot be considered by a tribunal in relation to the determination of an amount of tax, rather he says that supervising the conduct of the Commissioners by preventing them doing something or requiring them to do something is not generally within the tribunal's jurisdiction.

 

37.       Customs and Excise Commissioners v National Westminster Bank plc [2003] EWHC 1822 Ch [2003] STC 1072

 

38.       In this case the Commissioners had invoked the defence of unjust enrichment against the appellant's claim for repayment of VAT, but had not invoked that defence in relation to the appellant’s rivals’ claims. Jacob J considered whether the complaint of unfair treatment was within the jurisdiction of the tribunal under section 83(1)(t) – (a claim to repayment of VAT which was not due).  The appellant conceded that under domestic law the tribunal did not have jurisdiction, but relied upon EU principles of effectiveness and equivalence. Jacob J:

 

(i) agreed with Moses J in the Marks and Spencer  case that the tribunal had no jurisdiction as to the supervision of the Commissioners' conduct (a statement which must be subject to those provisions of section 83 which do give a form of supervisory review jurisdiction and therefore must relate to a wider form of supervision of conduct);

(ii) said that the EU principles of effectiveness and equivalence did not require that the tribunal, rather than the High Court should have jurisdiction to implement those principles;

(iii) having noted that section 83(1)(t) confers jurisdiction in relation to the repayment of an amount which was not VAT due, said that the essence of the unfair treatment case was not that the VAT was not due, but that even though it was due it should be repaid because the trade rivals had been repaid. That was outwith section 83(1)(t); and

(iv) made no mention of the HRA principles.

 

39.       It seems to me that in (iii) Jacob J drew a distinction between a claim which related to the amount of VAT due, and a claim to require the Commissioners to act in a certain way.

 

 Oxfam

 

40.       The appeal before Sales J came before him both as an appeal from the tribunal and as an application for permission for a judicial review. Although certain paragraphs of his judgement treat the legitimate expectation argument as separate from the appeal against the tribunal's decision (see [42) and [60]), it is clear that he did not grant permission for judicial review ([5]) and thus his decision that the tribunal had jurisdiction to hear the legitimate expectation argument was a necessary part of his reasoning in determining the appeal.

 

41.       It was section 83(1)(c) which was relevant in this appeal. That section makes no reference to any decision of the Commissioners. Section 83(1)(c), unlike section 83 (t), which was considered in National Westminster Bank, does not refer to a particular underlying section of the VAT Act: section 83(1)(t) referred to "a claim for repayment of an amount under section 80”. Sales J by contrast was dealing only with the words "an appeal with respect to ... the amount of any input tax which may be credited".

 

42.       The difference in the statutory words may explain the difference in the approach of Sales J and Jacob J. It is implicit it seems to me in Sales J’s judgement that the effect of a legitimate expectation might be to change the amount of VAT which might be credited. By contrast such an expectation in National Westminster Bank would not have affected an amount of VAT due or given rise to a repayment; rather it could have given rise to an obligation of the Commissioners to give effect to the legitimate expectation by making a payment. The remedy sought was the making of a payment rather than a repayment. Further the claim made by the taxpayer in National Westminster related to HMRC’s general conduct towards taxpayers rather than conduct giving rise to a legitimate expectation in one taxpayer. On these bases I see no inconsistency between the two judgments.

D. Discussion

 

43.       I draw the following conclusions from this review:

 

1.     the nature of the tribunal's jurisdiction is dependent upon the words of the relevant paragraph of section 83 and any underlying statute. Close attention is required to those words;

 

2.     whilst none of the provisions of section 83 confer a general supervisory jurisdiction, some confer a form of supervisory review jurisdiction;

 

3.     public law principles may be relevant to a particular form of appeal, and depending upon the nature of the appeal, the tribunal may therefore have jurisdiction to apply those principles. In particular an appeal in relation to any "decision" of HMRC may well be one in which the tribunal's jurisdiction may be supervisory review and in which it may be appropriate to consider whether, by reason of representations made or otherwise, that a decision was "unreasonable”;

 

4.     public law remedies  will be relevant however only if they are encompassed by the nature of the specific appeal in the relevant subparagraph of section 83. There is thus no general power to direct HMRC’s actions although there are specific powers to set aside its decisions;

 

5.     even if United Biscuits or Arnold were authority for the proposition that the tribunal did not, at the time those cases were decided, have jurisdiction to apply or construe a concession in determining an amount for the purposes of section 83, those cases were decided before the enactment of HRA, and must therefore be subject to the effects of that Act; and

 

6.     it is implicit in the judgement of Sales J that to the extent that the doctrine of legitimate expectation can affect the amount of input VAT which may be creditable (rather than the ability of the Commissioners to enforce its collection) the determination of the relevant amount is within the jurisdiction of the tribunal under section 83(1)(c);

 

44.       With those conclusions in mind I turn to whether or not a legitimate expectation could affect the “VAT chargeable” on a supply within section 83(1)(b). If it could do so then it seems to me that none of the authorities indicate that consideration of the legitimate expectation is outside the jurisdiction of the tribunal unless the expectation could be given effect only by requiring the Commissioners to do something: for such resolution is outside the nature of an appeal in relation to “VAT chargeable”.

 

45.       For the following reasons I conclude that a legitimate expectation could affect the determination of the VAT chargeable and that therefore the issue is within the jurisdiction of the tribunal.

 

46.       In Bulves v Bulgaria  [2009] ECHR 143 of the ECHR said that possessions for the purposes of the Convention could encompass claims in respect of which the appellant can argue that he has at least a legitimate expectation of obtaining effective enjoyment of a property right, and held that a potential legitimate expectation arose in relation to a repayment of Bulgarian VAT notwithstanding the fact that under the relevant domestic statutory provisions the rights to the VAT repayment had not arisen (as a result of a default by supplier of which the applicant was unaware).

 

47.       It therefore seems to me that, given the three limbs of article 1, either (i) a legitimate expectation not to pay tax is itself a possession for the purposes of the convention and potentially subject to the protection afforded by the Convention, or (ii) the protection afforded by article 1 in relation to the property to be used to pay that tax should be afforded the same protection as that expectation. In that context an interference with a possession, whether resulting from a failure to repay input VAT or demand for the payment of taxes, must be examined in the same manner to determine whether a "fair balance" has been struck between the demands of the general interest of the community and the requirements for the protection of the individual’s fundamental rights (see Bulves  [62]).

 

48.       Thus it appears to me that a legitimate expectation that tax would not be payable gives rise to a question as to whether or not, in seeking that tax the Respondents were acting unlawfully for the purposes of section 6. If the Respondents were so acting that it seems to me that the appellant is permitted by section 7(1)(b) to rely upon such unlawfulness in the proceedings before the tribunal.

 

49.       That leaves the question as to whether the tribunal, if it considers that in seeking the relevant tax the Respondents have acted unlawfully, can grant any relief under section 8 HRA. Section 8 permits the tribunal to grant relief or remedy within its powers. Although this issue is not made explicit in the judgement of Sales J it seems to me that in relation to an appeal relating to an amount of tax it does not overly stretch the power given by section 83(1)(c) VATA for the tribunal to grant that remedy by determining the input tax, and in relation to an appeal in relation to the VAT chargeable on the supply under section 83(1)(b) by holding that it is less than that argued for by HMRC (or, to the extent that the appeal is under section 83(1)(p) (an assessment or the amount of the assessment) to hold that the assessment should be less than asserted or that the assessment itself was wrongly made).

 

50.       Miss Whipple pointed to the provision of TCE 2007 which give the Upper Tribunal jurisdiction to hear judicial review claims in designated circumstances. If I am right that the effect of the HRA was to vest in the FTT the obligation to provide in certain circumstances a remedy in relation to legitimate expectation, then I cannot see that the vesting of a wider jurisdiction than that in the Upper Tribunal can deprive the FTT of that more limited  jurisdiction without clear words.  This conclusion does not make nonsense of the relevant provision of the TCE 2007 and the rules made under it: the powers and obligations which may be given to the Upper tribunal under those rules are wider than the limited consideration of the public law issues related to giving effect to a legitimate expectation under a specific heading of section 83 (in relation to a decision, a consideration of its reasonableness; and in relation to an amount of VAT chargeable, a determination having regard to such an expectation.)

 

51.       Miss Whipple says that the essential feature of a legitimate expectation claim is that the taxpayer is claiming to be taxed otherwise than in accordance with the law, and that Sales J failed to appreciate this when he said that he saw “no sensible basis… for differentiating between Oxfam’s contractual claim and its legitimate expectation claim”. In the context of the common law contribution to the doctrine of legitimate expectation I accept the strength of this submission (although to some extent as Mr Prosser submitted it assumes a limited meaning of the words in section 83), but in the context of the Convention, the rights of the taxpayer are rights under the law. The taxpayer is seeking to enforce those rights in accordance with the law, not seeking to prevent his being taxed in accordance with the law.

 

52.       Miss Whipple points to the wider consideration of fairness across the whole body of taxpayers which may be inherent in the adjudication of a judicial review claim. She says that the Administrative Court is the appropriate forum for that adjudication. But other Courts and tribunals already share some part of that jurisdiction: the county Courts in issues relating to the reasonableness of a local authority’s decision to increase a rent (Wandsworth) and this tribunal in relation to a decision of HMRC to seize a car or to seek security for VAT. But of the three types of legitimate expectation identified by Lord Woolf in  R v North and East Devon Health Authority es parte Coughlan [2001] QB 213 it is the third which is relevant in a tax appeal, and as Laws LJ noted in R v Secretary of State for Employment ex parte Begbie  [2000] 1 WLR 1115 at 1131 such a case’s facts “may be discrete and limited, having no application for an innominate class of person. There may be no wide ranging issues of general policy or none with multi-layered effects, upon whose merits the court is asked to embark”. I was not persuaded that the balancing act in this legitimate expectation claim would involve a wider consideration of fairness.

 

53.       Miss Whipple also referred to the strict time limits for judicial review. But the time limit for appealing to this tribunal is shorter. I am not able to comment on the relative degree of latitude afforded to applicants trespassing over those limits, but if the object of the time limit is to give the authority early notice of a claim which could affect its operation and finances so that it may plan taking into account the challenge, then precisely the same object may be seen in the time limits applicable to challenges by a taxpayer to HMRC’s operation of the tax system.

 

54.       Because of my conclusions in relation to the effect of HRA I have not considered in this decision the question of whether or not as a matter of EU law the legitimate expectations for which the Appellant contends might also be given effect under the general principles of that law.

 

E.        Conclusion

 

55.       It therefore seems to me that there is at least a case which, if put before the tribunal, could lead to a remedy within its powers. As a result it seems to me that it is within the powers of the tribunal to hear argument and evidence in relation to these issues.

 

56.       I should also say that it seems to me that given the possible uncertainty surrounding the issue of legitimate expectation, it would be fairer and more expedient for the FTT to hear the relevant evidence and make its findings of fact at the same time as it considers the other issues, rather than for the issue to be left in abeyance pending the possibility that a higher court may resolve the issue in a way which requires further findings of fact by the tribunal.

 

57.       I should emphasise that I am not concluding (1) that the appellant had a legitimate expectation, (2) that that expectation was protected by the Convention, or (3) that the Respondents acted unlawfully within section 6 (1) HR Act. In that latter context I note in particular the judgement of the House of Lords in ex parte Wilkinson [2005] UK HL 30 in relation to section 6 (2) HRA and the extent of the Respondents’ powers under section 1 Taxes Management Act 1970. Those matters however are properly within the jurisdiction of the tribunal in considering the claim legitimate expectation made by the appellant. Only if it were quite clear that any of them would be decided against the appellant would be appropriate at this stage to refuse to hear the argument.

 

58.       The express reliance on the legitimate expectation claim was not wholly without warning in the Appellant’s notice of appeal. It seems to me that there is little prejudice which will arise to the Respondents as a result of letting the point be argued expressly.

 

59.       I therefore make the directions sought by the Appellant.

 

 

CHARLES HELLIER

             TRIBUNAL JUDGE

 

             Release Date: 27 April 2010

 

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