QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN on the application of THOMAS HENRY HITCH
- and -
|HIS HONOUR STEPHEN OLIVER QC
Mr T H K EVERETT
(Two of the COMMISSIONERS FOR THE SPECIAL PURPOSES OF THE INCOME TAX ACTS)
ROGER STONE (HM INSPECTOR OF TAXES)
BEATRICE ANN HANDY
(3) IAN GEOFFREY HANDY
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
The Defendants did not appear and were not represented
David Ewart (instructed by Solicitor of Inland Revenue) for the First Interested Party
Crown Copyright ©
The Hon. Mr. Justice Evans-Lombe :
"It is now for the Commissioners to determine how the remitted matter should be heard in the circumstances. If Mr Hitch considers such directions as they give to be wrong in law then it would be open to him to seek judicial review of that decision but none of this in any way affects the order of the Court of Appeal."
"5 We are, we think, bound to deal with these appeals as continuing matters. Only in that way can we give effect to the Order of the Court of Appeal. For us to start again from scratch would involve our ignoring the judgment of the Court of Appeal rather than dealing with the matter in accordance with it. Nothing in section 45(3), which in terms regulates the proceedings before the Special Commissioners, limits the powers of the Court of Appeal to make an order under section 56(6)."
"(1) Anything to be done under any Act (including, except where otherwise expressly provided, any Act passed after this Act) by, to or before the Special Commissioners shall, except in any case where the Presiding Special Commissioner directs otherwise, be done by, to or before a single Special Commissioner.
(3) Proceedings brought in accordance with a direction of the Presiding Special Commissioner before two or more Special Commissioners may be continued and determined by any one or more of them if the parties to the proceedings have given their consent, and if the continuing Special Commissioner or Commissioners after such consultation as is practicable with any Special Commissioner retiring from the proceedings, is or are satisfied that to do so will avoid undue delay in the hearing of those or any other proceedings."
"(6) The High Court shall hear and determine any question or questions of law [arising on a Case Stated and transmitted to the High Court under regulation 22 of the General Commissioners Regulation], and shall reverse, affirm or amend the determination in respect of which the case has been stated, or shall remit the matters to the Commissioners with the opinion of the Court thereon, or may make such other order in relation to the matter as to the Court may seem fit."
"There is nothing to indicate that at the hearing of the 21st March 1991 anyone consented to the Tribunal sitting with only one lay member. The regulation which governs the constitution of tribunals is regulation 5(1) of the Industrial Tribunals (England & Wales) Regulations 1965, that reads subject to the provisions of paragraph 1(a) of this regulation:
"A tribunal shall consist of a chairman and two other members but, in the absence of any one member of a tribunal other than the chairman, an appeal may with the consent of the appellant and of the Board be heard in the absence of such member and in that event the tribunal shall be deemed to be properly constituted".
Then there are certain situations where the tribunal may be differently constituted but they are not relevant for present purposes.
It seems to us that there was no evidence whatsoever that there was consent from the Company for the constitution of the Tribunal on the 21st March and on the 11th February and Mr Lawton confirms that he was not asked to give his consent for the 16th June, so that for those hearings the Tribunal must be considered to have been improperly constituted. It seems to us therefore that we do not need to examine the substantial criticisms being made of the various other matters because we driven to the conclusion that the decisions of the 21st March 1991 and 11th February and 16th June 1992 have to be set aside."
"I think it is a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in court in the course of the trial before the jury and another judge, it not being a case of evidence being taken on commission or before an examiner."
"The matter, so far as I am concerned, would have been quite without difficulty as a matter of principle but for the observations of Scrutton LJ in Coleshill … ."
i) Section 31 subsections (3) and (4) of the Taxes Management Act 1970 provide that appeals under that Act shall be to the Special Commissioners in certain cases but otherwise to the General Commissioners. It is apparent, therefore, that appeals lie to the Commissioners as a body, in this case the body of Special Commissioners, in office at the relevant time. Had the position been otherwise the Act would have provided that appeals were to be to such of the Special Commissioners as had been nominated by the Presiding Special Commissioner to deal with the particular appeal. See also section 32(2) which provides for appeals in circumstances of a possible double assessment being to "any of the bodies of Commissioners [General or Special] having jurisdiction to hear an appeal against the assessment, …" and sections 33(4), 37(5), 39(4),(5), 46(1),(2), 48(1) and 49(2).
ii) Section 45(1) provides for a single Commissioner to deal with an appeal. However subsection (3) only expressly deals with the circumstance where one of two Special Commissioners is incapacitated. There appears to be no reason why the Presiding Special Commissioner should, as a matter of jurisdiction, have the power to replace a single incapacitated Commissioner but not one of two Commissioners.
iii) That section 45 was not intended by the legislature to deal with the jurisdiction of Commissioners to continue with appeals in circumstances of incapacity in mid case, is highlighted by the heading to the section "Quorum of Special Commissioners". In agreement with the submissions of Mr Ewart for the Inspector it seems to me that section 45 was intended by the legislature as an enabling provision not a preventive one designed to restrict the jurisdiction of Commissioners in certain cases. The section is to be contrasted with the legislation being considered by the courts in the cases of Coates and Quenchers referred to above.
iv) The position at common law is not one where the incapacity of a Commissioner (or any other judge) means that there is no jurisdiction to continue any case with which he was concerned at the time of his incapacity through a replacement Commissioner. If the legislature by enacting section 45(3) had intended the subsection to have such effect it would have used plainer and more consistent words in a section plainly demonstrated by its position in the Act to be intended to have that effect.